33 W. Va. 319 | W. Va. | 1889
Van B. Baker was indicted in June, 1887, in the Circuit Court of Hancock county, for the murder of Mrs. Drusilla McWha. He demui’red to the indictment, and his demurrer was overruled. He tendered a plea in abatement, which was rejected by the court. He then pleaded not guilty. After a trial in Hancock, and a new trial granted, the case was removed to Brooke county. When his trial came on there he objected to certain jurors for ineompeteney, whom the court accepted as competent. His trial resulted in a verdict of guilty of murder in the first degree, and finding that he be confined in the penitentiary. He moved the court to set aside the verdict and grant him a new trial, on the ground that it was contrary to the evidence, and the admission and rejection of certain evidence, and erroneous instructions. Ho instructions appear in the record, and no assignment is made as to them. The court overruled the motion for a new trial, and on the 27th of December, 1888, rendered judgment that the prisoner be confined in the penitentiary during his life; and to that judgment he obtained a writ of error.
The judges of England, in 1660, in the proceedings against the regicides of King Charles I., (5 State Tr. 947) resolved that any of the king’s counsel might privately manage the evidence before the grand inquest, in order to the finding of the bill of indictment. So in the case against Hardy and others (24 State Tr. 199) for treason, in 1794, the solicitor for the crown went before the grand-jury. According to Sir John Hawles, in Colledges’ Case, in 1681, the practice had long prevailed. 8 State Tr. 723. 1 Chit. Crim. Law, 260, states that it is not unusual, except in the king’s bench, where the clerk of the grand-jury attends, to permit the prosecutor to be present during the sitting of the grand-jury, to conduct the evidence on the part of the crown. So on indictment for treason, where the sovereign is immediately
Mr. Justice Eelson, in U. S. v. Reed, 2 Blatchf. 435, said : “It is the uniform practice in the Eederal and State Courts for the clerk and assistant of the district attorney to attend the grand-jury, and assist in investigating the accusations presented before it. That has been the practice, to my knowledge, without question, ever since I have had any connection with the administration of criminal justice. * * * We can not at this late day overturn a uniform practice, that has been settled for so long a time. * * * But, if any abuse has been committed by him, or by any other person, it is a proper subject for investigation by the court.”
In Justice' Eield’s formal charge as to the powers and duties of grand-juries, in 2 Sawy. 678, he says : “The district attorney has the right to be present at the taking of testimony before you, for the purpose of giving' information or advice touching any matter cognizable by you, and may interrogate witnesses before you; but he has no r-ight to be present pending your deliberations on the evidence. When your vote is taken upon the question whether an indictment shall'be found, or a presentment made, no person besides yourselves should be present.”
In State v. Whitney, 7 Or. 386, an assistant attorney was before the grand-jury; and this was held not a cause for setting aside the indictment, or reversing' the judgment. In Shattuck v. State, 11 Ind. 473, it was held that the prosecuting attorney may attend the grand-jury, examine witnesses, and advise the jury of matters of law. See, also, Thomp. & M.
Davis, in his Criminal Law, says : “The practice in Massachusetts is for the prosecuting officer to open the case, commence the examination of each witness, and meet any question as to thelawof the case that may begiven him; butduringthe discussion of the question it is his duty to remain perfectly silent, unless his advice or opinion in a matter of law is requested. The least attempt to influence the grand-jury in the decision upon the effect of the evidence is an unjustifiable interference, and no fair and honorable officer will ever be guilty of it. It is very common, however, for some one of the grand-jury to request the opinion of the public prosecutor as to the propriety of finding the bill; but it is his duty to decline giving it, or even any intimation on the subject, but in all cases to leave the grand-jury to decide, indepeudently, for themselves.”
Undoubtedly, this power is, in many cases of complication, important for the public interest, and, when exercised by conscientious prosecutors, according to these principles, can not hurt the accused, but when improperly exercised is a weapon of danger. How, this plea in abatement 4does not aver at what stage of the grand-jury proceedings the attorney was present: or that he was present during deliberation or vote ; or that he made any comment on the credit or-effect of the evidence, or even on the law; or that he urged the finding of the indictment. ' It does say that he “talked in the presence of said grand-jury about the testimony of said witness.’ This may be so, and yet not improper. In what respect did he talk of it — about its weight, or credit, or its mere admissibility, or the law pertinent to it, or during the deliberation or vote upon the indictment ? The plea does not say. The plea should show that this “talk” was contrary to law. It does say, “and thus he unlawfully conspired against him, to have and procure said grand-jury to find said indictment.” The word “thus” remits us to the “talk” before the grand-jury ; and we do not, as just stated, know whether that talk was improper, the manner of conspiring being limited by the word “thus” to such talk. So far as the plea informs us, the only party to the conspiracy, except by inference, was the
Did the court err in overruling defendant’s objection to the juror Deed? There have been many cases in Virginia upon the competency of jurors in criminal cases on account of preconceived opinions. Lithgrow’s Case, 2 Va. Cas. 297; Sprouce’s Case, Id. 375; Poore’s Case, Id. 474; Pollard’s Case, 5 Rand. (Va.) 659; Hughe’s Case, Id 655; Mendum’s Case, 6 Rand. (Va.) 704; Brown’s Case, 2 Leigh. 769; Osiander’s Case, 3 Leigh. 780; Hendrick’s Case, 5 Leigh. 707; Maile’s Case, 9 Leigh. 661; Moran’s Case, Id. 651; Armistead’s Case, 11 Leigh. 657; McCune’s Case, 2 Rob. (Va.) 771; Heath’s Case, 1 Rob. (Va.) 736; Hailstock’s Case, 2 Gratt. 564; Epes’s Case, 5 Gratt. 676; Smith’s Case, 6 Gratt. 696; Smith’s Case, 7 Gratt. 593; Clore’s Case, 8 Gratt. 606; Wormeleg’s Case, 10 Gratt. 658; Montague’s Case, Id. 767; Jackson’s Case, 23 Gratt. 919; Little’s Case, 25 Gratt. 951; Cluverius’s Case, 81 Va. 787.
In Jackson’s Case, supra, Monoure, P., said: “There is no question, perhaps, about which there has been more apparent conflict of decision in this state, or in regard to which it is more difficult to derive from our many' casses on the subject any definite rules which will apply to all cases that may arise. The object of the law is to secure to every man who is charged with a criminal offence a trial by an impartial jury; and this rule has been established by the cases, if no other: that if a venire man has formed — and, still more, if he has formed and expressed — a decided or substantial opinion as to the guilt or innocence of the accused, no matter upon what ground it was formed, whether from having heard the evidence on some former trial or examination, or from mere rumor, or otherwise, he is an incompetent juror to try the case; and if, on the other hand, his opinion be merely hypothetical, he is not incompetent.” He further says: “It would be dangerous to lay down a rule; and no case has ever decided that a venire man, who has formed an opinion from accounts received from witnesses out of court, and still less from accounts re
It is useless to attempt to analyze these many cases. It is clear that they all hold that to disqualify a juror the opinion must be decided and substantial. So our court has said the opinion must be “deliberate and decided.” Thompson v. Updegraff, 3 W. Va. 629. It makes no difference, if the opinion is decided, whether it has been expressed or not. Armistead’s Case, supra. Some cases hold that if the opinion is decided, no matter what its source, whether from evidence heard on a former trial, conversation with witnesses or common report, even though the juror say that he is without prejudice, and that his opinion would yield to the evidence,' and he would give the accused a fair trial, and has no doubt of his ability to do so, still he is not competent. Armistead’s Case, Sprouce’s Case, and perhaps Heath’s Case, supra. Other cases hold that if such opinion is based, not on evidence heard on a trial, but on common report, though the juror says that on what he heard his opinion is decided, yet if he says that he is without prejudice, and that his opinion will yield to evidence, and he can discard it, and give the accused a fair trial, such opinion is hypothetical, and does not disqualify. Maile’s Case, Moran’s Case, Epes’s Case, Clore’s Case, Wormley’s Case, and the two Smith Cases, supra. These cases overrule in number and reason the former cases.
