Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-03-05
COURT TAKES RECESS
Illness of Philip Strother Makes
Order Necessary.
TRIAL THEREBY DELAYED
Instructions to Jury Regarded by De-
Tense as Satisfactory.
UNWRITTEN LAW NOT QUOTED
Court Declines, However, to Grant In
struction Offered by State Upon
the Question.
TRIAL THEREBY DELAYED
UNWRITTEN LAW NOT QUOTED

When the circuit court of Culpeper county
reconvened this morning to resume the
trial of the case of the commonwealth
against James F. Strother and Philip j.
Strother for the alleged murder of William
F. Bywaters their brother-in-law, it was
with a hope that the hearing was fast
nearing it's end. 1t was felt that the case
would certainly go to the jury not later
than tomorrow afternoon and persons who
are acquainted with the members of the
jury predicted an early agreement. 1t is
the opinion of those connected with the
case that the instructions which were read
to the jury this morning were fair and
impartial so far as the defendants were
concerned, and they were taken to indi-
cate that Judge Harrison realizes that the
so-called "unwritten law is not dead
letter in the Old Dominion. Some disap-
pointment was shown by counsel for the
state because of the refusal Of the court
to grant their instructions upon this ques-
ton.
Before the jurors were brought into court,
however, Attorney Jeffries announced that
Philip Strother was Ill and that he could
not appear in court this morning. He
stated that Philip was anxious to appear
In court. but that his attending physician,
DIR. H. T. Chelf. had advised against his
leaving his room this morning.
DR.. Chelf appeared in court and said the
patient is suffering from an attack of the
grip He had suffered from nausea during
the night and this morning he had fever
and headache.
DO you think 1t would endanger his
life to be In court?''
The physician said: 1T would not be
safe. The patient was extremely anxious
to come to court. but i advised him against
going out this morning"
Judge Harrison suggested that he might
be made comfortable a couch in the
court room, but after discussing the propo-
sition with counsel 1t was decided to take
recess until o'clock.
Strother Appears in Court.
Shortly after noon Judge Harrison was
Informed that the patient would be able
to attend court this afternoon but that he
would be unable to sit up. Sheriff Pull
liam was consulted and the court directed
him to have some sort of couch in court
upon which he could rest. AS soon as it
became known that such an arrangement
had been made the friends of Bywaters
expressed their surprise and indignation,
thinking the move would be spectacular
one. and that 1t might have some effect
upon the members of the jury.
matter of the appearance of Philip Strother
rested entirely with the court and the at
tending physician. ridiculing the idea that
any spectacular effect was intended for
the purpose of affecting the jury. Sheriff
Pulliam procured from the office of DIR.
Lewis the reclining chair upon which Mrs
Bywaters had been brought into court, and
1t was placed behind the seats occupied by
counsel for the defense.
The patient reached court shortly after
court convened, but he would not occupy
the reclining chair, surrendering 1t to his
cousin. Mrs. George Williams, whose son.
Ellis Williams. was shot and killed by Ed
win Barber about twenty years ago. SO
great was the clamor for admittance that
the doors had to be locked to keep many
of the curious ones outside. Mrs. James
Strother in court, occupyng seat
beside her husband
Commonwealth Attorney Keith will make
the opening address for the state. He will
be followed by Capt. Micajah Wood, who
has prepared lengthy argument as the
closing feature of the prosecution For the
defense r. Walton Moore swill deliver the
legal argument. while both John l.. JEFF
fries and John Lee, his associates. will
share the burden of the speech-making for
the defense.
Courts Statement.
The court said homicdes made punishable
BY law in Virginia are divided into four
classes, murder in the first degree being
the greater crime. To constitute murder in
the first degree the accused must have been
melted to the killing by malice, and the
killing must have been willful deliberate
and premeditated. Murder in the second
degree is the willful killing with malice.
without provOcaton upon slight provoca-
uon and without elaboration premedi-
tation
Every unlawful homicide in Virginia.
said the judge. lis presumed in law to be
murder in the second degree In order to
elevate the onense to murder in the first
commonwealth. and to reduce the offense
to manslaughter the burden of proof is
upon the accused"
While the jurist made no specific refer
ence to the "unwritten law his instruc-
tons covered the plea OF emotional insan-
ity." entered by the defense and regarded
as of vital Importance to the outcome of
the trial. lie covered this ground with
great care, warning the Jury not to be
prejudced against the possibility of this
plea representing the defendants condition
at the time of the tragedy. His other in
structions treated the different degrees of
homicide.
IF the jury believes from the evidence"
he said. that stress or strain upon the
mind of the defendant at the time of the
commission of the homicide, arising out of
the conduct of Bywaters the deceased and
all of the other facts and circumstances OF
the case, so operated upon the mind of the
defendant as that his reason was dethroned
and his mind so impaired as that he be-
came temporarily insane as defined in these
instructions, ana was thereby rendered In
capable of governing himself In reference
to said Bywaters. the jury should find a
verdict of acauittal.
Specific Charge.
IF the jury believe from the evidence
that In his state of mind at the time of the
killing the accused might reasonably infer
from the acts and conduct OF the deceased
Immediately preceding the killing that he
intended to desert his wife, and that he
made an effort to do So and that such eff
fort would naturally and reasonably incite
In his mind great anger and passion, under
all the facts and circumstances Of this case,
such as to control his reason and will. and
that under the influence of such passion and
anger. and not In pursuance Of any pre-