The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-10-27

Mnton whitney, States Attorney, 7. Joseph Ro-
gers, Esq, assisting the prosecution
Coleman lellott and Dennis 5. Sweeney, Esos.,
for the defence.
State Thomas Hoffman, indicted Jointly with
Robert Miller (since acquitted) for the murder of
Hugh ID. O'Sullivan, on the nrht Of the 23d Of
August last, by shooting him with n pistol in the
back part of the head, causing a mortal wound
from which the said O'Sulvan instantly died.
The following jurors We're sworn to try the case
Leonard POuder, Joseph Stevens John W Hall
John r. Hvnson William II. Yernum Nimrod
Cromwell, W. G. Jones, Isaac Corria John Har-
rson, Nicholas J. Manly, Joseph b. Thomas and
Thomas Lister.
On the opening of the Court Yesterday the names
of the States witnesses were again called when il
appeared that those who were absent on Tuesday
did not answer.
Afte" some consultation among counsel. Mr..
Whitney remarked to the Court that he had tried to
relieve the difficulty arising in the case bv askino
the counsel for the defence to to discharge
of the jury. He said he had examined the books
and decisions bearing upon the question, and had
doubts about the power Of the Court to DISCHARGE
the jury at the present time. He did not want to
get into any legal difficulty about the case. and
had therefore asked the counsel on the other side
to consent to their discharge, but he believed they
would decline to do so.
Judge Stump, asked Mr.. Yellott if he consented
to the proposition of the States Attorney
Mr. elliott said, they did not consent, they con-
sldered that the trial had already commenced and
that therefore the Court had no power to dis.
charge the jury. The defence had made no obec-
tiOns to the adjournments had by the Court from
time to time to enable the State to get her wit
nesses, but they did object to discharge of the
jury, because the State had failed to get her testi
mony into court. Suppose he said, that the testi-
mony for the State was all in and its evidence
closed, would the traverser have the rioht TO os,
the discharge of the jury, because some ofhis Wit
neSscs were absent?-h would have no such pow
er. The traverser has rights which cannot be ia
Ken from him, and this course of the State would
work to his prejudice. The traverser is anxious to
go to trial now, and always has been; he seeks =
fair, full and impartial trial; he desires all the
States witnesses here; let them present themselves
and explain before this Court and before all pre-
sent here, the cause of their absence There are
rumors abroad in the community as to
the cause of the nOn-appearance Of these
witnesses and the traverser is anxious that they
should come here and explain why they had not
obeyed the summons of the State and show that
there existed on his part no cOllusion with them:
the traverser, Mr. Yellott repeated was anxious to
have all the testimony the part of the State pro-
duced. 1t was however, he said, for the Court to
decide, IN reference to the postponement Of the
case 1t the precedent was set now that the most
ponement of case, could be made for this cause
he would, hereafter in trying cases. ask for similar
postponements, when the traversers witnesses were
not present.
The Court asked the Sheriff what was the nros
pect for bringing in the witnesses
The Sheriff replied that it was difficult to say
The witness, Lyon, was doing business in the city
and had partner; but it was difficult to find him
(Lyon.)
Mr.. Whitney asked the counsel for the defence if
they would consent to have the testimony of these
absent witnesses-given the former trial-read
before the jury.
Mr.. Yeott said they would consent to have the
testimony OF Caldwell read, which given at the
coroners inquest, but not the other evidence They
wanted the benefit of the cross examination of those
witnesses. Their testimony had been given at a
former trial, and part Of il pointed with suspicion
to the traverser. They would not consent to the
proposition
Mr. Whitnev-HDnes tba Count +binl- - bo, A.
power to discharge the jury?''
Judge Stump said he had not formed his opinion
about tt-he would not keep the jury together at
all events if the witnesses could not be found He
thought the discharge of the jury would not work
to the prejudice of the prisoner. The case might be
taken to the Court of Appeals and they would no
doubt make some law about it.
Mr.. GellOtt said the Court of Appeals had already
settled the question, in the case of the State rs
Price, when they had decided that after the twelfth
juror was sworn, the could not be removed as
then the trial had already commenced and could
not be ended except by verdict If the Court
wished he would read the case.
The JUDGE replied that the Court Of Appeals had
not decided that the trial could not be ended except
by verdict. They say the case can't he removed
after the trial has commenced, which is after the
twelfth juror is sworn. The Judge said he had no
objection to hearing the read, as there was
nothing to do.
After interval of a few minute, Mr.. Whitney
asked the Court what disposition it intended to
make Of the case.
The Court replied by asking what it could do?
Mr.. Yellott said he had sent for the report of
Prices case.
Mr.. Whitney remarked that, as far as the ques-
ton decided in that case concerned the coun-
sci on both sides agreed-which was, that the case
could not be removed after the twelfth Juror is
swOrn-it settles that point.
Mr.. YellOtt.-''It settles more than tbat-it ooes
further, and says that the trial has commenced and
that the jury cannot be discharged
The book of Reports 18th Gill brought in.
Id II
lott"
Mr.. Yellott.-"All of it?"
.Iudge-''Yes, sir.
Mr. YellottTr'It lott covers twenty pages, sir"
Judge.-"Well, read what you please"
Mr. elliott then read the opinion of the Court of
Appeals, delivered by Judge Chambers in the case
of the State Price, where it is held that trial
has commenced after the twelfth Juror is sworn
and that case at this point cannot be removed
Judge Chambers dissented from the other opinions,
and held that when prisoner was put upon his
challenge the trial had already begun.
Judge Stump said the Judges of the Court of
Appeals differed on that point; one had one opinion
and the others had another-he (Stump) had
also his opinion, and inclined to that OF Judge
Chambers. They had not, however, decided the
point at issue here.
At this stage of the proceedings Mr.. Pinkney
came into Court.
Judge Stump.-"Mr. Pnkney, | would like to
hear your opinion about this matter. We have got
a rock here and don't know how to get off"
Mr.. Pnkney said he had not heard the argument
but it his opinion that the trial bad already
commenced when the jury was sworn, and that the
! Court could not discharge the jury.
Judge Stump then said he had given the matter
a good deal of thought, but bad not examined anv
authorities on the point-he had not the slightest
doubt, that if the testimony had been commenced,
| he would have no power to discharge the Jury but
that not the case here, there was no testimony
offered, any statement made to the iurv
The Court in doubt what was the law to meet
the case-if the case taken to the Court of An
peals, they would make the law and that would
settle the question-it is always better to know
what the law is, than to enquire what it ought to
be. The Court therefore would yield to the ne.
cessity of the case and discharge the jury Go
| Mr.. YellOttl You have your writ of error to
the Court of Appeals, and they can make the law
| and will obey it, whatever it may be.
Mr.. Sweaney remarked that one of the absent
witnesses had just come in.
Mr.. Pinkney here came into Court with lst
| Chitty's Reports, and read from pp 629, 630 the
law as laid down there, 'on with rawiDg Juror, ,"
as follows:
Besides these cases, in which jury will dis
charged from the casual circumstance of Illness there
some others in which the least by the
OF the prisoner, is at liberty to withdraw ju in order
either to ndic him again, to put of the trial Thus
it has been laid down. that in order to let the prisoner
into ground of defence which he could otherwise
have taken, before evidence given, the Court may by