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JOHN W. DORSEY, JOHN R. MINER, JOIIN M. PECK,
BRADY, AND WILLIAM H. TURNER.
very happy to hear him. I do not rise now for the purpose of making any argument, but for the purpose of making this suggestion: if the Attorney-General desires to be heard in this case, and desires to be heard in this case at the close, and, as Mr. Merrick says, is entirely competent, from his familiarity with the case, let him close the argument.
Mr. INGERSOLL. More competent than the rest.
Mr. HENKLE. So that there is no reason why he should simply appear as ornamental, and I suggest that brother Merrick be allowed to make his speech intermediate between counsel for defense, and a reply or two made to him, and then that the Attorney-General close the case if he desire it.
Mr. MERRICK. Do you want to answer me?
Mr. HENKLE. I would be very happy to answer you. I know I should be unable to do it justice, but I am willing to undertake it. This is a matter entirely within the control of the court, as I understand it, and where there are numerous counsel the court frequently exercises its discretion in arranging, so that the plaintiff shall open, and then have an intermediate address and the close.
Mr. Bliss. I do not suppose it is in the power of the court to say what counsel for the Government shall close.
Mr. HENKLE. Nobody asked that.
The COURT. (Interposing.) This is a little family conversation. The court is anxious to consult the convenience of the counsel as much as possible, and this is more a consultation than a discussion. We will take a recess now until 1 o'clock.
At this point (12 o'clock and 13 minutes p. m.) the court took a recess until 1 o'clock.
The COURT. I think, on account of the storm, we will adjourn the court until to-morrow morning. In the mean time counsel will see if anything more satisfactory can be arranged in regard to the argument of the case. The storm coming on will interrupt counsel in addressing the jury, and, besides that, I believe, there is a little more time wanted for looking up papers.
Whereupon (at 1 o'clock and 15 minutes p. m.) the court adjourned until to-morrow morning at 10 o'clock.
WEDNESDAY, AUGUST 9, 1882.
The court met at 10 o'clock a. m.
The COURT. Have you agreed upon the order of your addresses to the jury?
Mr. Wilson. We have agreed, your honor.
tion. After him there will be two replies on the part of the defense. Then Colonel Bliss, on behalf of the prosecution, will address the jury, and to him there will be three replies. Then either the Attorney-Gen. eral or Mr. Merrick will follow, and to that there will be three replies. Then either the Attorney-General or Mr. Merrick, whichever one has not previously occupied the time, will close the case, and it is also understood that the Attorney-General may drop out, and if he does, that does not affect the replies of the defense.
Mr. MERRICK. The prosecution having the close, then?
The CJURT. And the counsel for the defendants are to arrange among themselves as to the order in which the addresses will be made on their part ?
Mr. WILSON. Yes, sir.
Mr. McSWEENY. Will the court wait a moment for Mr. Ingersoll ? There will be a little preliminary concerning a certain paper. (After a pause, in which Mr. Ingersoll did not appear. At recess, then, we will call your attention to it. We will not delay.
The COURT. Very well; proceed, Mr. Ker.
Mr. KER. With submission to your honor, and gentlemen of the jury, it is customary on occasions of this kind to apologize to the jury and to the court for the length of time that has been exhausted in trying the cause. We propose in this instance to break through that time-honored custom and start upon a new line, and we do not propose to apologize for anything. I do not mean that disrespectfully to you, but I mean it in the sense that the prosecution has nothing to apologize for. His honor started out in this case by saying, “I am going to try this case on the 1st day of June, and I am going to finish it on the 4th day of July, or before that." His honor was true to his word. He started on the 1st day of June; I won't ask him to apologize, but he did not keep the balance of that proposition. It was not concluded on the 4th day of July, and I want to call your atteution to the reason why it was not concluded. The multitude of wituesses, the cloud of witnesses from the great far West, where these star routes were in operation, came here on behalf of the defendants and occupied the time of the court for so many weeks that the 4th of July slipped by. Judge McSweeny, you may laugh, but when it comes to your turn, explain to the jury why it is that the witnesses you have so faithfully proniised them have never put in an appearance.
Now, gentlemen, so much for the delay in the case that has not been caused by the prosecution. We had a great mass of evidence to put before the jury. It occupies over twenty-one or twenty-two hundred printed pages, altogether. The prosecution's case rus up to fifteen hundred pages and over. We had a great hag filled with papers, that route after route and paper after paper we laid before you, gentlemen of the jury, and you listened to what was real and you examined the papers, and you evinced a patience that is very rare on the part of jurors. I know that at one time his honor said, “Oh, that does not amount to anything,” and I do not wouder at it, because when you come to take these separate papers and look at them by themselves they are as innocent as a sleeping baby. But when you come to put them together and fix them one with the other, they show a craft and a deceit that stamps them with the brand of crime. Now, we had to put these papers in evidence before you in order that you should understand the case and that you should see what the evidence was, upon which we asked you to couvict.
About four weeks ago, my distinguished friend, Judge McSweeny, rose up before his honor and said, “At the proper time I will make a motion to dismiss this case from before the jury—at the proper time I will make this motion.” I say to him, nuw, that in a day or two will be the proper time to inake a motion before you, gentlemen of the jury, but I know you will deny his motion, and the next motion he will have to: make will be upon his bended knees at the White House when he is asking executive clemency. His colleague, about three weeks ago, said: “It is the last speech I will have to make in the case,” and he said that before you, gentlemen, when addressing his honor, "It is the last speech I will have to make in the case, so go ahead.” I have heard him make a dozen since. I have heard him appeal to the court since, and to the jury, and probably he will appeal to you, and I will not object to the strongest appeal he can put, and I will not interrupt him, and when he goes to the White House, arm in arm with his colleague, to get down on his knees to beg from the President the mercy that he would have extended to his clients, why I would not go there to say “no,” because he has gone to the proper place to inake a proper request; but he is making a great mistake when he steps into a court of justice to make such a request there.
Now, if you take the case as it has been given to you by the prosecution, as I said before, there is very little of that case that you could understand. It seems too innocent to warrant you in saying that there is any crime there, and the counsel on the other side may have been misled when they took these orders and petitions and oaths, and read them over, and said, “Why there is no jury in the land that is intelligent enough to put them together, and you ca inot pick out twelve men who have brains enough to put these items together and make a case out of it." Well, I presume ordinarily that is a fact. The misfortune is, that in many instances juries are drawn in such a way that they do not possess the capacity to understand the case, and where there is a mass of documentary evidence, where there is a case that requires more than usual intelligence and consideratiou, on the part of the defense it is always policy to throw away as many good men as they can, and take as many men who have not the intelligence to understand as they are able to select. But there is a limit to all things. There is a limit to challenges, and there is a limit to their objection, and fortunately we were able to get a jury that, from what I observe as to the manner in which they have taken notes, and the care and the attention which they have paid to the case, will be able to understand it, and will be able to render a just verdict upon the evidence.
Now, this is not an ordinary case. There is not a man who is within the sound of my voice who will ever live to see the equal of this case again, and none of you twelve gentlemen will ever again sit in the jury-box on a case that is as iinportant as this, and one that will go down into history among the legal records as one of the celebrated cases of the country. What was Guiteau's case compared with this? A mere question whether the man was crazy or not, a trifling case in coinparison with this. I say to you that in the history of the entire world there is but one case that has a parallel to this on account of the standing of the people engaged in it. The interests of the people of the country have been excited in this case. There is not a hamlet, a city, a town, a county, a State, from one end of this great Union to the other, that does not know of this case, and where the people are not