The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1913-01-16
DECIDES
AGAINST ALIENS
Continued from First Page)

HuHIUOI hlLLNO
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and was completed on May Il. 1912,
resulting in verdict of guilty OF muir
der in the first degree. Claude 5 Alien
was subsequently put upon trial with
a like result Judgments were not en-
tered upon the verdicts until September
10 1912, in order that Floyd Allen and
Claude Allen might be witnesses in be
half of the defence in the prosecutions
still pending growing out of the same
transaction"
This rehearsal of history is taken TO
Indicate that plenty of time was had
for the production OF all evidence 90
taina bic in the case.
Testimony Was Conclusive.
Continuing. the court says: ne
homicides took place in the courtroom,
in the light OF day and in the presence
Of a large numbe OF witnesses In the
successive trials that took place these
witnesses were subjected 10 e1amina-
ton. cross-examination and re-cross-
Examination Their knowledge OF the
facts was probed in every concelvaole
way. There was every opportunity
that can exist IN any case Tor trial-
cornDle.e and exhaustive presentation
% al The facts bearing upon the issues.
court below. and the original petitions
UPON which THIS court acted at the NO
veub term without being satisfied
that the prisoners were DEFENDED Oy
capable. faithful. earnest and ener-
Setic counsel. who left no stone I'M
turned TO present the cause OF tner
clients 20 the best advantage Every
means known 20 the Law was reso-ted
% break down and impair the CREDIBLE
it- and force Of the witnesses who teeti-
fed for the prosecution; but notwlth-
standing every effort on the part OF the
defense. 50 conclusive was the tesii-
mony for the prosecution that the
.juries in the cases OF Floyd Allen and OF
Claude found verdicts OF murder IN
the first degree.
Would Not Effect Result.
Upon d consideration Of the evil
dence presented upon this motion IL
plainly appears that in some instance
IT was discovered before the judgment
was rendered, in others, that the tend
cncy is to Impcach the credlDiIty Of
witnesses and IL addressed 10 questions
which were the subjects OF investigation
at the trial. upon which testimony Of
witnesses was adduced of character
identical with that now brought for
ward upon this motion. and comes.
therefore strictly within the rule as
to cumulative evidence, and IN some
instance bears upon facts wholly col
lateral TO the issue under InvestIga-
ton. and taken as a whole the new
evidence presented is not. in our judy
ment such as ought 20 produce a diff
fercnt result If a new trial were awarded
The subject of granting new trials
on the grounds of after-discovered
evidence has been discussed III numcr-
Gus cases decided by this court
In St. Johns Executors vs.. hnder
son 3 Graft. rs Va. Jude Christian
delivering the unanimous opinion Of the
court Il was held. that the testimony
must have been discovered since the
former trial. that II must appear that
the new testimony could not have been
obtained with reasonable diligence on
the former trial that II Is material TO
the issue; that it must 80 TO the merits
Of the case. and not 10 impeach the
character of a former witness. and
shat u must not be merely cumulative
In the city of Norfolk VS.. Johnakin,
- Va 2s5. il was held that a motion for
now trial on the ground of after-Gis-
covered evidence should not DO grant
ed. unless II appears that the evidence
as discovered after the trial. that 1t
could not. by the exercise of reason
able diligence. have been discovered be
fore the trial that 10 was material. and
such ar ought on another trial to pro-
duce an opposite result on the merits.
cOrroborativc OF collateral
The Same rules we're held 20 apply in
criminal cases See Jones -. Martins
D VILE 90 Va IJ3 Nicholas -. Common
wealth. GO 70. 153. and the authorities
there cited Authorities upon this point
might 10 rult ipiied 20 an almost indef-
mite extent. but VIC have cited enough 10
show what Ne believe 20 be the unqucs-
toned Low % this Commonwealth.
Question for Trial Jury.
IT D. urged upon US that even
handed justice demands that FLOYD
Allen and Claude Allen should b. award
4 % a. new trial. because upon n. trial 81
Others equally as guilty - they. fne
D charge 90 cuusuirarv was abandoned
and vc-dicfs rendered Tor murder iu fhc
. second cr.rfr Irt guilt or innocence Of
the petitioners sru-t Pc determined l.
. Tho record before us. the records uro-.
The other trials arc not htrc. and We are
unable 60 cay wnar they DO 0r do no.
. contain. bat % BE- DO granted that she
. statement Of counsel for thc petition
crs o. accurate in the respect mentioned
Do could not produce ftc result con-
tended FOR. Tho monUraIfh s-a.
nos bound down 20 pursue fhc same
Hre of prosecution iu al she cases
though ihf same Transaction vas under
.rrrsffgaflon. With respect o. fhr v.r.
dIcts 81 %. turlcs being more ierie-s
ir f4Iseoueuf cases. that is - mater
beyond the control - the courts The
question before Us b.. were fhc accused
guilty q the oIcnsc with which ffcv
were charged we're they tired in &C..
cordancs with thc Law % thc land and
d0ee Tire evidence support the vsrdfr,
% the jury 30 does not concern VS. ffas
in other casos other juries inflicted a
riidcr PUNISHMENT upon substantially
fhe same STATE % facts Burton A Con.
81