In the Supreme Court—A _Supersedeas_ Secured—Justice Magruder
Delivers the Opinion—A Comprehensive Statement of the Case—How Degan
was Murdered—Who Killed Him?—The Law of Accessory—The Meaning
of the Statute—Were the Defendants Accessories?—The Questions
at Issue—The Characteristics of the Bomb—Fastening the Guilt on
Lingg—The Purposes of the Conspiracy—How they were Proved—A
Damning Array of Evidence—Examining the Instructions—No Error Found
in the Trial Court’s Work—The Objection to the Jury—The Juror
Sandford—Judge Gary Sustained—Mr. Justice Mulkey’s Remarks—The Law
Vindicated.
ALTHOUGH doomed to die, the prisoners did not despair. Their counsel
led them to believe that the State Supreme Court would certainly
grant them a rehearing, and the first step to get their case before
that court was to secure a stay of the execution of the sentence. For
this purpose Hon. Leonard Swett was called into the case to assist
Capt. Black, and the two gentlemen accordingly went before Chief
Justice Scott, and on the 25th of November, 1886, secured the desired
_supersedeas_. In March, 1887, the appeal came before the Supreme Court
of Illinois, and arguments were heard in the case until the 18th of
the same month, when the matter was taken under advisement. Several
months elapsed before a decision was handed down, but meanwhile all
the prisoners expressed the utmost confidence in a reversal of the
judgment of the Criminal Court. Their counsel were alike confident of a
rehearing, and sympathizers joined in the hopes indulged in by the men
behind the bars and their representatives before the bar.
On Wednesday, September 14, 1887, however, the Supreme Court rendered
its decision, sustaining the findings of the lower court in every
particular. It was given by the full bench, and there was not a
dissenting opinion. Justice Benjamin D. Magruder delivered the opinion.
After stating various rulings bearing on murder, conspiracy, accessory
before the fact and other legal points involved in the case, and citing
numerous extracts from the organs of the Anarchists and Herr Most’s
book, he reviewed the authorities given by the counsel to sustain their
respective sides, and then delivered the opinion of the court, as
follows:
“This case comes before us by writ of error to the Criminal Court of
Cook County. The writ has been made a _supersedeas_.
“Plaintiffs in error were tried in the summer of 1886 for the murder
of Mathias J. Degan, on May 4, 1886, in the city of Chicago, Cook
County, Illinois. On August 20, 1886, the jury returned a verdict
finding the defendants August Spies, Michael Schwab, Samuel Fielden,
Albert R. Parsons, Adolph Fischer, George Engel and Louis Lingg guilty
of murder, and fixing death as the penalty. By the same verdict they
also found Oscar W. Neebe guilty of murder and fixed the penalty at
imprisonment in the penitentiary for fifteen years.
[Illustration: JUDGE BENJAMIN D. MAGRUDER.
From a Photograph.]
“About the 1st day of May, 1886, the workingmen of Chicago and of
other industrial centers in the United States were greatly excited
upon the subject of inducing their employers to reduce the time during
which they should be required to labor on each day to eight hours. In
the midst of the excitement growing out of this eight-hour movement,
as it was called, a meeting was held on the evening of May 4, 1886,
at the Haymarket, on Randolph Street, in the West Division of the
city of Chicago. This meeting was addressed by the defendants Spies,
Parsons and Fielden. While the latter was making the closing speech,
and at some point of time between ten and half-past ten o’clock in the
evening, several companies of policemen, numbering one hundred and
eighty men, marched into the crowd from their station on Desplaines
Street, and ordered the meeting to disperse. As soon as the order
was given, some one threw among the policemen a dynamite bomb, which
struck Degan, one of the police officers, and killed him. As a result
of the throwing of the bomb and of the firing of pistol shots, which
immediately succeeded the throwing of the bomb, six policemen besides
Degan were killed, and sixty more were seriously wounded.”
The court then went into the law of accessory, confirming the
interpretation and ruling of the trial court, that all distinction
between principals and accessories is by the Illinois statute
abolished. The issue thus became: Were the defendants accessories to
the murder of Degan?
