Suppeme (2©yp6 ©f [llii^©is, 
 
 NORTHERN GRAND DIVISION. 
 
 March Term, A. D. 1887. 
 
 AUGUST SPIES ET AL., \ Error to the 
 
 Plaintiffs in Er, 
 
 Criminal Court of 
 
 Cook County. 
 
 THE PEOPLE OF THE STATE OF 
 
 ILLINOIS, ^ Hon. JOS. E. OAKY, 
 
 Dcfcdant in Error. / Presiding. 
 
 Indictment for Murder. 
 
 Brief ^nd Argument 
 for plaintikks in error. 
 
 W. P. BLACK AND 
 SALOMON &. ZEISLER, 
 
 Attorneys for Plaintiffs in Error. 
 
..d 
 
Index. 
 
 Page. 
 
 Statemekt of Charge 1 
 
 A. THE PLAINTIFFS IN ERROR ARE NOT GUILTY. 
 
 Evidence Legitimately before the Jury 3 
 
 Oscar Neebe 3 
 
 Samuel Fielden 3 
 
 a.) Tke claim that he made threats 7 
 
 b.) The claim thai he fired from the -wagon 10 
 
 c.) The claim that he fired from behind the wagon 13 
 
 Albert R. Parsons 20 
 
 Michael Schwab 37 
 
 a.) His 7novements 29 
 
 b.) Sfies^ movements 33 
 
 c.) Improbability of Thompson^ s story 38 
 
 August Spies 40 
 
 «.) The McCormick meeting 40 
 
 ^.) The Revenge circular 45 
 
 c.) The circular calling the Haymarket meeting 49 
 
 rf.) The signal " Ruhe," SO 
 
 e.) Spies' Haymarket speech 53 
 
 f.) Gilmer's testimony 57 
 
 1.) Schnaubelt's height 60 
 
 2.) Spies did not enter the alley 60 
 
 3.) Fischer at Zepfs Hall 66 
 
 4.) Bomb not thrown from alley 68 
 
 5.) Gilmer's impeachment 74 
 
 Adolph Fischer 83 
 
 The W. Lake St. meeting conspiracy 83 
 
 1.) Six accused no parties to it 91 
 
 3.) Bomb-throwing foreign to it 91 
 
 3.) Bomb not thrown bj- a member thereof 93 
 
Evidence Legitimately before the Jury {Continued): Page. 
 
 George Engel 96 
 
 Louis Lingg : 99 
 
 The Haymarket Meeting 113 
 
 Our Positions upon the Legitimate Evidence 123 
 
 I. Mere participation in an unlawful assembly does not 
 make responsible for the independent crime of a 
 
 participant ..„ 12S 
 
 II. To hold the accused as accessories on the ground of 
 conspiracy, the principal must be identified as co- 
 conspirator 13S 
 
 III. And the crime must have been within its purview 141 
 
 Illegitimate Evidence 145 
 
 I. Newspaper literature 155 
 
 II. Johann Most's book 161 
 
 III. Various objects 164 
 
 I.) Bloody clothes 164 
 
 2.) Fragments resulting frmn dynamite exferiments 165 
 
 J.) Tin cans 166 
 
 4.) Blasting furnace 168 
 
 S-) Flags and mottoes „ ^ 169 
 
 6.) Dynamite at Arbcitcr Zeitung „ 169 
 
 7.) Weapons found on Fischer 173 
 
 8.) Bombs found after May 4, 18S6 173 
 
 IV. Evidence extorted from accused 173 
 
 /.) Improper cross-examination 174 
 
 2.) Objects unlawfully seized 179 
 
 V. Speeches and private utterances 184 
 
 a.) The Board of Trade demonstration 185- 
 
 b.) West I2tk street meeting 189 
 
 c.) The American Group 190 
 
 d.) Private conversations of Spies 193 
 
 c.) Eight-hour agitation meeting 195 
 
 f) General tendency of utterances 197 
 
 VI. Other illegitimate evidence 198 
 
 Injuries of officers 198 
 
 Schnaubelt^s disguise 198' 
 
Page. 
 
 Our Positions upon the Illegitimate Evidence 303 
 
 I. No responsibiltv for the act of an associate in purpose, 
 
 but not in aelfon 203 
 
 II. Evidence of distinct substantive offenses inadmissible. . . 207 
 
 III. Prima facie conspiracy must first be establishied, before 
 
 acts or declarations of one are evidence against 
 another 212 
 
 IV. Such acts and declarations must be in prosecution of 
 
 conspu-acy . 
 
 313 
 
 Refusal of Motions at Close of State's Case 219 
 
 I. Motion for Neebe 219 
 
 11. Motion for other accused except Spies and Fischer 226 
 
 B. ERRORS COMPLAINED OF. 
 Summary of Errors considered before 231 
 
 AA. Errors in the Matter of Instructions 233 
 
 Summary of our complaints 232 
 
 I. Necessity of identifying principal 334 
 
 II. Instructions at variance with proof 248 
 
 III. Hypothesis unwarranted by evidence 255 
 
 IV. Mere general advice does not constitute accessory ship. . 256 
 V. Instruction 5} contains no reference to evidence 269 
 
 VI. Erroneous instructions on reasonable doubt 272 
 
 VII. Instruction limiting right of jury to judge of the law. .. 276 
 
 VIII. Instructions refused 279 
 
 IX. The court's instruction sua mot ii 286 
 
 X. The instruction as to form of verdict „ 290 
 
 XI. The instructions as a whole 291 
 
 BB. Errors on Impaneling of Jury 299 
 
 I. The law relating to qualifications of jurors 299 
 
 a.) Constitutional Provisions 299 
 
 b.) Their construction by the U . S . Supreme Court BOO 
 
 c.) Their Interpretation by our own Supreme Court 305 
 
 d.) The Statute of 1874 and its Judicial Construction 311 
 
 e.) Construction of similar statutes in other States 318 
 
 _/".) Propriety of Questions in reference to Peremptory Chal- 
 lenges 330 
 
VI 
 
 BB. Errors on Impaneling of Jury {Continued): Page, 
 
 II. Judge Gary's Rulings 333 
 
 His Positions 332 
 
 Our Contentions 335 
 
 III. Examinations of jurors illustrative of Judge Gary's rul- 
 
 ings 338 
 
 IV. The twelve who tried the case 380 
 
 V. The conduct of the special bailiff.... 391 
 
 VI. Misconduct of jury 393 
 
 VII. Number of peremptory challenges allowed the state 394 
 
 VIII. Manner of impaneling the jury 397 
 
 CC. Improper Rem.\rks by the Court 399 
 
 DD. Improprieties of Closing Argument of State's At- 
 torney 408 
 
 I. The objectionable remarks 409 
 
 II. Decisions relating thereto ,. 415 
 
 EE. Refusing to Arrest Judgment 420 
 
 Conclusion 422 
 
ISIay it please the Court: 
 
 On the night of the 4th of May, 18S6, in the city of 
 Chicago, a meeting of citizens was being held on Des- 
 plaines street, between Randolph and Lake, commonly 
 called the Haymarket meeting. Some of the plaintiffs in 
 ■error were present at that meeting during a part or the 
 whole of the time. Others were not there at all while 
 the meeting was being held. As it was approaching a 
 •close, a large body of police, some 180 in number, under 
 the command of Inspector John Bonfield, came from the 
 Desplaines street police station, situate about half a block 
 south of Randolph street, on Desplaines, to the meeting, 
 approaching it from the south, and on reaching a line 
 about six or eight feet south of the wagon, from which 
 the crowd was being addressed, commanded its imme- 
 diate dispersion. Directly after this command was given, 
 a dynamite bomb was thrown, which exploded among 
 the policemen, resulting in the killing of several of them, 
 among whom was Mathias J. Degan. 
 
 The indictment in this case, stripped of legal verbiage, 
 so far as it was attempted to be supported by evidence, 
 charged the plaintiffs in error, together with William 
 Seliger and Rudolph Schnaubelt, with having thrown the 
 bomb which killed Mathias J. Degan, or with having 
 aided, abetted, assisted, advised or encouraged some 
 person in the throwing of that bomb. 
 
 The provisions of the statute applicable to the latter 
 charge, and which must be considered in the deter- 
 mination of this question, are Sees. 2 and 3 of Div. 2 
 of Chap. 38, Rev. Stat, of 111., 1874, ^0""^ as Sees. 274 
 and 275 of our Criminal Code, which are as follows: 
 
 " Sec. 2. An accessory is he who stands b\- and aids, 
 
" abets or assists, or who, not being present aiding, abet- 
 " ting or assisting, hath advised, encouraged, aided or 
 " abetted the perpetration of the crime. He who thus 
 " aids, abets, assists, advises or encourages, shall be con- 
 " sidered as principal, and punished accordingly." 
 
 " Sec. 3. Every such accessory, when a crime is 
 " committed, within or without this state, by his aid or 
 " procurement in this state, may be indicted and convicted 
 " at the same time as the principal, or before or after his 
 " conviction, and whether the principal is convicted or 
 " amenable to justice or not, and punished as principal." 
 
 We claim that the evidence in this case fails to 
 establish the above charge against any of tiie plaintiffs 
 in error, and therefore we maintain that 
 
 A. THE PLAIXTIFFS IX ERROR ARE XOT GUILTY. 
 
 In support of this contention, we shall consider, sepa- 
 ratelv, the cases of the eight plaintiffs in error, so far as 
 the charge was attempted to be supported b\- 
 
 EVIDENCE LEGITIM.\TELY BEFORE THE JURY. 
 
 Oscar Neebe. 
 
 The verdict of the jury adjudged Oscar W. Neebe to 
 be " guilty of murder in manner and form as charged in 
 " the indictment," and the court sentenced him to fifteen 
 years in the penitentiary. As to Mr. Neebe, we con- 
 tend that there is no pretense- finding support in the 
 evidence that he was present at this meeting, or knew 
 of the purpose of holding it, or was consulted as to 
 calling it, or knew that the same would be held; and 
 that there is no testimony that shows, or tends to show. 
 
3 
 
 that he advised, aided, encouraged, abetted or assisted 
 the throwing of the bomb. We find ourselves at a loss 
 to argue the case of Mr. Neebe. There is absolutely 
 nothing in the record to support his conviction; and in 
 presenting this case in the first instance, to the considera- 
 tion of this honorable court, we will rest as to Mr. Neebe 
 and wait to see what the representatives of the prosecu- 
 tion can say upon this record in support of a verdict and 
 judgment against him under the above indictment. 
 
 Samuel Fielden. 
 
 It is admitted that he was present at the Haymarket 
 meeting and was one of its speakers, his address being 
 interrupted by the appearance of the police and the order 
 for its dispersion; and that he was on the ground at the 
 time of the e.xplosion of the bomb. 
 
 But there is evidence uncontradicted which shows, in 
 reference to his prior movements, and his connection with 
 this meeting, the following state of facts: On Sunday 
 night. May 2d, he had made an engagement to speak 
 at a labor meeting, to be held at either 368 or 378 West 
 1 2th street, on Tuesday night, May 4th ( V^ol. M, 340; 
 A, 272);* on May 4th, on arriving home in the evening, 
 from his work of teaming, he saw in the Evening News 
 an announcement of a meeting of the American group of 
 the International Working People's Association, of which 
 group he was a member, and at that time the treasurer. 
 The notice called the meeting to be held at 107 5th 
 avenue at 8 o'clock that night, and the announcement said 
 " Important business." Seeing this announcement, Fiel- 
 den determined to attend that meeting, because of his 
 
 *A. means Vol. 2 of the abstract. Vol. 1 of the abstract svill be cited 
 bv ■' lA." We cite the record bv the letter of the volume. 
 
official relation to the group, instead of going to his ap- 
 pointment on West 1 2th street. He arrived at 107 5th 
 avenue about 8 p. m. (Vol. M, 306, 307; A, 265). The 
 meeting, which was attended by about fifteen members, 
 among whom was A. R. Parsons, considered the mat- 
 ter of the organization of the sewing women of Chi- 
 cago, with reference to the eight-hour movement, and 
 some money was paid out b}' Fielden, upon the 
 order of the meeting, for that purpose. The meet-' 
 ing lasted until about 9 v. M. During the progress of 
 the meeting, Balthazar Rau called, and said that speak- 
 ers were wanted at the Haymarket meeting. Pursuant 
 to this notification (the business for which the Amer- 
 can group meeting was called having been substantially 
 transacted), the group meeting adjourned, and Fielden 
 Parsons and nearly all of the others present went over to 
 the Haymarket meeting. All this appears from the tes- 
 timony of the witnesses, Patterson (Vol. M, 42, 4.4; A, 
 228), Snyder (Vol. M, loi; A, 235), Brown (Vol. M, 
 120, 123; A, 238), Waldo (Vol. M, 168; A, 245), Mrs. 
 Holmes (Vol. M, 279, 281; A, 261), Parsons (Vol. M, 
 no; A, 313), and other witnesses. 
 
 It nowhere appears in the record that this meeting of 
 ihe American group considered anything else, or trans- 
 acted an}' other business, or was called for any other pur- 
 pose e.xcept as above suggested. The first knowledge 
 that Fielden had that the Haymarket meeting was 
 to be held was acquired by him at this meeting of 
 the American group. (Vol. M, 321; A, 269.) When 
 Fielden reached the Haymarket meeting he went on the 
 speakers' wagon with Parsons, Brown and Snyder. At 
 that time Spies was still speaking, but stopped shortly 
 after their appearance, and introduced Mr. Parsons as the 
 next speaker. ( \'ol. M, 102, 340, 341; A, 235, 272.) 
 
