Lexington gazette. [volume] (Lexington, Va.) 1871-1962, 1912-03-27
THE LEGAL ASPECTS
OF THE ALLEN CASE
Discussed by Dean M. P. Burks
Of W. & [. Law School
THE LAW AST0 CONSPIRAT0RS
Proof of Conspiracy Will Secure
Conviction of Outlaws


That the establishment OF a con.
spiracy to kill the court official at
Hillsville last week is sufficient to
secure the conviction OF any and all
parties to that conspiracy, regard
less of whether the prosecution is
able to show exactly which members
of the Allen gang fred the fatal
shots, is the opinion OF Dean Martin
z. Burks of the Washington and
Lee University School OF Law.
Certain legal aspects of this case
being much discussed at present.
The News yesterday called Dean
Burks on long distance telephone
and secured his permission TO use
his name in connection with the fol-
lowing paper, which, although has
tlly prepared, presents a compre-
hensive and clearly stated exposi-
ton OF the questions treated:
Generally, If a person is killed
by A. or B.. but it cannot be def
nitely shown which did the killing.
both must be acquitted, but the rule
Is otherwise in the conspiracy.
Here it is immaterial who did the
killing. Each conspirator is liable
for the acts OF all the others done in
furtherance Of the conspiracy. Nor
is 1t necessary to prove specifically
the verbal agreement of the parties
70 commit the homicide. Acts some
times speak louder than words.
The very nature OF the attack, the
simultaneous assault of m5ny only
upon the officers of the court. their
relationship to the party on trial
their attendance at the same time.
their concert in the same deadly at
tack. furnish all the evidence Of con.
spiracy needed. Usually a man can
not be tried for two feloaies at the
same time, but if they are so con-
nected by time and circumstance
that YOU cannot well prove one
without giving evidence Of the
other there is no objection to irving
both at the same time. AS no two
were killed by the same bullet. each
separate killing was a separate and
distinct offense, and all the homi-
cides may be charged in the same
indictment, provided each killing is
charged in separate count. There
cannot be more offenses than counts.
1t is all important, as an object
lesson. that outraged justice should
be vindicated at the place " here the
outrage was committed, and that the
murderers should receive the SEN
tence OF the law on the very spot
where they fired the fatal shots. and
1t is probably for this reason, among
others, that the Governor has been
slow to call on the military. The
statute provides that if the sheriff
of the county shall call en- the Gov
ernor for q military force to protect
the accused from violence, there
shall be change of venue if the ac
cused shall apply for it. The stat
ute is mandatory and the Judge is
given no discretion in the premises
The language of the statute is quite
restricted, out the courts might
feel that the spirit of the act applied
where the Governor sent troops
without request, or to protect Off
GERS Of the court as well as the &C
cused. and this has dou Stless had
its effect. The statute also gives
the Commonwealth the right to
move for change of venue for cause
shown, but it is dou btful if the pro-
vision can be upheld in the face of
the constitutional provision guaran-
teeing the accused the right to a trial
by jury of the vicinage. Lynch
burg News.