Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-04-27
FRIDAY, NOVEMBER 18TH.
After Passing Upon Points OF LAW
Raiscd I'm Prisoners HehnIf. tho
Court Pronounccs Sentence of
ne"th--slr. Martin, Tnte's Counsel,
VIII Go 10 Circuit Court For Writ
ofError- Declaration of Innoccnce

Tate, who stands convicted of the muir
der of Charles or Allie Malone. Hon
w. M. Portlock passed upon the motion
of Mr.. George G.. Martin. prisoncrs
counsel. for a new trial. Tho court re-
viewed the evidence, the argument OF
= counsel and the law at length. and sus-
tained the verdict OF the jury of muir
der in the fiIst degree, and sentenced
Tate to be hanged on Friday. Novem-
Der 18th.
Tate. after sentence was passed. ask
cd leave to address the court. This
was granted, and he again emphatically
protested his innocence.
Mr.. Martin will go TO the Circuit
Court and apply for a writ of error.
Following is Judge Portlocks decision
in full:
The motion for a new trial In the
case is made upon the ground that the
verdict is contrary to the evidence as
also upon after discovered evidence
tending to impeach the testimony OF
D.. one of the principal witnesses for the
Commonwealth.
No question being raised or exception
taken as TO the law as given by the
court upon the trial. or as to any ir-
regularity in the proceedings.
Counsel for prisoner also argued that
the trial courts had practically unlim-
ter of granting new trials, and that the
numerous decisions by the Supreme
Court OF Appeals bearing upon that
subject were intended a. rules govern
ing that tribunal and not TO the lower
courts.
The grounds as alleged generally are
that the vicious and dcpraved charac-
.er of the witnesses for the Commons
wealth. and the fact that they were
unfriendly to the prisoner, indicated
that they were morally too corrupt to
be believed. and also that the jury
drew wrong conclusions from the facts
proved.
The after discovered evidence relied
upon by counsel has sole reference to
an assertion made by one OF the prin-
cipal witnesses for the Commonwealth
who stated. after the trial. that he
would like to spring the trap to break
the prisoners neck"
1t Is IL we'll established principle of
law that a motion for new trial Is
governed by the same rules in criminal
as N civil cases. Graysons case, G
Graf. ia.
And these rules apply to the County
Courts. no less than to an appellate
court. The only difference in the case
of an appellate court, being that as to
the restrictions imposed upon the Coun-
~ Court there Is in the appellate court
superadded to the weight which must
always he given to the verdict of the
jury fairly rendered. that of the opn-
ion of the Judge who presided Mt the
trial and which. as is held, is always
entitled to peculiar respect upon The
question OF 4 new trial. Brugh vs.
Shanks, o Leigh sos, affirmed in the case
OF Blosser VS.. Harshbargcr, 81 Graf.
2l4.
The motion for a new trial IS an
appeal to the sound (not arbitrary dis
erection of the court 10 prevent n gross
palpable. and material wrong. and
should be defined If substantial legal
justice has been done even though ir-
reguari;ies have occurred, or the
wrong. however palpable. is trivial in
extent. ! Pt. 4 Minor ms. 75i-5, . Pt.
Minor Synop. Grim. l.. 1928. Balls
case, Leigh 72S; Grayson's case, C
Graf. 72S-4; Naiden's case u Graf. 72S
THE RULES.
The rules in relation to new trial, ms
stated In Grayson's case. Graf. 7l2,
and approved and re-a6rmed, arc as
follows:
"a new trial will be granted: /.
Where the verdict is against law. This
occurs where the issue involves both
law and fact. and the verdict is against
the law of the case upon the facts
proved. ?. When the verdict Is con
trary tn the evidence. This occurs
where the Issue involves matter of fact
only, and the fact proved required n
different verdict from that found by
the jury. 3. Where The verdict is
without evidence to support. This oc-
ours where there has been no proof
whatever Of n material fact, or not
sufficient evidence of the fact or facts
in issue. Where some evidence has been
given which tends 10 prove the fact in
Issue or the evidence consists of cir
curstanccs ana presunptions. n new
trial will not be granted merely be-
cause the court. If upon The jury. would
have given different verdict. TO
warrant n new trial in such cases. the
evidence should be plainly insufficient
to warrant the finding Of the jury
APPLICATION OF RULES.
Applying these rules. then. or so
many of them as relate to this case.
can this court. upon n review of the
testimony. conclude that the facts
proved upon the trial required a differ
cnt verdict from that found by the
jury. or that there was no proof of n
material fact, or not sufficient evidence
Of the fact or facts in issue. or that
the evidence only tended to prove thc
facts in issue and was plainly insufr-
cent to warrant the finding OF the
jury?
THE EVIDENCE.
The evidence given upon the trial OF,
behalf OF the Commonwealth was to
the effect that the prisoner on the slst
DAY of May. 1898. met Charles Malone.
who was comparative stranger 10
him; that the prisoner on the after
noon OF that day, about o'clock, ac-
cnsed Malone OF having taken from him
fifteen cents OF his money; that Malone
- oil
tv Malone that he and the prisoner
should have a fist fight in the back
yard of Poole's bar-room. for the pur-
pose OF settling the dispute. 1t being
agreed tina: the ..erSon 40 proved the