St. Paul daily globe., 1896-03-17
TO PROVE THAT THE JURY WAS
OVERSTEPPING THE BOUNDS
OF PROPERTY.
MIR. BUTLER RAISES THE POINT
That the Municipal Court Has n,
Power to Set Aside a Jury
Verdict.

y
ing the arguments of the attorneys in
the case.
At 2 o'clock Attorney Johns, accom-
panied by his client, entered the court
room and a moment later Judge Orr
announced himself ready for the pres
entations of the claims of the defend
ant. Mr.. Johns methodically placed
pile of legal volumes where they could
be readily referred to, and began his
argument. The defense, he said, would
demand new trial on thirteen differ
ent counts
The general grounds, as stated by
Attorney Johns, were:
=. Because of irregularities on the part Of
the jury by which the defendant was pre-
vented from having fair trial.
Because no sheriff or constable was sworn
to take charge of the jury, required by law
=, Because the jury permitted to leave
the jury room without the order Of the court,
as provided by the law; because they were
taken to the Windsor hotel by one John A.
Mccarthy who was not an officer appointed
by the court to take charge of the jury.
Because of improper conduct on the part
of the jury In that they left the jury room
and went into the court room, where some of
them played cards while others discussed the
merits OF the case, and because there were
with them two officers of the court"
Several affidavits presented in support of
the charges made were, in substance, as fol-
lows:
Edward L. Murphy made affidavit that he
was in court when the jury was sent out,
ana tnat there was no officer sworn to take
charge of the jury; that he is informed that
the Jurymen were taken to the Windsor hotel,
and there remained for more than an hour,
taxing their supper, purchasing cigars and re-
freshments and buying papers containing re-
ports of the trial; that on the trial of the
cause Q. p. Noyes and D. A. Polk were ex-
amined as to their qualifications as Jurors,
and that they then testified that they had no
opinions nor prejudices for or against the de-
fendant, and that he is informed and believes
that they then had prejudices, and that they
were aware Of 1t. The affiant also says that
had John A. Mccarthy, who is alleged to have
taken the jurors out to supper been sworn as
the custodian of the jury, he, the defendant,
would have objected to the procedure on the
grounds that the said Mccarthy was prejudiced
against him.
F. l.. Osburg, one of the jurors, made af-
hdavit that he voted for the acquittal of the
defendant on the first ballot and continually
thereafter until 3 o'clock in the morning after
the close of the case: that he then believed
the defendant not guilty and is of the same
belief now; that about o'clock in the morn
ing he was induced to change his vote by
Juror Nichols, who told him repeatedly that
II he persisted in voting for acquittal he
would get his name in the papers and that
his business would be ruined. This was i'm
pressed on him SO forcibly that he did at
last change his vote and agree in the verdict.
Mr.. Osburg further swears that while in the
jury room G.. p. Noyes stated to the members
of the jury that he had investigated the char
acter Of the Murphy place and that he
learned that 1t disreputable.
Osburg also swears that Juror Peet told the
other members of the jury that his (Peet's)
friends had said to hm-after he had been
sworn on the jury: "Now you are in po-
sition to fix that Murphy" That the jurymen
all stated in the hearing Of the affiant, that
they believed the testimony given by Mrs.
Root and Mrs. Murphy to have been exagger-
ated In some details. He said further that
it was agreed to by the members of the Jury
that the verdict should apply only to the res
taurant or wine room part of Murphy's place
and should not apply to No. 528 St. Peter
street. He closes with the statement that
Stockton, police officer; Deputy Sheriff Ken
ney and Custodian Gerlach were In the Jury
room at times while the jury was in retire
ment.
Juryman John Noonan makes affidavit 70
the separation of the jury, and says that some
OF them were in the court room playing cards
while others remained in the jury room and
that there were three men present at times.
E. l.. Murphy and James Cormican make
affidavit that they heard one John Bohmart
of $50 North street, say that he heard Juror
Polk say to Judge Thomas Howard: Wen
give Murphy - That they asked Bohmart
to make afidavit to what he had heard but
that he declined saying that he did not want
to get into trouble.
Following the reading of the affida-
Wits Attorney Johns made a lengthy
argument in substantiation of their con-
tents and their competency to occasion
a new trial
County Attorney Butler began his ar
gument by stating that under the stat
uteS the municipal court had no iuris-
diction. He quoted the law of 1888. de-
tining municipal court. and it's prov
ince, and declared that in the pending
case a new trial was not sought, but
that it was demanded that the verdict
M tn6 rsI
not" said Mr.. Butler. "a statute in the
state of Minnesota granting such priv
ilege to any municipal court"
The affidavit of Alderman Murphy
was disposed Of with the assertion that
it was in it's entirety simply allegation.
and not fact. 1t was simply so much
hearsay and could have no place in the
consideration of the court
In regard to Juror Osburg's affidavit,
the county attorney maintained that he
had come into court after having
agreed upon a verdict, and, in response
to his name, had declared what his Ver-
dict had been. In view of this state
ment Mr. Butler claimed Mr. Osburg's
affidavit to be incompetent Juror
Noonan's statements We're claimed to
be untrue. and in rebuttal Attorney
Butler offered a number of affidavits
covering not only Noonans allegations
but also the other claims of the de-
fense.
C. p. Noyes swore that neither Stock
ton, Mccarthy or Gerlach had been in
the jury room during the time of retire
ment
An affidavit by Juror Polk stated
that the affiant had had no opinion in
regard to defendants guilt or innocence
before the trial. He had, he thought,
tried the case fairly and impartially.
The affiant further said that the jury
had never been separated after receiV-
ing the judges charge, nor had any of
the baiiiffs or any one else been pres
ent during the discussion OF the evil
dence. Juror Polk also denied the al
legged conversation between himself and
claimed he said, "We'lI give Murphy"
John Irish deposed that he had been
ordered by the court 70 take the jury
out to supper.
John Gerlach swore that he had not
been in the jury room during the dis
cussions of the jury. The jury had.
late In the evening. been taken to the
jury room of District Court Room No
2. and later still, for the comfort of the
Jury, Court Room No. 8 had been given
over to their use. When this was
done, the affidavit states, all Of the
court officers left the room.
John Mccarthy, In his affidavit.
stated that he was not in the pres
ence Of The jury at any time during
their retirement, except when by d.
rection Of the court he had assisted
Deputy Kenny in conducting the jury
to the Windsor hotel for supper and
that while there. none of the jurors
conversed with any one, SO far as af-
fiant knew.
Deputy Sheriff Kenny's affidavit
stated that pursuant to the order of
Chief Deputy John Irish, afi1ant, In