Parsons made a speech of about an hour, after which 
 Fielden spoke for about twenty minutes. Probably the 
 most reliable account of his speech that was pre- 
 sented by the prosecution is found in the testimony 
 of Mr. English, who attended the meeting as a 
 reporter for the Chicago Tribune, and took short- 
 hand notes at intervals of the proceedings, and the 
 speeches made. (A, 129.) It is to be observed, 
 however, that Mr. English himself says his instruc- 
 tions from the Tribune office were to take only the 
 most incendiary fart of t/ie speeches (K, 286; A, 134), 
 and that his testimony presents only an abstract of what 
 the speakers said (A, 130; K, 277, 278); while Fielden 
 claims that English's report was garbled, and does not 
 give the connections, and therefore does not make sense. 
 (M, 346, 347; A, 273.) In Fielden's speech, even as 
 reported by English, however (A, 132, 133), not one 
 word can be found which has the least reference to the 
 bomb-throwing, or contains any proposition or suggestion 
 for the use of violence that night, or in the immediate 
 future. Fielden took for his text an utterance of Con- 
 gressman Foran of Ohio, to the effect that the laborer 
 can get no relief from legislation, and tried to deduce 
 from the facts stated by him, that the law protected only 
 the employer, affording no protection to the workingmen, 
 if they were injured in their interests. Speaking of the 
 so-called McCormick riot on the afternoon of May 3d, 
 the day preceding the Haymarket meeting, to which we 
 shall have occasion to refer hereafter, he said, " Men, in 
 their blind rage, • attacked McCormick's factory," etc. 
 (K, 282; A, 132.) 
 
 " Men in their blind rage'''' — that was the characteriza- 
 tion by Fielden of the persons who threw stones at Mc- 
 Cormick's factory and employes. True, Fielden said, as 
 
a conclusion from ihe facts stated by him, "You have 
 " nothing more to do with the law, except to lay hands on 
 " it and throttle it until it makes its last kick. It turns your 
 " brothers out on the wayside, and has degraded them 
 " until they have lost the last vestige of humanity, and 
 " they are mere things and animals. Keep your eye 
 " upon it, throttle it, kill it, stab it, do everything j'ou can 
 " to wound it or impede its progress." (K, 282; A, 
 132.) This is foolish talk, but what man in his right 
 senses will claim that this or any other remark testified 
 to as having been made by Fielden is anything more 
 than a rhetorical flourish or theoretical statement in 
 regard to the law in the abstract as affecting the working 
 classes? How can it be seriously maintained that such 
 language constituted advice to the throwing of a bomb 
 into the ranks of the police, who had not yet made their 
 appearance on the scene, who were not then expected by 
 anybody, last of all by Fielden, who swears he had no 
 idea of there being a superior number of police at the 
 station near by? (M, 35S; A, 275.) As well argue 
 that the excited politician who proposes to " knife " an 
 obnoxious candidate, or to " lay him out," or " put a 
 " head " on him, or to " destroy " the opposite party, or 
 to " throttle " the opposition, in these expressions counsels 
 personal violence as against the individuals involved in 
 the suggestion. It seems to us that the suggestion that 
 these words of Mr. Fielden imported advice to personal 
 violence against the otTicers of the law, or that t/iey should 
 be stabbed, throttled, impeded, wounded, killed, is without 
 foundation. He was talking of a system, and not of any 
 class of men, of an abstraction, and not of individuals. 
 
 A strenuous effort was made on the part of the prose- 
 cution, to involve Mr. Fielden personally with the matters 
 occurring at this meeting in connection with and immedi- 
 
ately following the throwing of the bomb, and we propose 
 briefly to" review the testimony adduced in this eftbrt. It 
 consists of three parts. 
 
 (a.) The claim that Ficlden made threats. 
 
 Officer Quinn and Officer Haas swear that they 
 heard Fielden, the speaker, upon the wagon, who was 
 speaking at the time the police force approached, cr\- out 
 in a loud voice, " Here come the blood-hounds of the po- 
 lice! Men, do your duty and I will do mine," or similar 
 words. 
 
 Quinn testifies (A, 14) that he heard that remark when 
 within ?ikiOMX fifty feet of where the speaker was, while 
 Haas (A, 128; K, 251) says, he heard it when the first 
 •company of the police got north of Randolph street, within 
 ten or fifteen feet of the wagon. Haas was then pretty 
 near the middle of the street and within five or six feet, 
 yet Haas admits on cross-examination that he was a 'fit- 
 ness at the coronerh inquest., on which occasion lie said 
 nothing of having heard Fielden utter these -words. 
 (A, 128; K, 268.) These two are the only witnesses 
 who positively swear that it was Fielden who made that 
 utterance. 
 
 Lieut. Steele (A, 13) testifies that his and Quinn's 
 companies constituted the front line; that shortly prior to 
 the halt being called, he heard somebody say, " Here 
 " comes the blood-hounds. You do your duty and we 
 " will do ours;" but he says distinctly that he cannot tell 
 who made the remark, the sound coming from in front, 
 while they were marching. It appears that Lieut. Steele 
 was on the east side of the street, and was therefore 
 nearer to the wagon than Quinn, whose company was to 
 the left of Steele's. (A., 13; I, 1S3.) Besides, Quinn 
 
says he is not positive whether it was Ward or Bonfield 
 who commanded the meeting to disperse, ahhough he 
 admits that he has known Ward for fourteen years, 
 Bonfield for eight or ten years. (A., 15; I, 202, 203.) 
 This witness therefore confesses that he could not dis- 
 tinguish the voice of the officer, who admittedly gave the 
 command to disperse in a very loud tone of voice (A., 3; 
 I, 46), who stood at the time not more than tzventy or 
 t-ivenly-five feet distant from him (A., 15; I, 195), and 
 whom he had knoivn for fourteen years ; but still he 
 claims to positively recognize the voice of Fielden, who 
 was a stranger to him and w us f fly feet distant from him 
 at the time of the alleged remark. 
 
 Officer Krueger says (A, 17) he stood number one, 
 front rank of the column, and that when he got up 
 -.vitliin twenty-five or thirty feet of the wagon, he heard 
 something like this: " Here they are now, the blood- 
 " hounds." He does not claim to have heard the second 
 fart of the alleged remark ; he says that he would judge 
 it was the speaker on the wagon that made the remark,, 
 but would not be positive. 
 
 Officer Wessler (A, 18) says he was in Lieut. Bowler's 
 company, which was the second of the column, and 
 when he got about as far as the /Randolph street car- 
 track (a distance of about one hundred feef), he heard 
 the remark: "Here comes the blood-hounds," but does 
 not state who made it. 
 
 Lieut. Bowler testifies (A, 22) that while they were 
 marching to the scene, he heard the words: " Here come 
 " the blood-hounds," said by somebody close to the wagon, 
 but does not pretend that it was said by any one on the 
 wagon; while Officer Doyle says (A, 25) that he was in 
 Bowler's compan}- and heard the words: "Now is your 
 "time, now is your time," said by some one looking like 
 
Fielder). But he further says that the man who said 
 " Now is 3'our time " did not shoot in the wagon or going 
 from it. 
 
 This is the whole of the state's case as to this particular 
 utterance; and it will be observed that of all the witnesses 
 called by the state, only a few policemen pretend to 
 have heard those significant words; further, that they 
 claim to have heard it from all possible distances and in 
 all possible forms. 
 
 On the other hand, neither Bonfield nor Ward, who 
 were a little in advance of the front rank of the column, 
 claim to have heard any such remark; while Freeman, a 
 reporter for the Inter Ocean, says that he was at the time 
 some eight or ten feet from Fielden (Vol. K, 47; A, 107), 
 that he did not hear that remark and that he knows 
 of nothing to prevent his hearing it if Fielden had said it. 
 Hull, a reporter for the News, also a witness for the 
 prosecution, stated (Vol. K, 132; A, 118) that he heard 
 Fielden remark, as he was approaching the end of his 
 speech: "In conclusion," but that he did not hear the re- 
 mark testified to b}^ Quinn. 
 
 Besides these witnesses for the state, the following 
 witnesses introduced by the defendants testified positively 
 that no such remark was made, and they were all in a 
 position, where, if such a remark had been made in a 
 tone of voice loud enough to have been heard at a dis- 
 tance of from 50 to 100 feet, they could not but have 
 heard it, and from the nature of the remark it could not 
 but have attracted their attention, namely: Simonson 
 (A., 178; L, 69); Richter (A., 187; L, 183); Liebel 
 (A., 189; L, 201); Taylor (A., 191; L, 229); Gutscher 
 (A., 198; L, 302); Urban (A., 202; L, 350); Lindinger 
 (A., 215; L, 474); Heidekrueger (A., 222; L, 546); 
 Holloway (A., 230; M, 61); Snyder (A., 237; M, iii); 
 
Murphy (A., 256; M, 243); Bach (A., 281; M, 406) ; 
 Ingram (A., 2S8; M. 452); Spies (A., 303; N, 55); 
 and Fielden himself (A., 269; N, 321). 
 
 Mr. English, although he was upon the scene with in- 
 structions to report the most incendiary utterances, and 
 although he distinctly heard the order for dispersion given 
 by Capt. Ward, says positively that he did not hear the 
 remark testified to by Quinn and his supporters. (A., 
 134; K, 287.) It is further to be observed, that not 
 one of the many witnesses put upon the stand by the state, 
 who were reporters for the various papers, and who tes- 
 tified that the}- wrote up reports for publication in the 
 issue of the following day, pretended to testify to any 
 such remark as is attributed to Fielden. 
 
 When to this we add the fact that this particular re- 
 mark is one of the heirlooms of the detectives and the 
 police, having served on duty on previous occasions, as, 
 for instance, in the trial of Thomas Reynolds, reported in 
 Morgan's " Trials in Ireland," page 53, where in the at- 
 tempt to procure a conviction upon a charge of riot and 
 assault, precisely the same remark was attributed by the 
 police swearers to the accused, we think we are justified 
 in saying chat this particular charge against Mr. Fielden 
 is absolutely exploded, and the respective statements of 
 the witnesses in that behalf are shown by the whole evi- 
 dence, if taken together, to be mere creations of the 
 fancy. 
 
 \b.) T/ie claim tliat Fielden fired J rom tlie zuagoii. 
 
 Lieut. Quinn swore with absolute positiveness that 
 after the order for the dispersing of the meeting was 
 given by Capt. Ward, Fielden, while still standing upon 
 the wagon, drew a revoh-er from his hip pocket and fired 
 
a shot in a downward direction, aimed at Capt. Ward, 
 Capt. Bonfield and Lieut. Steele, who at the time 
 were grouped together, not more than four to six 
 feet from Fielden. (A., 14.) This testimony is en- 
 ■entirely unsupported, no other witness in the case cor- 
 roborating him or attempting to] do so, while his con- 
 tradiction is so overwhelming that we have some question 
 as to whether we are justified inlgoing into an argument 
 to show that upon this point he was strangely and totally 
 mistaken. There is no pretense, exxept this testimony 
 -of Quinn, that a shot was fired by anybody upon or from 
 the wagon at the time and in the manner detailed by him, 
 but both the witnesses for the prosecution and for the 
 defense agree that no shot xuas fired by anybody -prior to 
 the explosion of the bomb. 
 
 Quinn in his testimony (A., 13 to 15) claims that 
 while Capt. Ward gave the order to disperse and before 
 he finished, Fielden said, ''■ We are peaceable," and at the 
 same time, while getting down from the wagon, fired a 
 shot from the wagon in a downward direction right into 
 Capt. Ward, Capt. Bonfield and Lieut. Steele; that upon 
 seeing Fielden shoot, he dropped his club, took, his pistol 
 and returned the fire, discharging his own revolver. Then 
 he looked back and saw the explosion of the bomb in the 
 ■shape of a bunch of fire-crackers. Upon cross-ex- 
 .amination, he states that when Capt. Ward, in his com- 
 mand, had got as far as " In the name of the people 
 •of the State of Illinois, I command, etc., to disperse, and 
 I command you and you," he heard the command — 
 ■" Halt! " Immediately he turned around and repeated 
 the halt to his company, facing his men, with his back 
 and side to the wagon. He had no time to dress up his 
 Hue before the bomb exploded. The bomb exploded two 
 or three seconds after he repeated the order to halt. 
 
When he heard the halt Fielden had not started to leave 
 the wagon. 
 
 As to Quinn's testimon}-, we feel justified in asking- 
 the court to observe its absolute and repeated self- 
 contradictions. When did Quinn see Fielden shoot? 
 Before Quinn turned to repeat the halt and dress up 
 his line Fielden had not started to leave the wagon^ 
 therefore had not shot yet, because Quinn says he 
 shot while getting off the wagon. After Quinn had 
 turned, and before he kad time to dress up his line, ivhilc 
 he zvas standing with his hack and side to the wagon, the 
 bomb exploded. Quinn could not see Fielden, while thus 
 turned to his company, therefore could not see him shoot 
 before the explosion of the bomb. Again, Quinn says 
 Fielden shot before Ward had finished his command to- 
 disperse; but Quinn turned when Ward had got so far 
 as '-you and you," so that only the words '• to assist '^ 
 lacked to complete the command. The two words 
 " to assist " must have been spoken within a second after 
 Quinn turned to repeat the halt and dress up his line. 
 The command must have been finished before Quinn 
 faced the wagon again. Now, if Fielden shot before the 
 command was finished, how, we ask again, could Quinn 
 see it? Again, Quinn says, when he turned to his com- 
 pany to repeat the halt, before he could dress up his line, 
 the bomb exploded; then he turns, he sees Fielden shoot 
 and thereupon discharges his pistol; then he looks back 
 again and sees the explosion in the shape of a bunch of 
 fire-crackers. This is a physical impossibilitj', for the 
 bomb did not explode twice. 
 
 Furthermore, Capt. Bonfield, Capt. Ward and Lieut. 
 Steele, at whom, according to Quinn, that shot of 
 Fielden was aimed, did not see it. Capt. Bonfield 
 describes the movements of Fielden after the com- 
 
mand to disperse was given ( \'ol. I, 24; A. 2), 
 but does not pretend in one word to have seen Fielden 
 shoot. Capt. Ward, who says he was so near to the 
 wagon he could have touched it with his club (Vol. 
 I, 434; A, 37), says Fielden was facing him until he had 
 finished his command. Then he saw Fielden get oiY 
 the truck. (Vol. I, 436; A, 37). He does not claim to have 
 seen Fielden shoot, and says there was no pistol firing of 
 any kind b}- anybody before the explosion of the bomb. 
 (Vol. I, 437; A, 37.) Lieut. Steele says Fielden stepped 
 off the wagon, turned to the sidewalk, and he lost sight 
 of him (Vol. I, 174, A 13), and that Fielden was on the 
 sidewalk when the bomb exploded. (Vol. I, 180) No 
 pretense that he saw Fielden shoot or aim at him. Lieut. 
 Bowler says (A, 22; Vol. I, 293-4) that he saw firing 
 close by the wagon after the explosion, but not from in 
 the wagon; that he saw Fielden coming off the wagon 
 very plainly, yet saw no one either in the wagon or get- 
 ting out of it do any firing. Edgar E. Owen, a reporter 
 for the Times and witness for the prosecution, says, he 
 noticed Fielden jump off the wagon, but is silent about 
 having seen him shoot at that time. (A., 125, Vol. K, 206.) 
 There is no possibility of harmonizing these conflicting 
 statements of Quinn; while his whole story in this respect 
 is demonstrated by the evidence in the record to be ab- 
 solutely untrue; and whether that untruth be wilful, or 
 whether it be the result of some mental aberration, the 
 entire testimony of this witness is in our judgment thereby 
 discredited. 
 
