Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1900-11-25
4 NEW Trial REFUSED
BY JUDGE MELVIN IN THE CASES.
OF JOHN MOONEY AND FRANK
FRIDAY.
THE MURDERERs OF HERvEY
Who Were Convicted in the Ohio
County Criminal Court and Are
Under Sentence of Death-The
Lengthy Opinion of the Judge In
Giving the Decision.

In Part Two of the Circuit Court
yesterday morning, Judge Thayer Mel
vim passed adversely upon the appli-
cation for a new trial for John Mooney
and Frank Friday who were convicted
in the Criminal Court of the murder
of James Hervey, at his home east OF
Elm Grove. Col W. w. Arnett, coun-
sci for the condemned men carried
the case into the Circui. Court on a
writ of error Judge Melvin, in his
opinion, passes adversely upon all the
points raised by Col. Arnett. The case
will very probably be carried into the
State Supreme Court of Appeals. Judge
Melvin's opinion in the matter, is here
with given in full:
At the April term, 1900 Of the Grim
inal Court Of Ohio county, the defend
ants were convicted of the crime of
murder in the first degree. Suisse
quently they moved for new trial and
the motion having been overruled and
judgment rendered upon the verdict
they applied for and obtained a writ
of error from this court Several
grounds of error are alleged.
l. The Indictment was preferred on
March 5, 1900. The defendants were
then in custody, but had not been ex-
amined by justice touching the fell
ony charged. Before the trial came on
they insisted by plea and otherwise
upon being remanded for such exam
1nation. This was refused. A revers-
q @f
No constitutional right or privilege
is invoked. 1t is urged, however, that
the statute (code ch. 1853, paragraph
u, makes necessary such examination.
1t reads, in part: "The trial of person
on charge of felony shall always be
by indictment; and the indictment
may be found in the first instance.
whether the accused has been exam
ined or committed by a justice or not. >"
Differing constructions have been
placed upon the latter clause. BY the
defendants it is claimed that the right
to preliminary hearing is here i'm
plled-that the effect is merely to al
low it to follow the Indictment: by
the State, that, after indictment found
no further preliminary investigation
is required in any event.
There does not appear to be any en-
actment bearing directly upon the ques-
ton. Other provisions are believed.
however, to have controlling infu-
ence. Chapter 156, entitled arrest. COM
mitment and ball. contemplates such
an examination. But this relates to
period anteceding affirmative action by
the grand jury. The title of the chap
ter and the arrangement of chapters SO
indicate and the reading of certain of
the sections makes it clear. No sec
ton looking to such proceedings after
indictment has been pointed out or OBJ
served. On the contrary, a different
procedure seems to be prescribed. Sec
ton IA, of chapter 1853, relating to in
dletments and process thereon. makes
1t the duty of the court to issue a capias
for the arrest of person indicted for
a felony and not in custody, and the
officer making the arrest is required.
not to deliver to justice for judicial
inquiry but to such court, if sitting, or
to the jailer of the county. Section IS.