In the late Case of Jackson, 23 Gratt. 919, it is held that if a juror has formed, and, still more, expressed, an opinion, no matter on what ground, whether from hearing a former trial, or rumor, or otherwise, he is incompetent; but if the opinion is hypothetical, if the opinion is from hearing the evidence on a former trial or examination, it would be difficult, if not impossible, to regard the opinion otherwise than as decided or substantial, aud he would be generally, not always, incompetent, even though he might think he could give the accused an impartial trial; whereas, if the opinion be based on mere rumor, the presumption, in the absence of evidence to the contrary, is that such opinion is merely hypothetical, and will be so considered, even though the juror speaks of it as a decided or substantial opinion, if he says he has no prejudice, and can give the accused a fair and
Now, the case in hand is one where Heed did not hear any of the evidence on a legal examination; nor yet was his opinion formed on'mere hearsay or rumor, but on a newspaper report of the evidence on a former trial, from which he had a decided opinion, which it would require evidence to remove stronger, than he had read, but he said that he would regard it his duty as a juror to discard it, and could and would do so-, and render a fair verdict according to the evidence; and he seemed to be a man of intelligence, and to speak frankly as to his condition of mind, and emphatically as to discarding the opinion and rendering a fair verdict. What shall be the decision in such, a case ?
In these days of unlimited newspaper circulation, when, by means of stenographic reports, details of the evidence in important trials are published broadcast over' the land, and read by the intelligent and reading portion of the community, by those most competent to sit upon juries and give intelligent .verdicts, .is an opinion grounded- on such reading to exclude the newspaper reader from the jury seat in any subsequent trial of the case? Even though a juror upon his oath, when assuming his solemn duty, says, and the court is satisfied, that he is without bias in the cause; that he will as a juror discard and disregard such preconceived opinion, and give the case a fair and impartial trial according to the evidence, uninfluenced by such opinion — is he to be rejected ? I think not. To do so would put a premium on ignorance, and a discount on reading and intelligence; and the unbending application of such a rule would practically disable courts from securing juries of adequate capacity to fitly decide grave and momentous causes. It may be questioned whether, genei’ally, an opinion formed simply from a news
Judge Lomax in Glove’s Case, 8 Gratt. 620, says: “There is in every bosom an irrepressible casuistry, ever ready to .exercise the judgment upon every representation of criminalty, more especially in crimes of deep atrocity, such as homicide, which seems instinctively to rouse all the faculties of the mind and the sensitiveness of the soul. Upon such occasions the minds and the feelings of none are more apt to be roused into the formation of opinions upon what they may have heard that is material in the case than those who are the most intelligent and discreet and upright, and, at the same time, the most discriminating, such as are, of all the community, the most fit to sit in trial upon the criminal. They may, upon the intelligence which they have received, have formed opinions on the case, and even strong ones; but they were formed upon the hypothesis of the case as it was presented to them. If they are disqualified as jurors, then those best qualified will be excluded from passing between the commonwealth and the prisoner in cases where vindication of guilt or innocence will be most vital. . Courts should be careful in laying down rules as to qualifications of jurors which will throw jury trials and the administration of criminal justice into the hands of the most senseless and ignorant, and least competent to pronounce a just and legal verdict.”
In Moran’s Case, Judge Summers said: “When opinions have not impressed the mind with strong and decided convictions, by which the justness and fairness of the juror’s decision upon the evidence may be influenced, we think that no disqualification is produced. Sustaining challenges to jurors for favor, on slight grounds, tends to place the administration of public justice in the hands of the most ignorant and least discriminating portion of the community, by which the safety of the accused may be endangered, and the proper
Such, it seems to me, are the reason and public policy on this subject. How does it stand on authority ? In Smith’s Case, 6 Gratt. 696, a juror stated “that he had formed and expressed .a decided opinion, founded on a report of the evidence before the mayor, published in the papers, but not such an opinion as would influence his mind, if accepted as a juryman ; that the opinion so formed would naturally be recalled to his memory; but that he would be governed solely by the evidence which might be given in court.” He was held competent. And in Smith’s Case, 7 Gratt. 593, it was held that “the entertaining a decided opinion of the prisoner’s guilt, formed on the testimony as published in the newspapers, is not a valid objection to a juror, if he thinks he can discard his opinion, and that it would not influence his judgment, and that he could give the prisoner a fair trial, according to the law and the evidence submitted to the jury.”
In SchneUe’s Case, 24 W. Va. 780, a witness had read the evidence in a newspaper, and formed an opinion. The president of this Court, (Johnson) in delivering its opinion, said : “Here is a man, sworn as a juror, who had read the newspaper reports of the homicide, and the evidence in the preliminary examination of the charge against the prisoner, and who had, from such reports and evidence, formed and expressed an opinion as to the guilt or innocence of the accused, but who, by prompt answers to questions, says he has -no bias or prejudice against the prisoner, and the opinion'so formed will not influence him in the trial of the issue. Why should he be excluded from the jury ? Merely because, from what he had heard of the case, from what he had read, he had formed and expressed an opinion ? * * * Such a rule would put a discount on intelligence, and a premium on ignorance. The human mind is so constituted that when it receives information on any subject it will at once form a hypothetical opinion upon such information. The well-balanced mind will not be prejudiced by such an opinion, if afterwards the information on which it'was based is found to be incorrect, or only partially correct. The mind that can
In this Sehnelle Case this Court advanced .somewhat beyond Virginia decisions, and held that “a previously formed and expressed opinion of the guilt or innocence of the accused is not of itself sufficient to disqualify a proposed juror. If such a proposed, juror shows to the satisfaction of the court', in his examination on his voir dire, that, notwithstanding a previously formed and expressed opiniou of the guilt or innocence of the accused, his mind is free from bias and prejudice, and the contrary is not shown, he is a competent juror. * * * But, if a proposed juror, on his voir dire, admits that he has formed and expressed an opinion as to the guilt or innocence of the accused, and halts and hesitates as to his then condition of mind, and can not say that his mind is free from bias and prejudice, and can not say that the previously formed opinion will not influence his verdict, he is an incompetent juror.” Thus, this late case in this Court makes the test of qualification not merely the existence of a previously formed opinion, but whether or not the mind of the juror is at the time of his examination free from bias and prejudice, and its capacity to act and render a verdict uninfluenced by such an opinion. The three cases last cited rule this case, and under them Reed was a competent juror. Plere it should be added that in all cases great weight is justly due in an appellate court to the opinion of the court before whom venire men are questioned and examined in regard to their competency. Montague’s Case, 10 Gratt. 767; opinion in Cluverius’ Case, 81 Va. 787. “That court which sees, hears
Is the indictment good? It contains one count, in the form prescribed by section 1, c. 144, Code 1887. Counsel for defendant urges that it is not such an indictment as is required by constitutional provisions, and that the statute authorizing it is void. In Schnelle’s Case, 24 W. Va. 767, Smith’s Case, Id 815, and Flanagan’s Case, 26 W. Va. 116, this statute and form of indictment for murder under it, have been held valid. In Schnelle’s Case the discussion rested on that provision of the bill of rights entitling the accused to be fully and plainly informed of the character and cause of the accusation against him. Brief of counsel in this case suggests that our statute and form of indictment are invalid under sec. 4, art. Ill, of the State constitution, probably referring to that clause which provides that no person shall be held to answer for treason, felony, or other crime, unless on presentment or indictment; and sec. 10, art. Ill: “No person shall be deprived of life, liberty, or property without due process of law, and the judgment of his peers.” We do not see that any of these have been violated bjr this act and the form under it. We are asked to reconsider the decision on this point in Schnelle’s Case; but we regard that.case as correct, and see no reason for re-opening the question. The bi’ief also refers to articles 4, 5, and 6 of amendments to the constitution of the United States. It is well settled that the first ten of these amendments were not intended to limit the powers of the states in respect to their own people, but to operate on the national government only. Spies v. Illinois, 123 U. S. 181, (8 Sup. Ct. Rep. 21, 22).