 ( c. ) The claim that Fielden fired from behind the luag n . 
 
 It was next attempted to be shown in the attack, 
 upon Mr. Fielden that he fired at least two shots after the 
 explosion of the bomb from a position on the sidewalk. 
 
behind the wagon. The testimony upon this subject pres- 
 ented by the state was in brief as follows: 
 
 Officer Krueger testified that Fielden stepped just one 
 step north of the south end of the wagon, took cover be- 
 hind it (Vol. I, 245; A, 17) and then fired two shots 
 directly at the column of police; then he sazi' Fielden in 
 the crowd and shot at him. ( A., 17; I, 234, 235. ) 
 
 Officer Wessler says that after the explosion of the 
 bomb he drew his revolver and ran north on the sidewalk 
 next to Crane's building, probabl}' twenty or thirty feet 
 north of the alley. There he shot twice, then he heard 
 the order, " Fall in," in his rear. He ran back and saw 
 Fielden, behind the wagon, get up and get down twice 
 and shoot twice into the police. Then Wessler shot him 
 and Fielden fell under the wagon. [\o\. I, 251, 252; 
 A, 18.) It maj' have been two minutes after the explosion 
 of the bomb that Wessler started on his charge to the 
 north, together with Officer Foley. (\'ol. I, 260; A, 19.) 
 
 Officer Foley testified that he went north on the side- 
 walk after the explosion of the bomb, and while search- 
 ing some fellows near the steps of Crane Bros.' building, 
 saw Officer Wessler slioot at a man -who -was lying tinder 
 the body of the wagon, between the fore and hind wheels. 
 Going by the wagon, Fole}' picked up a revolver that 
 was lying on the sidewalk. It was a five-chamber 
 Harrington. Three chambers were empty, two cartridges 
 remained. (Vol. I, 268 to 275; A, 19, 20.) 
 
 Officer Baumann swears he saw Fielden shoot once 
 from east to west, while standing on the sidewalk. He 
 admits that he saw Fielden that night for the first time, 
 that he did not see him since then until he testified, and 
 that he asked some of the officers who that man was tliat 
 fired the shot, and they told him it was Fielden. [Vo\. 
 I, 296, 302,303; A, 22, 23.) 
 
IS 
 
 Officer Hanley swears he saw Fielden fire one shot 
 and then run zvilh the crozvd tozrani the alley. (Vol. 
 T, 307, 308; A, 23.) 
 
 Officer Spierling (Vol. L, 341 to 343; A, 26) swears 
 that after the bomb exploded he saw Fielden get off 
 the wagon and fire one shot; Fielden was standing 
 behind the wagon, on the sidewalk. He shot west; 
 Spierling thinks it was a little before the explosion of the 
 bomb that Fielden shot. But upon cross-examination, he 
 says that the man he identifies as Fielden, and who fired 
 this shot, got off the ivagoii to the sidezualk, betiveen the 
 tzvo wheels of the zvaovii. It is evident, therefore, that 
 Mr. Spierling did not see Mr. Fielden at all fire any shot; 
 for the testimon}' is without contradiction that Fielden 
 got off the wagon at the south end, stepping down to the 
 street next to Ward and Bonfield, and from there stepping 
 upon the sidewalk. 
 
 This is the entire testimony offered by the state in 
 support of this charge. It is shown by the overwhelming 
 preponderance of the testimony to be untrue. 
 
 We call attention first to the absolutely contradictor)' 
 character of the testimony of these witnesses introduced 
 by the state. Krueger swears that Fielden fired twice 
 and then ran away with the crowd, and that he 
 (Krueger) shot Fielden as he ran, staggering him, but 
 not causing him to fall (A, 17; Vol. I, 235), and 
 Hanley swears that he saw Fielden fire one shot, then 
 run with the crowd toward the alley; but Wessler swears 
 that after his excursion up the street, firing upon the 
 crowd, on his return to the wagon, he found Fielden still 
 there, shooting at the police, and thereupon, from immedi- 
 ately behind him, he shot him, and Fielden fell under the 
 wagon. If Fielden ran towards the alley, as claimed by 
 Krueger and Hanley, which was in a direction south from 
 
i6 
 
 the wagon, how is it possible that he should at the same 
 time have stepped north between the side wheels of the 
 wagon? And how can j-ou reconcile Wessler's testimony, 
 that he shot Fielden and that Fielden fell under the 
 wagon, with the positive statement of Foley, that Wessler 
 shot at a man who was already lying under the body of 
 the wagon between the wheels? Of course these stories 
 cannot all be irue and apply to the one man, Samuel 
 Fielden. Their contradictions are absolutely irrecon- 
 cilable. But we go beyond this to call attention to posi- 
 tive testimony, which absolutely refutes this story. 
 
 Of the witnesses for the state we desire to call particu- 
 lar attention upon this point to the testimony of William 
 H. Freeman, a reporter for the Inter Ocean. He says, 
 (A, io6, 107; K, 41, 42, 48-50) that he stood on the 
 sidewalk between the speaker's wagon and Crane Bros.' 
 building, within three or four feet of the wagon, and when 
 the pistol firing commenced, crouched down behind the 
 wagon; that there was no shooting between him and the 
 ■wagon, although two police officers stood by the wagon 
 with their pistols pointed dangerously close at him; that 
 he did not see Fielden shoot as he Jumped down from the 
 wagon, nor sec him shoot at all. That after remaining a 
 moment or two in his position between the wagon and the 
 building, he went toward the alley and went into it, there 
 being no firing from the alley. He says positively that he 
 does not think that any one was between himself and the 
 wagon firing or anything of that kind. 
 
 William Snyder (A, 236), testifies that he was on 
 the wagon while Fielden was speaking, and when the or- 
 der to disperse was given; that he then stepped down 
 and called Fielden to get down, who immediately assented, 
 and that he assisted Fielden in dismounting. That the 
 explosion of the bomb came while they were in the act 
 
of getting off the wagon; that Fielden did nol shout 
 tuhen getting off the zvagon; had he clone so he would 
 have shot Snyder; that Fielden had no revolver, and 
 did not fire at the -police officers or at anybody else; 
 that he remained with Fielden, and with his hand upon 
 him, until they both reached the mouth of the alley, when 
 they separated, Sn3'der making his escape into the 
 alley. 
 
 Frank Stenner (A., 196) says that when the shooting 
 commenced he was on the east side of tlie wagon, close 
 to the Crane Brothers building; that he was arrested 
 himself by Foley while lying down on the steps of the 
 Crane Brothers building to avoid being shot. That Foley 
 picked lip a revolver about fifty feet south of the vjagon, 
 as he was leading him to the station, after the firing 
 was through; that there was no shot fired from the 
 wagon before the bomb exploded; that he was looking 
 at Fielden when he dismounted from the wagon and did 
 not see him shoot, and that he did not see Fielden or 
 anybody else stand behind the zvagon and fire. 
 
 Dr. James D. Taylor (A., 190) testified that he stood 
 but a few feet distant from the wagon; saw Fielden on 
 the wagon; remained in his position until after the ex- 
 plosion of the bomb and the pistol firing, and that he did 
 not see Fielden draw a revolver and shoot in the direction 
 of the police, or use a pistol on or off the wagon; that 
 he watched him as long as he could see him. (A. 191, 
 K 230, 231.) 
 
 Conrad Messer testifies (A., 20S) that he stood by 
 the south-east corner of the wagon at the time the police 
 arrived; that at the time of the explosion of the bomb 
 Fielden was down off the wagon near the sidewalk; that 
 he saw Fielden during all that time, and that Fielden had 
 no pistol in his hand, and he did not see him fire one shot; 
 
i8 
 
 that Fielden stepped on to the sidewalk, and after that 
 the witness saw him no more. 
 
 John HoUoway (A., 229, 230) testifies that he stood dur- 
 ing the speaking and the firing that followed, near the 
 lamp-post on the southeast corner of the alley and the 
 street; that he saw no firing coming from the direction of 
 the wagon, and did not see Fielden shoo'. 
 
 Sleeper T. Ingram testifies (A., 287, 288) that he 
 stood on the sidewalk near the steps of the Crane Broth- 
 ers building, just east of the wagon; that he saw Fielden 
 when the police came up and when the bomb exploded; 
 that he did not sec Fielden have any revolver or fire any 
 shot. 
 
 Mr. Fielden's own testimony is positive, unequivocal 
 and clear. He says he never carried a revolver in his 
 life, did not have one thit night, and did not fire on that 
 occasion at all; never fired at any person in his life; that 
 he did not, after leaving the wagon, step back between 
 the wheels of the wagon and fire from behind the wagon; 
 did not stay there at all (A., 268; M, 319); that he got 
 down from the south end of the wagon after the order 
 to the meeting to disperse was given by Capt. Ward, 
 and started in a slightly south-east direction (A., 267); 
 that just as he got upon the sidewalk the explosion of 
 the bomb came, and he rushed with the crowd trying to 
 get behind some protection, unavailingl)-, and made a 
 dash for the north-east corner of Randolph and Desplaines, 
 turned the corner and ran until he got to Jefferson street. 
 Just after the explosion of the bomb he was struck with 
 a ball and wounded above the knee; that his whole 
 course was from the wagon south, without stopping 
 except for an instant when startled by the explosion. 
 
 Of course, in the confusion following such an event 
 as the explosion of this bomb, and the immediate open- 
 
19 
 
 ing of fire by the police, particularly in the night-time 
 with no light except a single street lamp upon the cor- 
 ner of the alley (and some of the witnesses testified that 
 that was extinguished about the moment of the explosion ) , 
 it was not to be expected that to anj' great extent the 
 people in the crowd would be watching each other's 
 movements; on the contrary, they were engaged in look- 
 ing out each for his own safety. It happened fortunately, 
 however, that owing to the position which Mr. Fielden 
 occupied he was subject to more observation than would 
 otherwise have been fixed upon him; and that from the 
 lips of these witnesses we are enabled to disprove this 
 story as to his stepping behind the wagon and opening 
 fire upon the police. 
 
 The attack made by the police officers upon Mr. 
 Fielden, attempting to implicate him by describing his 
 alleged personal conduct that evening, in our judgment 
 utterly fails. On this point we think it not improper to 
 call attention to the fact that when an effort was made 
 to show by the testimony of Mr. Fielden, that he was 
 present at the examination of the various officers, upon 
 the coroner's inquest, and that not a word was there testi- 
 fied as to his having fired at any time that night, the 
 going into that subject was objected to by the state's 
 attorney, and the proposed testimony was excluded by 
 the court over the exception of defendants (A., 277); 
 while Mr. Knox, a reporter for the News, put upon the 
 stand for the prosecution, testifying of an interview with 
 Fielden on the night of the 5th of Ma}', in the pres- 
 ence of one or more of the police officers, after the cor- 
 oner's inquest had recommended that Mr. Fielden be 
 held for the murder of Degan, sa3-s that he does twt tliink 
 anything was asked of Fielden as to his having fired any 
 shots at the Haymarl<et ; that he did not know of such a 
 
charge at the time, and had never heard of such a claim 
 advanced up to that time by anybody (A., 89; Vol. J, 
 333, 334); while Hugh Hume, a reporter for the 
 Inter Ocean, also testifying on behalf of the people 
 of an interview had by him near midnight of that 
 s ime May 5th, with Fielden, says that he don't remem- 
 ber asking Fielden anything about firing, or that any 
 question of that sort was suggested by any one. We 
 think we are warranted, in view of these statements, in 
 asserting that it sufficiently appears from the evidence in 
 this record that the charge that Samuel Fielden fired any 
 s'lots on the night of May 4th was never advanced by 
 any human being until, certainly, after the 5th day of 
 May, and after the investigation by the coroner's jurv of 
 the facts connected with the death of Officer Degan. 
 
 As to Mr. Fielden, therefore, we affirm upon this rec- 
 ord that the testimony shows that he had nothing what- 
 ever to do with the calling of the Haymarket meeting! 
 and no notice or knowledge that such a meeting was to 
 be held until it was already in progress. That his pres- 
 ence at the Haymarket and his speaking there resulted 
 simply from the request for speakers sent to the meeting 
 of the American group; that he had no knowledge of the 
 throwing of a bomb on that night, nor did he contemplate 
 any violence whatever as likely to occur; that he had no 
 knowledge of the bomb-thrower, nor ever advised or 
 planned for the throwing of that bomb; that in fact the 
 throwing of that bomb was as much a surprise to him 
 as to an}' other person. 
 
 Albert R. Parsons. 
 
