The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1899-12-29
NOUN lnlhL UT
Brown Could Not Be Tried
for Weise's Murder by
Eleven Jurors.
MIR. BERGER SERIOUSLY ILL
The Hearing Was Set Down
for the January
Term.
Especial to eThe Jersey city News."l

TRENTON, Dee. %, 1sss.-The prison
murder case has gone off for the term
Juror James A. Bergen did not respono
to his name when the panel was called az
10:15 yesterday morning. Justice Gum
mere said, upon taking his seat at ms
bench. that the court understood that
Juror Bergen was in such a physical con-
dition as prevented his presence. fne
Court then called DR.. Shaw to the stand
He is the physician in attendance on
Juror Bergen. DR.. hi was sworn, ana
Prosecutor Crossley addressed a number
Of questions to him with respect to the
condition of his patient.
The physician testified that he had at
tended Juror Bergen, and that, with pr.
Rogers, he had made an examination OF
him at the Hotel Windsor the day pre-
vious. The physical condition Of the pa
tent was serious. He was seriously y,
and in the judgment Of the witness would
not be able to appear at court WITHIN
! three or four days. His illness was OF
such a nature as to render the time LOT
his recovery indefinite.
Justice Gummere now asked the pny-
| stefan what was the nature Of the illness
of the juror. He was told that It was
trouble with the kidneys and liver.
In reply to John Fl. Backes the coun-
sci for the prisoner. DR.. Shaw said that
there was no possibility OF Juror Bergen
being able to come to the Court House IN
the morning.
County Physician r. r. Rogers, Jrv
was next sworn and testified that at the
| request of Prosecutor Crossley he went
, to the Hotel Windsor the day before and
made a thorough examination Of the con-
dition of Juror James A. Bergen. He
found that gentleman to be suffering
from aphritfs. which is Inflammation OF
the kidneys, that nay be chronic In FORM
| The patient had suffered a uremic con-
vulsion. during which he had bitten his
| tongue. He also suffered a great deai
from headache. HIS liver was also PROB
| ably affected. The witness thought that
1t was a question if Juror Bergen would
! ever get well. He might recover and get
| about again. but it was a question II ne
! could eyer get over 1t. The memory OF
| the patient was very poor when the phy-
| stefan examined him. The patient dld not
| appear to realize anything.
Justice Gummere said that he would
listen to any suggestions that might pc
made nv counsel, and no one volunteer
ing. the Court addressed Mr.. Backes,
| saving: "Mr. Baekes, the Prosecutor IN
| forms me that you are willing to go on
with the case with eleven men in the
| hox. and that your client will bind
himself to abide by the result and take
no advantage of the waving of his con-
stitutional right. The only question n
| the matter is. whether the defendant can
SO bind himself. The Court would like TO
near what you have to say on that mai
| ter"
Counsellor Backes replied that 1t seemed
to be a question as to where the weight
| of the authorities were The New Jersey
| statute seemed to give the right to a de-
PENDANT to waive his constitutional rights,
but the speaker had found no authority
for such a waiver in a capital case. IN
the State of New York. the Court Of APP
| peals had held hat a man cannot waive
| his constitutional right in a capital case,
| because of the theory that the sovereign
| has an interest in his life In deciding a
| certain case, it was held that although
the defendant had waived a constitutional
right and signed an agreement not to
| take any advantage of the waiver after
wards. on the conviction of the defend
ant, the Court of Appeals set the convic-
| ton aside. However. said Mr.. Backes, he
was ready to go on.
Justice Gummere replied that hat he
| had said relieved the Court, if it had any
! doubt. The doubt of the legality OF going
on with the eleven jurors was in the mind
| Of counsel. Judge Woodruff and himself
had no doubt that the law as it exists in
| New York aplies to New Jersey. It has
| also been so applied in Michigan, Ohio,
| Indiana, Arkansas, Missouri and Texas.
| The Court knew of but one dissenting
view from the decision of the New York
| Court of Appeals. It is thought that the
| New York principle was the real founda-
| ton and the other view was founded on
| sand. In criminal cases, If a person has
a right TO waive one Of a panel of Jurors
| why not six of them. or all of them, and
be tried by an arbitrator?
The object Of convictions was not so
much to punish the convic as to warn
| future wrong doors. The conclusion of
! Judge Woodruff and myself is, that this
| case should not go on in the absence OF
Juror Bergen, and that will be the or
| der.
After some business in the Circuit Court
was transacted Justice Gummere asked
the Prosecutor If he had decided whether
he would proceed de novo at that time, or
have it go off for the term.
Prosecutor Crossley said that he was of
the opinion that the case should not be
proceeded with at the time. He realized
| the difficulty of getting witnesses from
the State Prison at night and that was
the only way that the case could be ended
by Friday night.