To find the answers to these questions the court went into an
exhaustive review of all the evidence in the case, covering the same
ground which has been gone over in the previous chapters of this book.
First the bomb with which the murder had been done was considered.
It had been proven to be round; to have a projecting fuse; to be
of composite manufacture; to contain tin and lead, with traces of
antimony, iron and zinc; to have upon it a small iron nut. All these
characteristics were found in the bombs which Louis Lingg manufactured,
and for these and other reasons the court held that the jury was
warranted in believing that the bomb which killed Degan had been made
by Lingg.
The purposes of the conspiracy were next inquired into, and the
articles in the _Alarm_, the platform of the Internationale and similar
incendiary and dangerous language from many sources are quoted in full
in the opinion. The organization of the Anarchists was also inquired
into, and the divisions into groups, the make-up of the Lehr and Wehr
Verein and like matters stated. The court declared this to be an
“illegal conspiracy.”
The damning array of evidence against the assassins was brought
together relentlessly and completely. The speeches of the defendants
were sifted, their teachings examined, and there could be left in no
mind a doubt that these men had advised murder and arson, and that they
were guilty technically as well as morally. The opinion of the court
was a masterly presentation of the facts, and the conclusions drawn
from them settled once for all both the law and the equity of this
celebrated case. It was evident that there was law enough in America to
protect society.
That the Haymarket murders were the legitimate and expected result of
the teachings of the ring-leaders of the conspiracy was conclusively
shown with a ruthless logic that left no hope for pardon, nor for
interference with the law’s stern course.
Lingg’s case, and the case of Spies, of Engel, of Fischer, of Parsons,
of Neebe, of Fielden were taken up separately, examined with a care
that might be described as almost microscopic, and in each case there
was no flaw in the record—no reason why these men should not pay the
penalty for their crime.
The concluding part of the opinion is so important from a legal
standpoint, and at the same time of such general interest, that I will
quote it entire:
“If the defendants, as a means of bringing about the social revolution
and as a part of the larger conspiracy to effect such revolution, also
conspired to excite classes of workingmen in Chicago into sedition,
tumult and riot and to the use of deadly weapons and the taking of
human life, and, for the purpose of producing such tumult, riot, use
of weapons and taking of life, advised and encouraged such classes
by newspaper articles and speeches to murder the authorities of the
city, and a murder of a policeman resulted from such advice and
encouragement, then defendants are responsible therefor.
“It is a familiar doctrine of the law, in criminal cases, that, if
a reasonable doubt of the guilt of the prisoner is entertained, the
jury have no discretion, but must acquit. The twelfth and thirteenth
instructions for the prosecution are objected to as not correctly
stating to the jury the meaning of ‘reasonable doubt.’ The twelfth
instruction is an exact copy, _verbatim et literatim_, of the sixth
instruction in _Miller et. al._ vs. _The People_, 39 Ill. 457, which
we approved in that case, and which since that case we have indorsed
as correct in at least three cases, to-wit: _May_ vs. _The People_,
60 Ill. 119, _Connaghan_ vs. _The People_, 88 id. 460, and _Dunn_ vs.
_The People_, 109 id. 635.
“The portion of the thirteenth instruction which plaintiffs in error
complain of is that which is contained in the following words: ‘You
are not at liberty to disbelieve as jurors if from the evidence
you believe as men.’ This expression has been sanctioned by the
Supreme Court of Pennsylvania as having been properly used in an
instruction given to the jury by a trial judge, and we are inclined to
follow the ruling there laid down. That court said in _Nevling_ vs.
_Commonwealth_, 98 Pa. St. 322: ‘The learned judge then proceeded to
say that the doubt must be a reasonable one, and that jurymen could
not doubt as jurymen what they believed as men. In all this there
was no error. It is the familiar language found in the textbooks and
decisions which treat of the subject.’
“By the twelfth and thirteenth instructions, considered in connection
with the eleventh instruction for the State, and also in connection
with the definitions of reasonable doubt as embodied in the
instructions given for the defense, we think the law upon this subject
was correctly presented to the jury.
