Year: 1869

The power is undoubtedly great one, but as long
as the prosecuting Officers discharge their duties
according to law, the citizen will not be In danger
Any attempt upon the part OF the prosecuting oin-
Ger to prostitute this power would inevitably con-
sign him to public contempt 1t Is right, In concu-
sion, to say that have been informed that the prac-
tce OF standing aside jurors is well settled In the
United States courts in this district


Second. The second reason assigned in support OF
this rule ia as follows, viz 1.-THE judge erred IN
refusing to allow the defendants to challenge Joseph


The facts in relation to this branch Of the case are
briefly these:-


This jury were called together into the box, and
the right OF challenge freely exercised either for
cause or peremptoriy until the twelve were seated


At one time | intended to direct the jury TO be
sworn as in homicide cases. but moments re1ec-
ton determined me to direct the jury 10 be sworn
together as is our uniform practice IN all cases not
capital. then gave notice TO counsel as folows:-
Judge-"swear the jury, unless there are more
challenges to make After t GGnsdera6ie I delay .,


Mr.. Cassidy (of counsel for prsoner) replied
Nothing.


to challenge, and therefore not avaing themselves
of the right, the jury will be sworn"


Mr.. Mann (of counsel for prisOners) replied-We
claim the right to challenge until the juror comes to
the book.


counsel, said 81 will not depart from the rule in
all below the grade of capital felones Il did
template having each juror sworn separately; they
will, however, be sworn together, according to our
uniform practice, and l now say to the prisoners
counsel that they have right to exhaust their chal


Mr. Mann-we claim the right to challenge untn
the jurors come to the book.


After some delay, one or two Of the jurors saying
they were not impartial, and leaving the box, and
others being called in their places, the whole twelve
being in the box, the following took place:-


Judge-I again say to the counsel for the prisoners
that If they have no challenges to make the Jury
will be sworn according to our usual practice


A deliberate delay OF several moments then took
place. the counsel for the prisoners remaining mute
when directed the jury to be sworn.


The Clerk of the Court then said:-'Those who
swear will rise and take the book"


The oath was administered to six seven of the
jurors, when the Clerk said:-''Those who affirm


At this point my recollection supported by that of
the District Attorney and several persons standing
in the Court differs from that OF the counsel for the
prisoners. | believe the juror subsequently chal-
lenged was upon his feet when Mr.. Mann challenged
him.


Anidavits of two jurors have been presented to u.s.
but we can take no notice OF them, for the reasons
assigned by my brother Allison, in the very able
opinion delivered in commonwealth VS.. Thompson,
Pa Rep, 2lI, and the fact must remain established
as reported 10y me to my colleagues | regret the
difference OF opinion, and am very glad to say that,
in the opinion of two of the judges, upon two other
points, this decision does not rest entirely upon the
facts as above stated upon this point


The practice in regard to challenges varies in diff
ferent States OF the Union In some of the States
Juror is challenged as he comes to the book and this
is believed to be the English practices in others he
may be challenged after he has been sworn in some
for cause arising after the oath has been admins-
tered. With u.s. IN this county, the practice has


In capital cases, where the jurors are sworn
separately challenges may be made at any time
before the book has been rendered to the Juror or
the formula of affirmation has been commenced. In
cases not capital, our uniform practice has been to
swear or Affirm the Jurors together and case Is
remembered in which the right of challenge has
either been, claimed or allowed after any of the
jurors have been sworn or affirmed.


Admitting the principles contended for by the
6 % 3r he e afd - by I'M
opinion that upon the facts, as reported, the chal
lenge was too late.


Two Of us are Of the opinion that after the swear
ing of the seven jurers the chaeage was too late,
and two OF us are also of the opinion that under the
circumstances the right by reason of mere caprice
was fairly waived.


Upon these three grounds therefore, the ruling at
the trial is sustained Speaking for myself, 1 have
no hesitation in saying, that after the deliberate and
protraced delays which occurred At the trial. with
the repeated invitations to counsel 70 exercise their
right, the case became one clearly within the rule
stated in commonwealth VS.. McFadden, II Harris,
IL wherein the Court say, "Ths power to challenge
for cause at any time before the oath is rendered
might be abused. If the objection to juror be kept
back at the regular time for an improper reason
from motives OF mere caprice, it would be Just
enough to declare the right wholly waived and the
discretionary power to do so ought not to be de-
Med"


IT, as now stated, the counsel for the prisoners de-
sired to the seven jurors who were fist sworn
and thus by adopting an unusual practice, deprive
the Commonwealth OF her right to challenge either
of them, the reason was an improper one; aud if no
reason existed, then the challenge was matter of
pery disregarded because it waived, and of this
opinion are two OF the Judges Again, as under our
practice an cases not capital the whole twelve jurors
are in the box together, and are thus sworn or
affirmed, the reason does not exist for the rule which
permits each juror to be challenged as he to
the book for stated in HartZel VS.. Commonwealth,


WI. 466, "the last man may be as readily challenged
the first and the right OF the prisoners is not to
select but to reject Twitchell's case, Brewster's
Rep. Col. 1t was too late, therefore, TO challenge
after seven were sworn and OF this opinion are two
OF the Judges.


challenge any one OF the twelve jurors in the box,
and delayed the trial for that purpose; if the juror
after having declared himself perfectly impartial,
upon challenge for cause, had not been seated in
the box for some time and thus presented himself
as one OF the twelve jurors about to try the cause
who could at any time have been challenged-in a
word if every reasonable opportuGity had not been
extended to the prisoners and their counsel to chal-
enQe any one of the twelve should feel some in
Justice had been done; but under all the circum-
stances Of the case, think 1t would be triDg with
| the administration of criminal Justice to
permit this reason now to disturb the verdict,
especially the course adopted by counsel at the
trial upon this point was during the trial. aud con-
opinion of my brother Allison, in Commonwealth VS..
| Thompson, p. PIG, applies to this case He then
said:-"COurts are required to exercise great eau
ton in the allowance OF technical and purely legal
reasons for setting aside Verdcts after trial fairly
and fully had, and where, upon the review Of the
whole case the conclusion is that in sustaining the
verdict substantial justice is done and that the
dict is such one as ought to have been rendered In
view of all the facts proved upon the trial OF the
case"


The fourth, fifth, and sixth reasons as they relate
to the admission Of the testimony OF Mayor Fox, will
| be considered together Neil McLaughlin most
| important witness for the Commonwealth, was
called to the stand in few moments 1t became evil
dent that he was not reliable witness, for instead
OF testifyiDg for the Commonwealth, he proceeded
| to make statement which not only did not impl-
cate the prisoners in the attempted assassination OF
Mr. Brooks but told most strongly against the prose
cuton. At first he denied having Identified the pri-
soners or either OF them at any time as the
| men who were at the store or in
| the carriage; then he said he was ''skeered" when
he made the former statement he then preyarcated
then he qualified his former statement and did it in
| Way most damaging to the prosecution.
Under these circumstances the Commonwealth
called Mayor Fox and offered to prove, that on pre-