Year: 1868

10 Ine COuEt tliit tHc polht "t0 purify
taken, and that there was no intimation Of
any improper influence exertcd upon the
juror. 1t was the duty Of counsel in
capital case, standing by a man who had
been pronounced guilty by jury of his
country, to reserve every point that could
possibly avail him, and that no considcra-
tions OF the relations existing between the
bar and the court, or mere questions OF pro-
fcssional courtesy, should deter counsel from
saving every point in which they had the
slightest confidence. He said that he might
we'll have simply put in bill of excep-
tions, the facts rs he knew they had oc-
curred-as he alone Of all other persons
could know what did actually occur. But
upon a question affecting at least to some
extent the propriety of his Judicial action,
SO far from avoiding, he courted the strict
est scrutiny. He felt that it was due to the
high position which he held here, rs we'll
rs to the dignity and purity Of the Virginia
bench. that this matter should be thoroughly
sifted, and therefore he permitted the atfi-
davits Of the juror Waters and of the
sheriffs TO be taken, and in delivering his
opinion he would contine himself to the
facts proved by those altidavits without any
reference to his own knowledge of what did
happen.


1t was proved that on the morning of
July 4tb the Judge went into the jury-room,
near his own at the Exchange Hotel, for the
purpose of inquiring after the health Of q
Juror who, day or two before, had tainted
in court that while talking to this juror,
Mr.. 7. A. Waters, one of the jury, ap-
preached him, and complaining of the ex-
ccssive heat of the room and Of violent
sick headache, asked the privilege of sit
ting in the open air upon the back portlco
adjoining the juryroom. The Judge re-
piled that there was no objection provided
that one of the officers would sit with him !;
and thereupon called Mr.. Smith, deputy
sheriff, and .old him to take Mr.. Waters out
on the portico, ut the same time cautlonlng
him to sit by his side, and not to leave him.
1t appeared that soon afterward the Judge
came himself upon the portico, and took a
seat near the juror and sheriff, and while
sitting there, the juror being between the
sheriff and the Judge, Mr.. Magruder,
another deputy sheriff, came by with the
balance of the jury, except two, who we're
unwell, and whom he had locked in their
room. Magrudcr remarked to Smith that
he was lame, and requested that he (S.)
would 90 with the jury to walk, while he
lM.) would remain with the juror Waters !;
whercupon Smith went off with the jury to
walk, leaving Waters in custody of Magru-
der. 1t seemed that NIagruder stepped
back to the jrry-room, and as soon rs the
Judge perceived that he had retired, he
directed Mr.. Waters to go into the jury
room, and walked with him to the door,
Alagrudcr having been absent, according
to his statement, only from three to five
minutes before the Judge discovered it. 1t
was proved further that there was not n
word between the Judge and the juror
about the trial that the portico communl-
Gated with the .jury-roOm, and they could
have seen them from point near the door.


The legal question presented to the court
to decide was whether the facts proved
constituted such separation of the jury
MS would yitate the verdict. After review
ing tie English and American decisions,
including those Of Virginia courts, he
said that it is not the law that q Sc
paration per Sc will vitiate verdict. 1t
must be shown that there was tampcring
with the jury. He referred to Thompson's
case, where the Court of Appeals reviewed
all the decisions upon this subject, and de-
cided that the weight of authority greatly
preponderates against the proposition that
separation per Sc would vitiatc verdict.
In reply to the positions assumed by Judge
Crump that the Judge of court when he
leaves the bench is only private citizen,
and could have no control over the jury, he
said hecould not assent to that proposition
to the extent to which ii was contcudcd for
by counsel. Can it be possible thnt when
q Judge leaves the bench he thereby dis
robes himself of all judicial authority and
power, so that he cannot keep a yigi.ant
eye upon the jury and officers Of his court
The jury were placed in a room near his own
for the express purpose Of keeping them
and the officers under his own eye. If
there is anything in the argument OF cOun-
sci that the Judge is clothed with no authOr-
ity off the bench, then, indeed, no irregu-
larity of conduct or official neglect, how
ever gross, could be noticed by him until
he went back into court and took his seat
upon the bench. To illustrate, suppose that
in this case it should happen that letter
ad been brought under suspicious circum-
stances to the jury-room with the request
that it should be delivered to the juror to
whom it was addressed, and the sheriff
should inform the Judge, and inquire OF
him whether the letter ought to be delivered
before being opened and read; according to
the argument Of counsel, the Judge must
say: "Wait until 60 on the bench, am
private citizen you might as well
ask any other person for directions"
To sustain this proposition that the
Judge has no authority of the bench,
counsel had referred to the single case in
Pickcring's Reports, in which Judge, in q
case where Il jury was hung, had received
q communication from the foreman stating
that it was impossible for them to agree,
wrote letter to the foreman, setting forth
the legal principles which in his opinion
governed the case. In that case the appel
late court very properly decided that it
.s error for Judge TO communicate to the
jury his opinions upon legal questions, not
in open court, in tho presence Of the ac-
cused or his counsel. How is it possible
that such decision can in any manner
affect the question presented in this case
Being therefore Of opinion that separa
tion of the jury per Sc cannot vitiate its
verdict, the Court was constrained, both
upon reason and upon authority, to over
rule the motion made by the prisoners
counsel.


To this ruling the defence filed bill Of
exceptions, and then, without argument,
moved an arrest of judgment which motion
was also overruled.


TIE SENTENCE OF DEATH.


The Clerk: James Jeter Phillips, stand
up"


He stood up. Every eye was upon his
pale face, his clear blue eye, his tightly