“The statute of this State provides that ‘juries in all criminal cases
shall be judges of the law and fact.’ Instruction number thirteen
and a half, given for the prosecution, is objected to as improperly
limiting and qualifying this provision of the statute. It tells the
jury, that ‘if they can say upon their oaths that they know the law
better than the court itself, they have the right to do so,’ ...
but that ‘before saying this, upon their oaths, it is their duty
to reflect whether from their study and experience they are better
qualified to judge of the law than the court,’ etc.
“The language of instruction number thirteen and a half is an exact
copy, _verbatim et literatim_, of the language used by this court
in _Schnier_ vs. _The People_, 23 Ill. 17. The views expressed in
_Schnier_ vs. _The People_ have been approved of and indorsed in
_Fisher_ vs. _The People_, 23 Ill. 283, _Mullinix_ vs. _The People_,
76 id. 211, and _Davison_ vs. _The People_, 90 id. 221. The question
is settled, and we see no reason to retreat from our position upon
this subject.
“It is also claimed that the court erred in refusing to give certain
instructions asked by the defendants. The refusal of refused
instructions numbered 3, 8, 9, 11 and 18 is especially insisted upon
as error.
“Instruction No. 3 was properly refused because it told the jury
that those of the defendants who were not present at the Haymarket,
counseling, aiding or abetting the throwing of the bomb, should
be acquitted. Under our statute and the decision of this court in
_Brennan_ vs. _The People_, 15 Ill. 517, the defendants were guilty if
they advised and encouraged the murder to be committed, although they
may not have been present.
“Instruction No. 8 was wrong for a number of reasons, but it is
sufficient to refer to one: it assumes that ‘a conspiracy to bring
about a change of government ... by peaceful means if possible, but,
if necessary, to resort to force for that purpose,’ is not unlawful.
The fact that the conspirators may not have intended to resort to
force, unless, in their judgment, they should deem it necessary to do
so, would not make their conspiracy any the less unlawful.
“All that was material in instructions 9, 11 and 18 was embodied in
the instructions which were given for the defendants.
“The defendants also complain that the court refused to give an
instruction for them which contained the following statement: ‘It can
not be material in this case that defendants, or some of them, are or
may be Socialists, Communists or Anarchists,’ etc.
“If there was a conspiracy, it was material to show its purposes and
objects, with a view to determining whether and in what respects it
was unlawful. Anarchy is the absence of government; it is a state of
society where there is no law or supreme power. If the conspiracy had
for its object the destruction of the law and the government, and
of the police and militia as representatives of law and government,
it had for its object the bringing about of practical Anarchy.
Whether or not the defendants were Anarchists, may have been a proper
circumstance to be considered in connection with all the other
circumstances in the case, with a view to showing what connection,
if any, they had with the conspiracy and what were their purposes in
joining it. Therefore, we can not say that it was error to refuse an
instruction containing such a broad declaration as that announced in
the above quotation.
“Defendants further complain because the instruction numbered 13,
which was asked by them, was refused by the trial court. The refusal
of this instruction was not error. It was proper enough, so far as
it stated that if a person at the Haymarket ‘without the knowledge,
aid, counsel, procurement, encouragement or abetting of the defendants
or any of them, then or theretofore given, ... threw a bomb among
the police, wherefrom resulted the murder or homicide charged in the
indictment, then the defendants would not be liable for the results
of such bomb,’ etc. But the instruction is so ingeniously worded as
to lead the jury to believe that the person who threw the bomb at the
Haymarket was justified in doing so if the meeting there was lawfully
convened and peaceably conducted and if the order to disperse was
unauthorized and illegal. Counsel inject into the instruction the
hypothesis that the bomb may have been thrown by an outside party ‘in
pursuance of his view of the right of self-defense.’ A mere order to
disperse can not be an excuse for throwing a dynamite bomb into a body
of policemen. If the bomb-thrower had been illegally and improperly
attacked by the police, while quietly attending a peaceable meeting,
and had thrown the bomb to defend himself against such attack, another
question would be presented. The vice of the instruction lies in the
insidious intimation embodied in it, that when a body of policemen,
even if in excess of their authority, give a verbal order to an
assemblage to disperse, a member of that assemblage will be excusable
for throwing a bomb, on the ground of self-defense and because of the
supposed invasion of his rights.
