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

lection or question open now to be con-
sidered concerning the argument, and
that the argument, as 1t now stands,
stands without objection or exception.
Objections or exceptions to the argu-
ment, noted privately at the request of
counsel to the stenographer and not
called to the attention of the Court,
cannot be considered as exceptions to
the Courts ruling. In cases of minor
criminality, the Court would deem its
rulings as thus indicated, as conclusive,
and entirely sufficient to accomplish the
ends of justice; but, this is grave and
serious case, and the Court would not
adhere to the approved holdings of
practice, if any injury would thereby
result.
Remarks and arguments of counsel
have been discussed in our State, in
the cases of State VS.. Allen, Goth South
East, 213; State VS.. Shawn, 40th West
Virginia, /; State VS.. Shores, 31st, 500;
and, incidentally, though not pertinent
ly to this case, in other decisions by the
Supreme Court. From the eases men
toned, the following general PROPOSE
lions have been selected:
First-That counsel must necessarily
have great latitude in the argument OF
a case.
Seeond-Appellate Courts will not in
terfere, unless it clearly appears from
the record that the rights of the prlS-
oner were prejudiced by such line OF
argument.
Third-That the trial court, on OBJ
lection and motion, may direct the jury
to disregard an argument, and exclude
it from the consideration, and that
thereby the effect of the improper ar
gument may be neutralized.
In the State VS.. Shawn it is said, i'm
proper remarks of counsel, should not
cause verdict, plainly right, and in
lieu of which any other verdict would
be manifestly wrong, to be set aside
And, in the same case, on the question
of first degree murder the Court says:
1T is difficult to limit the consideration
which shall govern the jury, If deducl-
BILE from the nature of the crime, ana
it's perpetrator, as manifested by the
| evidence.
Under the latitude thus said to be
allowed counsel, it is permissible to re-
fer to any and all facts and statements
of witnesses who testified, and draw
differences therefrom. If that is so, then
was it error of counsel TO say: what
do they ask of you? They ask the
| Years ludI Itludin VI IAoN' 'ASAONN
of theirs: they ask a verdict that Will
permit them to go back to the brothel;
their eve is on the red light that shines
in the night, and lures them instead OF
warning them of danger. Their desire
is TO go back to that kind Of vicious
association"
7 select these words from the arg1-
ment as probably the harshest express
sions to be found in it, and as state
ments to which the court did not call
the especial attention of the jury,
with directions to the jury to dis
regard them, and as words which prls-
oners' counsel did not specifically point
out, to ask to be excluded. II these
words had been used and uttered in dis
arrangement of prisoners credlblllty,
there could be no improperly in such
use. The red light and brothel, the jail
and penitentiary servitude and lives
more or less vicious, are all entitled to
some weight on the question OF prls-
Oners' veracity as witnesses. May not
these words, Also be used as a remind
er to the jury that sympathy and sem
timent would be misplaced, II extend
ed to the prisoners, in view OF the lives
they had led, as disclosed by the evil
dence. and that the jury should not,
therefore, yield to them anything on ac-
count of sympathy for themselves, pa
rents and sisters.
1t is to this end, and on this point,
probably, that the speaker intended to
have them bear, and they were not If
relevant for that purpose. Again,
these words have a tendency to call
the iury's attention ~ the fact that
coming as the prisoners did, directly
from the brothel to the commission OF
the crime, the prisoners might be easily
presumed to harbor in their hearts that
atrocious malice, which, if harbored,
by the slayer of his fellow man, can
only be expiated by giving up the STAY
ers life.
Good character, affirmatively shown,
NAV raise reasonable doubt, itself,
Of guilt. If this good character is not
shown, and the good character pre-
sumed by the law is destroyed by evil
denoe of a bad or doubtful character,
felonious act by the possessor OF such
disparaged character may well be pre-
sumed the more readily and naturally
to spring from malice, and from "a
| heart regardless of social duty, and
fatally bend on mischief"
On the question, then, of credibility,
sentiment and sympathy, and malice,
the sentences quoted cannot be said to
be irrelevant, and unsuggested by the
evidence and the circumstances OF the
case.
Under the license of large latitude al
| lowed counsel in argument, | cannot
say that any of the other remarks are
so far beyond that latitude as to be
plainly rprejudicial.
Comparisons are odious, and do not,
therefore, attempt to compare the Ian
guage complained of here with that OF
other cases. Suffice it to say, the facts
and circumstances of this case were
strong, and almost always to the dis
advantage of the prisoners, and they
gave counsel for the State opportunities
to draw and suggest many differences to
their detriment.
Although no questions of evidence
! were discussed on the argument Of the
motion for new trial, l have, never
theless, gone over the evidence in great
part. 1t seems to me to be singulaTly
free from error.
In considering the points raised On
this motion for a new trial, have en-
| deavored TO do so under the sense Of
responsibility as profound as though
| there was no appeal from my decision