to have the jury retire?
Mr. Thompson—Before you make a statement on that, may I make a suggestion? Of course this question of whether or not the jury retires is discretionary with the court.
The Court—Absolutely so.
Mr. Thompson—That makes first, then the inquiry in what way it can possibly prejudice the jury to hear a discussion of it if the attorney-general cannot state in what way the jury can be prejudiced, why should the court exercise its discretion by having the jury retire?
Gen. Stewart—I understand your honor had already decided the proposition?
Judge Retires Jury.
The Court—Mr. Officer, you may let the jury go. I know we are safe to let the jury be excluded. If they stay, there might be some discussion that might invade their province.
Mr. Darrow—Your honor, we will go right over it on the opening statement again, in a few minutes?
Mr. Neal—The same statement, in the same way, to the same jury.
The Court—It may become necessary for the court to make inquiries from you gentlemen, during the arguments from which the jury might infer that the court had certain opinions as to the facts and so the court will be more at ease with the jury not present.
Mr. Darrow—We will be less at ease.
The Court—Let the jury retire.
(Whereupon the jury retired from the courtroom.)
Mr. Neal—May it please your honor?
The Court—You may proceed, Judge Neal.
Mr. Neal—The last clause was the clause in regard to freedom of communication, thought and opinion. One of the fundamental rights of men. Every citizen may freely speak and write on any subject, being responsible for the abuse of that liberty. We think that particularly refers to libel.
The Court—To which?
Mr. Neal—The abuse of that liberty granted by the latter clause evidently applies to libel, and we think that then there is the freedom of expression of opinion regardless of the site, whether the site of it is in a schoolhouse, or store, or street, or building, or any place—the freedom of expression of a man's ideas and a man's thoughts, limited only by his responsibility under libel law.
In that it violates Section 8 of Article I of the constitution of the state of Tennessee—which is Section 8—which is the great section in our constitution which corresponds to the section of the great section in the fourteenth amendment—the first section of the fourteenth—that no man shall be taken or imprisoned or disseized of his freehold and liberties or privileges or outlawed or exiled or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land. We will refer to that later when we come to the final section which has to do with the federal constitution. By numerous decisions the law of the land, as your honor knows, is the same thing as due process of law.
The Court—Yes, sir.
Mr. Neal—In that the act and the indictment and the proceedings herein are violated Section 9, Article I of the constitution of Tennessee and that is that in all crimnal prosecutions the accused shall have the right to be heard by himself and his counsel. Now, this is the vital part—to demand the nature and cause of the accusation against him and have a copy thereof, to meet the witnesses face to face, etc. Now our contention, may it please your honor, is that this crime which they have attempted to define—the crime in this act—the definition is so indefinite that it is absolutely impossible for the defense to know exactly the nature of its charge—of the charge. Now if there is one thing that is fundamental to crimnal law, it is that the crime must be defined with sufficient particularity, not only in the indictment, but in the statute, so that the court, the individual, everyone, may know whether this