“The instruction given by the court of its own motion, and which has
already been referred to, is also claimed to be erroneous. So far as
it speaks of murder and advice to commit murder in general terms,
it is sufficiently limited and qualified when read in connection
with all the other instructions, to which it specifically calls
attention. It does not supersede and stand as a substitute for the
other instructions, given for both sides. It does not so purport
upon its face. On the contrary, the jury are directed to ‘carefully
scrutinize’ such other instructions, and are told that their apparent
inconsistencies will disappear under such scrutiny. In the last
sentence they are requested to disregard any unguarded expressions
that may have crept into the instructions, ‘which seem to assume the
existence of any facts,’ and look only to the evidence, etc. Why
caution the jury to disregard certain expressions of a particular
kind in the other instructions, if the latter were to be entirely
superseded? We do not think that the instruction given by the trial
judge _sua motu_ is obnoxious to the objections urged against it.
“Defendants also object to the instruction as to the form of the
verdict as being erroneous. It is claimed that the jury were obliged,
under this instruction, to find the defendants either guilty or not
guilty of murder, whereas the jury were entitled to find that the
offense was a lower grade of homicide than murder, if the evidence so
warranted. This position is fully answered by our decisions in the
cases of _Dunn_ vs. _The People_, 109 Ill. 646, and _Dacey_ vs. _The
People_, 116 id. 555. If counsel desired to have the jury differently
instructed as to the form of the verdict, they should have prepared an
instruction, indicating such form as they deemed to be correct, and
should have asked the trial court to give it. They did not do so, and
are in no position to complain here.
“The court, at the request of the defendants, did give the jury an
instruction defining manslaughter in the words of the statute and
specifying the punishment therefor as fixed by the statute. The court
also gave the jury the following instruction: ‘The jury are instructed
that under an indictment for murder a party accused may be found
guilty of manslaughter; and in this case, if from a full and careful
consideration of all the evidence before you, you believe beyond a
reasonable doubt that the defendants or any of them are guilty of
manslaughter, you may so find by your verdict.’
“The next error assigned has reference to the impaneling of the
jury. The counsel for plaintiffs in error have made an able and
elaborate argument for the purpose of showing that the jury which
tried this case was not an _impartial_ jury in the sense in which
the word ‘impartial’ is used in our Constitution. We do not deem
a consideration of all the points presented as necessary to a
determination of the case, and shall only notice those that seem to us
to be material.
“Nine hundred and eighty-one men were called into the jury-box and
sworn to answer questions. Each one of the eight defendants was
entitled to a peremptory challenge of twenty jurors, making the whole
number of peremptory challenges allowed to the defense one hundred and
sixty. The State was entitled to the same number. Seven hundred and
fifty-seven were excused upon challenge for cause. One hundred and
sixty were challenged peremptorily by the defense and fifty-two by the
State.
“Of the twelve jurors who tried the case, eleven were accepted by the
defendants. They challenged one of these, whose name was Denker, for
cause, but, after the court overruled the challenge, they proceeded
to further question him and finally accepted him, although one
hundred and forty-two of their peremptory challenges were at that
time unused. They accepted the ten others, including the juror Adams,
without objection. When Adams, the eleventh juror, was taken, they had
forty-three peremptory challenges which they had not yet used.
“Therefore, as to eleven of the jurymen, the defendants are estopped
from complaining. They virtually agreed to be tried by them, because
they accepted them, when, by the exercise of their unused peremptory
challenges, they could have compelled every one of them to stand aside.
“Counsel for the defense complain that the trial court overruled their
challenges for cause of twenty-six talesmen, to whose examinations
they specifically call our attention. As they afterwards peremptorily
challenged the talesmen so referred to, no one of them sat upon
the jury. Every one of these twenty-six men had been peremptorily
challenged before the eleventh juror was taken.
