The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1871-11-29

daring any part OF tne tlue VI Iue oiomin6 Va
said jurors as the law requires. ~
The AFFIDAVIT of General Deputy Marshal
Edw. P. Buttz shows that on the second day
of August, while he was in his office In Charles
ton, he was notified BY the clerk OF the court
that he was about to draw the Jurors ior tne
next term of the court to be held IN Columbia,
and ass he went into the room where Dan,ei ,n
Jury box, which he, Horlbeck, unlocked and
opened in his presence, and small boy being
called in was instructed by the clerk TO draw
from the Jury box the ballots, and that the
boy commenced drawing the ballots; that. ne,
Buttz, was called away after he had draWn
the court. to take his place. Deputy Butte
deposes that the marshal was not present
during the time Of the drawing.
John n. Scbreiner deposes that he was
bailiff of the court at the time named, and
was present, as asserted In the foregoing am
davits; that his Honor Judge Bryan and the
clerk. Daniel Horlbeck, were present, ana
Deputy Marshal Buttz was present q part of
the time, and that the jury box was orought
into the courtroom and opened In presence or
all the parties, o small col0red boy being en-
ployed to draw the ballots. The remainder OF
Mr. Schreiner's affidavit .corroborates those
given above as to the absence OF Marshal
johnson
MT. Corbin, In supporting his motion, said
that he did not attempt TO impute either TO
the clerk, or any other person, any designed
evasion or non compliance with the law; ne
drawing of the jury's names by child was
custom sanctioned iong usage h sae q nsass sse
Goults, gus mhion rt aau ."S the niarE af, this,
Ohlleh Ssatss sguaS' .Sa nro s ot,cs @ narhas,ssy
from habit, he having been for many yeflrs
clerk Of the State courts 10 which the custom
obtained. the Jury order S0f the cousf, noW.Tis
ever IN seeuqh q S.g
done cIehe =, ~ 1ic
pissenSs y. oGtm, ,ri,aS u,,th asss
meDes hSa oeeoyp1% hnso ",n ~ ran,v n t,,e 5is.
Hon heveroy yoa9sSn, u tgnsa - sno tha
trtct attorney, askea Lor wa I9lpvsr 3a rassnt
oisu.cs s a.sot assda Typ.Ssnrh;n 'ssNo nnrnose.
arlay ses 90, aa;ue a. mr. ., Hann5erstood
e4cept W set s, - AZ S,,,, o,dar thar be had
Ine eS tTat t,irv If ordered.
,s. rns, 81 tha State.
s nuS' e. oe SunT. tsa vIc,naaes Ihise process
won,d uW IN necessarily cause o DELAY of two or
,h.aa muotu ,,aeSs which wnnld be yexatious and
nosers Msers r. had besn ,ntimated that the
unaeess hilss ti.n ro,.sS sbond he disnosed of at
oolectlon snue;se .nen the fraveraers might at
once, ss, vsnS, stoa 81 tho tria, tale sdvontage
sSMe 81 ~, hnt snssSinS as eoI,nsel for maioriIy
of ~ o 0u., tsHerssrs he oXge notice that he
Wonid not raise that objection either during
nr sf'er % the trial The obIection was purely
tech,,;caI more I'm the nature of q special
Semnrrer than anything else, and there was
M nretenra that the fairness ,or capacity of
tho finrv had heen lessened by the alleged ir-
ragn|aritv
iha district attorney quoted the cases of
Clair va. the State OF. Maryland, and of the
United States VS.. John d. Surratt, and en-
deayored 10 show analogy between them and
the present case; he questioned the power of
the defence, If the jury should be held to be
irregular. TO waive the objection; every prls-
oner has right to trial before q lawful jury
Ia right guaranteed by the constitution and
| by all written law.
Mr.. johnson, In reply, said that the case OF
Clair va. the State OF Maryland differed mate
rally from that now under consideration; In
that case the presence of certain judges was
reouired at the time of drawing, showing that
| It vas held to be In some degree judicial act;
| In the present case, however, 1t was placed In
| the. hands of certain officers OF the court, and
was q purely ministerial duty; the order OF
with. and In fact the spirit of the law was bet
ter served by the physical act of drawing
being done By an automaton than by. the
clerk: It was not charged that there had been
any tampering with the boxes-any Of that
practice which Is regularly known as ''stuff-
fngn the ballot box, and which had been
Known to be prscticed even inssuch general
IL correct State and such particularly cor
rect city as Maryland and Baltimore; 1T had
been stated, moreover, that his Honor Judge
Bryan was present during the very drswing
the regularity of which was called in ques-
tion. and he submitted that the court was
thereby stopped from setting aside the jurors.
In regard to the right Of the defence to waive
the hsnefit of q technical objection, he pre-
snmed that hls friend for the United States
was aware that prisoners have o right to be
tried by twelve men, and cannot be forced 10
trial without twelve men. II tried BY eleven
men aoainst their protest. the Judgment Is
annnlle5. bnt they or their counsel may
waive that right~t6ere ia no right which they
NAV not waive. unless there be some constl-
tntionaI nrohbition. he was at a loss to con-
cefve how the counsel for the governments
c0i,,S nnssiblv Imagine that these prisoners
you'd he abls 10 object to the trial, if tried BY
this inrv. upon the ground that the jury was
not 'nronerly drawn. IT, before trial. their
oo,,,aa, no. pvtS their consent agreed to waive
tbe ohiection. and stand the hazard of the die.
:Tndge Bond asked If the court understood
the connsel to saw that it was out of their
mower. if the present ueraire were set aside, to
snmmon a inry de circusnstant,bus.
NJ Johnson raniied that he was far from
-. -. -,Sir,sF Fof tho LinS no fook IN for