New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-10-12

of the prosecution. They are bound to dis
cuss the evidence. The jury are part Of
the public, and trials must be public.
No advantage is to be sought. 1t is a
legal proposition, which must be heard by
the court in presence of the jury. AL trials
must be before the public.
Judge Abel said that counsel for defense
can take bill of exceptions. The jury
ought not to be prejudiced. He objects to
argument being made in presence Of tie
jury. Let the jury retire, if counsel de-
sires to argue the motions.
Mr.. Scmmes: We do not want any mis-
take made as to what has passed. We ex-
cept the ruling of the court.
Judge Atocha stated the exceptions.
They are to the effect that the court CON-
mitted an error in not discharging John
Boyd on demurrer to the evidence.
2. That the court erred in ordering the
jury TO retire before hearing the argument
of counsel on the demurrer.
g. In refusing to permit the jury to rer-
der verdict at this stage Of the proceed
ings in the case Of John Boyd, with view
to his subsequently being used as witness
for defense.
The exceptions signed, the jury retired.
The question before the court is, said Mr..
Semmes, that there being little or no evi-
dence before the court against John Boyd
the jury retire and consider his case, and if
acquitted, that his codetendant, William
Boyd, may have the benefit Of his testi-
mOny. 1t has been decided that shall
discuss this matter before you very briefly.
The rulings Of the court modify in no incon-
siderable degree what 1 had designed to
say. 1t is in your discretion to refuse or
allow the motion. The law makes you, in
this respect, the judge of the law and the
fact, but in deciding you are to be guided
by precedent and the settled points that
have arisen in similar cases.
Mr.. Semmes then read number Of dec;-
sions covering the point, both in this coun-
try and in England. If there is no evil
dence against any one defendant, he shall
be acquitted at the conclusion Of the tes-
timony for the State. This was the opinion
Of all the judges. A separate verdict of
acquittal may be entered, and the party
called as witness for the codefendant.
This can be done without a separate trial;
it obviates the necessity for separate trial.
When persons are jointly indicted, it is
usual to take separate verdict of acGuit-
tai. because the law contemplates that the
defense will produce all the testimony it
can.
At the conclusion of Mr.. Semmes' ar2u-
ment Judge Abel said:
That he did not agree with the counsel.
The law has not imposed this discretion on
the court. In case there is no evidence
against any one defendant. and the court is
satisfied Of that. it has no discretion but to
discharge the prisoner. But in the present
case can the court say so. If these parties
are both present, aiding and participating n
the crime they are both equally guilty. Can
the court say there is no evidence against
John Boyd' He and William went there
together. They are brothers. John went
there to help and assist his relative. Such
feelings and motives are common to human.
ity. When William was arrested his pistol
showed but one barrel was discharged. and
yet there were two shots fred. To nv
mind. if one is guilty. both are guilty.
can see no difference. Let the motion,
therefore, be oyerruled.
Judge Atocha: We will take exceptions.
The Court: File your bill.
The evidence was resumed.
The trial will be resumed to-day.