“After the eleventh juror was accepted, the forty-three peremptory
challenges which then remained to the defendants were all used by them
before the twelfth juror was taken.
“After the defendants had examined the twelfth juror, whose name was
Sandford, they challenged him for cause. Their challenge was overruled
and they excepted.
“The one hundred and sixty talesmen who were peremptorily challenged
by defendants were first challenged for cause, and the challenges for
cause were overruled by the trial court. It is claimed that, inasmuch
as the defendants exhausted all their peremptory challenges before
the panel was finally completed, the action of the court in regard to
these particular jurors will be considered, and, if erroneous, such
action is good ground of reversal. We think it must be made to appear
that an objectionable juror was put upon the defendants after they had
exhausted their peremptory challenges. ‘Unless objection is shown to
one or more of the jury who tried the case, the antecedent rulings of
the court upon the competency or incompetency of jurors who have been
challenged and stood aside will not be inquired into in this court.’
_Holt_ vs. _State_, 9 Texas Ct. App. 571.
“We cannot reverse this judgment for errors committed in the lower
court in overruling challenges for cause to jurors, even though
defendants exhausted their peremptory challenges, unless it is further
shown that an objectionable juror was forced upon them and sat upon
the case after they had exhausted their peremptory challenges. This
doctrine is ably discussed in _Loggins_ vs. _State_, 12 Texas Ct.
App. 65. We think the reasoning in that case is sound and answers the
objection here made.
“In addition to this reason, we have carefully considered the
examinations of the several jurors challenged by the defendants
peremptorily, and while we cannot approve all that was said by the
trial judge in respect to some of them, we find no such error in the
rulings of the court in overruling the challenges for cause as to any
of them as would justify a reversal of the cause. The examinations,
as they appear in the record, of the forty-three talesmen who were
challenged peremptorily after the eleventh juror was accepted, show
that many of the forty-three challenges were exercised arbitrarily and
without any apparent cause. Such challenges were not compelled by any
demonstrated unfitness of the jurors, but seem to have been used up
for no other purpose than to force the selection of one juror after
the forty-three challenges were exhausted.
“The only question, then, which we deem it material to consider, is:
Did the trial court err in overruling the challenge for cause of
Sandford, the twelfth juror? or, in other words, Was he a competent
juror?
“The following is the material portion of his examination:
“Have you an opinion as to whether or not there was an offense
committed at the Haymarket meeting by the throwing of a bomb? A. Yes.
Q. Now, from all that you have read and all that you have heard,
have you an opinion as to the guilt or innocence of any of the eight
defendants of the throwing of that bomb? A. Yes. Q. You have an
opinion upon that question also? A. I have.... Q. Now, if you should
be selected as a juror in this case to try and determine it, do you
believe that you could exercise legally the duties of a juror, that
you could listen to the testimony and all of the testimony and the
charge of the court, and after deliberation return a verdict which
would be right and fair as between the defendants and the People of
the State of Illinois? A. Yes, sir. Q. You believe that you could
do that? A. Yes, sir. Q. You could fairly and impartially listen to
the testimony that is introduced here? A. Yes. Q. And the charge of
the court, and render an impartial verdict, you believe? A. Yes. Q.
Have you any knowledge of the principles contended for by Socialists,
Communists and Anarchists? A. Nothing except what I read in the
papers. Q. Just general reading? A. Yes. Q. You are not a Socialist, I
presume, or a Communist? A. No, sir. Q. Have you a prejudice against
them from what you have read in the papers? A. Decided. Q. Do you
believe that that would influence your verdict in this case or would
you try the real issue which is here as to whether the defendants
were guilty of the murder of Mr. Degan or not, or would you try the
question of Socialism and Anarchism, which really has nothing to
do with the case? A. Well, as I know so little about it in reality
at present, it is a pretty hard question to answer. Q. You would
undertake, you would attempt of course to try the case upon the
evidence introduced here, upon the issue which is presented here? A.
