Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-02-10

Gh1OONLIA0 EAlIL4\ NO
MUCH AFFECTED-A LARGE AT
TENDANCE IN THE COURT
ROOM DURING THE SOLEMN
PROCEEDINGS - AN APPEAL
WILL BE TAKEN.
The anticipated refusal of Judge
Hugus, of the Criminal Court, to grant
new trial to Clarence Johnson and
Hugh Devinney, convicted of the muir
der of Charles Mclaughlin, last Sep
TENDER, On Market street. near the
creek bridge, was announced in open
Court yesterday afternoon, between the
hours of three and four o'clock. The
motions for new trial and in arrest
of judgment were denied, to the sur
prise of no one, and sentence was
passed according to law.
The scene in the Court room was
necessarily a most solemn one. The
attendance Of spectators was quite
large, for the news that the decision
of the Court was coming was widely
known soon after noon, and many went
to the county building to hear and see
what was to transpire. The Court
room was opened at three o'clock by
Sheriff Richards, but Judge Hugus did
not make his appearance until twenty
five minutes later. Counsel for both
sides were represented, the State by
Prosecuting Attorney Meyer and the
defense by S. o. Boyce and Capt B. B.
Dovener A considerable number of
attorneys took seats in the Court room
between three o'clock and the formal
opening of Court.
Judge Hugus took his seat at 1895
p. M, and at once instructed the Sheriff
to bring in the prisoners. In about two
minutes the Sheriff and y deputy ap-
peared with the convicted men, and
they quietly took the same seats they
occupied during the trial of the case
Devinney looked flushed about the face,
and Johnson little paler than usual
but Otherwise no change could be no.
LCu III tllC CWO Hull plotCCu III SUN oil
awful predicament. The counsel for
the prisoners consulted briefly with the
prisoners, and then Judge Hugus said
the Court would proceed to pass upon
the motion for new trial, and began
the reading of his opinion. 1t was, in
part, as follows:-
''The motion for a continuance in
this case, based upon the absence of
the witness and overruled by the Court,
was in no way prejudicial to the pris-
Oners, because the absent witness ap-
peared early in the progress of the
case in the Court, long before her tes-
timony was required, and remained in
attendance as a witness, and testified
fully for the defendants, thereby cur
ing any error there might have been
in overruling the motion for a contin-
uance.
The petition for a change of venue,
being verified, may be considered both
as a petition and affidavit in support
thereof. 1t charges, first, that the
three papers of the city published
shortly after the homicide eXparte and
prejudicial statements against the de-
PENDANTS, and upon the events and cir
cumstances of the homicide, and that
the defendants were guilty of murder;
second, that the city and the county of
Ohio have been further prejudiced
against the defendants by the aforesaid
publications; third, that this prejudice
has been further heightened by enemies
of the prisoners and friends of the de-
ceased; fourth, that the public mind
was unduly and falsely prejudiced
against them; fifth, that as a result a
public subscription was started to raise
funds to employ and pay counsel to
assist in the prosecution of the prison
ers, and that quite a sum was thus
raised and counsel employed. They
charge one August Myers as aware of
the above fact and unfriendly to the
defendants"
Continuing, the Judge said the allie
cations regarding the newspapers was
sustained by the papers themselves,
copies of which were filed by the de-
Tense. The circulation of the subScrip-
ton paper was also proved. These are
al the facts that can be admitted as
shown. Then the Judge proceeds to
quote cases sustaining him in declin
ing to grant a new trial on the grounds
raised by the defense. Concluding his
of venue, the Judge said:
"The Court now sees no reason to
believe that there was any error on
overruling the prisoners several mo-
tons for a change of venue, made at
the calling of the case for trial, and
during the empanelling of the jury"
Supporting the verdict of murder in
the first degree, the Judge said:
1t was earnestly urged by the pris
oners' counsel, on the argument of the
motion for new trial, that no valid
verdict could be found for murder in
the first degree, on the indictment
against them, though it was in the very
form prescribed in section l, chapter
144, of the code. Counsel urged, with
seeming plausibility, that the omission
of the word "premeditatedly' from the
prescribed form of the code, and fol-
lowed in this case, made the indictment
one for that degree of murder which
the law presumes on killing being
shown, viz: Murder in the second de-
gree; and that an Indictment for muir
der in the first degree would have to
follow the old common law form, and
to allege the offence to have been done
"feloniously, wilfully and with malice
aforethought," or else follow the exact
language of the statute and allege it to
have been 'wilful, deliberate and pre-
meditatad killing" "Feloniously, will