The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1900-05-19
MOONEY And
FRIDAY ARE
SENTENCED
To tho Death Penalty, the Dato is
July 10, and the Place the
State Penitentiary.
SIN OF EXECUTION GRANTED
At the Request Of Colonel Arnett for
FOTty-avo Days-Nsw Trial
Motion over-ruled.

John Mooney and Frank F'tidd. ror
doc Riley are sentenced to the death
penalty for the murder OF James Her
vey. Sentence was imposed by Judge
I. ]. Hervey, of tho Ohio county crinil-
nal court, yesterday morning at IL
o'clock. Preliminary to the sentencing
of'the men, Judge Hugus over-ralsd the
motion of Colonel Arnett for new
trial. Then the colonel asked for stay
of proceedings for sixty days, but the
court decided that forty-fve days was
suihcient in which the condemned mems
attorneys may make the last efforts In
their behalf.
Colonel Arnett counsel for the prison
ers, introduced three afldavlts in sup
port OF his motion for new trial. The
first Is signed by John Partell, u gas
plpe-llner who, with another man, Pat
Downs, was in Elm Grove at the time
Mooney and Friday were testified to
have been there. The purpose Of the
aRldavits was to show that 1t was not
Mooney and Friday who were seen in
Herdon's saloon at s p. M, the day Of
the murder. The second affidavit is
signed by C. w. Rlxey, who states that
he went out into the oil fields to secura
ParteIl's affidavit, and that Partell
greatly resembles Mooney. The third
afiidavlt, signed by the prisoners and
alleged accessories, sets up the claim
that the arrest OF Dukes Reilly,
Lynch and Conner was made by the
state to impair the value Of their evir
dence in favor of the prisoners.
After a long discussion, in which Col
onel Arnett and Prosecuting Attorney
Meyer figured, the court ruled that Par
tells affidavit could be filed, but ex-
GUIDED that OF the prisoners and alleged
accessories.
Judge Hugus then proceeded to over
rule the motion for new trial and i'm
posed sentence. in the following Ian
guage:
State vs.. Mooney and Friday; on mo-
tlon for new trial:
INC UTlHQuET6 UH uGlllB tAAAtAA6GNA ~
on the indictment found against them
moved the court to send them to q JUS
tice for preliminary examination: This
motion was refused. and that ruling OF
the court is now assigned us O ground
for a new trial.
Their claim to a preliminary exami-
nation, previous to trial, seems to rest
on q statute passed by the Legislature
of this state on the third day Of April,
1873. This act provided: Before any
person charged with u felony Is tried
before circuit court, he shall be eX-
amlned before the county court, unless
he valves such examination by MS as
sent entered Of record.
This act continued in force until the
2Srd day Of December, 1875, on which
day It was repealed by chapter 81, OF
the acts Of 1876. During Its brief exist
ence 1t came before our supreme court
for consideration in four cases, VIZ:
Buskirk We. Judge Ward w: va, VI;
state VS.. stewart W. Va, ISL; state
vs.. Abbot, s w. Va, TAG, and state VS..
Strauder, 8 w. Va. $3.50.
In this last case, yet generally re-
membered in this county, the act IN
question. saved Strauder from the gal.
lows. Nothing, however, was decided
in any of these cases, tending to throw
any light on the ruling under consider
alton, further than to show, as was de-
cided in the Strauder case, that no one
could be tried for q felony while that
act was in force, without preliminary
examination, II one was demanded.
The act providing for an examination
before trial by the county court did
not in terms repeal any other statutory
provisions, nor did II do so By implloa.
ton. It simply provided for n special
or additional examination, before trial
Of all felonies. Such examination was
to take place before the county court,
then q recently created tribunal. Its
repeal two and two-thlrd years after
enactment put an end to this special
preliminary examination before the
county court, and left the law as to OK
animation. indictment, and trial, as
they were before It's enactment, ana
substantially, II not identically' as
they are now.
Not only has the statute providing for
such preliminary examination been re-
pealed, but the county court, which
had exclusive Jurisdiction TO hold u,
has been abolished. This, then, would
seem to end, 30 far ms TINT statute ana
the county court are concerned. al
possible contention that preliminary
examination is a legal prerequisite to
a trial.
And such contention cannot be
based upon our present statute. which
"A chapter 1850 OF the code Of 1891. rclnt-
ing TO arrest. commitment and ball
This chapter is Identical with chapter
1856, Of the code Of 1868, except that There
ls omitted from II section 10, permitting
certain mlsdcmehnorB, like assault ana
battery, to be settled by the parties
themselves, and not 10 DO prosecuted to
Indictment and trial. when 10 settled,
Chapter ibG, Of the code. was not re-
pealci expressly, or by Implication, by
the act OF 1879. providing for special OK
animation by the county court The mr.
rest, commitment and bail and exam
inntiOn before Justice, provided Tor IN
chnpter 1850, Of thu code OF 1893, contln.
ucd In force during the existence OF thht
special statute, Ms II had before, ana
dOsB to-day, In tho Huinn chapter IN tho
code Of 1901.
There istthon certainly M law now
recurring preliminary examination be-
fore trial, on tho other hand. however,
there IL now express statutory author.
lty FOR pruoupdlnR u indictment and
trial without preliminary examination
This IN very evident from the slNtuteg
In torCp now relating ~ tho finding NJ
indictments ana 10 trials thereon, Heo,
tlon I. ~ chapter lts, ~ tho coda ~
1871, IN uNpreBH terms pefmllh tie ilnd'
ine 1T IN indictment without ~ ~.
hmingtlnu llp lHBt clause reads "hhu
ihr Indictment may De- found IN the
flfHt Instance, whether The accused hnp
been oKhmlnHd Gf committed by luHi
tlOp on no" non lilo indictment hhvs
lng brnn found iha next Hlep Ia Ia pro.
coed % trial. This n apparent from
Hpctibn I, " rhhplst itn ~ the code ~
1891, the illHi sentence ~ which reads
when m indictment In found IN ,ht
circuit court NJ any county against u
hhfpn1 for felony, tho accused, N IN