Yes, sir.... Q. Well, then, so far as that is concerned, I do not
care very much what your opinion may be now, for your opinion now
is made up of random conversations and from newspaper reading, as I
understand? A. Yes. Q. That is nothing reliable. You do not regard
that as being in the nature of sworn testimony at all, do you? A.
No. Q. Now, when the testimony is introduced here and the witnesses
are examined, you see them and look into their countenances, judge
who are worthy of belief and who are not worthy of belief, don’t you
think then you would be able to determine the question? A. Yes. Q.
Regardless of any impression that you might have or any opinion? A.
Yes. Q. Have you any opposition to the organization by laboring men
of associations or societies or unions so far as they have reference
to their own advancement and protection and are not in violation of
law? A. No, sir. Q. Do you know any of the members of the police
force of the city of Chicago? A. Not one by name. Q. You are not
acquainted with any one that was either injured or killed, I suppose,
at the Haymarket meeting? A. No.... Q. If you should be selected as a
juror in this case, do you believe that, regardless of all prejudice
or opinion which you now have, you could listen to the legitimate
testimony introduced in court, and upon that, and that alone, render
and return a fair and impartial, unprejudiced and unbiased verdict? A.
Yes.
The foregoing examination was by the defense. The following was by the
State:
“Q. Upon what is your opinion founded—upon newspaper reports?
A. Well, it is founded on the general theory and what I read in the
newspapers. Q. And what you read in the papers? A. Yes, sir. Q. Have
you ever talked with any one that was present at the Haymarket at the
time the bomb was thrown? A. No, sir. Q. Have you ever talked with
any one who professed of his own knowledge to know anything about
the connection of the defendants with the throwing of that bomb? A.
No. Q. Have you ever said to any one whether or not you believed the
statement of facts in the newspapers to be true? A. I have never
expressed it exactly in that way, but still I have no reason to think
they were false. Q. Well, the question is not what your opinion of
that was. The question simply is—it is a question made necessary
by our statute, perhaps. A. Well, I don’t recall whether I have or
not. Q. So far as you know then, you never have? A. No, sir. Q. Do
you believe that, if taken as a juror, you can try this case fairly
and impartially and render an impartial verdict upon the law and the
evidence? A. Yes.
“It is objected that Sandford had formed such an opinion as
disqualified him from sitting upon the jury.
“It is apparent from the foregoing examination that the opinion of the
juror was based upon rumor or newspaper statements, and that he had
expressed no opinion as to the truth of such rumors or statements.
He stated upon oath that he believed he could fairly and impartially
render a verdict in the case in accordance with the law and the
evidence. That the trial court was satisfied of the truth of his
statement would appear from the fact that the challenge for cause was
overruled.
“Therefore, the examination of the juror shows a state of facts which
brings his case exactly within the scope and meaning of the third
proviso of the 14th section of chapter 78, entitled ‘Jurors,’ of our
Revised Statutes. That proviso is as follows: ‘_And provided further_,
that, in the trial of any criminal cause, the fact that a person called
as a juror has formed an opinion or impression, based upon rumor or
upon newspaper statements (about the truth of which he has expressed
no opinion), shall not disqualify him to serve as a juror in such
case, if he shall, upon oath, state that he believes he can fairly and
impartially render a verdict therein in accordance with the law and
the evidence, and the court shall be satisfied of the truth of such
statement.’
“In _Wilson_ vs. _The People_, 94 Ill. 299, one William Gray was
examined touching his qualifications as a juror and said: ‘I have
read newspaper accounts of the commission of the crime with which the
defendant is charged and have also conversed with several persons in
regard to it since coming to Carthage and during my attendance upon
this term of court; do not know whether they are witnesses in the case
or not; do not know who the witnesses in the case are. From accounts I
have read and from conversations I have had, I have formed an opinion
in the case; would have an opinion now if the facts should turn out as
I heard them, and I think it would take some evidence to remove that
opinion; would be governed by the evidence in the case and can give
the defendant a fair and impartial trial according to the law and the
evidence.’ Gray was challenged for cause and the challenge overruled by
the trial court. We held that all objection to Gray’s competency was
clearly removed by the proviso above quoted. We also there said: ‘The
opinion formed seems not to have been decided, but one of a light and
transient character which at no time would have disqualified the juror
from serving.’
