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Of course
by refusing to submit any question to the jury, the judge refuses
to allow counsel to address the jury in the defendant's behalf.
The constitutional provisions which I insist are violated by this
proceeding are the following:

Constitution of the United States, article 3, section 2. The
trial of all crimes, except in cases of impeachment, shall
be by jury.

Amendments to Constitution, article 6. In all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and
District wherein the crime shall have been committed, which
district shall have been previously ascertained by law; and
to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense.

In accordance with these provisions, I insist that in every
criminal case, where the party has pleaded not guilty, whether
upon the trial the guilt of such party appears to the judge to be
clear or not, the response to the question, guilty or not guilty,
must come from the jury, must be their voluntary act, and can not
be imposed upon them by the Court.

No opportunity has been given me to consult precedents on this
subject, but a friend has referred me to an authority strongly
supporting my position, from which I will quote, though I deem a
reference to precedents unnecessary to sustain the plain
declarations of the Constitution: I refer to the case of the
State _vs._ Shule (10 Iredell, 153), the substance of which is
stated in 2 Graham & Waterman on New Trials, page 363. Before
stating that case I quote from the text of G. & W.

The verdict is to be the result of the deliberation of the
jury upon all the evidence in the case. The Court has no
right to anticipate the verdict by an expression of opinion
calculated so to influence the jury as to take from them
their independence of action.

In the State _vs._ Shule two defendants were indicted for an
affray. The jury remaining out a considerable time, at the
request of the prosecuting attorney they were sent for by
the Court. The Court then charged them that although Jones
(the other defendant) had first commenced a battery on
Shule, yet, if the jury believed the evidence, the
defendant, Shule, was also guilty. Thereupon, one of the
jurors remarked that they had agreed to convict Jones, but
were about to acquit Shule. The Court then charged the jury
again, and told them that they could retire if they thought
proper to do so. The jury consulted together a few minutes
in the court room. The prosecuting attorney directed the
clerk to enter a verdict of guilty as to both defendants.
When the clerk had entered the verdict, the jury were asked
to attend to it, as it was about to be read by the clerk.
The clerk then read the verdict in the hearing of the jury.
The jury, upon being requested, if any of them disagreed to
the verdict to make it known by a nod, seemed to express
their unanimous assent; and no juror expressed his dissent.

In reviewing the case the Court say:

The error complained of is, that before the jury had
announced their verdict, and in fact after they had
intimated an intention to acquit the defendant, Shule, the
Court allowed the clerk to be directed to enter a verdict
finding him guilty, and after the verdict was so entered,
allowing the jury to be asked if any of them disagreed to
the verdict which had been recorded by the clerk. No juror
expressed his dissent; but by a nod which appeared to be
made by each juror, expressed their unanimous assent. The
innovation is, that instead of permitting the jury to give
their verdict, the Court allows a verdict to be entered for
them, such as it is to be presumed the Court thinks they
ought to render, and then they are asked if any of them
disagree to it; thus making a verdict for them, unless they
are bold enough to stand out against a plain intimation of
the opinion of the Court.

A _venire de novo_ was ordered. The principal difference between
this case and the one under consideration is, that in the latter
the Court directed the clerk to enter the verdict, and in the
former he was allowed to do so, and in the latter the Court
denied liberty to the jurors to dissent from the verdict, and in
the former the Court allowed such dissent.

With what jealous care the right of trial by jury in criminal
cases has been guarded by every English-speaking people from the
days of King John, indeed from the days of King Alfred, is known
to every lawyer and to every intelligent layman, and it does not
seem to me that such a limitation of that right as is presented
by the proceedings in this case, can be reconciled either with
constitutional provisions, with the practice of courts, with
public sentiment on the subject, or with safety in the
administration of justice. How the question would be regarded by
the highest Court of this State may fairly be gathered from its
decision in the case of Cancemi, 18 N. Y., 128, where, on a trial
for murder, one juror, some time after the trial commenced, being
necessarily withdrawn, a stipulation was entered into, signed by
the District Attorney, and by the defendant and his council, to
the effect that the trial should proceed before the remaining
eleven jurors, and that their verdict should have the same effect
as the verdict of a full panel would have. A verdict of guilty
having been rendered by the eleven jurors, was set aside and a
new trial ordered by the Court of Appeals, on the ground that the
defendant could not, even by his own consent, be lawfully tried
by a less number of jurors than twelve. It would seem to follow
that he could not waive the entire panel, and effectually consent
to be tried by the Court alone, and still less could the Court,
against his protest, assume the duties of the jury, and
effectually pronounce the verdict of guilty or not guilty in
their stead.

It will doubtless be insisted that there was no disputed question
of fact upon which the jury were required to pass. In regard to
that, I insist that however clear and conclusive the proof of the
facts might appear to be, the response to the question, guilty or
not guilty, must under the Constitution come from the jury and
could not be supplied by the judgment of the court, unless,
indeed, the jury should see fit to render a special verdict,
which they always may, but can never be required to do. It was
the province of the court to instruct the jury as to the law, and
to point out to them how clearly the law, on its view of the
established facts, made out the offense; but it has no authority
to instruct them positively on any question of fact, or to order
them to find any particular verdict. That must be their
spontaneous work.

But there was a question of fact, which constituted the very
essence of the offense, and one on which the jury were not only
entitled to exercise, but were in duty bound to exercise, their
independent judgment. That question of fact was, whether the
defendant, at the time when she voted, knew that she had not a
right to vote. The statute makes this knowledge the very gist of
the offense, without the existence of which, in the mind of the
voter at the time of voting, there is no crime. There is none by
the statute and none in morals. The existence of this knowledge,
in the mind of the voter at the time of voting, is under the
statute, necessarily a fact and nothing but a fact, and one which
the jury was bound to find as a fact, before they could, without
violating the statute, find the defendant guilty. The ruling
which took that question away from the jury, on the ground that
it was a question of law and not of fact, and which declared that
as a question of law, the knowledge existed, was, I respectfully
submit, a most palpable error, both in law and justice. It was an
error in law, because its effect was to deny any force whatever
to the most important word which the statute uses in defining the
offense--the word "knowingly." It was also unjust, because it
makes the law declare a known falsehood as a truth, and then by
force of that judicial falsehood condemns the defendant to such
punishment as she could only lawfully be subject to, if the
falsehood were a truth.

I admit that it is an established legal maxim that every person
(judicial officers excepted) is bound, and must be presumed, to
know the law. The soundness of this maxim, in all the cases to
which it can properly be applied, I have no desire to question;
but it has no applicability whatever to this case. It applies in
every case where a party does an act which the law pronounces
criminal, whether the party knows or does not know that the law
has made the act a crime. That maxim would have applied to this
case, if the defendant had voted, knowing that she had no legal
right to vote; without knowing that the law had made the act of
knowingly voting without a right, a crime. In that case she would
have done the act which the law made a crime, and could not have
shielded herself from the penalty by pleading ignorance of the
law.



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