. Is there any error in allowing the state to use in evidence the pantaloons of the prisoner, which the state claimed showed blood spots ? I think there is not. It is true that our constitution provides that no person, in any criminal case, shall be compelled to be a witness against himself; but it has not been violated in this case. The sheriff asked the prisoner, while
Several cases are cited by defendant’s counsel to support this exception. In State v. Jacobs, 5 Jones (N. C.) 259, the court says: “A judge has not the right to compel a defendant in a criminal prosecution to exhibit himself to the inspection of the jury, for the purpose of enabling them to determine his status as a free negro.” In Day v. State, 63 Ga. 667, the court held : “Evidence that a witness forcibly placed defendant’s foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible. A defendant can not be compelled to criminate himself by acts or words:” The court says: “No one cau by force compel another, against his consent, to put his foot in a shoe track, for the purpose of using it as evidence against him.” In Blackwell v. State, 67 Ga. 76, it was held that, the place where a prisoner’s leg was amputated being a material point, it was error to require him to stand up and show his leg, so that a witness could see and describe it to the jury. In all these cases, except one, there was compulsion — an order by the court during the trial; and in one, out of court, force used against the stubborn resistance of the prisoner. In another case relied on for the prisoner, People v. Mead, 50 Mich. 228 (15 N. W. Rep. 95) a defendant on the witness stand was asked to try on a shoe, which he did, without objection. He was then asked to measure it, and he objected, and his objection was overruled. Judge Cooley, in delivering the opinion, said.: “Had there been any objection to respondent’s trying on the shoe, the court would have had no authority to require it,” and then ruled that the simple measurement was no error. This is authority to show that the act of the sheriff, especially as it was out of court, without objection by the defendant could not render the evidence inadmissible. In People v. McGoy, 45 How. Pr. 216, evidence of a forcible examination of a female, to ascertain whether she had .been delivered of a child, was held inadmissible. Decisions in other states have been made justifying compulsory profert or
In State v. Graham, 74 N. C. 646, the arresting officer compelled the prisoner to put his foot in a track near where the larceny was committed, and testified as to the result of the comparison ; and it was held that the evidence was not procured by duress, and was admissible. The judge delivering the opinion says: “If an officer * * * had no right to make the prisoner show the contents of his pocket, how could the broken knife, or the fragment of paper corresponding with the wadding have been found? If, when a prisoner is arrested for passing counterfeit money, the contents of his pockets are sacred from search, how can it ever appear whether or not he has on his person a large number of similar bills, which, if proved, is certainly evidence of the scienter? If ah officer sees a pistol projecting from the pocket of a prisoner arrested for afresh murder, may he not take out the pistol, against the prisoner’s consent, to see whether it appears to have been recently discharged ? Suppose it to be a question as to the identity of a prisoner— whether a person whom a witness says he saw commit a murder — and the prisoner appears in court with a mask or veil over his face. May not the court order its removal, in order that the witness may say whether or not he was the
It is not necessary or proper for us, in this cause, to indicate any opinion upon the conflicting authorities as to the compulsory exhibition of a prisoner’s person on the trial, or elsewhere. It is here noted that even the dissenting judge in Ah Chuet/’s Case, whose opinion counsel for Baker cites, makes a distinction between evidence obtained by compulsion in court during trial and out of court. He says: “At a criminal trial, courts can not take notice of the manner of obtaining evidence out of court. If it is competent and pertinent to the issue, it will be received.” “Those arresting a person are bound to take from his person any articles which may be of use as proof in the trial of the offence,” according to Wharton, (Crim. PI. & Pr. § 60) and Roscoe, (Grim. Ev. 211.) Even if a confession be extorted unlawfully from a prisoner, and in it he indicates where a corpse or stolen property, or other thing connected with the crime, may be found, and they are found where he stated, some authorities hold that both the whole confession and the fact that the corpse or articles were found where the prisoner in his confession indicated are admissible; but all agree that it maybe proven that the corpse or articles were found, and found at a certain pláce. Frederick’s Case, 3 W. Va. 695; and opinion in Douglass’s Case, 20 W. Va. 770; Whart. Crim. Ev. § 678; 1 Greenl. Ev. § 231.
In view of the great importance of this case, I have deemed it proper to examine patiently and carefully the authorities cited by prisoner’s counsel and others touching this point; and as a result we are clearly of opinion that no error was committed in admitting the pantaloons, and the evidence tending to show blood upon them. A decision of this Court confirms us in this conclusion. Douglass’s Case, 20 W. Va. 770. It was a murder case. There the prisoner told his counsel where the pistol could be found; and he found it, and placed it in his trunk, at the hotel. The
We come now to the merits. Did the Circuit Court err in refusing to set aside the verdict and grant a new trial ?
Here we must not forget certain principles of well-settled law. (1.) The constitutional law of the land in which we live guarantees to the accused a trial by jury, in declaring that “no person shall be deprived of life, liberty, or property without due process of law, and the judgment of his peers;” but, on the other hand, when once a jury of his peers has pronounced judgment upon him, it comes with telling force, and the law accords to it a peculiar respect. “Anew trial, asked on the ground that the verdict is contrary to the evidence, ought to be granted only in case of a plain deviation from right and justice, and not, in a doubtful case, merely
(2.) After the trial court has approved a verdict by refusing to set it aside, an appellate court should for that reason exercise extreme caution in reversing the trial court. The trial judge and the jury have seen the witnesses face to face— their expressions of countenance, demeanor, tone of voice, manner of delivery of their evidence, the manifold circumstances attending the trial — and possess far better means of passing upon their credit than we, remote from the scene of the transaction, and confined simply to the re
(3) And there is another rule of law which we must not forget. It was held by this Court in the case of State v. Flanagan, 26 W. Va. 116, following numerous cases therein cited. That rule is: “Upon a writ of error to a judgment overruling a motion to set aside a verdict, and to award a new trial, on the ground that the verdict was contrary to the evidence, and the evidence and not the facts proved is certified in the bill of exceptions, the appellate court will not reverse the judgment unless, after rejecting all the conflicting parol evidence
Thus it is seen how narrow is the function of this Court on the point of grauting a new trial for such cause. In this case the facts are not certified, only the evidence, in the form of questions and answers, as taken down by a stenographer, except a few documents, containing the evidence of more than 100 witnesses, covering more than 900 pages of printed record.