“The expressions of Sandford in the case at bar as to the opinion
formed by him are not so strong as those used by Gray in the Wilson
case in regard to his opinion. Sandford’s impressions were not such
as would refuse to yield to the testimony that might be offered, nor
were they such as to close his mind to a fair consideration of the
testimony. They were not ‘strong and deep impressions,’ such as are
referred to by Chief Justice Marshall when he said upon the trial of
Aaron Burr for treason: ‘Those strong and deep impressions which will
close the mind against the testimony which may be offered in opposition
to them, which will combat that testimony and resist its force, do
constitute a sufficient objection’ to a juror. (1 Burr’s Trial, 416.)
“Counsel for the defense seem to claim in their argument that the
proviso above quoted is unconstitutional in that it violates section
9 of article 2 of the present Constitution of this State, which
guarantees to the accused party in every criminal prosecution ‘a speedy
public trial by _an impartial jury_ of the county or district in which
the offense is alleged to have been committed.’ We do not think that
the proviso is unconstitutional for the reason stated. The rule which
it lays down, when wisely applied, does not lead to the selection of
partial jurors. On the contrary, it tends to secure intelligence in
the jury-box and to exclude from it that dense ignorance which has
often subjected the jury system to just criticism. A statute upon this
subject, similar to ours and attacked as unconstitutional for the same
reason here indicated, was held to be constitutional by the Court of
Appeals in the State of New York in _Stokes_ vs. _The People_, 53 N. Y.
171.
“The juror Sandford further stated that he had a prejudice against
Socialists, Communists and Anarchists. This did not disqualify him
from sitting as a juror. If the theories of the Anarchists should be
carried into practical effect, they would involve the destruction of
all law and government. Law and government cannot be abolished without
revolution, bloodshed and murder. The Socialist or Communist, if he
attempted to put into practical operation his doctrine of a community
of property, would destroy individual rights in property. Practically
considered, the idea of taking a man’s property from him without his
consent, for the purpose of putting it into a common fund for the
benefit of the community at large, involves the commission of theft and
robbery. Therefore, the prejudice which the ordinary citizen, who looks
at things from a practical standpoint, would have against Anarchism and
Communism, would be nothing more than a prejudice against crime.
“In _Winnesheik Insurance Co._ vs. _Schueller_, 60 Ill. 465, we said:
‘A man may have a prejudice against crime, against a mean action,
against dishonesty, and still be a competent juror. This is proper,
and such prejudice will never force a jury to prejudge an innocent and
honest man.’ In _Robinson et al._ vs. _Randall_, _supra_, we again
said: ‘The mere fact, therefore that a juror may have a prejudice
against crime does not disqualify him as a juror. A juror may be
prejudiced against larceny, or burglary, or murder, and yet such fact
would not in the least disqualify him from sitting upon a jury to try
some person who might be charged with one of these crimes.’
“Sandford stated that he would ‘attempt to try the case upon the
evidence introduced here upon the issue which is presented here.’ The
issue presented was whether the defendants were guilty or not guilty
of the murder of Mathias J. Degan. Any prejudice against Communism
or Anarchism would not render a juror incapable of trying that issue
fairly and impartially.
“We cannot see that the trial court erred in overruling the challenge
for cause of the twelfth juror. This being so, it does not appear that
the defendants were injured, or that their rights were in any way
prejudiced by his selection as a juryman.
“On the motion for a new trial the defendants read three affidavits
for the purpose of showing that, shortly after May 4, 1886, two of the
jurors had given utterance to expressions showing prejudice against the
defendants. The two jurors made counter-affidavits denying that they
had used the expressions attributed to them.
“We do not think that the affidavits satisfactorily proved previously
expressed opinions on the part of the two jurors referred to. It was a
dangerous practice to allow verdicts to be set aside upon _ex parte_
affidavits as to what jurors are claimed to have said before they were
summoned to act as jurymen. The parties making such affidavits submit
to no cross-examination, and the correctness of their statements is
subjected to no test whatever. We adhere to the views which we have
recently expressed upon this subject in the case of _Hughes_ vs. _The
People_, 116 Ill. 330.