 The testimonj- shows, without any contradiction, that 
 on Sunday. May 2, 1886, Albert R. Parsons was 
 in the city of Cincinnati, Ohio, and came back from 
 
there to Chicago on the morning of Tuesday, May 4th 
 (A., 313; N, 109); that he caused a notice calling for 
 a meeting of the American group at 107 5th avenue 
 on the evening of Ma}' 4th, to be inserted in the Daily 
 News of that afternoon. That in the evening he left his 
 house in company with Iiis zvife, Mrs. Holmes, a lady 
 friend, and his two little children; that on their way down 
 they walked as far as the corner of Randolph and Hal- 
 sted streets, where he met two reporters, Mr. Heineman 
 and Mr. Owen. There Mr. Parsons and his part}- took a 
 car and rode directly up to 107 5th avenue, where they 
 arrived about half oast 8 o'clock and remained about half 
 an hour. Concerning this meeting at the corner of Halsted 
 and Randolph streets, Mr. Owen (a witness for the state) 
 testified (A., 124; K, 200, 201): "I saw Parsons at 
 " the corner of Halsted and Randolph streets shortly be- 
 " fore 8 o'clock. I asked him where the meeting was 
 " to be held; he said he didn't hnozv anything about the 
 " meeting. I asked him whether he was going to speak. 
 " He said, ' jVo, lie was going over to tlie south side.' 
 " Mrs. Parsons and some children came up just then, and 
 " Parsons stopped an Indiana street car, slapped me fa- 
 " miliarly upon the back, and asked me if I was armed, 
 " and I said ' No; have you any dynamite about you?' He 
 " laughed, and Mrs. Parsons said, ' He is a very danger- 
 *' ous looking man, isn't he? ' and they got on the car and 
 " went east. I believe Mr. Heineman was with me." 
 Mr. Heineman also testified as to that meeting (A., 126; 
 K, 233). 
 
 Pursuant to the request for speakers mentioned above, 
 Parsons, with others, went to the Haymarket meeting; he 
 reached the same sometime after 9 o'clock, when Spies was 
 speaking, and directly afterward he himself spoke, his 
 speech occupying from three-quarters of an hour toan hour. 
 
It is concurred in by all the witnesses who testify' in 
 reference to Parsons' speech, that it was largely statistical 
 in its nature, and a review of the disturbed condition of 
 the labor world; and it is conceded by all that when, in 
 the course of his remarks, he mentioned the name of Jay 
 Gould, in connection with the south-western railway 
 troubles, and some one in his audience proposed the hanging 
 of the railway magnate, Parsons immediatelj'replied dep- 
 recating such utterance, saying in effect: No! this is not a 
 coiifict bet-iveen individuals, but for a change of system, 
 and socialism desires to remove the causes which produced 
 the pauper and the millionaire, but does not aim at the life 
 of the individual. That in that connection he made use of 
 the figure that if Jay Gould were killed, another or a 
 hundred others would come up in his place like a Jack in 
 a box; and that he also used the figure that to kill the in- 
 dividual millionaire or capitalist would be like killing a 
 flea upon a dog, whereas the purpose of socialism was 
 the destruction of the dog himself — the change of the 
 present system. (A., 320; N, 136.) This utterance, or 
 the substance of it, is also testified to by the following 
 witnesses: Simonson (A., 177; L, 65), Ferguson (A., 
 182; L, 130, 131), Gleason (A., 203; L, 361), Snyder 
 (A., 236; M, 109), Bach (A., 281; M, 410), Freeman 
 (A., 105; K, 40). 
 
 Some of the witnesses for the state testified thdt at 
 some point in his discourse he used the expression, " To 
 "arms! to arms! to arms!" This is the only incendiary 
 utterance claimed to have been made use of by him. 
 Upon this point Mr. English's testimony, based upon 
 his notes taken at the time, is substantially as follows 
 (A., 131; K. 281): "It behooves you, as you love 
 " your wife and children, if you do not want to see thjm 
 " perish with hunger, killed, or cut down like dogs on the 
 
23 
 
 " street, A:nericans, in ihe interest of your liberty and 
 " your independence, to arm, to arm yourselves (ap- 
 " plause, and cries of ' We will do it; we are ready now '). 
 " You are not." And Mr. English says positively in this 
 connection that when Parsons said " to arm " he said it 
 in his ordinary tone of voice. He says further, that this 
 expression shortly followed an utterance of Parsons in the 
 following language: " /«;« not here for the purpose of in- 
 " citing anybody, but to speak out, to tell the facts as they 
 " exist, even though it shill cost mt my life before morn- 
 
 " ing-" 
 
 It was a very natural mistake for persons in the audi- 
 ence, not listening closely, and not taking notes of the 
 speech, to have received the impression that Parsons said 
 " To arms! to arms! to arms!" But a mistake it clearly 
 is. For the short-hand notes of Mr. English are surely 
 more reliable than the testimony of the other witnesses 
 testifying merely from recollection. It will further be ob- 
 served that Mr. English's entire testimony as to Parsons' 
 speech occupies but a little more than one page of the re- 
 cord, and the evidence shows that he took but very little of 
 it out of matter which occupied nearly an hour in its deliv- 
 ery ; which is e.xplained, as we understand it, by the fact that 
 Mr. English was under instructions to report only " the 
 " most inflammatory utterances;" and that in point of fact 
 he found in Mr. Parsons' speech scarcely anything to 
 report under these instructions. Mr. Parsons, upon 
 the witness stand, gave in detail, as near as he 
 could repeat it, his speech at the Hay market (A., 315 
 to 320; N., 118 to 136), and we invite the attention 
 of the court to that speech as there detailed, in con- 
 nection with the testimony of Mr. EngHsh and also the 
 testimony of the other witnesses as to the character of his 
 speech, in support of our assertion that it was an 
 
24 
 
 Unusuall}' moderate utterance for such an occasion. Cer- 
 tainh', there was nothing in that speech which in the re- 
 motest degree incited immediate violence, or indicated in 
 any manner that the speaker contemplated any immediate 
 outbreak upon the part of his audience or an}- portion 
 of it. Mayor Harrison, who heard Parsons' speech, and 
 attended the meeting for the purpose of dispersing it, if 
 anything should occur to require interference, left the 
 meeting at the end of that speech, and told Capt. Bon- 
 held at the station that " nothing had occurred yet or 
 " looked like/y to occur to require interference, and that 
 " he had better issue orders to his reserves at the other 
 "stations to go home"; whereupon Mr. Harrison him- 
 self went home. (A., 174, 175; L., 29-31, 47.) 
 
 After Parsons, Mr. Fielden spoke in all about twenty 
 minutes. After Mr. Fielden had been speaking some ten 
 minutes or so, it is admitted by all the witnesses that a 
 cloud accompanied by a very cold wind swept up in the 
 northern sky, threatening rain; and that thereupon Par- 
 sons interrupted Fielden and sugg-estcd an adjournment 
 of the meeting to Zepf's Hall, a hall in a building 
 situate on the north-east corner of Lake and Desplaines 
 streets, and consequently about a half a block from the 
 location of the Haymarket meeting. To this somebody in 
 the crowd responded that the hall was occupied by a meet- 
 ing of the furniture-workers' union, and Fielden suggested 
 lh:H he would he through in a fezv minutes, and then thev 
 cofild all go home; and Fielden proceeded with his re- 
 marks. (A., 314; N, 113.) Besides the testimony of 
 Mr. Parsons, this fact is further established by a large 
 number of witnesses, both for the State and the defend- 
 ants, among whom we will mention the following: Free- 
 man (A., 108; K, 51, 52), Heineman (A., 127; K, 246), 
 English (A., 132. 133; K, 282), Simonson (A., 17S; L, 
 
•66, 67), Richter (A., 187; L, 1S4), Urban (A., 201; L, 
 343), Ingram (A., 287; M, 447). But it is established vvith- 
 ■out contradiction, that a very large portion of the audience, 
 ■fully one-half, as estimated by substantially all of the wit- 
 nesses, and more than that as estimated by many, scat- 
 tered upon Parsons' motion and Fielden's suggestion, and 
 that Mr. Parsons himself went from the speakers' wagon 
 to a wagon located a few feet north of it, in which sat his 
 ■wife and Mrs. Holmes, who had accompanied him to the 
 Haymarket; and that he then proposed to them that 
 ihey should all go to Zepfs Hall, which they accordiiioiy 
 did. It is proved incontestably also that at the time of the 
 -explosion of the bomb. Parsons, together with his wife, 
 Mrs. Holmes, and others, was in Zepfs saloon, and not at 
 the Haymarket meeting. This is substantiated by the 
 testimony of the following witnesses, viz.: Michael D. 
 Malkoft" (A., 224), Thomas Brown (A., 238; M, 125), 
 Otto Wandray (A., 248; M, 192), Lizzie May Holmes 
 {A., 261, M, 2S4, 285), S. I. Ingram (A., 287; Vol. M, 
 .448); besides the testimony of Mr. Parsons himself 
 {A., 314, 315; N, 114-116). No effort was made to meet 
 or refute this testimony, or to show, by a single witness, 
 that Mr. Parsons was at the Haymarket at the time of the 
 explosion of the bomb. A review of the evidence touching 
 Parsons' attendance, presence and utterances at the Hay- 
 /market meeting, accompanied, as he was, by his wife and 
 Mrs. Holmes, proposing an adjournment of the meeting 
 before the police had moved upon them, and himself 
 thereupon leaving the theater of action, must satisfy any 
 irational mind that Mr. Parsons had no idea that any vio- 
 lence was contemplated, proposed, arranged for, or likelv 
 ito occur at the Haymarket meeting, of which his first 
 Tiotice was received from Mr. Owen, about 8 o'clock that 
 evening, as appears from the testimony of that gentleman. 
 
26 
 
 It is not, therefore, to be wondered at that when the 
 trial came on, involving Mr. Parsons in a charge of par- 
 ticipation in the murder of Mathias J. Degan, he should 
 have voluntarily come to the bar of the court, as he did,. 
 and presented himself for trial, strong in his consciousness- 
 of innocence, and convinced of his power to successfully 
 meet any charge in that behalf that might be brought 
 against him. And we respectfully submit that no jury 
 dispassionate, unprejudiced and governed by the testi- 
 mony in the case, could rationally have reached the con- 
 clusion which was reached in this case;- and that such 
 conclusion is explicable alone by the fact that he was- 
 compelled to submit his cause, under the rulings of the 
 trial court, to a jury who had prejudged him, and wha 
 forced the result into conformity with the opinion with 
 which they entered the jury box. 
 
 Michael Schwab. 
 
 The incriminatory evidence adduced by the state- 
 against Michael Schwab, in connection with the tragedy 
 of the Haymarket, is alone that of M. M. Thompson. No 
 other witness on behalf of the state attempts to connect 
 Schwab with the throwing of the bomb. It is, therefore, 
 proper, in this connection, to consider critically the testi- 
 mony of Mr. Thompson. (A., 134-137.) Thompson's- 
 story is, that on the evening of May z|th, he attended at 
 Mie Haymarket, reaching the corner of Desplaines and 
 Randolph streets, about twenty-five minutes of 8. That 
 he there met Mr. Brazleton, a reporter of the Inter Ocean, 
 and talked with him about fifteen minutes; then asked the 
 time, and Brazleton replied it was then ten minutes of 8;. 
 that while talking with Brazleton, Brazleton pointed out 
 Schwab, whom Thompson had never seen before, who- 
 
27 
 
 was rushing along Desplaines street, apparently in a 
 great hurry. That Thompson then walked to the east 
 side of Desplaines street, up Desplaines, near to the cor- 
 ner of Lake, and back again to the alley by Crane Bros.', 
 standing just by the alley. That he saw Spies get up on 
 the wagon, and heard him ask for Parsons, who did not 
 respond, and that Spies then got down, and Schwab and 
 Spies walked into the alley, south of Crane Bros.' 
 (K, 288.) That when he saw Spies and Schwab go into 
 thti aWey, l/ierc zi'as a crozvd there. (K, 291.) Thomp- 
 son was standing within three feet north of the alley, up 
 against the building. (K, 292.) From this position he 
 heard a conversation between Schwab and Spies, in the 
 alley. He admits that he had never before seen either of 
 these parties, and had never heard either of thein speak, 
 save that he heard Spies inquire from the wagon for 
 Parsons. (K, 295.) He states that he could not see 
 doiun the alley, unless he turned his face to it, and did not 
 look into the alley to see -who were the parties holding 
 the conversation testified of (K, 292, 293), but that he 
 heard in a conversation between them, the word "pistols" 
 and the word "police," the latter word twice; that the 
 first remark he heard was about a minute and a half after 
 Spies and Schwab went into the alley and out of sight. 
 (K, 295.) That he drew up within a foot of the alley, 
 when Spies said: " Do you think one is enough, or hadn't 
 " we better go and get more?" (K, 294.) To which he 
 heard no response. That Spies and Schwab then came 
 out of the alley, walked south on Desplaines street to 
 Randolph, west on the north side of Randolph to Halsted, 
 crossed Halsted diagonally to the south-west corner of 
 the street intersection, remained there about three min- 
 utes; then left the crowd and came back; that on the 
 way back, as the pair neared Union street, he heard the 
 
2S 
 
 word " police " again. At that moment he passed the 
 pair, and Schwab said: "Now, if they come, we will 
 " give it to them," to which Spies replied that he thought 
 they were afraid to bother with them. On the north- 
 west corner of Desplaines and Randolph he halted and 
 they passed him, going diagonally across Desplaines 
 street in a north-eastern direction, and striking the side- 
 walk about fifteen or twenty feet south of the alley. 
 Then he followed them across Desplaines street, but a 
 little more to the south, striking the sidewalk some ten 
 or fifteen feet south of them, when a third part\^ stepped 
 from the wall of the building towards the center of the 
 sidewalk, and that the group of three then stood. Spies 
 facing south and directly toivnrd Thompson, Schwab 
 facing north, and the third man facing zuest. (K, 305- 
 310.) The group appeared to get in a huddle, 
 and there was something passed between Spies and the 
 third man — he could not tell what; that the third man 
 took this something and put it in his right-hand coat 
 pocket. That they then went to the wagon. Spies got 
 up and the third man mounted after him. That he no- 
 ticed this third man afterwards sitting on the wagon, and 
 that he kept his hand in his pocket. He attempted to 
 identify this man by means of a photograph of Schnau- 
 belt, shown to him, and said that he thought that was the 
 picture of the third man. That he remained on the Hay- 
 market until Mr. Fielden commenced to speak and then 
 left. (K, 289, 290.) 
 
 Thompson admitted that he did not understand Ger man, 
 and said that the conversation which he heard was carried 
 on in English. (K, 293, 301.) He could not give the 
 connection of the conversation which he related. 
 
 If any such occurrence between anybod}' took place 
 as he describes, then it is evident from his whole testi- 
 
29 
 
 mony that it must have been somewhere between 8 and 
 half-past 8 o'clock. 
 