SYNOPSIS OE EVIDENCE.
Mrs. Brasilia McWha, aged about 70, and her daughter, Eliza Baker, aged about 40, resided together at Holliday’s Cove, in Hancock county, in a frame building, one and a half stories high, on a bluff, the premises fronting on the Steubenville turnpike; the house, about 100 feet from it, surrounded by trees. In the rear of the house the premises extend back, including a stable and a young and old orchard, the premises in that direction being secluded. On the southwest side is a common, the school-grounds. The nearest neighbor is two or three hundred yards distaut. The house is isolated. There was a small porch, including the hall door, and a window on each side of it. A hall runs from front to rear of the house. On the right of it, as you enter, is Mrs. MeWha’s sleeping-room, entered by a door from the hall; and in the rear of her room, communicating with it by a door, is the kitchen. Across the hall from Mrs. Me-Wha’s room is the parlor, and in rear of it, in the corner, communicating with it by a door, is a spare bed-room; and
The examining physician, Dr. Morris, found six or seven wounds on the head of Mrs. McWha, a contused wound on the neck, apparently made with the bolt, three lacerated wounds .back of the ear, one incised wound across the right temple, one wound in the left temporal region, and one incised wound in the back of the neck. The wounds on the left side of her head, back of the ear, and on the temple, were apparently, made with the bolt. The wound on the neck fits the bolt. The whole bolt-head fits into the wound on the temple. The wound in the left temporal bone crushed through the skull, and cut the temporal artery. On Mrs. Baker’s head- was an incised wound on the left temporal, which crushed the skull; two of the same character on the right temporal bone. The one on the right crushed through the skull table. An incised wound almost severed the head from the body on the back of her neck, just below the base of the brain. These incised wounds on the backs of the necks were cut straight across. A physician thought the bolt wound on Mrs. McWha were inflicted during her life; the cut wounds on the back of the neck, after death. A witness said no wound had been made with the car-coupler. The cut wound on the back of her neck had not bled. The physician said there was no blood on Mrs. McWha’s body from her daughter, and that there was no blood in Mrs. Baker’s body, it being livid, bleached ; but Mrs. McWha had not bled very much.
In Mrs. McWha’s room was a good deal of blood scattered around the bodies on the carpet, and on the wall; on one of the windows, many small spray dots spattered about; and a spot on the ceiling. In the kitchen was blood everywhere— some on the leaf of the table, where there was appearance of effort to wash it off. There were pools of blood in the kitchen. There was the profile of a person that had been lying on the back on the floor; and blood had effused and run about it, and thus marked the shape of the body or shoulders on the floor. A witness said that it was so distinct that anybody could see it, and that the body must have laid there long enough for blood to collect about it. There
Dr. Morris expressed the opinion that Mrs. Baker could not have been able to walk after receiving the blows found on her body, and could not have walked from the place where the profile on the kitchen floor was to where she was lying, on her mother; that she could have had no power of locomotion, in fact could not have moved a hand after she was struck. A piece of.a tooth of a comb was found in the hair of Mrs. Baker, and a comb was found in the kitchen, near a pool of blood, close to the profile; and the piece fitted nicely to a remnant of a tooth in the comb. The hair did not seem to have been cut, and a witness expressed the opinion that it was done up when the blows were given. They had washed that day; and the clothes were hung out before dinner, and were still out on the line next day. It was a good drying day, up to 4 o’clock, when it rained. Baker says that his wife told him to get a tub of water from the cistern outside the kitchen door, and she would clean up the kitchen floor; and he did so.
These ladies were good housekeepers, very precise and methodical and regular in work. Some yeast was out on the porch on Monday, and there it still was the day of the discovery of the murder; and little chickens, which they invariably put up, were left at large. The windows of the kitchen were darkened, entirely covered up. The lambrequin of one was pulled down from the top, and pinned across at the top of the lower sash. It was blocked out in the middle, and there a paper was pinned up ; and a check-gingham apron
The evidence tends to show that the ground around is solid. Investigation was made to determine whether there were auy cuts in the night-caps found on the heads corresponding in location -with the location of the wounds, but none were found. There was a hole or two worn in them, but not at those points. The wounds on the head could not be seen until those caps were removed. One of the caps was tied very tightly — not merely the knot, but tightly to the neck — so that it would likely have been uncomfortable. A witness stated that there was in the kitchen the appearance of an effort to wipe the blood up with a cloth at the profile, and afterwards the pool stood unwiped near the door. Among the clothing in Mrs. Baker’s bod-room, in a press, was a chemise, with a spot of blood on it as large as the end of a finger. In a closet, the door of which was open, on a chair, -was one night-cap, and on the floor a bundle of six or eight night-caps. The house on this morning is a scene of confusion. Beds tossed up, their ticks doubled from the foot; drawers of bureaus and trunks rummaged; clothing, letters, and papers scattered on the floor, and bedclothes taken from press and thrown on parlor floor, importing a search for valuables; several pocket-books lying on the floor opened.
Quite early after the arrival of the neighbors, Baker goes to where his trunk is, and points to his pocket-book on the floor, saying that they had taken $350 of his money out of it. He was asked for the key to unlock this trunk; and on inserting it the lock was unlocked but the hasp dropped, it having been broken. He stated that he had before been
Mrs. McWha owned nine $1,000.00 Allegheny County bonds, worth par, interest payable semi-annually. Diligent search was made for them; and, almost by accident, they were found — wedged up by means of sticks, somehow — under the marble top of a bureau. Mrs. McWha owned the property, in which she and her daughter lived, worth $2,500.00 to $3,000.00. She was a widow, and Mrs. Baker her only living child. Baker married her in May, 1885. She was his second wife. They never had kept house by themselves. They had one child, born in May, 1886; died in January, 1887. She continued to live with her mother. He was a school-teacher, and his wife’s letters to
Mrs. McWha made a will by which she gave Mrs. Baker her real estate, and household and kitchen furniture: to her grandson, Robert McWha Lee, $1,000.00 in bonds; and to Mrs. Baker, all the rest and residue of her bonds, money, notes, and claims. She made Patterson executor. Robert McWha, father of Mrs. Baker, gave her, by his will, $2,500.00 in bonds. Mrs. Baker made a will shortly before her only child was born. We only know of its ,contents what Baker stated about it. ' Mrs. McWha’s will, with some of her deeds, was found with said mortgage-bond after the murder. Mrs. Baker’s will has never been found. In the kitchen stove were found the remains of burnt paper— apparently a lump burned — also the remains of what several witnesses said looked like a sheet of legal cap paper, folded four-ply. In the examination of the premises it was disturbed so that it could not be subjected to expert scrutiny. The prisoner claims, and there is evidence tending to show, that paper for starting fire was usually kept in a box near the stove, in the kitchen.