“The defendants claim that, although they were entitled to one hundred
and sixty peremptory challenges, yet the State was entitled to only
twenty, and they charge it as error that the State was allowed to
peremptorily challenge more than twenty talesmen. The statute says:
‘The attorney prosecuting on behalf of the people shall be admitted to
a peremptory challenge of the same number of jurors that the accused
is entitled to.’ (Rev. Stat. chap. 38, sec. 432.) We cannot conceive
how language can be plainer than that here used. It explains itself and
requires no further remark. The defendants also claim that the trial
court erred in refusing a separate trial, from the other defendants, to
the defendants Spies, Schwab, Fielden, Neebe and Parsons. Error cannot
be assigned upon the refusal to grant separate trials where several
are jointly indicted. It was a matter of discretion with the court
below. We so decided in _Maton et al._ vs. _The People_, 15 Ill. 536.
We are unable to see any abuse of the discretion in this case.
“Defendants also take exceptions to the conduct of the special
bailiff.[ The regular panel having been exhausted and the defendants
having objected ‘to the Sheriff summoning a sufficient number of
persons to fill the panel’ of jurors, the court appointed a special
bailiff named Ryce to summon such persons under section 13, chapter
78, of the Revised Statutes. On the motion for new trial, defendants
read the affidavit of one Stevens, in which Stevens swore that he had
heard one Favor say that he, Favor, had heard Ryce say that he, Ryce,
was summoning as jurors such men as the defense would be compelled to
challenge peremptorily, etc. The defendants then made a motion, based
upon this affidavit, that Favor be compelled to come into court and
testify to what Ryce had said to him. The refusal of the court to grant
the application is complained of as error.
“The statements in the affidavit were mere hearsay and were too
indefinite and remote to base any motion upon. Moreover, if Ryce
did make the remark in question to Favor, it does not appear that
defendants were harmed by it. There is nothing to show that Ryce made
any remarks of any kind, proper or improper, to the jurors whom he
summoned. In addition to this, it is not shown that the defendants
served Favor with a subpœna so as to lay a foundation for compelling
his attendance.
“We think that the course pursued on the trial in regard to the manner
of impaneling the jury was correct and in accordance with the plain
meaning of section 21, chapter 78, of the Revised Statutes. That
section says ‘that the jury shall be passed upon and accepted in panels
of four by the parties, commencing with the plaintiff.’ The State is
not called upon to tender the defendants a second panel before the
defendants tender it back four.
“We can not see that the remarks of the State’s Attorney in his
argument to the jury were marked by any such improprieties as require
a reversal of the judgment. _Wilson_ vs. _The People_, _supra_, and
_Garrity_ vs. _The People_, 107 Ill. 162.
“In their lengthy argument counsel for the defense make some other
points of minor importance, which are not here noticed. As to these,
it is sufficient to say that we have considered them and do not regard
them as well taken.
“The judgment of the Criminal Court of Cook County is affirmed.”
After the reading of the decision, Justice Mulkey stated that it
had been his intention, if health had permitted, to file a separate
opinion. He said:
“While I concur in the conclusion reached, and also in the general
view presented in the opinion filed, I do not wish to be understood as
holding that the record is free from error, for I do not think it is.
I am nevertheless of opinion that none of the errors complained of are
of so serious a character as to require a reversal of the judgment.
“In view of the number of defendants on trial, the great length of
time it was in progress, the vast amount of testimony offered and
passed upon by the court, and the almost numberless rulings the court
was required to make, the wonder with me is, that the errors were not
more numerous and more serious than they are.
“In short, after having carefully examined the record, and given all
the questions arising upon it my very best thought, with an earnest
and conscientious desire to faithfully discharge my whole duty, I am
satisfied fully that the conclusion reached vindicates the law, does
complete justice between the prisoners and the State, and that it is
fully warranted by the law and the evidence.”