Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-10
The NEWS OF NORFOLK ON RACES ~ g, - Is 8 81

Il 80 -.sff 49,
to Trimmings farm for q set purpose,
and he (Whitehurst) said he didn't
want any such friendship as Lesner' s;
that he would rather step on q rattle
snakes tail. He said Lesner's visit 70
tlemming was for the purpose Of en-
trapping F'lemming into some state
ments that could be used against FIem-
ming He said Lesner had shown no
reasonable reason for going to Flem-
mings. This. he said, was the gray
haired witness, the honorable old citi-
zen who has lived here for so many
years and these We're his motives His
ADDRESS ut this point was q continued
attack upon Mr.. Lesner.
MIR. WhitehurSt then took up the mat
ter of the general threats against all
trespassers as class, and said he him
self had often made similar threats
ana so probably had most of the men
on the jury. He then called attention
to number of witnesses summoned by
thet Commonwealth, but not put upon
the stand. and asked why these wit
nesses for the prosecution had not been
produced? He argued that their nom
production OH the stand would Indicate
that their testimony would perhaps,
have been detrimental to the case of
the Commonwealth.
QUESTION OF ALIBI.
In the issue Of Friday, The virginian.
Pilot stated that the court ruled or
would rule that evidence not having
been introduced at the time of the
preliminary hearing should have no
weight.
When the report was written and
until yesterday morning. that was, 1t
is understood, the attitude OF the court,
but as some doubt as to the legality
of such exclusion prevailed, the evil
dence of alibi was not excluded yester-
day.
LAW ON THIS POINT.
In regard to the admissibilIty Of
alibi evidence the prosecution quoted
as follows: Dean VS.. Commonwealth,
80 Gratan, 912-925. In this case the
court says: "Now, the failure, unex-
planned, to assert the defense of an
alibi when it could be made, and, IL
true, would be conclusive, is always
regarded by the best writer's of cir
cumstantial evidence as a most suspi-
cious circumstance. The credfblity Of
IN alibi is always strengthened, If It
be set UP at the moment when the ac-
cusation. is grst made. and be-consist-
entity maintained throughout the sub
sequent proceedings. Whenever peril
nent and material evidence by which
an alibi might, IL true, have been sup
ported, is withheld, or is the result of
after-thought or contrivance, the at
tempt to set 1t up recols with fatal
effect upon the party who asserts it."
This is such an important point and
of such general interest that we quote
the citation as above.
FAILED TO AGREE.
At o'clock last night the jury re-
ported that 1t had not reached ver-
dict. Judge White decided to adjourn
the body over to 10 o'clock this morn
ing.
The jury Is quartered at the hotel in
charge of the Sheriff.
The opinion was pretty generally ex-
pressed last night that the jury would
not agree.
Owing to the train schedule the press
representatives were obliged to leave
without hearing the arguments of Colo
mel Mcintosh and Mr.. Wolcott, but 1t
is stated that both made very strong
and forcible presentations of the case
from their respective points of view.
Colonel Mcintosh is weil-known as one
of the ablcst lawyers in the State in
criminal cases, and Mr.. Wolcott's
friends will be pleased to learn that he
has won new honors in the Flemming
case. which will go down in local his
tory as a wellfought series of legal
battles.