Mrs. Han McCloud states that Baker, after his return from Minnessota, in the spring of 1887, said to her that he had tried to persuade his wife and mother-in-law to go away, as'there was nothing there for him to do; and that they had made wills and left him nothing — left him out. Mrs. Sturgeon says that Baker told her, speaking of Mrs. Mc-Wha’s will, that he told Mrs. McWha, “if she didn’t do thus and so and so, such persons would come in for a share of her property;” and she said she did not know that until he
The front windows of the house had shutters. When the neighbors went to the house, the shutters of Mrs. McWha’s room, the sitting-room, were open, the blinds down. The parlor shutters were closed. In one of these parlor shutters was a breach. Three slats in one of them were out; two ol them simply out, the other appearing to have been broken in taking it out — split somewhat diagonally. These were five or six slats from bottom. A piece of the side of the frame of the shutter had been jerked out where the slats were mortised in, and the slats not broken slipped out the inside of the frame; a piece jerked out towards the inside;—
Mrs. Brown and Mrs. Swearingen state (the latter a niece of Mrs. McWha) that they went to Mrs. MeWha’s house to visit, reaching there about 2:40 in the afternoon qí Monday, May 9th, and in the adjoiniug commons looked closely all around/especially over the McWha premises — orchard and all — to see some man to remove a brush tightly fastened in the buggy wheel, but saw no one anywhere. Then they went to the front porch. Rang the'bell — heard its sound — but no one answered; and after some time rang it again, more vigorously, and, still receiving no answer, Mrs. Swearingen went around the house, 'passing the kitchen windows; and she states that they were blinded closely ; that she tried to. look into them, but could not; that the window of Mrs. Baker’s room and the back hall window were also closely blinded. She says she had a full view of the orchard and entire premises, and saw or heard no one anywhere. She went to the kitchen door, and she says : “When I went to the kitchen door, I pat-my foot on the step, and took hold of the knob of the kitchen door, and turned it, saying: ‘Eliza, it is me. Let me in.’ And as I said this I pushed the door, and it went open about six or eight inches, and then it was shoved back instantly; and I felt the pressure of the shove back.” She saw no one, heard no noise. She then returned to the .front of the house, where she had left Mrs., Brown. They remained awhile, plucked some flowers, and left. Mrs. Brown says that Mrs. Swearingen, when she received no answer to the ringing, went around the house to find some one, leaving her baby with her, and that when she returned she said the kitchen door had been slammed in her face. These witnesses reached Mrs. Brown’s house on their re
Now, as to Baker’s whereabouts. He states on the witness stand that on this Monday forenoon he was working about the premises, preparing ground for cucumbers, and cut with the axe some apple limbs to put over them. Stuck the axe in the tree, and is not certain whether he left ‘it there. That is the last of his recollection of it. Then went out on the common. Met three men, White, Davidson, and Nelson, who wished to rent the stable, and showed them the stable ; and they then went to see if they could'get work on the new railroad then being made there. Tie says they were not in the orchard any distance at all. Was in the village till people were going to dinner. Then went home, and found, at the back hall door, said, three men, talking with Mrs. McWha and his wife: and they rented the stable of them; and he altered an article of lease which had been prepared some time before for one Mudd, who rented the stable, but did not take it; and it was signed, and is produced in evidence; and White corroborates Baker in these statements except that he says the three men and Baker went into the orchard to look at pasture they wanted in connection with the stable. This return, when they rented-, was about 12 o’clock; and they left after renting, between 12 and 1. Mrs. Baker was cooking dinner while they were there. Mrs. McWha was there, and signed the lease. Baker says they ate dinner, and his wife cleaned up the dishes; that either just before or after dinner he emptied one or two of the wasli-tubs, and brought fresh water in the other, from the cistern, to mop up the floor. Tie was going to Steubenville that day, to see a son there about sending him some furniture. Starting about 2 o’clock, there was a train he could get to the Wheeling junction, and catch a return to Hamlin’s station. He states
At Cross Creek, Baker stays all night at his father’s, and sleeps with his son, and arranges for some furniture to be sent to his son, as he and his son state. When he returns to. Holiday’s Cove he goes to the McWha house, seen on his way by several persons. Here it is noted that there is consider
Baker is seen standing near the house, crying, “Murder ! Eor God’s sake, come quickly !” He seems greatly excited, distressed, and lamenting, when neighbors come. A witness says he was crying, but he saw no tears. A witness, Hall, represents him as making “considerable noise about his wife, trying to cry, or crying, or something of that kind,” but saw no tears. Randolph Gilmore, on this alarm, ran at once 100 yards to the house; went in, and looked at the corpses; came out; and Baker capght him by the arm, and, pointing to the broken parlor shutter, said, “Look there.” On this Tuesday', Baker had a conversation with Justice Lee, who held the inquest. Lee says he took dinner with him, and Baker “particularly stated about the time hewentaway1, and about his going, who he saw at Holliday’s Cove station, who he saw at Hamlin’s when he got off; about his folks at Cross Creek; and spoke that he had thought he wouldn’t come home until Tuesday evening when he went up, but on reflection he thought there was so many people around there; and he got some articles he desired, and went back to his father’s, and told his mother he wanted to go on the morning train.” He (Baker) spoke to
Daniel McCloud says that in jail Baker asked if there were any new developments about the murder, and said tramps had committed the murder, and that some time in the forenoon of Tuesday three men were at a brickyard some miles off, telling of the murder, and said they might be suspected. Afterwards, in about fifteen minutes, he said : “I will tell you who done that thing. It was Abe Lee. Abe Lee was there, I think, on Friday before the murder, and had a long, private conversation with the old lady.” He said Lee knew more about the house than he did; that, when the bonds were looked for, Lee could tell where they could be found by looking under a certain bureau drawer in a little wooden box; and when they came to look for the box; and pulled it out and brushed the dust off, the bonds were there. lie said he did not know there was such a box in the house. McCloud also stated that he said to Baker, “Baker what are you going to do with that little bit of evidence about Eliza’s shoes having blood on them ? If she. had taken them shoes off before she went to bed, and set them under the bed before, that blood would not have been
Robert Patterson states that on this Tuesday, Baker, near the McWha house, put his hand on his shoulder, or his arm around his neck, and told him about finding the bodies when he came to the house that morning, and said that “Eliza was lying on her mother, and her hand was clasped in her
W. S. Miller states that on Tuesday after Baker had given his evidence before the coroner he saw Baker in the orchard close to Lee’s fence, walking slowly towards it. Under this fence some of Baker’s stock certificates were afterwards found. William Caldwell says on 15th or 16th April, 1887, he met Baker, and Baker, speaking of a certain woman, said he thought as much of her as any woman living; and Caldwell said to him he supposed he
Mrs. Wilcoxen went early to see the bodies, and in going away met and spoke to John J. Henderson. Henderson says Baker was looking at them, and when he came up asked Henderson what that woman was saying to him, and he replied nothing in reference to him. Robert Miskelly states that Baker, while in jail, said he got the water in the tub for the women, and that Bakersaid : “Even if I did kill the women, what would I have needed with two weapons, when either of the weapons would have done?” Witness said he referred to axe and pin; that he was talking about the way the thing happened. On cross-examination he makes Baker’s expression : “Even if I had killed them, what use would I have had with two weapons, the pin and the axe?” Miskelly states that Baker said he was in the room, getting ready t© leave, at the time some people called. He and his wife were in there, he said, and Mrs. McWha came in the room, and said there was some men at the door; and Mrs. Baker said it might have been neighbors; and Mrs. Mc-Wha said : “Well, she didn’t care — she did not feel like receiving callers to-day; and that she just closed the door.” On cross-examination he was asked if Baker said he was in the room when the people called, and answered: “Ho, he didn’t say that.” John Orosinger says he heard this conversation with Miskelly — probably the same; that he could not give the full conversation, but said : “The part which I remember particularly was, he said: ‘How, when these women called, my wife and I were out in the orchard. I made some remark about going in the house.’ He stated
Samuel Murray states that he was in the jail corridor, and Baker was talking to some ladies from abroad about the murder. And Baker said : “We were in the house when the ladies were there.” Murray was there only a minute. He said he understood they were talking about the murder. Baker says, as to this, that these ladies said it was strange that Mrs. McWha did not hear the bell when Mrs. Swearingen and Mrs. Brown rang it, and that he replied that some other ladies had called and rang it on another occasion, and she did not hear it, and he said : “We were in the room when they rang the bell”— thus referring to other ladies, not Mrs. Brown and Mrs. Swearingen.
