Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-05-19

1913. Judge Grover reached and an
nounced hi following conclusions: That
asked whether he has been in jail, peni-
Tertiary, or State prison, or in any other
place that would tend to impair his credi-
bility, and how much of his life he has
passed in such places
1t seems to me these citations justify
the latitude given counsel IN cross-exam-
lining Dukes Riley, and the habitues of
his place. There have been gamblers rec
ognized as truthful and possessed of BUSH
ness integrity. And to distinguish a
gambler from this class, reputable in
these respects, he may be asked If he is
not a cheap or stin-horn'' gambler.
In Com. VS.. Leslie, II S. W., (Ky.1. less,
accused as a witness in his W behalf
was asked If he was not a gambler, and
did not travel with and belong Ito a
sleight-of-hand show" and whether he
did not frequent the house OF ili-fame
where the killing was don
l think while the latitude allowed in
the cross-examination was broad. 1t was,
nevertheless, clearly within reasonable
limits, and essential to place the wit
nesses before the jury in such a way as
acter.
1 have been over the evidence of the st.
Clair ma and think there was no
substantial error in admitting her testi-
mony as to powder, fuse, etc, in which
the defendants, and particularly Fri
day, were, according to her testimony. in
ISreSIeu. Sucl testimony leuuSG 70 SHoN
that if these men went to the Hervey
house 1t was with the intent to commit
burglary.
Complaint is also made of the invitation
to defendant, Mooney, to put on mask
This is assigned as another ground for a
new trial. This is analogous, ! think, to
the case of asking prisoner to stand up, or
expose his person. Such requests he can
comply with or not, as he may see fit.
Ii he declines, or voluntarily complies.
no error results from the question. Noon
ey might have been asked when testify
ing to put the mask on, and the simple
interrogatory would not nave been an
error. So | think in argument when In
connection with the reference to the
mask, counsel says: "and l invite him to
put it on" II was not going beyond the
limits of permissible argument.
Objection is also made to certain state
ments made during the ana
the making of these statements is al
legged as a ground for new trial. In Ar
mold VS.. Com. (Ky.) 50 S. w. S94, counsel
used very much such argument as COM
planned of in this case. In his opening
the Prosecuting Attorney said: HE did
49, G---1a to haze say mans blood on
his hands; asked the jury to perform
their full duty, lest some ones blood
might rest upon their hands in case OF a
too lax administration of the law The
court said it was eminently proper to call
the jury'S attention to the responsibilities
resting upon them, and to the duties they
as members of a triburaf created by law
~ aoACA lolAl 1AOI1 oN 4 dAV ~
CURED to perform. And in this case eoun-
sci in closing his argument appealed
to the jury for a substantial penalty In
order to suppress la-wlessness,' repeating
a conversation he had with a resident
of another county in which he was told
that in that county only two murders had
been committed in so years, and thar the
men who had committed them were hum
by the neck. and that this had the effect
to completely stamp out the commission
of murder in that county. The repetition
of this conversation by counse was con
demned by the court, but was held not to
constitute reversible error.
This holding of the Kentucky court is
much like the holdings of our own court
sci said to the jury: IF you sentence him
to the penitentiary for life 1t won't be five
years till he will be let out again to enter
upon a new course of crime" Apropos
of this remark and as a common there
on, our Supreme Court says: The choice
between the two modes of punishmeno in
case the jury find the crime to be murder
in the first degree is absolute with the
jury, and it is difficult TO limit the con-
s~iderations which shall govern a jury, if
dsducible from the nature of the crime
and its pe~rpetrator as manifested by the
evidence"
In view of the Kentucky decision and
these observations of our own Supreme
Court, it was not in my judgment error
for counsel in argument to say: Let him
out to murder some other James Hervey
. to turn loose on society some MUIR
dererS like these; = $ = this is simply
a case of murder with the death penalty.
: = > In behalf of Henry Hervey, speak
ing for him and the State, / demand of
you a verdict of murder in the first de-
gree" There was evidence upon which
these statements and appeals could be
predicated.
Nor do 1 think it was error to allude
to the pride, courage and nhoo of the
jurors, as counsel seemed to do IN the
use of the sentences: 1T is an evidence of
tho - EL@- $3.50 81
that jury. = = 8 1t would be a reflection
upon your strength of character" These
illusions TO the jurors are matters more
OF taste or propriety than anything else.
Nothing seVerer can be said of them, /
think, than that they may not be in the
best taste.
Our Supreme Court further says in
Shawn's case that: Where a criminal
trial is fair in other respects, a convic-
ton will not be set aside for improper
remarks of counsel, where the verdict of
conviction is plainly warranted by the
evidence, and no other verdict could have
been found without misconduct of the
jury" In my judgment this is the case
where the evidence so justifes the YER
dict returned that had the jury found
any other verdict they would have been
guilty OF misconduct. If the evidence so
warrants the verdict, improper arguments
will not be regarded as in any way in
strumental in securing it. 1t will be re-
garded as the verdict of jurors convinced
by the testimony, and forced to render
it, because the testimony demanded ii.
And of this sort is. | think, the verdict
rendered in this case.
1t is the sentence and the judgment Of
the court that you each be hanged by the
neck until dead; that the warden OF the
West Virginia penitentiary execute this
sentence on you within the walls of the
West Virginia penitentiary. in the county
of Marshall, on Friday. the 18th day OF
July, A. d. 1900, and that the sheriff Of
this county convey you TO said peniten-
tiary within the time and as required by
law.
Colonel Arnett excepted to the de-
cision of the Court.
The prisoners were@old to stand up.
and were asked the usual question if
they had anything to say why SEN
tence should not be pronounced upon
them according to law.
Il am innocent" said Mooney. and
he took his seat. He did not appear
to be in the least degree affected.
Il have nothing to say. only that I
am innocent" came from Friday.