Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-12-05

that it was directed toward the particular
case of the defendant, and that the ar
| ticles in the papers were sensational yet
these things did not show that the public
| was so prejudiced as to make change of
venue necessary. Com. v. Smith, 1S5 Pa.
| st. 553.
| In the Virginia case the mayor of the
| town where the accused was tried pub
lished a card in one of the papers stating
! that the accused was the man who had
committed the murder and calling upon the
! citizens to desist from any attempt at
| lynching, and assuring the people that
| defendant would be hung in thirty days
| after sentence. The court held that this
publication was not evidence Of such
| prejudice as would prevent a fair trial.
Muscoe VS.. Common, 81 Va, AGO.
| The newspaper publications in the case
before the Court are largely narratives of
the homicide and the events leading up to
1t, and some accounts of what was said to
| be the past crinA-lal record of the defend
ants. In the main the accounts are tenn
! perate and free from sensa tionalism. They
are not infammatory and contain no ap-
peals intended to excite popular feeling.
! But it is contended that the effect of
! these publications was made apparent by
! the examination of the jurors on their
| voir dire and that the answers of the
| jurors to the questions put to them touch
ing their fitness and qualification to sit
in this case show that the pubic mind was
| poisoned by these publications. In this
view / cannot concur A reading of the
| evidence on the examination of the jurors
shows that, while some few of them were
| prejudiced, the great majority of those
who Were excused did not have any such
| feeling. The impression left upon my
| mind from reading these examinations is
that very many of thise summoned desired
| to avoid serving on that jury. But from
| those examinations / can gather no evil
dence of widespread prejudice or of anx-.
! iety for the conviction of the defendants.
| The application for a change of venue
was properly refused.
| In my opinion the gravest question
! raised by the assignments of error is
| that relating to the argument of coun-
sci for the State. There is no question
in my mind that the attorneys for the
prosecution who closed the argument for
| the State went beyond the limits where
attorneys should go in the argument of
| case of this nature. The following por
tons of the closing argument went outside
| been addressed to the jury:
And in answer to that, tell you that
before you were employed to defend these
| crininals-in my office, applied to by their
| brother L declined to appear in the de-
| Tense. And 1 tell you more than that;
there is not money enough in all the world
! to ever employ me to defend the cold
blooded murderer that now sits before lie
| jury"
But it must be remembered that the
remarks quoted were made N ans wer to
remark of defendants COUNSEL interposed
while the attorney for the State was
speaking; and when the attorney for the
defendant objected, the Court caution ed
the jury not to permit this language to
| have any influence upon them in making
up their verdict. That part of the argu-
ment which referred to the fact that tie
defendants had an appeal, but that if
mistake was made against the State there
was no remedy, was also objectionable;
but it appears from the record to have
been but a reinstatement of what had al
ready been said to he jury by the de-
PENDANTS counsel. The argument that
any compromise verdict would be a dis
grace to every one of the twelve men
| who signed their names to it, was I'M
| proper. 1t was not for the attorney for
| the State to say that any verdict the jury
| should return would be disgraceful. But
| this remark only expressed the opinion
of the attorney who made it as to the duty
! of the jurors, and it would be hard to
| believe that any juror should be Influenced
| by it. Again, it was improper for the
| attorney to say that once before it became
his duty to insist upon the death penalty,
and that he thought IN doing so he was
! right. There are other portions of the
argument that are open to objection, but
| do not think it necessary for me to point
them out
But the most Objectionable part of the
| argument is that in which the jury are told
that should they find the defendants not
| guilty they will go out and face those who
| look them in the face, and ask an explain
alton of that verdict and you will feel
like the soldier who had deserted in the
| faca of the enemy and came home TO face
his friends and was asked why he tn ned
| his back in the hour of his country's
need" Then no soldier of his
! country, in the face of an enemy, ever
stood in a position where he was required
| to be more brave and true to his duty than
| you do right now when you know that it
! is your duty to find a verdict that would
| hang these defendants; and it is a ques-
ton of whether you are brave and honest
| enough to do It," Think of the
man who was on the Johnson and Devin-
ney jury, when he meets those who are
at home and long for him; think III those
who are dear to you and whom you want
to see grow up in a law-abiding commun-
ity; whom you want to see grow up in a
| country where law prevails; whom you
don't want to have pointed at as the child
| rem of the man who was on the jury that
said Johnson and Devinney had shot a
man in the back and killed him and were
found to be not guilty, but did it in self
! defense" But don't do to
| yourselves the great wrong of standing in
this court room and looking the people in
the face and saying that you compromised
and let these murderers go for anything
| but a verdict of murder in the first de-
gree.
| The law requires that the Jurors for
a case such as this, shall be selected
with the utmost care from persons who
are free from bias or prejudice and who
are willing to go into the jury box and
! try the case wholly upon the evidence
as 1t is submitted to them. The law re-
| quires that these jurors shall be kept
together asi during the trial completely
| senarated from the neor3e ahoIt them