Baker’s pantaloons were sent to Pittsburg, July 8,1887, to Prof. Logan, a microscopist, for test as to blood spots. He did not find blood spots, only indications of their presence. He said : “There were strong indications of the presence of blood, but not conclusive enough to justify me in swearing there was blood. I examined the scrapings from suspected spots under the action of chemicals. I wanted to get undoubted blood corpuscles detached, to obtain the hemin crystals of Teichmann.” “The spots, when treated by chemicals, under the microscope, give precisely the same appearance and changes as were obtained by treating known blood stains in the same way. These are indications, not actual proof. My best judgment is that there was blood on the pants, but would not swear there was, without the additional confirmatory proof I was searching for.” The pantaloons were then put into the hands of Dr. McKennon, of Pittsburg, a miero-scopist. He made tests with the microscope, in connection with Prof. McCann, of nine spots, and found red blood corpuscles in seven of them. These spots were on the front of the legs; varied in size. Seemed to be spread out over con
Baker introduced Samuel Balston. He stated that about 2 o’clock, Monday, he saw Baker and a woman — he did not notice to say who she was — and men walking through the orchard, towards the three-cornered lot. Be is indefinite about the number. - He further states that he saw Mrs. Baker, about 5 o’clock Monday evening, going towards the stable, bare-headed, about an hour after Baker has passed him, going to the train. Gardner states that he saw Baker, his wife, and one or two men, just after he got his dinner, about 1 o’clock, going through the orchard towards that lot, and then went to his stable, stayed about ten minutes, and went to the common, and then met Ralston, and sat down and talked a half hour with him, when they separated, and Ralston went to his shanty.' A considerable quantity of evidence was adduced by the state to impeach Ralston, by .showing contradictory statements made by him touching his seeing Baker and his wife and men in the orchard, and his seeing Mrs. Baker after Baker’s departure, and his saying she bad a bonnet on, but on the stand said she was bare-headed.
A little boy, eight years old, introduced by Baker, stated that Monday evening, about five o’clock, he saw Mrs. Baker come out to the pump and get a drink.. He made on a former trial, a statement variant from this as to time, then putting it right after dinner. His examination on this trial is not satisfactory. There was evidence tending to show that his mother told him, on the way to the first trial, that he must swear that he saw Mrs. Baker, and that she would get him the nicest suit of clothes to be fouud in town, though he said that he had not seen her. And there is evidence tending to show that on another occasion, when he said he did not see Mrs. Baker, she said, in effect, “You know you did see her.” And there is evidence tending to show that when the child went home on that Monday evening he told his mother, just as soon as he got home, that he had seen Mrs. Baker, at the pump draw a cup of water, drink some, and throw the balance down.
Oliver Grimes states that from the railroad dump, Monday evening, after he had seen Baker going to the train, he saw
OPINION ON THE EVIDENCE.
Is Van B, Baker guilty of this horrible double murder?
“Murder most foul, as in the best it is ; But this most foul, strauge and unnatural,”
—if committed by the defendant. This court is not compelled to answer this question pointedly, or to say what its members would have done, had they been of the jury. Two juries have answered this question against him — one of Hancock county, deciding that his death should be the penalty; one of Brooke county, directing that he be confined in the penitentiary fo’r life. It is only with the latter’s verdict we have to deal. It has been approved by an able, conscientious circuit judge. All we have to do is to say whether this verdict is manifestly and plainly contrary to or without sufficient evidence. If it is not, we can not touch it. Further, even, than that, under Flanagan’s Case, above cited, we must reject all evidence in behalf of the prisoner that conflicts with that of the State, and give full faith and credit to that of the State, allowing it to prove all that may fairly be deduced from it; and, unless, after so doing, we regard the verdict as still wrong, we can not touch it. "We can not say that it is wrong. We can not say, under the mass of- facts and circumstances which were before the jury in this case, that this verdict is plainly without evidence sufficient. There are many forcible circumstances looking strongly against the prisoner.
There is always a motive for a crime. “When so heinous and startling a crime is committed, the very first inquiry is always, who was the enemy of the murdered man ? Who had the motive ?” Dean’s Case, 32 Graft. 918. In Burrill’s Circumstantial Evidence, (page 285) it is said : “The motive to the commission of crime may be reduced to two principal
Mrs. McWha had willed all her real estate, and all her personal estate, except $1,000.00 aud a silver watch given to a grandson, Robert McWha Lee, to Mrs. Baker. If Mrs. Mc-Wha should die first, this estate would vest in Mrs. Baker; and theu, if she should die without a will, Baker would have a life-estate by the curtesy in this real estate, aud an absolute estate in the .personal property. Mrs. Baker had made a will giving him only $1,000.00. If Mrs. McWha’s will exists, upon her death Mrs. Baker gets her estate,’ provided Mrs. McWha dies first; but, if Mrs. Baker’s will exists, it gives her husband only a small part of her estate, and he could not get that until her death. In the house, after the murder, Mrs. McWha’s will is found intact, but no will of Mrs. Baker. The remains of a burnt paper, retaining the shape and appearance of a sheet of legal cap paper, folded four-ply, are found in the kitchen, in the cooking stove, on the top of the ashes. Baker says they kept a box of paper by the stove, to start fire. But why would the remains of this paper be found on top of the ashes when the fire was out? As long as Mrs. McWha lives, she holds the property. She is found murdered, but her will safe. As long as Mrs. Baker should live after her mother’s death, she would hold this very considerable estate. She, too, is found murdered; but her will is not found. If she made a will — and he says she did make one, which gave him only $1,000.00 — it would be to Baker’s interest to destroy it, for thus he would get all her personalty absolutely, and her realty for life. If she had made no will, to give him all her estate at once, her d^ath is necessary.
