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Vol. II.]

ORTWEIN V. THE COMMONWEALTH.

[No. 10

ERNEST ORTWEIN, alias Mentzger, was indicted for murder at the June term, 1874, of the court of oyer and terminer of Alleghany County.

On the 16th of June, 1874, his trial commenced before Sterrett, P. J., and Stowe, J., of the court of common pleas of Alleghany County.

In empanelling the jurors the prisoner challenged a number of the jurors for cause; they were severally examined on their voir dire, as to whether they had formed or expressed an opinion as to the guilt or innocence of the prisoner. The examination of the jurors having been taken by question and answer, it is desirable to give it as taken.

Alexander McClure said in answer to the above question:

A. Well, I don't know, for certain, that I ever expressed an opinion. Q. Have you ever formed one?

A. Well, from reports I had, almost, I suppose, come to a conclusion. Q. Is that opinion based upon the reading of the testimony taken before the coroner's jury?

A. I read but very little.

Q. Did you read any of it?

A. I read a very little. I bought a paper and brought it home with me for that purpose; on the way home in the wagon, I looked at it a little, but afterwards it got misplaced and I never could find it again. I heard a little of it read from the paper I got, but I did n't hear very much of it read.

Q. By the Court. Was the opinion you entertained formed from reading the testimony taken before the jury, or from outside testimony? A. It was from that and rumor.

Q. Both together?

A. Yes, sir. I don't know that I would have come to any definite conclusion from either one separate from the other.

Q. Could you, with the opinion that you have formed, take your seat as a juror, and try the case under the law and the testimony, without being prejudiced or influenced by that opinion?

A. Yes, sir; I believe I could.

Q. By the prisoner. Does the opinion that you formed from reading or hearing read a part of the testimony taken before the coroner, as reported in the newspapers, at present exist in your mind?

A. That is the conclusion I drawed from what I read. I only read

a portion.

Q. Is that opinion existing in your mind now?

A. Well, I believe it does.

Q. Would it not then require some evidence in order to eradicate that opinion; to remove it?

A. It would take further evidence than I read.

Q. Would it require some evidence now to remove that opinion?

A. I suppose it would.

Q. Would you act upon that opinion as a juror, or, acting as a juror under the law and the evidence, would it have any effect in bringing you to a conclusion as to the guilt or innocence of the prisoner?

A. Well, I don't know that it would.

Q. Do you know that it would not?

A. I believe it would not.

Vol. II.]

ORTWEIN V. THE COMMONWEALTH.

[No. 10.

He was challenged for cause; the challenge was overruled, and a bill of exceptions sealed.

The prisoner challenged peremptorily.

William Douglas, in answer to the above question, said:

A. Yes, sir; as far as newspaper reports are concerned.

Q. Have you read the report of the testimony taken before the coroner's jury as published in the newspapers?

A. I did, sir.

The prisoner challenged for cause.

Q. By the Court. Is the opinion you formed or entertained one that would interfere with your rendering a verdict according to the law and testimony, uninfluenced by that opinion?

A. No, sir.

Q. By the prisoner. You say you read the testimony taken at the coroner's inquest, as published in the newspapers?

A. Yes, sir.

Q. The opinion you formed was a consequence of reading that testimony?

A. I was pretty much of one opinion.

Q. You mean you were of the same opinion before reading it as afterwards?

A. Yes, sir.

Q. You still hold that same opinion?

A. Yes, sir.

Q. Would it require some evidence to remove that opinion?

A. Yes, sir; it certainly would.

Q. By the Court. You state that it would require evidence to remove your opinion?

A. Yes, sir.

Q. Would that opinion influence you in any degree in rendering a verdict in the case, if you took your seat as a juror, according to the law

and the evidence?

A. No, sir; it would not.

Q. Were you at the coroner's inquest?

A. No, sir.

Q. The reports you read were the newspaper reports of the proceedings before the coroner's jury?

A. Yes, sir.

The challenge was overruled, and a bill of exceptions sealed.

The prisoner challenged peremptorily.

H. Eaton in answer to the question said:

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A. In a measure I have. I read a great deal in the

time, but I did not read the coroner's inquest.

newspapers at the

Q. Does that opinion you say you formed partly remain with you

now?

A. Yes, sir.

Q. Would it require evidence to remove that opinion?

A. I must have something to remove that opinion.

Q. By the Court. Do you mean that, if you were to take your seat as a juror, the opinion you have would influence you in rendering a verdict?

Vol. II.]

ORTWEIN V. THE COMMONWEALTH.

A. I would render my verdict according to the law.

[No. 10.

Q. Would that opinion you have influence you in rendering your verdict?

A. I think not, sir.

Q. Then you could take your seat as a juror and act impartially, notwithstanding the opinion you have?

A. I could.

Q. When you say that it would take evidence to remove the opinion that you have, do you mean that that opinion would influence you as a juror, until you had evidence to remove it?

A. I think not, sir - not at all.

Q. Still you have an opinion personally as a man, until you change it? A. Exactly.

Q. But as a juror you think you could try the case uninfluenced by it? A. I am sure I could.

Q. By prisoner. Did you say that it would require evidence to remove the opinion that at present exists in your mind?

A. I said I must have something to remove this out of my mind. Of course, whatever is in your mind, we must always have something to eradicate it out. I have not made up my mind against this man.

The prisoner challenged for cause.

