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

counsel for the State and the Sherih
Of the county, by which, as argued, q
fair and impartial trial was prevented.
1t is unnecessary to quote at length.
The affidavit tends to show attempts
to influence witnesses, by intimidation
and otherwise. And it is charged that
the arrest of certain persons, whose
names are given, for supposed compile
ity in the offense in question was
brought about by the counsel solely
for the purpose of diserediting them
as witnesses for the defense. Other
matters are alleged, but the most ma
terial are those noted. Objection be-
ing made to the filing. the afidayit was
rejected, and the rejection is assigned
as ground of error.
l am of the opinion that there was
no error:
/. The affidavit was not in time. 1t
was not offered until nearly month
after the right to file the same had
ceased to exist. No leave TO file was
asked, no excuse for the delay sug-
gested. Its consideration would have
been the result of grace and favor
merely But there is more. For
ooSab tuaI ID QAoA4OSSQs W AdlOfCt VI
fact existed was known to the atlantis
before the case went to the jury. This
was the time to make the complaint.
Undue delay is generally fatal 1t will
not serve to hold back information of
misconduct affecting the administra-
ton of justice for use only in the event
of an adverse finding. Here, it must
be assumed that everything set up was
within the knowledge of the atlantis
~efore the jury had the case. And so,
whatever right was theirs was lost
by their own neglect. Flesher V. Hale,
% w. Va. As, is in point. That case
related to jurors, it is true, but no
different principle applies when mis-
conduct Of counsel is alleged.
2. The charges, many of them
vague, were made upon information
and belief and there was no support
ing evidence The names of the in
formants were withheld, the source of
information concealed. 1t was the
plain duty of the atlantis to advise the
court of all particulars known to them.
Something more tangible than hearsay
allegations is required. IA Ency. of
Pleading and Practice, 905
3. 1t is certified by the trial judge
that so much as relates to the intimi-
dation of witnesses was shown by the
evidence adduced on the trial to be
untrue. In the absence of any formal
certificate of evidence this must be
taken in contradiction. Certainly, it's
effect is to discredit the atlantis as
witnesses in this behalf. Without go
ing so far as to hold the unsupport-
ed statement of one convicted of fell
ony is not in any case to be received,
it is to be said that, in this instance,
largely on account of the nature of the
charges, the lapse of time and the alb
sence of specific statements of fact,
corroboratiye evidence. was essential.
No mention was made of such evil
denee No request looking to its pro-
curement for use at another time was
preferred. The paper itself was offer
ed as making the case of the atlantis.
1t was not the best evidence of which
the matter was susceptible and was
properly held insufficient.
Having reached this conclusion it is
not necessary to consider objections
more particularly to different
portions of the affidavit.
The record shows other exceptions,
but as to them, it will suffice to say
that error is not apparent.
The judgment of the criminal court
of Ohio county is affirmed.