 There is incontestable evidence in this record, we 
 undertake to say, which demonstrates conclusively the 
 utter untruth of this testimon}', as attempted to be ap- 
 plied to Michael Schwab and August Spies; for Michael 
 Schwab was not walking around the Haymarket at the 
 time alleged, and did not see Spies there at all, nor take 
 with him the journey detailed, nor did he or Spies have 
 the conversation either with one another or with anybody 
 else. To this testimony we now beg to call the atten- 
 tion of the court in detail. 
 
 («.) Schwab'' s movements. 
 
 Schwab's account of himself, which is in every particular 
 confirmed by unimpeachable testimony to which we shall 
 call attention later on, is as follows (A., 294-96): 
 
 That, on the evening of May 4th, he left his home, 51 
 Florimond street, at twenty minutes to 8 o'clock, and 
 went to the Arbeiter Zeitung office, reaching there about 
 8 o'clock, where he remained about ten minutes. That 
 while he was there, a telephone message was received, 
 asking Mr. Spies to speak at Deering, and that Schwab's 
 purpose in going to the Haymarket was to get Spies 
 to respond to that call. That he went to the Hay- 
 market, looked hurriedly through the crowd for Spies, 
 failed to fimi him, and then took a car for Deering- him- 
 self, to speak at that point. As to his course, he says 
 that he went over on Washington street, turned north on 
 Desplaines, across Randolph, and that north of Ran- 
 (.'.olph, on Desplaines, he met Schnaubelt, and talked with 
 him about the Deering meeting; then took an east-bound 
 car to the court-house, and at the court-house, a Cly- 
 
30 
 
 bourne avenue car, going out to Deering's factor}-. That at 
 the car stables he was met by a Mr. Preusser. That the 
 time required to go from the Haymarket to the court- 
 house by the car was about ten minutes, and from forty 
 to forty-five minutes were required to go from the court- 
 house to Fullerton avenue. That he went with Mr. 
 Preusser to 888 Cly bourn avenue to see the committee, 
 but not finding them, went out on the prairie, corner of 
 Fullerton and Clybourn avenues, where he met the com- 
 mittee, talked with them a few minutes, mounted the 
 stand, and made a speech of twenty or twenty-five 
 minutes' duration about the eight-hour movement, 
 to the men there gathered, who had struck that day, 
 demanding eight hours work' and ten hours' pay. That 
 after the meeting was over, he returned with Preusser to 
 a saloon, took a glass of beer and some lunch, and then 
 took a car going south, leaving the car at Willow street and 
 walking home, this occupying him about twenty minutes, 
 and reached home at about ii o'clock that night. 
 
 He says that he did not, while at the Haymarket, enter 
 Crane's alley, or any other alley, with Mr. Spies — had no 
 conversation with him near the mouth of any alley; did 
 not walk that night in company with Spies on Randolph 
 street west to Halsted street, and back again to the wagon 
 — did not, in company with Spies, meet Schnaubelt, and 
 did not sec or speak to Spies at all that night at the 
 Haymarket. That he did not say anything to Spies or 
 anybody else, in the mouth of Crane's alley, about pistols 
 or police, or whether one would be enough. Had no 
 such conversation with anybody at the Haymarket, or 
 anywhere else, and did not say to Spies, or anybody else, at 
 any time, that if the police cam.e we were ready for them, 
 or would give it to them, or words to that effect. About 
 the middle of Randolph street he met Mr. Heinemann; 
 
31 
 
 ^e made some inquiry for Spies, and directly thereafter, — 
 it was then about half-past 8 o'clock — he took, the car 
 -on Randolph street, returning to the court house, and 
 about twenty minutes of 9 he took the Clybourn avenue 
 <ar. 
 
 That Mr. Schwab was at 107 5th avenue, and there 
 received a telephone call to Deering, Spies being tirst 
 -called for, and that he left that place after receiving that 
 telephone message is evidenced as follows: By the posi- 
 tive testimony of Patterson (A., 228; M., 42), Waldo 
 (A., 245; M., 168), Bach (A., 279; M., 398, 399), and 
 Fielden (A., 265; M., 307). That the telephone mes- 
 sage was sent from Deering to the Arbeiter Zeitung, is 
 ■evidenced by the testimony of Preusser (A., 248, 249; 
 M., 197-200). That he was seen on the corner of Ran- 
 dolph and Desplaines at the time stated by him is evi- 
 denced bj' the witnesses of the prosecution, Heinemann. 
 a reporter of the Tribune (A., 126; K., 232), and Owen, 
 a reporter of the Times (A., 124; K., 202). A^o other 
 -witness, except Mr. Thompson, claims to have seen Schwab 
 upon this allegitd journey fro7n the alley, on Desplaines 
 .and Randolph streets, and back again. That something 
 after 8 o'clock, Schwab came south on Desplaines street 
 and took an east-bound car on Randolph, is evidenced by 
 the testimony of Hermann Becker (A., 250). 
 
 That he, in fact, went to Deering and spoke there, is 
 historic, and will not be questioned by the representatives 
 of the state. Concerning his arrival, etc., we desire, how- 
 ever, to call attention to the testimony of Edward Preus- 
 ser (A., 249; M., 200), Fritz Stettler (A., 250), William 
 Radtke (A., 221) and Dietrich Behrens (A., 222 ). These 
 witnesses confirm Schwab's testimony in every material 
 particular; their testimony conclusivelj' shows that he 
 remained at Deering, all told, at least three-quarters 
 
32 
 
 of an hour, and from that to an hour, liaving reached" 
 there at half-past 9 to twenty minutes to 10. It is 
 demonstrated, therefore, that he did not leave Deering 
 until in the neighborhood of half-past 10 o'clock and 
 that it was nearl}- an hour's journey from there to the 
 Haymarket. It will not be pretended by the representa- 
 tives of the state that Mr. Schwab was at the Haymar- 
 ket during the meeting that night, although certain of the 
 state's witnesses early in the case stated that they thought 
 they saw him there during the speaking; nor will it be 
 pretended that he was present at the time of the explosion 
 of the bomb. 
 
 (/;.) Spies' movements. 
 
 In order to further demonstrate the error of Mr. 
 Thompson, we now call attention to the testimony of 
 Mr. Spies and of other parties accounting for his move- 
 ment that night, and absolutely refuting this story. 
 
 August Spies testifies in reference to this matter (A., 
 299, N, 33 e/ se^^. ), that he arrived at the Haymarket 
 about twenty to twenty-tive minutes after 8, in com- 
 pany with his brother Henry; that when he reached 
 there no meeting was in progress, but there were crowds 
 standing about the corners; that he looked about for a 
 speakers' stand and selected the wagon, without moving 
 it; that after some moments he called the crowd together, 
 mounted the wagon and inquired for Parsons. That 
 some one replied that Parsons was speaking at the corner 
 of Halsted and Randolph streets, and that thereupon he 
 descended from the wagon, and, in company with his 
 brother Henry, with Ernest Legner and with Rudolph 
 Schnaubelt, whom he had just met, he started to find 
 Parsons; tliat Schzvab ivas nut -.cith him at that time nor 
 
33 
 
 at any time during that evening, and that Schnaubelt told 
 him that Schwab had gone to Deering. That he did not 
 go, on leaving the wagon, to the month of Cratie's alley, 
 and did not enter it or have any conversation there with 
 Schwab or any one else in which he referred to pistols 
 and police, nor any other matter, and never had any such 
 conversation 'with anybody. Th'at on leaving -the wagon 
 he moved in a south-westerly direction obliquely across 
 Desplaines street to the corner of the Haymarket, and 
 from there went west on Randolph a little beyond Union, 
 when, seeing only some small groups of people, and not 
 seeing Parsons, he returned and again walked diagonally 
 across Desplaines street to the wagon; that he had no con- 
 versation with Schwab at the corner of Union street, nor 
 with anj'body else, in which there was any suggestion 
 about being ready for them, or giving it to them, or any- 
 thing of that kind. That he did not meet Schnaubelt 
 on the sidewalk south of the alley on Desplaines street, 
 but that Schnaubelt was with him in. walking from the 
 wagon to Randolph, west on Randolph and back to the 
 wagon. That there was no truth whatever in the testi- 
 mony of Thompson upon the stand in regard to this. 
 
 This testimony of Spies is corroborated in every ma- 
 terial particular by the testimony of Henry W. Spies 
 (A., 240, 241), and finds corroboration in the testimony 
 of other witnesses, as follows: 
 
 That after inquiring for Parsons from the wagon, and 
 then dismounting therefrom, he walked in a south- 
 westerly direction in a group of three or four men toward 
 the north-west corner of Desplaines and Randolph, and 
 did not go in the direction of the Crane Bros, alley, or 
 into it, is evidenced by Wilhelm Sahl (A., 205), who 
 swears that he stood about the middle of Desplaines 
 street in a south-westerly direction from the wagon, and 
 
34 . 
 
 this group passed him. Sahl also says that he kno-j.'s 
 Schwab, and that he did not see Schzuab with Spies on 
 the wagon, or afterwards, and that he was not in the 
 group of men who accompanied Spies. 
 
 Carl Richter (A., i86, 187) says that he had been 
 slightly acquainted with Spies for a year or more prior 
 to the Haymarket meeting; that he attended that meeting, 
 standing in the mouth of Crane's alley when the meeting 
 was opened; that Spies, after having asked for Parsons, 
 left the wagon, but the witness did not see him enter the 
 alley, although there was nothing to have prevented his 
 seeing him, had he in fact gone in there. That he went 
 to the meeting with Robert Lindinger, who remained 
 with him during the entire evening. 
 
 Robert Lindinger ■ (A., 215), testifies that he was 
 with Richter, standing at the mouth of Crane's alley, 
 about midway between the two sidewalks, and midway be- 
 tween the curbstone and the building line, and that he 
 did not see Spies or anybody else pass into the alley — 
 had never seen Schwab in his life before the time of his 
 testifying; saw Spies leave the wagon after asking for 
 Parsons, and return in about five or ten minutes, and then 
 open the meeting. 
 
 Frederick Liebel (A., 188) testifies that he was stand- 
 ing by the lamp-post on the corner of the alley, when 
 Spies inquired for Parsons and then left the wagon: 
 that he knew Schwab by sight, but did not see him on 
 or near the wagon when Spies made his inquiry ; didnU 
 sec Schwab there thai night, and didiCt see Spies go 
 towards the alley; that the lamp was lighted at the time 
 and light enough for him to notice faces. It is evident, 
 that if Spies and Schwab had entered the alley and 
 had the conversation detailed by Thompson,- the wit- 
 nesses last named, from their respective positions with 
 
35 
 
 reference to that locality, could not have failed to observe 
 the parties attempted to be involved. 
 
 Besides this, the testimony of August Spies and of Henry 
 Spies, as to the direction taken by them when August 
 Spies left the wagon in search of Parsons, and that he did 
 not go into the alley, as testified by Thompson, is posi- 
 tively corroborated by at least two of the witnesses for 
 the state, who were on the stand before Mr. Thompsorl 
 testified. Officer Cosgrove (A., 120, 121 ; K, 167), testifies 
 that "when Spies got on the wagon first, he called out 
 " twice if Parsons was there, and told somebody in the 
 " crowd to go and find Parsons, and he said Fielden 
 " would be here later. Then he said he would get down 
 " from the wagon and go and find Parsons, himself. He 
 " o-ol dozvn and zvoit in a soiith-iveslerly direction. He came 
 " back in a short time and commenced speaking." 
 
 Still stronger is the testimony of Officer McKeough, 
 'who, like Cosgrove, was detailed on detective service at 
 that meeting. His testimony is as follows (A., 122; K, 
 176) : " Spies got on the wagon and called out twice, ' Is 
 «' Parsons here? ' He received no answer, and said, ' Never 
 c' mind, I will go and find him myself.' Somebody 
 " said, ' Let's pull the wagon around on Randolph street 
 " and hold the meeting there.' Mr. Spies said, ' We may 
 <' stop the street cars.' He started away then, and Officer 
 " Meyers and myself followed him as far as the corner. 
 " There was a man with him, who I think was Schwab, but 
 " I am not very sure about that, and in about five minutes 
 " he returned, and when I got back he was addressing 
 " the meeting, and talking about what had happened to 
 " their brethren the day before at McCormick's." 
 
 If it is true, as Officer Cosgrove says, that Spies got 
 down from the wagon and went in a soutii-westerh 
 direction (and this is confirmed by the witness Sahl, as 
 
36 
 
 above stated), and if Officer McKeough with Officer 
 Meyers followed him as far as the corner (the corner of 
 Randolph and Desplaines streets), then the statement 
 of Mr. Thompson that August Spies and Schwab 
 passed from the wagon in a southeasterly direction into 
 the alley, and had there the conversation which he 
 narrates, is shown to be absolutely without founda- 
 tion in fact. This position finds further corroboration, 
 though not so much in detail, from the testimony of 
 Mr. English, who says (A., 129; K., 274), that he 
 was present when Spies got up on the wagon, and that 
 he got down oft' the wagon and went over towards Ran- 
 dolph street. He says further that he was gone perhaps 
 some five or ten minutes, and adds: " As he passed me 
 " in coming back, I asked him if Parsons was going to 
 " speak. I understood him to say, yes. Then he got up 
 " on the wagon and said, ' Gentlemen, please come to 
 " order." How is it, that Mr. English, who knew the 
 parties, had heard them make speeches for years (A., 
 133; K. 284), who, as appears from his testimony, did 
 not only see Spies on his way back to the wagon, but 
 even spoke with him, did not observe that ' getting into 
 a hudde ' of the group, as described so vividly by Mr. 
 Thompson? How is it that Mr. English is so absolutely 
 silent about the presence of Mr. Schwab on that occasion? 
 True, these facts only appear negatively, but it must not 
 be forgotten, that at the time Mr. English was cross- 
 examined, Mr. Thompson had not yet been called upon 
 the stand. 
 
 We feel justified in this connection in calling attention 
 to another matter. Brazleton, the reporter of the Inter 
 Ocean, was named by Mr. Thompson, as the man who 
 pointed out Schwab to him upon the Haymarket some 
 time before 8 o'clock. Brazleton's name was endorsed 
 
37 
 
 on the back of the indictment as one of the witnesses for 
 the State (Record, Vol. i, p. 21, 22), yet Brazleton was 
 not produced by the State as a witness, even when the 
 State was notified by the defendants to produce him. 
 
