Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-10-09

Before Judge Thayer Melvin, in the
Circuit Court, arguments were mace
Yesterday afternoon upon the motlon
for a new trial in the case OF state vs..
John Mooney and Frank Friday. Inc
defendants were convicted of the muir
der of James Hervey. Col. w. w. Ar
nett appeared for the condemned men,
and Hon. John A. Howard for the
State. Col. Arnett opened and closed
the argument.
In the opening argument, Col. Arnett
inisted upon the right of a rehearlng
for Mooney and Friday for a number
of reasons. The first point he mace
was that the men had been deprived
of their right of preliminary examlna-
ton before being put on trial. In sup,
port of his argument that THIS snouiu
constitute sufficient ground Tor re-
hearing. Col. Arnett said that the State
of Virginia was always more particular
| in this respect than any state IN the
Union. Every man is presumed 10 De
innocent until his guilt is established,
therefore the prisoners were deprived
OF their right to know the nature OF
the charge against them, in order that
they could summon witnesses and pre-
mare a proper defense. The simple IN
formation contained in the indictment
is not sufficient.
In his reply to this argument, MT.
Howard held that the object OF the pre-
l;minary examination is to ascertain IL
there be probable cause; and If that
fact be developed by the indictment,
hearing is unnecessary. Col. ArnetI
held, however that it made no dlHer-
epce as to the order of indictment ana
preliminary hearing; that the DEFEND
ants were entitled to preliminary hear
ing even after the indictment was
found. He quoted from the sixteenth
volume of the English-American Ency-
clopedia Of Pleading and Practice.
Col. Arnetts second point was that
the defendants were deprived OF thelr
constitutional rights, through MI. How
ard asking Mooney to wear the mask,
in order that the jurors might see MIN.
This was equivalent to asking him 10
make evidence against himself. 1t was
| true. he did not wear the mask, but the
State had no right to ask him to do so.
He was compelled to refuse, the jury
! deducing that he was afraid, his case
| being thereby prejudiced. He quoted
from the North Carolina case OF State
VS.. Stokes.
In his reply, Mr.. Howard said 1t
would have prejudiced MONEYS case
| if he had not taken the stand in his
own behalf, but when he went on the
stand, he waived his right to refuse to
be a witness against himself.
COL Arnett further argued that
Judge English erred by refusing to al
low counsel to file affidavits from
Mooney and Friday, in which they al
lege that some witnesses were induced
to 20 away, and others were affected
| in their testimony by statements made
| to them. Col Arnett argued that wit
neses for the defense were inundated
by the threat of the prosecution for
perjury, if they would testify that
Mooney and Friday were in the city
after eight o'clock on the night the
murder was committed. Others were
sought to be intimidated by being
placed in jail. All this affected their
testimony.
| Mr.. Howard held as to intimidation,
that the record showed that the wit
neses had testified. Col Arnett re-
piled that they did not testify to the
extent which they would but for the
alleged intimidation. He said the ar
rest of Reilly and others as particeps
criminis affected their standing before
the jury. The jury had less faith in
their statements. All this was denied
by Mr.. Howard, who insisted that the
arrests were regularly made, upon In
formation given by the woman.
Judge Melvin took the matter under
consideration, and stated that some of
the questions raised were both inter-
esting and important. He promised to
decide the motion as soon as he could,
but stated that it would require con-
siderable investigation.
Motion for New Trial.
In the case of Campbell's admins
traitor vs. Riverside Iron Works, At