The challenge was overruled, and a bill of exceptions sealed.
William Smith in answer to the question said:

A. Yes, sir.

Q. Is that opinion formed from reading the testimony taken before the coroner's jury, as published in the newspapers?

A. Yes, sir; reading the testimony before the coroner's jury, and in the newspapers generally.

Q. Are you still of the opinion then formed?

A. Yes, sir.

Q. Would it require evidence to remove that opinion from your mind? A. Yes, sir; it would.

Q. By the Court. If you were called upon to act as a juror, do you think you would be able to dismiss the opinion you have formed, from your mind, and try the case without reference to it?

A. Well, I believe I could.

Q. Do you think you would if you were called as a juror?

A. Yes, sir.

Q. Unaffected by any opinion now as to the guilt or innocence of the prisoner?

A. Yes, sir.

Q. Unaffected by any opinion now as to the guilt or innocence of the prisoner?

A. Unaffected by it.

The prisoner challenged for cause.

The challenge was overruled and a bill of exceptions sealed.

Oliver S. McIlwaine in answer to the question said: —

A. Yes, sir.

Q. How was that opinion formed?

A. From reading the reported account in the newspapers.

Vol. II.]

ORTWEIN V. THE COMMONWEALTH.

[No. 10.

Q. You formed your opinion from what report?

A. From the report of the reporter.

Q. Have you that opinion still?

A. Yes, sir; I have.

Q. Would it require some evidence to remove that opinion from your mind?

A. Yes, sir; I think it would.

Q. By the Court. Is the opinion you entertain such as you could dismiss from your mind altogether, if you were called upon to act as a juror in this case?

A. Yes, sir, I could.

Q. Do you think, then, if you were required to act as a juror, you would be able to hear and decide the case fairly according to the evidence produced in court, without being prejudiced or affected by that opinion?

A. Yes, sir; I think I could.

Q. By prisoner. You have stated already that you have an opinion, and that you would require some evidence to remove it. Would it require evidence in the jury-box to remove the opinion that you now have, before you could undertake to sit as an impartial juror?

A. Yes, sir; from the reports I formed my opinion, and it would require something else to remove that.

Q. By the Court. The question is, whether you would be able, if called upon as a juror, to decide this case, unaffected by the opinion you now have, according to the law and the evidence?

A. I could.

Q. Could you dismiss that opinion and try the case without being affected or influenced in your mind by it?

A. Yes, sir; because the opinion is not formed strong enough in my mind; I did n't read it close enough.

The prisoner challenged for cause.

The challenge was overruled and a bill of exceptions sealed.

The juror was sworn.

Robert Neely:

Q. Have you read of the Ortwein case?

A. I have.

Q. Read of it in the newspapers?

A. Yes, sir; some.

Q. Did you read the testimony taken before the coroner's jury, as published in the newspapers?

A. I don't think I read that testimony.

Q. Did you read anything about his confession?

A. Yes.

Q. Have you formed or expressed an opinion as to the guilt or innocence of Ortwein, the defendant?

A. I don't know as I have formed an opinion, but I have expressed I have expressed myself in conversation in regard to it.

one.

Q. If you have not formed an opinion, how could you express one? A. It is the same thing, I know; forming or expressing. It amounts to the same.

Vol. II.]

ORTWEIN V. THE COMMONWEALTH.

[No. 10.

Q. Then when you say you have not formed an opinion, but expressed one, you mean that expressing an opinion being the same as forming one, you have already formed one?

A. Yes, sir.

Q. Have you that opinion still?

A. Well, I have not been thinking about it. I have not been paying any attention to it at all.

Q. When did you last express that opinion?

A. Oh, it is a good while ago.

Q. Did you express it more than once?

A. More than once; yes, sir.

Q. Did you express more than one opinion?
A. No, sir.

Q. Always the same?

A. Yes, sir.

Q. You think you have not that opinion now?

A. Well, I don't know; I have not been thinking about it for some time.

Q. Have you an opinion now, as to the guilt or innocence of the prisoner, Ortwein ?

A. I believe I have an opinion now.

Q. Would it require some evidence to change that opinion?
A. Well, yes; it would.

Q. By the Court. What do you mean by that?

A. I say it would require evidence to change that opinion.

Q. Do you mean if you were called upon to act as a juror in the case, that that opinion could affect you in the verdict you would render?

A. No, sir.

Q. Then you think you could dismiss from your mind any such opinion as you entertain, and decide by the law and the evidence, uninfluenced by that opinion?

A. Yes, sir; according to the testimony.

The prisoner challenged for cause.

The challenge was overruled and a bill of exceptions sealed.

The juror was challenged peremptorily.

The fourth and fifth points of the prisoner were:

4. If the jury have a reasonable doubt as to whether the killing was done under an irresistible impulse, the result of a disordered mind, which overpowered the will of the prisoner and took away his power of controlling it for the time, they cannot convict.

5. If the jury have a reasonable doubt of the sanity of the prisoner at the time of the killing, they cannot convict.

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"The fourth and fifth points are refused and will be more fully considered together. The law presumes sanity, but this presumption may be shaken or absolutely destroyed in some cases by the acts connected with and accompanying the commission of a crime. But before you acquit upon such ground, the evidence, whether arising out of such circumstances or from independent circumstances, must be sufficient to do more than merely raise a doubt as to the prisoner's insanity. It must be sufficient

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