And that tub of water in the mother’s room, just between the feet of mother aud daughter, and iu it the home axe, iron pin, and car-coupling; the bloody dresses they wore; the piece of muslin, and two night-caps tied together; and a pair of stockings, looking as if blood had been mopped up with the muslin and caps! Bid strangers put the tub there? What were these articles put in the tub for? To wash
This theory of night murder was plainly in the criminal's mind. The bodies were partly undressed; feet bare; dresses oft'; skirt and waist of both still on, (these, on a hot night, would likely have been off,) night-caps on — put on in the process of dressing — put on wrong, in the haste and excitement, and in a room so darkened that it was difficult to see. A night-gown in the press, not worn, with a blood spot on it. Mrs. McWha’s stockings and shoes under her bed, as she usually put them. Mrs. Baker’s shoes without stockings, (likely, they were bloody,) were under her bed in another room, to create the impression she had retired. There was blood on them, which an effort had been made to wipe off, but streaks wore left. Strange that a stranger would wipe them oft! It was from a seam in them that Dr. Beeves obtained blood, as he states positively. In the hurry and darkness the washing was imperfect. The object was to produce the impression that she had gone to bed, was attacked there, and ran to her mother’s room, and was then killed, or, hearing the noise of her mother’s murder, had run to her room, and there met her fate at the murderer’s hands. Would those strangers to whom Baker attributes th<^ d^d,
The prisoner himself, when a witness asked him what he would do with the fact that Mrs. Baker’s shoes were under the bed, and if she had gone to bed after putting them there, and then been murdered, they would not have been found bloody, replied that since they had looked around they had given up the theory that the murder was after they had retired. They must have been killed in the afternoon, not at night. Hr. Morris gives it as his opinion, from appearance of the bodies and blood, that they had been dead at least twenty four hours prior to 3 o’clock Tuesday. When neighbors first went to the house the bodies were cold to the touch, and the blood on the carpet seemed dry around the bodies. The clothes washed that day, and hung out in the forenoon— though it was a good day for drying, and rain came at 4 o’clock — and yeast put the day before on the front porch, were still out Tuesday morning; unusual at this house, where exact system was the rule of housekeeping. Chickens invariably cooped were out next morning. The cistern lid was off; a very unusual thing. The usual coal and kindling for making the fire in the morning were not there. The burden of argument for the prisoner, that there was not time after the dinner dishes were washed, as they were in order the next
It is full of wonder that all these windows are hooded at this hour, when the sun is almost at meridian brightness. Mrs. Campbell lived close; had known the mother and daughter eighteen years, and never saw their windows thus blinded. No other instance is shown. Bid Mrs. Baker or her mother tear down a lambrequin, and use a white shawl of a dead sister and daughter to blind the kitchen window ? Who believes that they did ? The windows áre still darkened next morning. What is the explanation ? None adequate. Baker says that, as he left the day before, he passed out of the kitchen door, but does not remember ever seeing the windows darkened. He says that he saw or heard nothing of these ladies. That at that time he and his wife were out in
Here it may be again asked, if Mrs. MeWha was alone in the house, why did she have all these windows shrouded ? Why would she not open to the familiar voice of her niece? Baker does not always tell it the same way exactly. As a witness, he says he was standing just in the hall with these men, at the door, when his wife was in the room with her
It does not seem that any valuables were taken, except Baker’s. Some papers of his were found, some time after, under Lee’s fence. On the day of the discovery of the murder, James Campbell sees him near this fence, slowly walking towards it. Baker says $350,00 of his money was taken from a pocket-book. Et is notable that he tells this to Mrs. Knox early after the discovery, Tuesday morning. Did he desire to impress the poiut that he, too, was a sufferer? While all bureau drawers and trunks were ransacked and rummaged, as if in eager search for valuables, two drawers in different bureaus were untouched, their contents remaining nicely packed. What did they contain ? Clothes of the little baby boy of Baker and Eliza, about a year old, who died in January before the murder, their only child, born when his father was iu distant Minnesota, and dying when he was still there. Would strangers have exempted these drawers? Would they have known what might bo in them? The upper part of his trunk was disturbed, but the lower part contained his laundried and un-laundried clothing, and other things, and was uot rummaged. Crawford, on Tuesday, got the trunk key from Baker, and inserted it in the lock; found it unlocked, but the hasp fell. Baker says he had that day, before this, unlocked it.
IIow came there three weapons — axe, pin, and coupler? Was it to tally with the claim that three men did the deed ? No wound was found to suit the coupler. The written lease of the stable, which had been prepared for Flinn, alias Mudd, to execute, but which he did not execute, was changed to suit the names of White, Nelson, and Davidson ; and a few minutes after he left home, at the station, he stated he
It is a circumstance not without some import that on his way to the station he looked to Knox as if he had been worlc-iug — his face flushed — and passed close without speaking— an unusual thing, they being intimate; and that he took a longer route to the station, and did not pass by Brown’s where the buggy and Mrs. Brown and Mrs. Swearingen were, they having returned from their unsuccessful visit to Mrs. McWha’s, but passed perhaps 500 yards from Brown’s.
The fact that the kitchen door was unlocked when Mrs. Swearingen was there is urged by the prisoner’s counsel in an able brief in his behalf, and has considerable force. In a certain sense, it seems incredible that he should be working such a deed with the door unlocked. Bat it might have been forgotten. If he was there when that door-bell rang- — -rang twice, the second time with stronger sound, importing that the comer was bent on getting in, and Baker’s bloody task yet unfinished — what would have been his emotion and consternation ?
‘‘Whence is that knocking?
How is’t with me, when every noise appals me?
What hands are here ! Ha! they pluck out mine eyes!
Will all great Neptune’s ocean wash this blood Clean from my hand ?”
“Shall I remain ? There comes a second knocking. I will flee to the rear.” At the door, he finds Mrs. Swearin-gen there, and closes it in her face. Or perhaps he had unlocked the door, ready to flee, if necessity or a final conclusion, in his burning quandary, doubt, and anxiety, should call for it. Or perhaps he had the door open, carrying in water. The cistern lid was off next morning — an unsual thing. We can not say just how this was. But this door was found locked by neighbors next morning, and Baker says it was locked, and the key hanging by it, and he could not enter it when he returned the next morning, and entered
It is of deep, dark import that the men who rented the stable told Baker that they would put their horses in it that night, and Baker followed them to the gate, out of the hearing of his wife and her mother, and told them when they came, not to come to the house, but go straight to the stable. Baker went to his father’s, expecting to stay until Tuesday evening, perhaps Wednesday, as he says. He did not reach there until night, wet from rain. He rises at 5 o’clock next morning, walks four miles to the railroad, and arrives at Holliday’s Cove about 8:30 o’clock. He told some one at Hamlin’s he had expected to go to Pittsburg, but had forgotten something. He did not say what, nor has he ever said what. He had been much accustomed to absence from home. Why this hasty return, this rising with the dawn ? He suggests that he thought of there being so many strange men around his home, making the new railroad, and the women alone. If he was the guilty man, the presence of these strangers would afford a good opportunity for the commission of the deed, as their presence would suggest the probability of their agency in it. If he was guilty, the deed would sit heavy on his soul, and would bear with leaden weight upon his mind, giving him no sleep or rest. He had left things in such condition he would burn to know the development. What is going on at the Cove? His unrest would carry him back. Counsel for the state urges that what he had forgotten was the making of an appearance of an entrance by murderers, and that he, upon returning, made the breach in the window shutter in the parlor. There 'is evidence tending to show that the breach was on the inside, and no appearance of a breach from outside. Counsel argues that there is much in the fact that Mrs. Brown, though she notieed that the front blind at the porch was down, did not notice blood spots on the glass. She was some feet from it; merely noticed the blind down. And it is clear from several witnesses that there were on the glass but two small
