The Elkins Inter Mountain

MOTION FOR RETRIAL IS OVER-RULED
PREVIOUS CRIMINAL RECORD OF DEFENDANT BROUGHT OUT IN COURT TODAY
JUDGE WAUGH
WAUGH STATEMENT REGARDING UNWARRANTED ACTION ON WITNESSES
SWIGER TELLS COURT FIVE YEARS MEAN NO MORE THAN TWENTY TO HIM

Jese F. Swiger, 27, of Clarksburg, was sentenced to serve 12 years in the state penitentiary by Judge Waugh after he had overruled a motion by defense counsel to set aside the verdict as contrary to the law and evidence and grant a new trial.

In arguing his motion for a new trial A. M. Cunningham, of defense counsel, told the court that he was informed by his client that the Jury hearing his case had been in the county jail before the verdict was returned and that a juryman had discussed the case with a prisoner there. This statement was discounted somewhat by Prosecuting Attorney Robert S. Irons and was not in proper form for consideration by the court, Judge Waugh ruled.

Another interesting angle that was brought out this morning is Swiger's previous prison record which, according to defense counsel, consists of two terms He has been married twice, the court was told, e.g. divorced from one wife.

Just before sentence was passed Swiger was directed to stand before the bar and even before the presiding jurist could ask him if he had anything to say relative to why sentence should not be passed, a customary procedure, Swiger asked if he could make a statement. Judge Waugh accorded him that privilege and the young man said: Five years don't mean no more to me than 20, If the court believes I am guilty I don't ask no mercy whatever. Swiger said that he is suffering from tuberculosis and that doctors have told him he cannot live more than two or three years at the most.

The judge then pronounced sentence stating, The fact remains that your conduct towards this little girl cannot be tolerated.

In arguing the motion to set aside the verdict Attorney Cunningham reviewed the evidence, as seen by the defense, stressing especially that relating to the age of the prosecuting witness, Pearl Carder. He objected to rulings by the court in relation to witnesses and referred to the allegation of his client that the jury had been milled to visit the jail before a verdict was returned. He said that Swiger had told him that one juror had talked with a prisoner in the jail who said that Swiger ought to be hung.

Prosecuting Attorney Irons in a statement to the court stated, "I defy them to prove that anything like that happened." He did not under- (Continued On Page Two)

SWIGER
(Continued from Page one.)

stand why the defense had not come into court with affidavits to that effect although he later stated that he would investigate Mr. Cunningham's statement.

Judge Waugh in passing upon the defense motion for a new trial stated that no new questions had been brought out in their statement, that the question of age had been presented to the jury and that allegations of improper conduct by the jury had not been brought before the court in such form as to gain consideration. In the matter of the girl's age Judge Waugh referred to the testimony of her aunt which remained unbroken, he said.

Referring to allegations of improper rulings relatives to witnesses Judge Waugh emphatically declared, "I am going to continue to protect witnesses when they show a disposition to be fair." In this same connection Judge Waugh stated. "There's just this about it, there is one thing I can't tolerate -all of us attorneys are prone to jump on witnesses in an unwarranted way. It is the duty of the court to see that they are dealt with fairly."

After the judge had overruled the motion for a new trial Mr. Cunningham pleaded for a minimum sentence for his client. He referred to Swiger's war record, stating that the young man was gassed and shell-shocked in the World War and is drawing compensation from the government. His parents, the attorney said, insist that he is insane, but counsel did not feel that they could establish his insanity. Mr. Cunningham said that since the young man's discharge from the service he has seemed criminally inclined and he laid this condition to a state of mental derangement. It was here that he stated that Swiger had served two prison sentences and had been married twice.

jury sat he would have asked an indictment under the habitual criminal act and that he had been informed by Harrison county prosecuting attorney that the prisoner has been up for theft on two occasions and is a "degenerate."

Mr. Irons was of the opinion that in view of Swiger's previous record he believed a good stiff sentence was justified.

Today's procedure ends the most important criminal trial at the present term of circuit court. Swiger, the defendant, was charged with a statutory offense arising from the alleged bringing of a young girl from her home near Clarksburg to Elkins.