viction of the defendant by the Court. They have had no more share in her trial and conviction than any other twelve members of the jury summoned to attend this Court, or any twelve spectators who have sat by during the trial. If such course is allowable in this case, it must be equally allowable in all criminal cases, whether the charge be for treason, murder, or any minor grade of offense which can come under the jurisdiction of a United States Court; and as I understand it, if correct, substantially abolishes the right of trial by jury.
It certainly does so in all those cases where the judge shall be of the opinion that the facts which he may regard as clearly proved, lead necessarily to the guilt of the defendant. 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.