 Ernest Legner, the young man mentioned in the tes- 
 timony of August Spies and Henry Spies, as accompany- 
 ing them and Schnaubelt on this trip, was also one of the 
 witnesses for the State, whose name was indorsed upon 
 the indictment (Record, Vol. i, p. 21, 22); but who 
 was not produced as a witness, although his pro- 
 duction was demanded by the defendants by formal 
 notice. The omission to produce Legner and put 
 him on the stand, was, in our view, extremely signifi- 
 cant in this case, and that significance will become more 
 apparent when we consider another feature of the testi- 
 mony in connection with the case of Mr. Spies. The fact 
 is, that Legner's presence was very much desired by the 
 defendants, and that every effort, as the record shows 
 was made by them to procure his attendance after it be- 
 came known that the State would not call him as a wit- 
 ness, but unavailingly. Legner had gone out of the state, 
 and his whereabouts could not be ascertained by the de- 
 fendants, nor his attendance procured. The State chose 
 to offer Mr. Thompson's testimony without attempting 
 to corroborate it by Brazleton; and did not produce Mr. 
 Legner, although they had him as a witness before the 
 grand jury (i A., 4), and his name was upon the indict- 
 ment, when they could have easily taken the steps under 
 the provisions of the law which would have compelled 
 his presence and testimony. 
 
38 
 
 (c.) Inherent improbability of Thotnpson^s story. 
 
 As to Thompson's entire story, we have to choose 
 between his uncorroborated statement on the one side, 
 and the testimony of all of the witnesses above reviewed 
 both on behalf of the State and the defendants on the 
 other. No one can hesitate one moment in saying that Mr- 
 Thompson's testimony is refuted by an overwhelming 
 preponderance of the evidence. But beyond this, we de- 
 sire to call attention to certain inherent improbabilities, 
 which characterize this testimony, and which, in our judg- 
 ment, stamp it as unquestionably false. The testimony 
 shows without contradiction that Spies and Schwab were 
 both German born. (A., 296; N, 8, 18.) It was offered 
 by the defendants to prove that they were in the habit of 
 carrying on their personal conversations in their mother 
 tongue, but the offer was rejected by the judge, to which 
 ruling the defendants e.\cepted. (N, 56; A., 303.) In our 
 judgment, this ruling of the court was clearly erroneous, as^ 
 the fact, if proved, was certainly material to be considered 
 in connection with this issue. 
 
 When a man in Mr. Thompson's position admits that 
 he had never before seen either of these parties ; that 
 he never had heard Schwab speak at all and did not 
 Icnow his voice ; that he never had heard Spies speak 
 save the single question from the wagon " Is Parsons 
 here?" — probabl}- spoken in a loud tone of voice, 
 while it is not probable that he shouted in the alley when 
 speaking about police and revolvers, with a crowd of 
 people around him — undertakes to swear positively that 
 standing with his back to a wall he heard a conversation,, 
 and claims that it was held between Spies and Schzvab, 
 though he admits he did not turn around to see zvlw the 
 
39 
 
 ■parties zvere, though he could not recognize them by 
 their voices, and though the first remark occurred about 
 a minute and a half after Spies and Schwab had dis- 
 appeared in the alley, he is making a statement which 
 he has no right to ask any one to believe. But aside from' 
 this, can it be conceived that these two Germans, if 
 engaged in plotting a direful conspiracy, would have 
 carried on their conversation in the English language 
 rather than their mother tongue? Is it reasonable to 
 believe that they would have arranged the details for its 
 execution and for the throwing of that bomb, while they 
 were surrounded by a crowd, as Thompson admits 
 (A., 135, K, 291)? Would conspirators planning street 
 murder, attempt to discuss the details of their plan pub- 
 licly and openly, in a tone of voice which could be heard 
 by an eaves-dropper standing several feet around the 
 corner of the building, or, as was claimed by T'hompsom 
 as to the alleged conversation at the crossing of Union 
 street, in a tone of voice loud enough for the audience of 
 passers-by? 
 
 Still another suggestion. Mr. Thompson admits that 
 he had not seen ever before that night either Schwab 
 or Schnaubelt (K, 291, 307); and Schnaubelt he has 
 certainly never seen since. Yet he undertakes to identify 
 both. Is such identification worthy of consideration? As 
 to Schnaubelt, he saw him only at a distance of eight or 
 ten feet, and then his bac/c zvas turned to Thompson 
 (K, 308); while when Schnaubelt was on the wagon his 
 back was substantially toward where Thompson stood. On 
 that day, as is evidenced by reference to any standard al- 
 manac, the moon was in full dark, and the sun set at 6:59 
 p. M.; so that at 8 o'clock there was no light, save artifi- 
 cial. As to this, the evidence shows conclusively that 
 there was no light on the wagon, and the only street 
 
lamp near was that on the corner of the alley, fully 
 twenty feet from the south end of the wagon. Besides 
 this, there was the electric light from the front of a thea- 
 ter located on Desplaines street, more than a block to the 
 south. The faces of the persons on the wagon, therefore, 
 when they faced west toward their audience, were in the 
 shadow; or, at most, were only in the light in profile. 
 Besides, Schnaubelt had on a hat, which could not but 
 partially shade his face — while his photograph was taken 
 bare-headed. What shall be said of a witness who, after 
 the lapse of more than two months, attempts to identify 
 by a photograph under such conditions, a man whom he 
 was never near enough to master the details of form, 
 color and expression so essential to reliable identification, 
 in the absence of personal acquaintance? 
 
 Mr. Thompson's testimony thus utterly discredited, 
 there remains not a shadow of proof connecting Mr. 
 Schwab with the Haymarket meeting or the throwing of 
 the bomb thereat. 
 
 August Spies. 
 
 (a.) The McCormick Meeting. 
 
 On the afternoon of May 3d, Mr. Spies attended the so- 
 called McCormick meeting. The testimony introduced 
 by the state as to that meeting is as follows: On 
 the afternoon of that day a meeting of the Lumber 
 Shovers' Union was held in the vicinity of McCor- 
 mick's factory, whose object was to receive the report 
 of a committee that had been sent to the bosses of the 
 lumber yards to get the eight-hour concession. There 
 were from five to si.x thousand men in the crowd. The 
 meeting was addressed from the top of a freight car first 
 by one Fehling, afterwards by Spies, the plaintiff in error. 
 
Haraster, the president of the Bohemian section of the 
 Lumber Shovers' Union, tried to prevent the speakers 
 from speaking, and told the people riot to listen to them. 
 (A., 34, 35.) Spies addressed the crowd in German 
 for about ten or fifteen minutes; he was rather excited, 
 and very earnest; the crowd patiently listened to him un- 
 til the bell of McCormick's factory rung (A., 33; I, 
 402), when all of a sudden somebody on the opposite 
 end of the car from which Spies was speaking (A., 
 33; I, 398, 402) shouted, " Now, boys, let us go for them 
 " damn scabs." At that moment a portion of the crowd 
 which was near McCormick's factor}' commenced to 
 move towards McCormick's. (A., 33; 1,403.) Spies 
 did not go with the crowd. (A., 32; I, 395, 396.) 
 The crowd pitched into McCormick's men going home 
 from work, threw bricks, stones and sticks into them and 
 into the windows of the factory. Officer West (A., 
 31), who was stationed at the factory, was himself at- 
 tacked; he turned in the alarm for the police, who arrived 
 within a few minutes and scattered the crowd (A., 32; 
 I, 392), firing into them, and using their clubs. Officer 
 Jinright (A., 35) claims that he heard shots from the 
 ■crowd, but he cannot say whether the police had fired 
 before he heard those shots. However, none of the po- 
 lice were shot, though some of them were hit with 
 stones. (A., 35; 1,420.) Immediately after the patrol 
 wagon, containing eleven policemen, had arrived (A., 
 35; I, 416), a couple of hundred other policemen came 
 upon the ground (A., 36; I, 421); at that time, how- 
 ever, the firing was over. The crowd scattered as soon 
 as they saw the additional force approaching. (A., 
 36; I, 422.) Officer Shane testified (A., 36) that he 
 was detailed to look up the injured citizens, and admits 
 that he found, as a result of the police firing, one who 
 
42 
 
 died, and two or three others who were injured. As to- 
 the contents of Spies' speech, the only testimony offered 
 b)' the state is that of Mr. Baker, who says (A., 33; 
 I, 402) he heard him speak of wives and children and' 
 /wines, and appealing for their protection. 
 
 In connection with the foregoing testimony the state 
 was permitted to introduce in evidence an account of the 
 McCormick meeting, written by Spies and published in 
 the Arbeiter Zeitung the following day. (People's Ex- 
 hibit 6t,; I A., 179). 
 
 The testimony introduced in behalf of the plaintiff in 
 error, Spies, as to the McCormick meeting, so called, was- 
 in brief as follows: That on Sunday morning. May 2d,, 
 at a meeting of the Central Labor Union, which is a body 
 composed of delegates from about twenty-five or thirty 
 different labor unions in Chicago (A., 1S5; L, 156),. 
 the delegates of the Lumber Shovers' Union, then on a 
 strike for the shortening of the hours of labor, suggested 
 that a meeting of the lumber shovers had been 
 called for Monday afternoon at the Black road,. 
 and requested that a good speaker, who could 
 keep the meeting quiet and orderly, be sent to- 
 that meeting. In the afternoon, at another meeting of 
 the Central Labor Union, which Mr. Spies attended m 
 the capacity of a reporter, Mr. Zeller, of the agitatior) 
 committee of the Central Labor Union, requested Mr. 
 Spies to go out the ne.xt day and address the lumber 
 shovers' meeting. All this is uncontradicted and appears 
 from the testimony of Zeller (A., 184, 185; L, 155, 156), 
 Urban (A., 201 ;L, 340-342), Witt (A., 251 ), and Spies- 
 (A., 297; N, 20). 
 
 On the following day Spies went out to the appointed 
 place of meeting, and found there gathered a crowd of 
 over six thousand men. Other speakers were present^ 
 
43 
 
 some of whom preceded him upon the platform. He was 
 introduced by Mr. Breesl, secretary of the Lumber Shov- 
 ers' Union. Objection to his speaking was made b}' some 
 persons present, on the ground that he was a socialist, but 
 Breest stated that Spies had been invited to address the 
 audience and was sent by the Central Labor Union. Mr. 
 Spies then proceeded to speak. (A., 297; A., 253.) The 
 substance of his speech was to the effect that he advised 
 the workingmen to stand together and to enforce their 
 demands at all hazards, otherwise the bosses would, one 
 by one, defeat them. Nothing was said by him of an 
 incendiary nature; no suggestion of violence was made, 
 not one word was said in regard to the use of force or 
 arms. (A., 297; N, 23.) Besides the testimony of 
 Spies, this appears from the testimony of Witt (A., 252; 
 M, 220), Breest (A., 253; M, 229), Schlavin (A., 254; 
 M, 233), Pfeiffer (A., 254; M, 236). 
 
 Spies swears that he had no idea, when he was invited, 
 of any relationship of McCormick's employes to that 
 meeting, or that the locality of the proposed meeting was 
 in the proximity of the McCormick works. (A., 297; 
 N, 21.) Besides, it is shown, without contradiction, that 
 the lumber shovers whom Spies was addressing had 
 absolutely no connection zuith the factory or employes of 
 McCormick. (A., 252; M, 221 ; A., 255, M, 237.) 
 
 While Spies was speaking and when McCormick's bell 
 rang, a part of the crowd oh the outskirts, some 500 
 people, detached themselves and ran towards where the 
 men were coming out of McCormick's works, distant 
 some three or four blocks from the meeting. Spies 
 beckoned to the crowd to remain, saying, in the course of 
 his remarks, that they had nothing to do with McCor- 
 mick's. He went on with his speech to a conclusion, 
 speaking some five or ten minutes after the interruption. 
 
44 
 
 and was thereupon elected by the Lumber Shovers' Union 
 as a member of a committee appointed to wait upon the 
 lumber bosses. (A., 252; M, 223; A., 298; N, 24.) 
 
 Meantime the sound of shots was heard at the meeting, 
 and at the same time the police drove up in a patrol 
 wagon towards McCormick's, followed immediately by a 
 large number of police on foot. Then only, Mr. Spies, 
 who to his duties as editor of the Arbeiter 
 Zeitung added those of a reporter for the same 
 paper, went up to McCormick's, and, coming 
 into the neighborhood of the meeting, discovered that the 
 police were chasing people who were unarmed and flee- 
 ing in every direction, pursuing them behind cars and 
 in various localities, and firing upon them indiscrim- 
 inately. 
 
 At that moment he was advised by one whom he 
 met coming from the direction of McCormick's, a 
 stranger to him, that two men had been carried away 
 dead, and at least twenty-five had been shot, adding 
 words of contempt for the union men, assembled there 
 who would let those men be shot down like dogs. 
 
 Mr. Spies admits that his blood was boiling over what 
 he heard and witnessed, and that he thereupon went back 
 to the meeting that he had been addressing, and made an 
 appeal to them that they should proceed to the relief of 
 the parties who were under the fire of the police, near the 
 McCormick works, but they were unconcerned and went 
 home. Seeing that nothing could be done, Spies returned 
 to the Arbeiter Zeitung office, and under the excitement of 
 the hour, and what he had seen and heard, wrote the Re- 
 venge circular, so-called. 
 
 It is evident from the foregoing review of the testimony 
 that the claim made by the state, that Spies incited the 
 violence against McCormick's property and employes, is 
 
45 
 
 without any foundation in fact. For this reason, the whole 
 evidence relating to the McCormick. meeting was imma- 
 terial; besides, it was wholly irrelevant, as bearing no 
 relation to the Haymarket meeting. A fortiori we claim 
 it was incompetent as against any of the other plaintiffs 
 who are in no wise connected with this affair. There- 
 fore, it was error for the court to admit it over the objec- 
 tion and exception of the plaintiffs in error, particularly 
 those other than Spies. 
 
 {b.) The Reveu^^e Circular. 
 
