Illinois vs. August Spies et al. trial transcript no. 1
Court discussion regarding defense counsel's challenge to the venire of talismen to be questioned, 1886 July 14.

Volume H, 157-166, 10 p.
Court discussion.

Defense objection to the swearing in of any person summoned on the venire in question and a challenge to the array due to the venire being composed of persons from a special class of the community. Defense objection that there were no laboring men or skilled mechanics included in the venire and the jurors were not taken from the list put by the County Commissioners into the jury box. Includes written motion of objection by the Defense.


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MR. SALOMON: As to this new venire that we are now beginning to call from, I wish to make a motion.

We object to the swearing of any person summoned on this venire and also challenge the array, and we have the same grounds specified heretofore, and this additional one;

5. Said persons composing said venire were selected from a special class of the community, that is to say, clerks merchants and salesmen, where as this community and the County of Cook is composed of different classes including laboring men and skilled mechanics, possessed of the statutory qualifications for the jury, and no persons, either laborers or skilled mechanics have been summoned to act as jurors in this case, and these defendants and each of them are ready to verify, wherefore they and each of them pray that the special venire may be quashed, signed and sworn to.

We ask that the court either order the State to plead or demur to this motion which is in the motion or form of a special plea to the venire return. I suppose the court being disposed to overrule it, that the state will demur and the court will sustain the demurrer. The other grounds of the motion are the same. We claim that there are mechanics


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and laboring men in this community fully qualified to act, and that it is neither right nor just nor the law, for the special bailiff or the Sheriff to select from one particular class of the community. These defendants as well as the community have a right to see that all classes are selected and are represented in this jury box.

MR. GRINNELL: This is a motion based upon a venire which we propose to call from now.

THE COURT: The grounds upon which you based your motion now are that the jurors are not taken from the list which the County Commissioners have put in the jury box, and the other ground being that-you say the jurors that are contained in this panel have been summoned from some particular class. There are only five of the new panel here now. There is no possibility of knowing, as yet, who the ninety-five are.

MR. SALOMON: I am stating that upon what has transpired here.

THE COURT: We have had all sorts of people. Here is one man on the jury that has worked as a carpenter all his life; the last man that was taken has worked as a carpenter all his life until the last year. If we are bound to wait until the whole 100 is summoned, and we know who they are, that is another question I have not got to that yet; but as yet it is impossible to know anything about who will come


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on that jury.

"A sufficient number of persons having the qualifications of jurors" is all that there is in the statute about who shall be summoned.

MR. SALOMON: We do not claim that there is any absolute law for this, but we claim that this is such a matter that the court will use its discretion in seeing whether the special bailiff or the sheriff, in summoning men from one class of people, or from the kind which we have specified, is not performing his duty in a manner that is just and right towards defendants and towards the state.

THE COURT: There is nothing for me to pass upon, because there is no possibility of knowing who the jurors will be yet. We have only as yet got five. If the jurors are individually free from exception, I have no control over the bailiff or the Sheriff, as to how he shall execute the process. The discretion of executing the process in summoning talesmen is vested in the sheriff, unless one of the party shall require a special bailiff, and then the discretion rests in him.

MR. SALOMON: This motion necesaarily brings forward the question whether it is not the duty of the court to execute a supervisory power over the bailiff and the sheriff.

THE COURT: What would be said in this trial if I told to go and serve such a class of men. If I am to exercise


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supervision over it at all, and I know the best method of getting the best jurors, and before I exercise the discretion, and if I believe that I knew of any individuals through out the community that would be the very best jurors, it would be my duty to tell the sheriff to go and summon those men. The exercise of any discretion at all by the court in the execution of the process would be an interference which never would be tolerated.

MR. FOSTER: This is a plea which is entitled to some consideration by this court until it is disposed of. Now, then, how is it to be disposed of?

A In the first place, the position is taken in a plea as to the mode and legal manner of drawing jurors and serving the special venire. Second, as to whether or not it is within the directory power of the court as to whether or not there is any legal error in drawing from any particular class or any particular classes. If the prosecution in this case would see fit to file a demurrer to this plea upon the ground that the statute did not require that a special venire should be gathered from such persons as was returned by the commissioners of election, or further, that it was not the duty or province of the court to direct out of which class or what classes the jury was to be selected, then that demurrer would of course settle the whole question, and we could go on.

MR. GRINNELL: The first four points in regard to the


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County Commissioners list, we can demur to them, if a demurrer is the proper kind of plea. As to the other point that they raise and which these defendants have been very ready to swear to, I don't know anything about. How can anybody know anything about it?

THE COURT: A special venire for any particular number don't seem to be contemplated by the statute at all. The statute simply contemplates that the court will direct the sheriff--I will use the language of the statute --"The court may direct the sheriff to summon a sufficient number of persons having the qualifications of jurors to fill the panel for the pending trial". The panel there means 12 I suppose, there is no doubt about that.

