Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-08-10

hcFns-a mary OF the Pro-
ceediugs of the Board.
The State Board of Pardons, which
has been in session during the past
week has considered a large number of
cases and in several instances a rec
commended persons for executive elem
ency. Below will be found a summary
OF the cases considered:
James Dudley was convicted OF a fell
ony in the circuit court OF Mingo county
on the 2lst day of May. 1895. and sentenced
TO confinement for the term of eighteen
years. He was granted a conditional par
don by Governor q. w. Atkinson on the
9Th day of April. 1860. Shortly after his
return from the Denitentiary to Mfngo
county he was charged with an attempt
to murder Cap Pariett on the 18th day
Of July. 1899, and by order of the Cover
nor was, on the 18th of July, 1899. returned
50 the penitentiary to serve the remainder
OF his sentence. He was indicted for the
attempt to commit murder in that county,
and he was ordered by the circuit court to
be returned for trial. and on the 18th of
September. the State not being ready for
trial, on account of the absence of mater
ial witnesses, he was by order of said
court returned to the penitentiary.
Dudley now claims that five terms of the
circuit court of Mingo county having
passed since the Indictment against him
was returned, that under section % of
chapter 151 OF the Code. he Is entitled to
be discharged from prosecution, by reason
OF the failure of the State to bring him
10 trial before three terms of the court
had elapsed. Dudley insists that he Is
innocent of the charge of an attempt to
commit murder; that he has been willing
and anxious to try the indictment. but be-
ing confined as a convict he has been I'M
YII. to saLaA aRw~ ata- a. x 80 n vt
within the time required by law. He as
scrts that he has never violated the con-
ditions of HIS pardon. and that he is I'M
lawfully detained. and he prays that this
board recommend that the Governor or
der his release. 1t appears from a letter
of Mr.. Charles H.. Bronson, clerk of the
circuit court, that at the last January
term. the case was retired" on account
Of not having witnessed sufficient to con-
Wet. AZ the clerk says he thinks. We do
not understand what is meant by 'retir-
ing the case. Whether there has been a
nolle prosequi or simply that 1t is on "A
retired list as some of the clerks some
times consider cases. does not appear.
The question of first Importance is,
what Jurisdiction has the Governor or
this board over this subject?
BY section II of article I of our Consti-
tuition the Governor has power to remit
fines and penalties. to commute capital
punishment, to grant reprieves and par
dons after conviction In the cases therein
specified; and chapter IS of the Acts of
1901. makes it the duty of this board TO
recommend to the Governor of the State
the ACCESSIBILITY of granting or refusing
the pardon. Communication. reprieve or re-
mission. BY section 90 Of chapter Il of
the Code. authority is given TO the Gov
ernor to Impose such conditions as may
be deemed proper by him upon any par
don he may grant. In this case Dudley
Is confined by order of the Governor on
account of the alleged breach of the CON
dition of his pardon. He is said to be il
legally detained. and asks that he be dis
charged from unlawful imprisonment. 1t
viii be observed that he does not ask that
he be p~ardoned. Indeed the idea of par
don does not apply to the facts in the
tlsc. The governor is asked to exert a
power which, it does not appear to US.
has been conferred upon him. II Dudley
be detained without lawful authority, as
is claimed. why rot seek relief under sec
ton 12 of article s OF our Constitution and
section l of chapter III of the Code? How
ever, 1t is not necessarw for us TO discuss
this question. In our opinion this Is not a
case in which the Governor should act.
At any rate. we do not think we have
any jurisdiction in this case. being con-
trolled strictly by the statutes of the
State. and there being nothing in the
same applying to such a case as this.
Frank Kerns was convicted In the cir
cult court of Marion county of an attempt
to commit rape upon a child and SEN
fenced December Is. 1900, to three years
confinement In the Denitentiary.
All the papers In this case are q petition
setting up Kerns's side of il and a lot of
names on sheets of paper entirely de-
tached from the petition. We have no
means of moving whether these names
are intended as signatures TO the petition
or not; but in the present shape of this
case. that IS not a material matter. The
petition reeites that kerns Is a boy little
more than Il years of aRe,and that on
the trial of the case the girl, who he is
charged with attempting to outrage, swore
that he was guilty Of the %offense, while
he swore that he was not. 1t is said that
a witness. who was some distance away,
testified that he saw Kerns all the time
and that he did nothing but assist the
child in crossing a ravine, while two 9th
er Witnesses are said to have testified that
they were in sight and did not see any
attempt at rape. It is also alleged In the
petition that kerns has symptoms of tu-
herculosis; that he is rather weak men
tally and it Is a question whether or not
his mind Is susceptible of entertaining a
criminal motive.
In any view. we could attach but little
weight to this paper, merely stating In a
naked petition that certain things are
true, is not the best way to establish them
as facts. If We are asked to reverse and
set aside the verdict of a jury and the
Judgment of a court on the actual occur
renee of the trial of 1t, the record should
be produced before US, to say the least;
afddayits filed. showing what occurred
on the trial. But VI any view, the jury
and the court before whom Kerns was
tried, were better qualified to pass on the
matter set up by him than we could pos
sibly be. Tit jury chose to believe the