Year: 1868

thority, he was in consequence triable be,
fore the circuit court, and in that sense II
was not practicable to conform to the new
law in this particular.


The court held that the 10th section Of
CHAPTER 2O7 Of the late act of Assembly does
not embrace this case, and repeats that II
is quite immaterial in what stage the re-
peal should happen to catch the proceed
inps upon commitment for exemlnatlon
since they are thenceforth to follow the oic
law, except SO far as the court should tlnc
it practicable to conform them to the new


As to section 4, chapter I'll, the cour
held that the first part of it confers IN cases
of misdemeanors, &c., discretion to try
&C., and the concluding sentence, If MOI
used er abundante caaltela, has the effect t
take prosecutions for capital felonies out Of
the saving of the 18th section OF chapter
18th of the Code, so as to relieve the cour'
of the necessity Of conforming to the new
law. ..,, ...a.


Hence the court feel warranted in con
Guiding that the circuit court had Jurlsdlc
ton to try his case notwithstanding the
abolition of examining courts.


AS to the error complained Of IN the IT.
regularity in the treatment of the jury
which irregularity consisted in the judge
having temporary custody of a sick juror
outside of the room in which his compa
mons were, this court held that " the judge
is the first and best" man to have charge
of a jury, and the very one to whom tne
charge is confded by law. The possibility
that q Judge, on or off the bench, might
tamper with jury "cannot be accepted as
q reason for doubling or impairing the au'
thority" of the judge. "The interests Of
the Commonwealth and the prisoner, the
cause of justice, and his own sense OF con
venience and duty, all conspired in requi
ring of the judge in this remarkable trla
the frequent precautions he took IN visiting
and inquiring after the sick jurors" &c
The court referred to the precedents cited
and after explaining away some supposed
to apply to this case said: '' In this un
settled and indeterminate condition o.
our cases think we are authorized to de-
duce and lay down a rule not in conflict
with them as whole, and in harmony
with the general current Of decisions else
where. And that rule seems to me to be
this: That separation (of the jury) out OF
the custody and control of the officer is
primG fdcie sufficient to yitiate verdict
and that it is incumbent upon the Common
wealth to refute that presumption by dis
proving oil probabilities or suspicious Of
tampering, unless, indeed, the prisoner (
own testimony, rs in Thompson's case
should be sufficient to that end" In this
case the Commonwealth has performed this
duty, and the prisoners counsel disclaimed
any suspicion of tampering on the part Of
the judge.


The opinion concludes: ....


sIt only remains for me to announce my
opinion that this record does not furnish
ground sufficient to set aside the verdict
and award the new trial asked for"


IN THE COURTROOM.


The room was crowded during the read
ing of this unanimous decision of the court
by Judge Rives. The interest manifested
was intense, and profound silence was
maintained throughout the hour and five
minutes occupied in the delivery of the
decision. It's substance was instantly
communicated to Judge Christian, who was
holding his circuit court in the room below


HOW PHILLIPS RECEIVED THE NEWS.


When the news Of the action of the Court
of Appeals reached the county courthouse
where the court was in session, the ques-
ton that arose was, who should break it to
the ill-fated prisoner, who had been all the
morning walking to and fro in his cell,
anxiously awaiting the tidings, though still
strangely confident Of favorable result.
The sad duty appropriately fell upon Mr.
George ". Thomas, one Of the prisoner 3
faithful counsel. Deputy Sheriff Eggles-
ton went to the Jail at o'clock, and, open
ing the cells, the prisoners came down
as usual to their dinner. Phillips had
taken his rations up stairs and was coming
down for another purpose, when he was
told that Mr. Thomas wished to see him at
the gate. They shook hands through the
iron bars, and it was hardly necessary for
the lawyer to speak, as his countenance told
the story. Phillips gazed at him stolidly,
and without o word turned towards the
prison-door, then stopped and asked MIR.
Eggleston if Mr.. Thomas might speak with
him in his cell. The permission was ac-
corded but before the sheriff and
the lawyer had entered the apart
ment the prisoner had thrown himself
upon chair, and burying mis- face in his
hands, burst into tears. His whole frame
quivered with emotion, sob followed sob in
quick succession, and for several minutes
not word was spoken. Presently Mr..
Thomas (his own voice husky approached,
and placing his hand upon the poor fellows
shoulder, begged him to be calm, cheer up,
and in few words assured him that his
counsel had now done all that they could
except to obtain q brief delay before the
day of execution. 1t only remained for
him to make his peace with Heaven, and he
must remember that there were many pray
ing for the salvation Of his soul. To all
this and much more Phillips listened, but
said nothing in reply. There was nothing
now to say. Death-certain death-stared
the prisoner in the face.


This interview lasted but a short time.
His friends withdrew, and for more than an
hour he was left alone. At about o'clock
the Rev. Dr.J. B. Taylor Baptist minister,
who had in days past known the youthful
culprit and his father before him, applied
to be admitted to the cell. Sheriff Eggles-
ton, opening the door, found the prisoner
still pacing the stony floor, and crying still
dS IL MS HeaIt Houlu oieth' LII ePiJ 'o.Ac
question whether he was in state OF mind
to receive spiritual advice, he said " Ger
tainly." At first he did not recognize the
venerable divine who entered his cell, but
afterwards said he remembered him well,
and thanked him for coming to him in his
hour of trial. The Doctor then sat down
by his side, and, as to g dying man, told
him in simple, unaffected words the story
of mans sin, and the plan Of salvation
by faith in Jesus Christ. Frequently the
trembling auditor broke out in fresh sobs,
and seemed particularly affected when the
minister said he desired to speak to him as