MR. FOSTER: Probably it might mean the panel of acceptable or accepted jurors.

THE COURT: One is enough to fill this panel. One person, whoever he may be, he is taken as the 12th juror, is sufficient to fill the panel.

I will overrule the motion. The statute does not contemplate any 100 or 50, or 24 or any number, but simply a sufficient number to fill the panel. The number in the present case is one. I don't see that any question can arise.

MR. FOSTER: I don't see that the record is in proper shape. What is your honor overrule--overule a plea.


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THE COURT: Let me see your paper. (Written motion handed to court).

THE COURT: I think there is no state of circumstances here to which any such proceeding as that applies, and therefore the state is neither bound to take issue or demur, because it is foreign to the whole matter. My opinion is to refuse to make any order on the subject, for the reason that there is no case to which any such proceeding applies. That in effect is equivalent to sustaining a demur to it.

MR. GRINNELL: I would like to get this thing in proper shape. As to the question that is raised, I have no apprehensions about, but whether we shall make it a plea or how to do it, is precisely the thing to be considered, and we have a decision here with reference to a decision which might throw some light on the subject.

THE COURT: I don't think that any order ought to be made on this, for the reason I don't think there is any state of the case here to which such proceeding as this applies. The statute only calls for the summoning of a sufficient number to fill the panel. For convenience we being in as many as we can get, so as not to wait for them. If we will up only enough here to fill the vacant chair, and had to summon others one by one as they were wanted, the trial would be interminable.


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The sufficient number present is but one. Unless the state wants to do something different, I will simply refuse to make any order, for the reason, that in my judgment, there is no state of circumstances to which any paper of this sort is applicable. Any record that is made up will state the circumstances as they are---that five or nine or ten have got in by this time, whose names have not been called, and the circumstances here that by mutual agreement a venire of 100 was directed to bailiff Rice to summon jurors. That at this stage of the case we want one, and nine or ten of them are in court, who have been summoned by him, and then this paper is produced. I don't think the circumstances are such as to make any challenge to the array admissible. I think there should be no order made upon the paper, except a refusal to make an order.

Expception by defendants.

MR. GRINNELL: I want it understood that I do not admit the truth of that fifth declaration.

THE COURT: (Addressed to the clerk) You may enter as an order in this case, that the court refuses to make any order requiring the state to answer, either in law or fact.

MR. SALOMON: And also that the defendants have asked the court to make an order that the state either plead, answer or demur.


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THE COURT: And I refuse to order them to make any answer to it.

Exception by defendants.

Following is the challenge to the array of jurors, filed by the defendants


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State of Illinois, Cook County S. S.

In the Criminal Court. 1195.

The People of the State of Illinois,
vs.
August Spies et al.

And now come the said defendants August Spies, Oscar Neebe, Michael Schwab, A.R.Parsons, Samuel Fielden, Adolph Fischer Louis Lingg and George Engel, and each for himself as well as jointly object to the swearing of the persons summoned to act as jurors, and challenge the array of persons summoned by special bailiff Ryce to serve as jurors in this cause and for reasons therefor say:

1st. Said persons and each of them were not drawn in the manner provided by law.

2nd. Said persons were not drawn by the County Board or the clerk of said County Board of Cook County or by the clerk of this court as required by law.

3d. Said persons were not summoned from a list of qualified voters prepared by the County Board of Cook County.

4th. Said special bailiff Ryce summoned said persons as the said Ryce saw fit to select and summon.

5th. Said persons comprising said venire were selected from a special class of the community as to drug clerks, merchants and salesmen, whereas this community in the County of Cook is composed of different classes including laboring men and skilled mechanics possessed of the statutory qualifications for a juror and no persons


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who are either laborers or skilled mechanics have been summoned to act as jurors in this cause.

And this these defendants and each of them are ready to verify. Whereupon they and each of them pray that sai venire may be quashed

Aug Spies,
O. Neebe,
Michael Schwab,
A.R.Parsons,
Samuel Fielden,
Adolph Fischer,
Louis Lingg,
George Engel.

State of Illinois, Cook County S.S.

August Spies, Oscar Neebe, Michael Schwab, A.R.Parsons, Samuel Fielden, Adolph Fischer, Louis Lingg and George Engel being severally first on oath duly sworn deposes and saith that the grounds stated in the foregoing motion are true to the best of these affiants knowledge and belief.

A. Spies,
O. Neebe,
Michael Schwab,
A.R.Parsons,
Samuel Fielden,
Adolph Fischer,
Louis Lingg,
George Engel.

State of Illinois, Cook County S.S.

The foregoing and mentioned persons Aug. Spies, Samuel Fielden, Oscar Neebe, Michael Schwab, A.R.Parsons, Adolph Fischer Louis Lingg and George Engel have this fourteenth day of July A.D. 1886 subscribed and sworn to the foregoing motion in my presence and before me.

John Stephens, Clerk of the Criminal Court of Cook County.


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