 We have, however, considered the details of the Mc- 
 Cormick meeting, because it explains the circumstances 
 under which Spies wrote the Revenge circular, the English 
 part of which is as follows: (i A., 141.) "Revenge! 
 " Workingmen! To arms! Your masters sent out their 
 " blood-hounds — the police — they killed six of your 
 " brothers at McCormick's this afternoon. They killed 
 " the poor wretches, because they, like you, had courage 
 " to disobey the supreme will of your bosses. They killed 
 " them because they dared ask for the shortening of the 
 " hours of toil. They killed them to show you ' free 
 " American citizens ' that you must be satisfied and con- 
 " tented with whatever your bosses condescend to allow 
 "you, or you will get killed! 
 
 " You have for years endured the most abject humili- 
 "ations; you have for years suffered immeasurable 
 "iniquities; you have worked yourselves to death; you 
 "have endured the pangs of want and hunger; your 
 " children you have sacrificed to the factory lords — in 
 " short, you have been miserable and obedient slaves all 
 "these years. Why? To satisfy the insatiable greed 
 "and fill the coffers of your lazy, thieving master! When 
 
46 
 
 " you ask him now to lessen your burden, he sends his 
 " blood-hounds out to shoot you, kill you! 
 
 " If you are men, if you are the sons of your grand- 
 " sires, who have shed their blood to free you, then vou 
 " will rise in 3-our might, Hercules, and destroy the hideous 
 " monster that seeks to destroy you. 
 
 " To arms, we call you, to arms! 
 
 " Your Brothers." 
 
 The German part of the circular, which followed the 
 above, expresses the same ideas in substance, and may be 
 found incorporated in the report of the McCormick meet- 
 ing published in the Arbeiter Zeitung of Maj- 4th (i A., 
 179-182). 
 
 As to the assertion in this circular that six workingmen 
 had been killed, it appears from the testimony of Mr. 
 Spies that he wrote at first that two had been killed, accord- 
 ing to the information received by him before leaving the vi- 
 cinity of McCormick's; but upon seeing a report about 
 the occurrence in the 5 o'clock News, in which it was 
 stated that six men had been killed by the police, Spies 
 changed the figure accordingly. (A., 298; N, 27.) This 
 is not contradicted, and if it were not correct it would have 
 been very easy for the state to prove that the 5 o'oclock 
 edition of the Daily News of that day did not contain any 
 such information. 
 
 The testimony shows that on the same afternoon Mr. 
 Spies detained six compositors in the Arbeiter Zeitung 
 office after the regular hour for quitting work, which was 
 5 o'clock, and had the Revenge circular put in type by 
 them. This was done in about half an hour or an hour. 
 Then the form was sent over to Burgess' printing 
 establishment, where, from time to time, ditTerent parties 
 called to get copies of that circular. 
 
47 
 
 The testimon)- further shows that this circular was dis- 
 tributed that night, principally at different labor meetings, 
 among them a meeting of the metal workers at Seamen's 
 Hall, a meeting of the Carpenters' Union at Zepf's Hall, a 
 meeting of the brewers at the north side Turner Hall, and 
 at meetings at 54 West Lake street. 
 
 H. C. Smythe, a Tribune reporter, testifies that a fetv 
 minutes after 6 o'clock on Monday afternoon, while stand- 
 ing in the ehtrance of 54 West Lake street, talking with 
 the proprietor, Mr. Greif, his attention was attracted by 
 seeing a few of the circulars flying through the air. He 
 picked up one. Just at that moment he saw a horseman 
 '(A., 92, 93), but he did not see the man on horseback 
 distributing the bills, and is not positive that the man who 
 rode the horse brought the circulars. This testimony is 
 •entirely uncorroborated by any other evidence in the 
 record. As to the time fi.ved by Mr. Smythe, he is di- 
 rectly contradicted by Riechel, also a witness for the state, 
 who says it was after 7 o'clock when he took the galley of 
 ihe Revenge circular over to Burgess (A., 94; J, 384). 
 
 There were printed about twenty-five hundred of those 
 circulars (A., 84; J, 280), but not more than half of 
 them were actually distributed (A., 298; N, 27). 
 
 In regard to his motives in publishing this circular, Mr. 
 Spies gives the following explanation (A., 311; N, 99 ct 
 scg.): " When I wrote it, I thought it was proper; I 
 " don't think so now. I wrote it to arouse the working 
 " people, who are stupid and ignorant, to a consciousness 
 " of the condition that they were in, not to submit 
 " to such brutal treatment as that by which they 
 ■" had been shot down at McCormick's. I wanted 
 " them not to attend meetings under such circumstances 
 " unless they could resist. I didn't want them to do any- 
 ■" thing in particular; I didn't want them to do anything. 
 
48 
 
 «• That I called them to arms is a phrase, probably an 
 " extravagance. I did intend that they should arm them- 
 " selves. I have called upon the workingmen for years 
 " and years, and others have done the same thing before 
 " me, to arm themselves; they have a right under the 
 " constitution to arm themselves, and it would be well for 
 " them if they were all armed. I called on them to arm 
 " themselves, not for the purpose of resisting the lawfully 
 " constituted authorities of the city and county, in case 
 " they should meet with opposition from them, but for 
 " the purpose of resisting the unlawful attacks of the 
 " police, or the unconstitutional or unlawful demands of 
 " any organization, whether police, militia or any other." 
 
 There is also evidence tending to show that this cir- 
 cular was read before a meeting of the armed sections of 
 different socialistic organizations held on the night of May 
 3, 1886, in the basement of 54 West Lake street, of 
 which meeting we shall speak more fully hereafter ; that 
 the McCormick meeting and the action of the police 
 thereat were discussed by that meeting, and as a result 
 the Haymarket meeting was called for the next evening, 
 for the express purpose of denouncing the atrocious act 
 of the police. 
 
 But there is no evidence whatever tending to show 
 that Mr. Spies had any knowledge of, connection with, 
 or relation to that meeting of the armed groups; there is 
 no evidence that he knew that such a meeting would 
 be held or that the circular written by him would 
 be read by that meeting. Not one word can be found 
 in the circular itself which in anywise relates to the 
 Haymarket meeting, or the throwing of the bomb thereat. 
 There is no evidence whatever that the party who threw 
 the bomb ever read the circular, ever heard of it or ever 
 was influenced or induced by it lo commit the crime 
 
49 
 
 charged in the indictment. Its being permitted to be in- 
 troduced in evidence and read to the jury as evidence 
 against all plaintiffs (A., 27; O, 348-9) was palpable 
 error. 
 
 (c.) The circular calling- the Hay market meeting. 
 
 On the morning of May 4, 1886, August Spies was 
 asked by Adoiph Fischer to address a meeting of work- 
 ingmen on the Haymarket square that evening. (A., 
 299; N., 29, 30.) To this request Mr. Spies gave a 
 favorable answer. Shortly thereafter, there came under 
 his observation, for the first time, the circular calling the 
 meeting, in the preparation of which circular he had had 
 no part. The English portion of the circular, as pre- 
 sented to him, was in the words and figures following: 
 
 "Attention, Workingmen! Great mass-meeting to- 
 " night, at 7:30 o'clock, at the Haymarket, Randolph St., 
 " bet. Desplaines and Halsted. Good speakers will be 
 " present to denounce the latest atrocious act of the police, 
 " the shooting of our fellow-workmen yesterday afternoon. 
 ' Workingmen, arm yourselves, and appear in full force! 
 " The Executive Committee." 
 
 Immediately upon reading the circular over, Mr. Spies 
 stated that the line, " Workingmen arm yourselves and 
 " appear in full force," must be stricken out of the cir- 
 cular, or he would not attend the meeting or speak 
 thereat. (A., 299; N, 31, 32.) His reasons for doing 
 this Mr. Spies states as follows (A., 311; N, 97, 98): 
 " I objected to that principally because I thought it was 
 " ridiculous to put a phrase in which would prevent peo- 
 " pie from attending the meeting; another reason was 
 " that there was some excitement at that time, and a call 
 " for arms like that might have caused trouble between 
 
50 
 
 *' the police and the attendants of that meeting." At that 
 time the circulars had not been distributed, and but a 
 few of them had been printed. It is possible that a few 
 of those that had been printed had theretofore been 
 •or were thereafter carried away by unknown parties, 
 but there was no general distribution of that circu- 
 lar. Mr. Fischer at once acquiesced in the proposal that 
 that line should be stricken out and sent over to the 
 printers, Wehrer & Klein, and had the line taken out; 
 and thereafter about 20,000 circulars were printed 
 with this line omitted, otherwise the same as above, 
 and distributed generally throughout the city. (A., 299, 
 N, 32; A., 257, M, 251-253; A., 138, K, 319, 320.J 
 This circular called the Haymarket meeting, and 
 the foregoing is August Spies' connection and his 
 entire connection therewith. He had, personally, noth- 
 ing whatever to do with the calhng of the meeting, and 
 no instrumentalit)' in procuring it to be called. He knew 
 nothing of any purpose to hold the meeting until, on the 
 morning of May 4th, he was requested by Mr. Fischer to 
 address it. (A., 299, N, 30.) That afternoon, in the issue of 
 the Arbeiter Zeitung, this circular was reprinted in the an- 
 nouncement column, in the same form in which it was dis- 
 tributed, namely: with the line, " Workingmen, arm your- 
 " selves," etc., omitted. (^X, 32.) 
 
 \ d. ) The signal '■'■RuhcP 
 
 It appears that the meeting of the armed sections at 
 54 West Lake street, on Monday night, resolved that in 
 ■certain contingencies, tiie word " Ruhe" should be^ pub- 
 lished in the Arbeiter Zeitung under the heading " Brief- 
 kasten '" (Letter-box), as a signal for certain action by 
 the members there present. This we shall consider more 
 
particularly in the review oE the case made against 
 Adolph Fischer. It also appears that in the Arbeiter 
 Zeitung of May 4th the word " Ruhe " actually did 
 appear under the heading " Briefkasten." "Ruhe" is 
 a German word, meaning quiet, rest. (A., 4; J, 59.) 
 Mr. Spies wrote the word " Ruhe " for insertion in the 
 Arbeiter Zeitung on May 4th, as he himself admits; but 
 there is no evidence showing or tending to show that Mr. 
 Spies at the time knew of any special import attached to 
 that word. In fact, there was no evidence introduced by 
 the state as to how Mr. Spies came to write that word 
 for publication. Mr. Spies himself gives the following 
 account, which is entirely uncontradicted (A., 306; N, 
 63 e/ seg.): "It happened just the same as with any 
 " other announcement that would come in. I received a 
 " batch of announcements from a number of labor or- 
 " ganizations and societies a little after 11 o'clock in m\- 
 " editorial room, and went over them. Among them was 
 " one which read, ' Mr. Editor, please insert in the letter- 
 " bo.x the word " Ruhe " in prominent letters.' This was 
 " in German. There is an announcement column of 
 " meetings in the Arbeiter Zeitung, and a single word, or 
 " something like that, would be lost sight of in the an- 
 " nouncements. In such cases, people generall)' ask to 
 " have that inserted under the heading of letter-box. 
 " Upon reading that request, I just took a piece of paper 
 " and marked on it ' Brief-kasten ' and the word ' Ruhe.' 
 " The manuscript which is in evidence is in my hand- 
 " writing. At the time I wrote that word, and sent it up to 
 " be put in the paper, I did not know of any import what- 
 " ever attached to it." 
 
 This explanation finds corroboration in the testimony of 
 Fricke, a witness for the prosecution, and formerly book- 
 keeper for the Arbeiter Zeitung, who says (A., 43, I, 487, 
 
52 
 
 ei seq.): " About the ist of Ma}' there was sometimes 
 " almost a whole column in the Arbeiter Zeitung occupied 
 " by notices of meetings of workingmen at different 
 " places and halls. They would bring such notices to the 
 " Arbeiter Zeitung and say to Mr. Spies, ' put so and so 
 " under the column of meetings.' It was a common thing 
 " for postal cards to be received at the office of the Ar- 
 "beiter Zeitung, and that Spies or Schwab would take it 
 " and read it over, and then revise it or alter it, and send 
 " it up for publicadon in the letter-box, or in this column 
 " where notices were published." 
 
 Mr. Spies further says in regard to the same subject 
 (A., 306, 165): "My attention was next called to the 
 " word Riihc, a little after 3 o'clock in the afternoon. 
 " Balthazar Rau, an advertising agent of the Arbeiter 
 " Zeitung, came and asked me if the word Ruhe was 
 ('in the Arbeiter Zeitung. I had myself forgotten about 
 "it, and took a copy of the paper and found it there. 
 " He asked me if I knew what it meant and I said I did 
 " not. He said there was a rumor that the armed sections 
 "had held a meeting the night before and had resolved to 
 " put in that word as a signal for the armed sections to keep 
 " themselves in readiness, in case the police should precipi- 
 " tate a riot, to go to the assistance of the attacked. I sent 
 " for Fischer, who had invited me to speak at the meeting 
 " that evening, and asked him if that word had any refer- 
 " ence to that meeting. 1 He said none whatever, that it was 
 " merely a signal for the bo3-s, for those who were armed 
 " to keep their powder dry in case they might be called 
 " upon to fight within the next days. I told Rau it was a 
 " very silly thing, or at least there was not much rational 
 4' sense in that, and asked him if he knew how it could be 
 i' managed that this nonsense would be stopped, how it 
 " could be undone, and Rau said he knew some persons who 
 
53 
 
 " had something to say in the armed organizations, and I 
 " told him io go and tell them that the word was put in by 
 " mistake. Rau went, pursuant to the suggestion, and re- 
 " turned to me at 5 o'clock. I was not a member of any 
 "armed section; I have not been for six j'ears." 
 
 That the signal, Rtihe, had no relation whatever to the 
 Haymarket meeting will appear conclusively when we 
 come to consider the Monday night meeting. That Mr. 
 Spies had no knowledge of its meaning at the time he 
 wrote it for insertion in the Arbeiter Zeitung, there is no 
 reason to doubt; that he did not consent to any action to 
 be taken pursuant to such signal, and that, in fact, he did 
 all he could to prevent its being acted upon by those who 
 knew its meaning, appears from his own testimony, 
 which is not contradicted. 
 