An important question in this cause is were there blood spots on Baker’s pantaloons ? If there were, that fact, added to the other circumstances, is a potent addition. As above appears, there is a quantity of evidence on this matter, and some about his being seen rubbing his' pantaloons. Three microscopists examined them. Dr. McKennon is decided that in seven out of nine spots he fouud clear evidence of blood — red blood corpuscles. He tested by two processes, microscope and .chemicals; one confirming the other. Ewell, in his Medical Jurisprudence, (page 260) says: “Of all tests for blood given in this connection, the discovery of red blood corpuscles by the microscope, and the microspectroscopic examination above described, alone seems to be without fallacy.” Prof. Logan tends strongly to confirm this, saying he found strong indications of blood, and his best judgment was that there was blood on the pantaloons, but he wanted to detach corpuscles, to obtain the hsemin crystals of Teichmann; and, as he could not get this absolute test, he would not swear positively to the presence of blood. Dr.- Beeves, a witness for the defence, as he could not find hsemin crystals, stated that he found no evidence of blood. As to this test, Ewell, Med. Juris. 248, says: “Teichmann’s test has been shown to be liable to considerable uncertainty, for the reason that spots of human blood, or even the fluid itself, in appreciable quantity, may fail to -yield any hsemin crystals whatever, or only such as are of so indefinite a character as to be utterly worthless for diagnosis.” And,
A vast mass of evidence, a host of witnesses, very many circumstances, were before the jury. The jury heard the long and to me unsatisfactory statement of Baker, and looked into his face, There was much conflict, direct or logical, between his statements or versions and other witnesses; and conflict between other witnesses of state and defence on important matters. On all these matters and conflicts a jury has passed. A chain of evidence, consisting of mauy circumstances, has been aptly compared to a rope made up of many slender filaments. The rope has strength more than sufficient to bear the stress laid upon it, though no one of the filaments would be sufficient for that purpose. Opinion in Dean’s Case, 32 Gratt. 928. Where all the circumstances of time, place, motive, means, opportunity, and conduct concur in pointing out the accused as the perpetrator of the crime, it must produce a moral, if not absolute, certainty of his guilt. 1 Stark. Ev. 494; Dean’s Case, supra. Many of these circumstance, if not all, are present in this case and point to the prisoner. I borrow and approve the language used by Judge CHRISTIAN, in delivering the opinion of the Virginia court in Dean’s Case; “Numerous witnesses were examined. The evidence is all certified. It is altogether circumstantial. In the very outset two things must he borne in mind — r-JYrsi, that circumstantial evidence must always be scanned with great caution, and can never justify a verdict of guilty, especially of murder in the first degree, the penalty of which is death, unless the circumstances proved are of such a
This frightful double murder is fit only to be called “a deed without a name.” Seldom do the courts hear the recital of so bloody a drama, so cruel and heartless a crime. West Virginia, in her life, has never witnessed its equal within her borders. May she never see another. If Van B. Baker be guilty, it ought to be a subject of congratulation that the law, as an avenging Nemesis, with steady and unerring step, has followed him to the ultimate judgment that is this day pronounced by this Court.
“The eye of God,
Every path by Murder trod,
Watches, lidless, day and night.”
On the other hand,- if he be innocent, we can only say that earthly things are not certain, mistakes may occur in the administration of justice, and that he is the victim of error only of the head, not of the heart, and that his country has thrice heard him for his cause, and been patient that it might hear. We can, if he is innocent, but lament that human law's and courts are not infallible, and be satisfied that his jury did not take his life under the Divine law. “Whoso sheddeth man’s blood, by man shall his blood be shed,” but have left the door open, so that, if his innocence shall be made certain, reparation may be made unto him, though it do come late.
We must not be understood as finding fault with the verdict. We can not say that, had we been of the jury, we’ would not have found the same verdict. If the prisoner is guilty, he deserves the highest and sternest penalty of the law — death; but, as the case was one of circumstantial evidence, the jury likely thought, as there might be a possibility of his innocence, they would not exact his life for the
AEEIRMED.
NOTE BY THE JUDGE.
The record in this case contains 1,105 large pages of print. At least 915 pages are evidence, and 90 examination of jurors, all in the form of questions and answers. Since the advent of stenography in the courts, the practice is prevailing, where there is a motion 'for a new trial because the verdict is contrary to the evidence, or there is-an exception to the giving or refusing of instructions, or the admission or rejection of evidence, to adopt simply the stenographer’s report of the evidence as a whole, and incorporate it into a bill of exceptions. All the members of the Court desire to embrace the opportunity afforded by this case to condenan and discourage this practice. It renders the record voluminous, irregular, and vague. The cost of the transcript and printing is vastly increased. The public treasury suffers in felony cases, as the printing is at public expense, and to private parties the cost is heavy, sometimes ruinous. It renders the labors of this Court much greater, consuming time badly needed in the discharge of public business. In the case of motions for new trials, the party whose motion is overruled suffers greatly from this practice ; for under it all his oral evidence conflicting with his adversary’s goes for naught, and his adversary’s evidence is given full faith and credit. As long ago as Bennett v. Hardaway, 6 Munf. 125, and longer, the Virginia court of appeals held that a bill of exceptions to the judgment of the trial court overruling a motion for a new trial on the ground that the verdict is, or is not, warranted by the evidence, should properly, in every case, certify the facts proved, not the evidence. In Virginia and this State that rule has been so often recognized that it seems useless'to cite cases to it. It was explicitly approved and sought to be enforced by this Court in Morgan v. Fleming, 24 W. Va. 186. Yet it is constantly disregarded, and, where stenography is used in the courts, often or generally so. It is in violation of the fourth section of a rule of this Court. 23 W. Va. 818. In Fawcett v. Railroad Co., 24 W. Va. 755, this ruléis also laid down, and Judge SnyueR, in delivering the opinion, says : “The evidence was * * * taken down at the trial by a stenographer in the form of questions and answers, and thus incorporated in the bill of exceptions. This report of the testimony covers 132 pages of the printed record. The testimony is conflicting, and plainly of a character that precludes this Court from reviewing it, to determine whether it does or does not sustain the verdict of the jury. The only use this Court can possibly make of it would be to ascertain the propriety or impropriety of the rul
Another positive rule of this Court is that “an exception to the admission or rejection of evidence, or the granting or refusal of instructions to the jury, should state only so much of the evidence or facts proven as may be necessary to show the relevancy or irrelevancy of such evidence, or the pertinency or impertinency of such instruction. The judge of the trial court should require all unnecessary matter to be stricken out before signing a bill of exceptions.” 23 W. Va. 818. We are compelled now to deprecate this practice, and to respectfully call the attention of the courts and attorneys to it.
This Court is not the first to complain. Chief Justice Beckley, in the Supreme Court of Georgia in McGee v. Long, 9 S. E. Rep. 1107, uses this language : “Moreover, as to much of this évidence, we are referred by the motion for a new trial to an exhibit annexed to it, to ascertain what the evidence was; and that exhibit consists of a long rigmarole, apparently a stenographic report of questions, answers, remarks by counsel, remarks and rulings of the court, etc , the evidence being scattered dp and down divers pages,, with these irrelevant, tedious, and distracting matters interspersed, That we are not going, to fish up evidence in fragments from such muddy water, we have plainly intimated in Wiggins v. Norton, 9 S. E. Rep. 607. * * * Other courts are beginning to complain of this nuisance.” Cahn v. State, (Tex.) 11 S. W. Rep. 727.