_Joel W. Poor_ called. Challenged for principal cause by Mr. Smith:
_Q._ Have you any opinion on the subject of capital punishment which
would prevent your rendering a verdict of guilty, if the evidence was
such as to satisfy you?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Have you read the account of the capture of the Savannah
privateers?
_A._ I have.
_Q._ Have you formed or expressed any opinion as to the guilt or
innocence of the prisoners?
_A._ I think not, sir.
_Q._ Have you formed or expressed any opinion whether the facts
charged, if proved, constitute the offence of piracy?
_A._ I have not.
_Q._ Have you never conversed on this subject?
_A._ I do not think I have.
_Q._ Have you no recollection of having conversed upon it at all?
_A._ I may have talked about it something at the time, but I do not
recollect.
_Q._ Are you a stockholder, or connected with any marine insurance
company?
_A._ No, sir.
_Q._ Have you been engaged in Northern trade?
_A._ No, sir.
_Challenged peremptorily_, by prisoners.
_Thomas Dugan_ called. Challenged for principal cause, by Mr. Smith:
_Q._ Have you any conscientious scruples that would interfere with your
rendering a verdict of guilty, if you deemed the prisoners guilty upon
the evidence?
_A._ I have strong conscientious scruples.
_Mr. Smith_ asked that the juror stand aside.
Defendants' Counsel objected to the question, as not proper in form.
Objection sustained.
_Q._ In a capital case, where the evidence is sufficient to satisfy
your mind of the prisoner's guilt, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ If I may explain, I would endeavor to find a verdict; but I
believe my sympathy would control my judgment to that extent that I
would not be able to do my duty between the people and the prisoner. I
have been on a jury before, and I doubt that my judgment would be
controlled by my sympathy.
_Mr. Larocque_: The witness has not said his sympathies would be of
that strength that would prevent his finding a verdict of guilty, if
the evidence was satisfactory. A juror that has doubts of himself is
the most honest and reliable, according to all experience in criminal
trials.
_The Court_: Examine him on that point.
_By Mr. Larocque_:
_Q._ Suppose that upon this trial the facts charged in this indictment
were proved by clear and satisfactory evidence, and the Court should
instruct you, upon that evidence, that those facts constitute the
offence of piracy, would your conscientious scruples be so strong as to
prevent your finding a verdict of guilty in such a case as that?
_A._ There must be not a shadow of doubt. It must be strong and
conclusive in my mind before a verdict is rendered.
_Q._ But where there was strong, conclusive evidence, you would render
a verdict of guilty?
_A._ Yes, sir.
_Mr. Evarts_: It is pretty apparent that the juror does not regard
himself as in a position to deal impartially with this question, which
involves human life. The intention of this cause of challenge is, that
the juror should be in a position to yield to the evidence that just
assent which its character is entitled to call for, unimpeded by his
repugnance to the result when fatal to human life. Still, if your honor
should not think that upon this ground he ought to be excluded
absolutely, certainly it would be consistent with the course of
practice, and with the just feeling of the juror, that he should stand
aside until the panel be made up.
_Mr. Brady_: That practice I understand not to prevail any longer,
since it has been provided that the empanneling of jurors in the United
States Courts shall be the same as in the State Courts, and we do not
consent to any such principle as the gentleman proposes. Your honor has
decided that a juror, to disqualify him from serving in a capital case,
must say that his conscientious scruples are of such a character that,
though the evidence be clear and conclusive under the law, as stated by
the Court, they would prevent his doing his duty and giving a verdict
of guilty. To my mind, nothing can be more clear and satisfactory than
the statement of the juror himself, which exhibits a state of mind that
should be possessed by every juror; that is, that he must be satisfied
beyond all reasonable doubt of the guilt of the accused before
rendering a verdict of guilty; and when be speaks of his sympathy on
behalf of human life, it is only that sympathy which the law recognizes
where it gives the prisoner the benefit of every doubt. It is true he
does use the expression that there must not be the shadow of a doubt;
but when the Court comes to expound the law, he will be instructed that
it must be a reasonable doubt. I do not see anything against the juror
on the ground of conscientious scruples. Your honor knows that the
prosecution have no peremptory challenge in cases of piracy or treason,
and the old practice of setting aside jurors until the panel is
exhausted, and then, if not able to make up twelve without the rejected
jurors, requiring their acceptance, has passed. That is decided in the
case of Shackleford, in 18 Howard's Reports.
_The Court_ (to the Juror): We do not exactly comprehend the views you
entertain upon this question; therefore we desire, for our own
satisfaction, to put some questions to you, to ascertain, if we can,
the state of your mind and opinions upon these questions, and see
whether you are a competent juryman or not in a capital case. It is a
very high duty, and a common duty, devolving upon every respectable
citizen. The question is this--and we desire that there may be no
delusion or misapprehension on your mind in respect to it--in a capital
case, if the proof on behalf of the Government should be such as to
satisfy your mind that the prisoner was guilty of the capital offence,
whether or not you have any conscientious scruples as respects capital
punishment, that would prevent your rendering a verdict of guilty?
_A._ In answer to that I would say that this is what troubles me: I
want to do my duty; I want to render a verdict fairly and squarely as
between the prisoner and the people; but I have this to contend with--I
have read that people have been convicted upon the clearest testimony,
and afterwards found to be innocent; and before I would have such
feelings I would as soon go to the scaffold as send a person there who
was not guilty. Therefore my sympathy is so strong that I am afraid to
trust myself. I did serve on a former occasion, and I do not know that
even then I did my duty.
_Q._ What do you mean by being afraid to trust yourself? Is it a
conscientious feeling and opinion against the penalty of capital
punishment?
_A._ Yes, sir, it is. I have a great abhorrence of it, if I may so
express myself. Yet I should like to render a verdict, and do what is
right; but I believe my feelings are too great to trust myself.
_The Court_: We think we are bound to set the juror aside.
_Mr. Larocque_: Permit me to put one question.
_Q._ It strikes me that you are a little at fault as to what the
purport of this question is. It is not whether you have an abhorrence
of convicting a prisoner of a capital offence. The question is, whether
you have such conscientious scruples against capital punishment as
would prevent your finding the prisoner guilty, if the facts were
proved, and the Court instructed you that those facts constituted the
offence?
_A._ I answered before. It places me in rather a peculiar position. As
I said, I want it understood distinctly, I desire to do my duty; but
there is a struggle between that and my sympathy, and I am afraid to
trust myself.
_Q._ But you can draw a distinction between your sympathy and any
conscientious scruples against the punishment of death, can you not?
_A._ Well, sir, where it comes to the point----
_Q._ Allow me to put the question in another way: If you are entirely
satisfied, upon the evidence and instructions of the Court, that the
prisoner was guilty, your conscience would not trouble you in finding
him guilty?
_A._ Well, sir, there would be this: I would feel that persons, under
the strongest kind of testimony, have been found guilty, wrongfully,
and it would operate on me--the fear that I had judged wrong on the
facts, and committed murder. That feeling is very strong.
_Q._ If the evidence satisfied you that the prisoner was guilty, would
your conscience prevent your saying so?
_A._ It would not now. It might in the jury-room. When it comes to the
point, and I feel that I hold the life of a human being, it is pretty
hard to know what I would do then.
_Q._ Your conscience would only trouble you if you doubted that your
judgment was right?
_A._ Yes, sir.
_Mr. Larocque_: I submit that the juror is competent.
_Juror_: You must take your chances if you take me. I still think I am
not fit to sit on a jury to represent the people.
_The Court_: I think we must take the opinion of the juror as against
himself.