The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1911-01-12
REAFF|RMS
PRIMARY STATUTE
Again Says Elections Are Pro-
tcctcd by General Law on
Subject.
WISE CASE is REFERRED TO
Commonwealth Has No Appeal,
but Norfolk Judges May
Be Prosecuted.
WISE CASE is REFERRED TO

yesterday stated mat there Is nothing
in the way of prosecution OF the three
Norfolk judges who were indicted for
irregularities in the August primary
election.
AT the same time. the court refused
the writ of error to the Judgment OF
the Norfolk court asked for by tho
Attorney General. on The ground that
the Commonwealth has no right of ap-
neal, under the Constitution, In a case
where the life and liberty OF any per-
son is placed In jeopardy.
The very fact that the court saw fit
to hand down a written opinion when
passing on a petition for writ OF
error, indicates the Importance of tho
matter involved, and the desire OF the
tribunal that Its action in refusing the
writ OF error should not be miscon-
strued into a tacit declaration of the
nnconstitutionality OF the statute in
volved
Charged With Frauds.
Edward WILCOX, James T. Hannah
and Frank Kellinger were the Judges
of election at what is known as the
court house precinct in Norfolk, in the
primary election held in August, in
which Representative H. L. Maynard
was opposed for the nomination for
Congress by William A. Young. AS a
'NINie VI lhdb cleCilOll, MT maynard
contested the right OF Mr.. Young TO
the certificate. An investiga ton by the
State Democratic Committee followed.
resulting In new primary convention
plan, under which Senator F. r.. uol-
land became the nominee for Congress
Following revelations as to the con-
duct of the election. the three Judges
were indicted for certain Irregularities,
but the cases were dismissed on a de-
murrer which alleged that the act
Furnishing election frauds was not an
plicable to primary elections. inasmuch
as this sort of contest was not speci-
fed in the title as required ny the Con-
sitution The Norfolk judges upheld
this view.
Wanted E1trn Session.
AT once there sprang UP a dema nd
i'll Norfolk for an extra session of the
LEGISLATURE to pass a law protecting
primary elections. by correcting tho
tltie TO the act. In vain II was shown
that the Norfolk court had not been
advised of the decision of the Supreme
Court. which had previously held IN.
act 10 be valid. and 1t was not until
Governor Mann announced that he
would not call an extra session, as
there was no need al all for one. that
the agitation subsidized.
Attorney General Williams asked for
writ of error in the Norfolk cases.
which is not denied because of a con-
stitutional provision that the Common
wealth has no appeal in cases involving
life and liberty.
However. in taking this action IT
hands down an opinion which settles
once and for all the question of
whether or not primary elections in
Virginia are protected. The same
statute covers them as applies in gen
eral elections.
Important Sections
Following are extracts from the de-
clsion
Section 4o52 of the Virginia Code.
l9oi' relied upon in the petition. does
seem to confer such jurisdiction. 1t il
as follows: "A writ of error shall lie
in criminal case to the Judgment Of
a circuit Court or the Judge thereof.
or OF Corporation Court or of n lust
lngs Court from the Court of Appeals
II snail lie III any such case for the
accused, and If the case be for the vio-
lation of law relating TO the State
revenue. or for the violation of law
therein declared TO be unconstitutional
IL snail lie also for the Commonwealth"
But the statute must yield 10 the
Constitution, which in section IS pro-
vldes that no appeal shall be allowed
TO The Commonwealth in any case in
volving the life or liberty of a per-
son.
In the face of this plain constitu-
tional inhibition. we cannot take ju-
risdiction of q case which involves
the life or liberty of IA person, upon
the petition OF the Conmonw ealth.
Not Matter OF Moment.
In the case before us, however, il is
not matter of serious moment The
Indictment WAS demurred to BY the
defendants, the demurrer was sus
tanned. and the indictment was dis
missed. The accused were never In
jeopardy. and may be again indicted
and tried for the offense whereof they
are accused If the Commonwealth
shall be SO advised
In the case of Commonwealth VS..
jackson Wise. the Hastings Court of
the city OF Richmond reached &; differ
cnt conclusion with respect to the same
law. Wise wGs found guilty, sentenced
to confinement in Jail. and applied to
TINS court for writ of error. which
was refused by an order entered April
10. 1906. which rccites that THE court
being of opinion that said Judgment is
plainly right, doth reject said petition. .
No opinion was filed with the order
Just recited, and in view Of the fact
That 81 diversity of opinion exists
among the courts of FIRST instance, we
think II proper TO state the reasons
which controlled the court The cues
lions involved are of the greatest i'm
portance, for If the sta tltc under which
Wise was convicted be null ana void
as rcpusnant TO the Constitution. then
this Commonwealth is without any
effectual regulation with respect TO
the conduct OF elections, is without any
ctIlClent
elections. and the Legislature has
wholly failed to discharge the high
duty imposed upon II by the Constitu-
ton, to enact such laws as arc neces-
sary and proper for the purpose of Sc
curing the regularity ana purity or
general, local and primary elections.
and preventing and Furnishing any cor
rupt practices in connection therewith
Question Of Title.
The statute as approved January II.
1904. containing this section, appears
III the compilation OF laws known as
Pollard's Code Of 1901. rs chapter 10,
and takes the place of chapter 10 Of