Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-04-17

great stress On the IacI That the jury
should be guided by evidence and not
by prejudice. He dwelt upon the
gravity of the case, and the infiiction
of the death penalty.
Col. Arnett agreed that the State
had failed to establish the fact that q
robbery had been committed. point
which was essential TO justify a YER
diet of murder in the first degree. He
asserted that there were too many
breaks in the chain of evidence which
the State had endeavOred to establish.
Too much was left to inference in the
assertion that because Mooney and
Friday were in Elm Grove that day,
and that because one man was larger
than the other, the defendants were
guilty of the murder of James Hervey.
The evidence of the State. and the
States deductions therefrom. were
taken up. Col. Arnett declared the
measurement of the tracks in the snow
to have been insufficient. 1t was
claimed they were made by No. and
No. 8 shoes. Thousands of pairs of
similar shoes had been manufactured.
They left out two miles of the course
they say the murderers followed after
ASaNlAG IuO I1O1fCy KOAilSCS. Il0
argued the impossibility that Mooney
would loaf about Elm Grove on the
afternoon of day, when he contem-
plated committing a burglary at night.
If he were such an old offender, it was
reasonable to suppose that he would
have foreseen and avoided these con-
tingencies. The veriest fool would
have done that.
Henry Hervey's evidence was taken
up. He failed to identify the men.
Col. Arnett said the impression of face
and features in a moment of fear is
most vivid. The scene is photograph
ed upon the memory of the witness.
Henry Hervey said the man who ent-
cred the room was taller than his
brother. The evidence proves, howev-
er, that the victim was feet 10 or II
inches, while Mooney measures feet
1012 inches. The murderer was too
tall for Mooney, and Mooney was not
there that night. The handkerchief
found upon Mooney had large holes in
it, yet Henry Hervey and Mrs. Nc
Vortney saw no holes in the red hand
kerchief worn by the murderer The
man was taller than Mooney and wore
a red handkerchief with no holes in
it. Is it not necessary consequence
that it was not John Mooney who was
there on the night of March LIST?
When Mooney was arrested the ma
chinery of the State ceased to work in
the search for the murderer of James
Hervey. The handkerchief he carried
was red, and they would hang him for
that.
Hn1 Arp eaiJ he xryif,
regard to the pistols was not conclu-
sive. 1t did not. follow that because
the deed was done with 3S calibre
revolver, and Mooney had a gun of
that size, that he committed the muir
dur. There were thousands of revol-
vers of that kind in existence. Col.
Arnett dwelt at some length upon the
insufficier1cy of the States evidence,
citing instances in which grave judi
cial mistakes had been made, even to
the extent Of hanging innocent men
upon circumstancial evidence.
With regard to the footprints, Col.
Arnett read authorities to show that
footprints were not in themselves good
proof and evidence. There was moth
ing about the shoes worn by the de-
PENDANTS that was not peculiar to
every other pair of shoes.
Col. Arnett argued the improbable
ity of the theory of the prosecution,
that the murderers would deliberately
repass the house where they had COM
mitted murder, and people were then
blowing horn to attarct the neighbors
that they would pass through Elm
Grove, where news of the crime might
have preceded them. Was it not prob
able that instinct taught them that
safety would be in the direction of
Pennsylvania? Was it likely that the
murderers would pass through Elm
Grove, and not be seen by anybody?
The alibi witnesses of the defense
were upheld. 1t was asked that they
had no interest in the defendants, and
could have no object in perjuring their
souls. The State 'intimidated wit
nesses for the defense by throwing
up by harlot. The attack upon the
witnesses for the defense had failed.
What if they were gamblers? If
every man who knows of the intrica-
cies of poker. or faro were removed,
the community would be depopulated
Men may gamble and yet be truthful.
There may have been lamentable mis-
behavior between the sexes in Reillys
place, yet that does not necessarily
affect their credibility Reilly proved
his truthfulness on the stand by open
ly confessing his misdeeds and misbe-
havior.
The defendants could not have COM
mitted the murder, because it was
plainly shown that they were in
Dukes" Reilly's saloon until eight
o'clock that night, and could not have
reached the S. bridge at the time the
homicide was committed He referred
to Mr.. Howard as bloodless and cold
as the icicles of the North, and init
mated that he found pleasure in laying
bare to the world the flaws in the
witnesses who went on the stand
The defendants say they did not
know why they were arrested until the
/. following morning MONEYS idea
at Fettes, was that they
wanted arrest him. He knew
no reason, except that he had
broken Jail some years ago, and
he thought if they had an opportunity
they would arrest him for that. He
admits that he was on the streets very
seldom in daylight He kept quiet and
under shadow The defense was un-
able to prove that Mooney was con-
spicuously present in the bar-room at
Reillys saloon. but he was in the
building just the same, as we have