Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1900-11-25

And under section 1, OF chapter 159, the
accused, If he is in custody or Tolun-
tarily appears, IL to be tried at the same
term at which the Indictment is pre-
scented, unless cause is shown for con-
.tinuance. These serve to make appar-
emit the legislative intention. Read
with the quoted clause they show that
no judicial inquiry by an inferior tri-
bunal is contemplated or warranted af-
ter action of the grand jury, even If
none was had before.
1t is not seen that this Interpretation
takes away or affects injuriously any
right belonging to an accused person.
The practice is within the control of
the law making power in criminal, as
in civil cases, the only limitations be-
ing those contained in the constitution.
See Commonwealth VS.. Jones, Sc Va,
10 S. e. 1905. Nor is it clear that any,
substantial advantage would have ac-
crued to the plaintiffs in error If their
plea had been sustained. They had all
needed information OF the nature of the
charge and had the aid of counsel be-
fore and at the trial It is said, how
ever, that they would have had the OPP
portunity of hearing in advance the
testimony for the State and thus have
been better enabled to make their de-
Tense. But is this certain? An indict-
ment might well be helc to furnish evil
dence of probable cause; and probable
cause is the only matter for the deter
mination of the justice. And there is
no rule requiring the production OF all
the testimony for the prosecution at
preliminary investigation. In any view,
prejudieial error is not perceived.
II. The record sets forth some OF
the remarks of counsel to the jury in
the closing argument for the State,
which remarks, it is insisted, were not
only improper but hurtful to the de-
PENDANTS. The judge who presided has
certified, however, that no objection
was interposed on this account before
the retirement of the jury. Clearly, If
the language used was deemed i'm
proper, the attention of the court
should have been promptly invited to
the fact and it's interposition sought.
Failing that, or a request for an IN
struction having reference to the IT.
regularity, if irregularity there was, it
was not to be considered on the mo-
ton to set aside. State VS.. Chisnell,
sc W. Va, $50; Ladders VS.. Railroad
Co., 46 ID 492. Besides, the evidence
has not been certified and it is i'm
possible to say that the remarks were
unjustifable. To warrant a reversal
this must appear. State VS.. Shawn,
40 w. Va, l; State vs. Allen, Id. Sc.
The same counsel during his argu-
ment requested one of the defendants,
Mooney, to place the handkerchief
found in his possession when arrested
over his face and to stand up in the
presence of the jury; this, to afford
an opportunity of determining to what
extent witnesses could identify one
with covered features, one or more
having testified that while the face
of the man who did the felonious
shooting was thus covered he looked
to be the defendant Mooney" A col
loquy ensued, the named defendant
his assent if his counsel so
directed, the counsel saying that he
would object to the request and ex-
cept and then have the defendant COM
ply; whereupon, the court advised him
that he ned not do so and the request
was withdrawn, the defendant then
and excepting because of his
having been so requested.
1t is unnecessary, perhaps, to go ov-
er all the ground traversed by coun-
sci in the recent oral discussion. The
principle already alluded to is deem
ed decisive. While the propriety of
the request is more than doubted it is
not seen that the defendant, under the
was prejudiced by what
occurred. But were it otherwise, the
court should have been asked to set
the jury right by an instruction elimI-
mating the Objectionable matter from
their consideration. This was not
done. Instead, the defendant remain
ed silent, excepting, it is true, but not
to any ruling of the court. 1t was
not asked to interfere in any manner
and its voluntary intimation or opin-
ioE was not unfavorable to the de-
Tense. This being so, the point could
not avail on the motion to set aside.
III. The motion was made on the
10th of April, 1900. and was argued and
submitted five days thereafter. There
was no reservation except as to aft
davits of newly discovered evidence.
On May 18th, the day on which the
motion was decided, certain affidavits
were offered, notably, one made by the
two defendants, charging misconduct
before or during the trial dates not
being given) against the assistant
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