Pine Bluff daily graphic., 1912-07-16
THE M'YAY CASE IS AFFIRMED Supreme Court Criticises Judge Grace For Leav-
 ing the Bench. COMMENDS COUNSEL,
Judges Act Not Prejudicin! to Inter. eStS of Defendant, Says
 Supreme Court.

Little Rock, Ark, July 15.--The Su- preme Court today affirmed the death sentence upon John M. McVay, of Jeff ferson county, conTicted for the mur- der of J. w.. Ethridge, of Fall Back, Miss, who was shot and killed as he was leaving the court house in Pine Bluff on he,~afternoon of November 20, 1911. The date for McVay's exc cution is to be fixed hy Governor George w. Donaghey, the date set by Judge A. B Grace, following his con- viction, having been set aside when an appeal was taken to the Supreme Court
 Justice C. J. McCulloch wrote the opinion and Justice Kirby dissents. There were forty-nine assignments of error, but only a few of them were considered important and noneNsf these preiudicial to the interests of the ac- cused
 '.The assignments of error which gives us most serious concern <s the most serious concern is the one that the trial judge absented himself from the court room during the argument of the case to the jury" Says the de-a cision. "A member of the barxnot in- terested in the case was called to pre- side. He first spoke to counsel for the defense and was told there. would be 1 no objection. to his leaving. It is af- firmatively shown that nothing actual ly prejudicial to the defendants rights occurred during the absence of 1 the judge. ."The argument of coun- sel may be waived altogether, says the court, "and if the parties agree to 1 the absence of the judge during the argument and elect to proceed during such absence, they cannot complain, for the result is the same as # they had waived the rights to argde the case or had by consent, proceeded to argue the case during the recess or dered by court.
 "We deem it proper in this connec- tion to say that no reflection should be cast upon the able counsel who appear on behalf of the defendant for attempting to take advantage of the absence of the judge, even though they consent to it. Notwithstanding the consent given, they had the right and were within the line of duty to their client to test by an appeal to this | the defendant could, through the act of either of them, give such consent.
 "The practice of trial judge leaving the bench during the progress of trial, even with the express consent of counsel on beth sides, is not to be commended. Those who stand in the presence of a court should never be permitted to forget that the adminis- tration of the law as a thing which must command at every moment the utmost respect of all, and nothing de- tracts more from the solemnity of the l occasion or the dignity of the laws l machinery than for the judge 10 leave the bench and substitute some person, who, however learned in the law, is entirely without legal authority to act. Then again the judge should 5a pres ent so that everything which trans pires is under his immediate direc- tion and control and so that ulsscemly controversies cannot arise as to what t actually occurred
 Our conclusion in the present case is that the defendant has been in no wise prejudiced in his rights and that he has been convicted of the highest of crimes by jury upon testimony which is legally sufficient and sustains the verdict
 The McVay ruling of the Supreme court will attract much attention from the legal fraternity throughout the state. McVay's attorneys, Lewls Rho ton, of Little Rock and w. F. Coleman and J. M. Shaw, of Pine Bluff. made a hard fight to secure a reversal of the case. The consent of Attorney Shaw was given to Judge Grace leaving the bench and the other attorneys were informed of it later by him. On this point counsel for the defense were confident that the Supreme Court would remand the case to the Jeffer- .son circuit court.