The Court: Is there anything upon which I can give you any advice gentlemen, or any information? A Juror: We stand eleven for conviction, and one opposed.
The Court: If that gentleman desires to ask any questions in respect to the questions of law, or the facts in the case, I will give him any information he desires. [No response from the jury.] It is quite proper, if any gentleman has doubts about anything, either as to the law or the facts, that he should state it to the Court. Counsel are both present, and I can give such information as is correct. A Juror: I don't wish to ask any questions.
The Court: Then you may retire again, gentlemen. The Court will adjourn until to-morrow morning.
The jury retired, and after an absence of about ten minutes returned into court. The clerk called the names of the jury.
The Clerk: Gentlemen, have you agreed upon your verdict? The Foreman: We have.
The Clerk: How say you, do you find the prisoners at the bar guilty of the offense whereof they stand indicted, or not guilty? The Foreman: Guilty.
The Clerk: Hearken to your verdict as it stands recorded by the court. You say you find the prisoners at the bar guilty of the offense whereof they stand indicted, and so say you all. Mr. Van Voorhis: I ask that the jury be polled. The clerk polled the jury, each juror answering in the affirmative to the question, "Is this your verdict."
On the next day, June 19, 1873, the counsel for the defendants, Mr. John Van Voorhis, made a motion to the court for a new trial in behalf of Beverley W. Jones, Edwin T. Marsh, and William B. Hall. The following are the grounds of the motion:
1. The indictment contains no sufficient statement of any crime under the Acts of Congress, upon which it is framed. 2. The court has no jurisdiction of the subject matter of the offense. 3. It was an error, for which a new trial should be granted, to refuse the defendants the fundamental right to address the jury through their counsel. This is a right guaranteed by the United States Constitution. (See Article VI. of the amendments to the U.S. Constitution. 1 Graham and Waterman on New Trials, pages 682, 683, and 684.) 4. The defendants were substantially deprived of the right of jury trial. The instructions of the court to the jury were imperative. They were equivalent to a direction to find a verdict of guilty. It was said by the court in the hearing of the jury, that the case was submitted to the jury "as a matter of form." The jury was not at liberty to exercise its own judgment upon the evidence, and without committing a gross discourtesy to the court, could render no verdict except that of guilty. 5. Admitting that the defendants acted without malice, or any corrupt motive, and in accordance with their best judgments, and in perfect good faith, it was error to charge that that was no defense. 6. The defendants are admitted to have acted in accordance with their duty as defined by the laws of New York (1 R. S.
