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BRADY, AND WILLIAM H. TURNER.
GOVERNMENT PRINTING OFFICE.
1883. jan. 4
COUNSEL FOR THE GOVERNMENT.
BENJAMIN HARRIS BREWSTER,
COUNSEL FOR DEFENDANTS.
JEREMIAH M. WILSON,
IN THE SUPREME COURT OF THE DISTRICT
HOLDING A CRIMINAL TERM.
THE UNITED STATES
John W. DORSEY, JOHN R. MINER, JOHN M.
Peck, Stephen W. Dorsey, Harvey M. Vaile, Montfort C. Rerdell, Thomas J. Brady, William H. Turner.
Before W'YLIE, J., presiding, and a jury.
WASHINGTON, D. C., June 1, 1882. The court met at 10 o'clock and 10 minutes a. m. ('ousel for the Government and for the defendants being present.
The DISTRICT ATTORNEY. If the court please, the Government are ready to proceed with the trial of the case of The United States against Thomas J. Brady and others.
The Court. Shall the court direct a jury to be impaneled ?
Mr. INGERSOLL. Wait one moment, if the court please. (After a pause. I would ask in the case of John W. Dorsey, and also in the case of Stephen W. Dorsey to withdraw the plea of not guilty, and to file this plea, which I will read to the court. If the court thinks proper I will be glad to have this privilege:
And the said John W. Dorsey, one of the above-named defendants, in his own proper peni, comes into conrt here, and, baving read the said indictment, and waived the real ug thereof, says that the said United States ought not to further prosecute the said indiet ment against him, the said John W. Dorsey, because he says it was found by a grand jury illegally selected and constituted, in violation of section 2 of the act of Congress approved June 30, 1879, entitled “ An act making appropriations for certain judicial expenses of the Government for the fiscal year ending June 30, 1860, and fur other purposes." That the panel of the grand jury which found this indictment was not drawn from a jnry-box containing the names of not less than three hundrell persons at the time of the said drawing, selected alternately by the clerk of this court and ho a well-known member of the political party in this District opposing that to #bieb the clerk belongs, a citizen of good standing residing in the District, and apįsiutti a commissioner by the judge of this court; but the persous composing the said suel, as the records of this court show, were selected in part by drawing their names Imma jury-box containing a jury list selected by five commissioners appointed by (ruler of ide supreme court in general term, and were in part selected by the marshal of this District, said persons selected by the marshal, being the following, to wit: Rob. ert Joinson, Robert Beall, and John T. Beall, they having been stuwmoned at this term of the court by the said marshal; and this he, the said John W. Dorsey, is ready to terity by tbe records of the court.
Wherefore he prays judgmnent, and that by the court bere he may be dismissed and d!barged from the said premises in the said indictment above specitied, and that said indictment may be quashed.
I ask leave to withdraw the plea of not guilty and to file this plea; au'd exactly the same in relation to Stephen W. Dorsey. Of course,
the only question is whether that law is of universal application, and whetber it applies in this District as well as in other districts.
Mr. MERRICK. If your honor please, when the case was last before the court various motions were presented, argued, and decided. Your honor then asked if there were any other motions, and it was stated that there were none. Counsel then announced themselves ready, both on behalf of the Government and the defendants. The two defendants, on behalf of whom this proposition is now made, were then represented in court and spoke by their counsel. I think, therefore, your honor, it would scarcely be a wise and proper exercise of your discre. tion to permit the plea of not guilty to be withdrawn. Dilatory motions having met us at every step in the progress of this case, the inquiry from the bench as to whether there were any other motions was a very natural and proper inquiry at the time. The reply was that there were none. Everybody had acquiesced in the fact that both sides were ready for trial, and that being the case the court adjourned before the close of the business hours of the day, having tixed the trial for to-day, with the acquiescence and consent of the counsel for the defendants who now make this motion.
Mr. INGERSOLL. All I can say in regard to this plea is that it was not until this morning that my attention was called to this clause of the statute. If I had known exactly how it was, or if my attention had been called to the statute, the motion would have been made before. I do not wish to take up the time of the court in arguing it. I merely wish to file it, and immediately afterwards I will again interpose a plea of not guilty.
The COURT. The plea of not guilty is in.
Mr. INGERSOLL. I know it is, but I have asked to withdraw it for this purpose.
The COURT. It is a matter in the discretion of the court and I do not think, after all that has taken place, it ought to be allowed. Then, too, I am of opinion that the plea is not a good plea, even if it were offered at the proper time. We have our own statutory provision as to the manner in which jurors shall be drawn. We have no provision in our law that the commissioners who draw the juries shall be one-half from one party and one-half from another party. In the District of Columbia we are all on the same side; that is, we have no parties and no political rights at all; so that the general law, in my opinion, is not applicable to this District. I cannot refer now from memory to the section, but in the revised statutes which relate to the District of Columbia, which were adopted on the same date with the Revised Stat. utes of the United States, we have special provision for the selection of our own juries. This petit jury and this grand jury were drawn in compliance with the provisions of our statute. The only question, as I understand it, that you propose to make by your plea, is that our statute is not applicable, and the general statute relating to circuits and districts of the United States, outside of the District of Columbia, is in force here. Well, that statute would be in force here if we had not something specially applicable to this District. I shall therefore decline to grant the motion.
Mr. INGERSOLL. I want it noted, of course, that we offer it. Will the court be kind enough to allow it to be noted upon the record that I ask leave to file this plea.
üle COURT. You make a motion, and that is your right. You make a motion for the purpose set out in that paper. I overrule the motion and my ruling carries the paper on the record.
Mr. INGERSOLL. I will just make a motion in writing.
The COURT. You had better reduce your motion to writing, although the object appears upon the face of the paper you read.
Mr. INGERSOLL. I know ; but it will not be in the record unless it is tiled.
The Court. It will be filed on your motion. The motion carries the paper on the record.
Mr. TOTTEN. This plea will go in, in the same manner as the other pleas.
The COURT. Certainly.
(Here a pause ensued to enable Mr. Ingersoll to reduce his motion to writing, which he did.)
The COURT. Let us hear your motion. Mr. INGERSOLL. (Reading :) Now comes Jobn W. Dorsey, in his own proper person and by attorney, and moves the court, in the above-entitled canse, to permit the said defendant to withdraw his plea of not guilty, filed heretofore in the cause, and in lieu thereof to file bis special pita hereto attached, warked “A.”
The COURT. That special plea purports to be the plea of both the Dorsey's.
Mr. INGERSOLL. No, sir. They were separate pleas, but I thought it would save the question just as well to file one. I suppose there was no impropriety in filing that.
The COURT. No.
Mr. INGERSOLL. And the order goes on the record that the plea is overruled?
Mr. MERRICK. The motion is denied.
Mr. INGERSOLL. (After a pause.] As far as the defendants are conperned, let a jury come.
The COURT. Call a jury.
The clerk called the following jurors, who came forward and took their seats in the box:
JOHN B. MCCARTHY.
The Corrt. (To counsel.] Are you satisfied with the jury?
Mr. INGERSOLL. (After a pause.] Does the Government accept the twelve!
Mr. MERRICK. I think, your honor, they might as well be sworn on their roir dire. Both sides want it.
The COURT. [To Mr. Ingersoll. What was your inquiry?
The Court. You have a right to four peremptory challenges, and both sides have a right to challenge for cause.
VIr. INGERSOLL. I understand that the Government first accepts the inry and tenders the jury to us. It is then for us to examine the jurors. Tithe Government accepts, of course they have no challenges left.
The Court. (To a bailiff.] Send me the revised statutes.