 (e.) Spies'' Haymarket speech. 
 
 Ontheeveningof May 4th, Mr. Spies attended the Hay- 
 market meeting, was the first of the speakers on the ground, 
 although he did not arrive until about half-past 8; he 
 explained the tardiness of his appearance by saying that he 
 understood he was to address the meeting in German, 
 and expected that English speakers would precede him 
 (A., 299; N, 33). After Mr. Spies had mounted the 
 truck wagon near the Crane Bros, factory, somebody 
 suggested to draw the wagon into the Haymarket, to 
 which Spies replied that the crowd will interfere with the 
 street traffic. (A., 300, N, 36; A., 129, K, 275.) Then, 
 after inquiring for Mr. Parsons, Mr. Spies went in search 
 of him, as already detailed in the review of the testimony 
 in Mr. Schwab's case. About ten minutes thereafter, 
 returning to the wagon, not having found Parsons, he 
 commenced speaking and spoke for about twenty min- 
 
54 
 
 utes. Directl}' after Parsons' arrival, he brought his re- 
 marks to a close, and introduced Parsons. 
 
 Concerning the speech itself, Mr. English read his 
 short-hand notes, taken on a tablet in his coat pocket. 
 There are occasional breaks in Mr. English's notes, which 
 he could not supply; but to give the connection as fully as 
 may be we will simply quote the testimony of Mr. En- 
 glish as it stands in the record (A., 129; K, 276): 
 
 " Gentlemen and fellow-workmen, Mr. Parsons and 
 " Mr. Fielden will be here in a very short time to address 
 " you. I will say, however, first, this meeting was called 
 " for the purpose of discussing the general situation of the 
 " eight-hour strike, and the events which have taken 
 " place during the last forty-eight hours. It seems to 
 " have been the opinion of the authorities that this meet- 
 " ing has been called for the purpose of raising a little 
 " row and disturbance. This, however, zvas not the intcn- 
 " tion of the committee that called the meeting. The 
 " committee that called the meeting wanted to tell you 
 " certain facts of which you are probabl}' aware. The 
 " capitalistic press has been misleading, misrepresenting 
 " the cause of labor for the last few weeks, so much so " — 
 " there is something here unintelligible that I cannot 
 " read; some of it went off on the side of my pocket; 
 "the next is: "Whenever strikes have taken place; 
 " whenever people have been driven to violence by the 
 " oppression of their " — something unintelligible — " Then 
 " the police " — a few unintelligible words, then there were 
 " cheers — " But I want to tell you, gentlemen, that these 
 " acts of violence are the natural outcome of the degra- 
 " dation and subjection to which working people are sub- 
 "jected. I was addressing a meeting of ten thousand 
 " wage slaves, yesterday afternoon, in the neighborhood 
 " of McCormick's. They did not want me to speak. 
 
55 
 
 "The most of them were good, church-going people. 
 " They didn't want me to speak because I was a socialist.. 
 " They wanted to tear me down from the cars, but I 
 " spoke to them and tola them that they must stick to- 
 " gether," — some more that is unintelligible — " and he 
 " would have to submit to them if they would stick to- 
 " gether." The next 1 have is, " They were not anar- 
 " chists, but good, church-going people; they were good 
 " Christians. The patrol wagons came and blood was 
 " shed." Some one in the crowd said, " Shame on them ! "' 
 The next thing I have is, " Throwing stones at the factO' 
 "ry; most harmless sport." Then Spies said, "What 
 "did the police do?" (Some one in the crowd said, 
 " Murdered them.") Then he went on, "They only came 
 " to the meeting there as if attending church." * * * 
 " Such things tell you of the agitation." * * * 
 " Couldn't help themselves any more. It was then when 
 " they resorted to violence." * * * " Before 3'ou 
 " starve." * * * " This fight that is going on now is 
 " simply a struggle for the existence of the oppressed 
 " classes." My pocket got fuller and fuller of paper, my 
 " notes got more unintelligible, the meeting seemed to be 
 " orderly; 1 took another position in the face of the 
 " speaker, took out my paper, and reported openly during' 
 " all the rest of the meeting. The balance of my notes I 
 " have not got. From what appears in my report in the 
 " Tribune I can give you part of what Spies, Fielden and 
 " Parsons said. It is, however, only an abstract of what 
 " they .said. So far as it goes it is verbatim, except the 
 " pronouns and the verbs are changed." 
 
 The balance of Spies' speech is as follows (reading) : 
 " It was said that I inspired the attack on McCormick's. 
 " That is a lie. The fight is going on. Now is the 
 " chance to strike for the existence of the oppressed 
 
56 
 
 " classes. The oppressors want us to be content. They 
 " will kill us. The thought of liberty which inspired 
 " your sires to fight for their freedom ought to animate 
 " you to-day. The day is not far distant when we will 
 " resort to hanging these men." (Applause and cries of 
 " Hang them now.") " McCormick is the man who 
 " created the row Monday, and he must be held responsi- 
 " ble for the murder of our brothers." (Cries of " Hang 
 "him.") "Don't make any threats — they are of no 
 " avail. Whenever you get ready to do something do it, 
 " and don't make any threats beforehand. There are in 
 " the city to-day between forty and fifty thousand men 
 " locked out because they refuse to obey the supreme will 
 " or dictation of a small number of men. The families of 
 " twenty-five or thirty thousand men are starving because 
 " their husbands and fathers are not men enough to with- 
 " stand and resist the dictation of a few thieves on a grand 
 " scale, to take it out of the power of a few men to say 
 " whether they should work or not. You place your 
 " lives, your happiness — everything, under the arbitrary 
 " power of a few rascals who have been raised in idle- 
 " ness and luxury upon the fruits of your labor. Will 
 "you stand that.'^" (Cries of " No.") "The press say 
 " we are Bohemians, Poles, Russians, Germans — that 
 " there are no Americans among us. That is a lie; every 
 " honest American is with us. Those who are not are 
 " unworth}' of their traditions and their forefathers." 
 
 " Spies spoke fifteen or twenty minutes. What I have 
 " given here would not represent more than five or six 
 " minutes of actual talking." 
 
 We submit, with great confidence, to this court, that 
 the reading of Mr. Spies' speech, as above reported, dem- 
 onstrates the position that he was not counseling, nor 
 even contemplating, any act of violence for that occasion. 
 
57 
 
 That so far from making a speech in furtherance of a 
 conspiracy to cause the throwing of a bomb that night at 
 that meeting for purposes of violence, he was in fact sim- 
 ply commenting upon the then existing situation, and the 
 probable outcome thereof, with no thought of any attack 
 either by or upon the police then and there. In other 
 words, there is in this speech nothing in the nature of an 
 incitement to violence. The facts that occurred after the 
 making of this speech, and up to the time when the 
 meeting was interrupted by the descent of the police, we 
 have already presented, in connection with our observa- 
 tions as to the cases of Mr. Schwab, Mr. Fielden and 
 Mr. Parsons. 
 
 (_/'.) Gilmer'' s testimony. 
 
 At this point in their attempted case the state intro- 
 duced as a witness Harry L. Gilmer. The character of 
 the testimonj' of this witness demands a careful scrutiny 
 thereof, and we shall not need to apologize to this court 
 for any length to which we may carry our criticism. 
 
 Mr. Gilmer testified in effect (A., 141-147; K, 362- 
 412), that he went to the Haymarket meeting, reaching 
 there about a quarter to 10 o'clock, on his way home 
 from the Palmer House, where he says he went ex- 
 pecting to meet Governor Merrill and Judge Cole, of 
 Iowa. He stood near the lamp-post on the corner of 
 Crane Bros.' alley, between the lamp-post and the wagon 
 and up near the east side of the wagon for a few 
 minutes; Fielden was speaking when he came to the 
 meeting; he stood there for a few minutes looking 
 for a party whom he expected to find there, and then 
 stepped back in the alley between the Crane Bros. 
 building and the building immediately south of it; 
 
58 
 
 standing in the alley and looking around, he noticed 
 parties in conversation directly across the alley on the 
 south side thereof; some one on the edge of the side- 
 walk said: "Here comes the police"! and there was 
 a sort of a rush to see the police come up; a man 
 thereupon came from the zvagon dozun to the parties- 
 on the south side of the alley, lit a match and touched 
 ofT something, a fuse which commenced to fizzle, and 
 the party who held it took two steps forward and tossed 
 it into the street; he knew by sight the man who threw 
 " the fizzing thing into the street," but did not know his 
 name; he was a man about five feet ten inches high, 
 somewhat full-chested, with a light sandy beard, full 
 faced, with an eye set somewhat back in the head, and 
 probably weighing i8o pounds; he had on a brown or 
 black hat; the photograph of Schnaubelt, presented to. 
 the witness, is the man who threw the bomb out of the 
 alley; Spies was the man who came from the wagon 
 toward the group; and Fischer was one of the group ;^ 
 after the bomb was thrown these parties immediately left 
 through the alley: witness stood still until the firing 
 ceased. 
 
 Upon cross-examinatioti he stated that he made no out- 
 cry at that time, and did not for some time afterwards 
 communicate to any person whatever what he had seen 
 and heard upon that night, although he had different 
 conversations about the meeting in which he had stated 
 that he had been there. On the afternoon of the 
 ne.vt day at the city hall he did state to a Times 
 reporter and another man, that he believed he could 
 identify the man who threw the bomb if he ever saw hinv 
 again, but did not at that time detail the occurrence; 
 from the position which he occupied in the alley, he could 
 not see the wagon, and therefore (//(/ not see Spies get of 
 
59 
 
 the zuagon, but that he came from the direction of the 
 wagon, and that he had seen Spies be/ore sta>idi)io- on 
 the sidexvalk and talking with somebody; he was inclined 
 to think it was Schwab; he did not run at the time of the 
 shooting, but stood perfectly still; there were no bullets 
 coming in around his locality in the alley; and after it 
 was all over, he backed out of the alley, took a car and 
 went home; there was much excitement and talking about 
 the meeting upon the car and elsewhere, but he com- 
 municated to nobody what he had seen or heard; his 
 interview as to these occurrences had been mostly with 
 detective James Bonfield, but he would not be positive that 
 he had ever told Mr. Bonfield that he saw the man light 
 the match (K, 392); he had seen Spies and knew him 
 by sight for a year and a half, but not by name, 
 had frequentl}' seen and heard him speak at public 
 meetings, but never inquired what his name was, 
 though he had heard him once at a meeting on Market 
 street, a year ago last spring, and had seen from the 
 paper afterwards that Spies had been one of the speakers 
 at that meeting. Witness was in the city at the time of 
 the proceedings before the different coroner's juries, who 
 investigated the cause of the death of the officers killed 
 at the Haymarket; that the officers then knew his name 
 and address, i)ut that they never called upon him to go 
 either before the grand jury or the coroner's jury. He 
 stated that he detailed his experiences at the Haymarket 
 to Mr. Grinnell on the Sunday after the Haymarket meeting, 
 but that he only told Mr. Grinnell that he believed he could 
 identify the person who threw the bomb if he saw him; 
 he thought, however, that he told him he saw one 
 man strike the match and light the fuse, and another man 
 throw the bomb; he had received money from time to 
 time in small sums from Bonfield, but he had not told 
 
6o 
 
 any one except the officers named that he saw the act of 
 lighting the bomb accompHshed; witness was six feet 
 three inches in height and could nearly see right over 
 the head of the man who threw the bomb. 
 
 This is substantially Gilmer's testimony. We believe 
 we can demonstrate that it is absolutely untrue. 
 
 We will demonstrate from the record (i) that Gilmer's 
 description of the bomb-thrower does not fit Schnaubelt; 
 (2) that August Spies did not enter the Crane Bros, alley 
 at the time sworn to; (3) that at that very time Adolph 
 Fischer was in Zepf's Hall, more than half a block dis- 
 tant; (4) that the bomb was not thrown out of the alley 
 at all, but from the sidewalk, on Desplaines street from a 
 point variously estimated from fifteen to forty feet south 
 of the alley line, from behind a lot of boxes that were 
 piled on the outer edge of the sidewalk next south of the 
 lamp-post which stood on the south-east corner of the 
 alley; (5) that Gilmer's character for truth and veracity 
 and his testimony are impeached. 
 
 I. Schnaubelt's Height. 
 
 The record shows without contradiction that Schnau- 
 belt was a man about six feet three inches high (A., 303, 
 N, 56), and therefore it would have been a physical im- 
 possibility for Mr. Gilmer to see over his head. 
 
 2. Spies did not enter the alley. 
 
 That Spies did not enter the alley at all at the time 
 testified by Gilmer, but in fact remained upon the wagon 
 until the order to disperse had been given, and then dis- 
 mounted therefrom and turned immediately north, pro- 
 ceeding in the direction of Zepf's Hall, is proved by the 
 following testimony: 
 
(i.) August Spies himself so testifies. He says that 
 when Capt. Ward commanded the dispersal of the audi- 
 ence, he, Spies, was upon the wagon (A., 303; N, 53), 
 and that his brother Henry, together with Ernst Legner, 
 stood by the side of the wagon and reached their hands 
 out and helped him to dismount; that just as he reached 
 the sidewalk he heard the explosion; that when the 
 firing commenced, he pushed or was carried along with 
 the people towards the north, going into Zepf's Hall in the 
 confusion, and afterwards making his way home; that he 
 did not go to the alley at all, nor in the direction of the alley. 
 
 (2.) Henry Spies (A., 241, 242; M, 148, 150) testifies 
 that when the police commanded the meeting to disperse, 
 his brother Angust was still upon the wagon, that he was 
 standing by the side of the wagon and told August to 
 get off, and he reached out his hand and helped him 
 down; that just as August dismounted from the wagon 
 some one jumped behind him with a pistol which Henry 
 Spies grabbed, and in warding oft' the pistol shot from 
 August received it in his own person, the ball passing 
 through the testicle in a downward oblique direction. The 
 direction of the ball, it may here be stated, was 
 demonstrated by the production of the clothing worn by 
 Henry Spies, showing where the ball went in and where 
 it came out, and by the positive testimony of Dr. Thilo, 
 who attended Henry Spies for this wound. (A., 275.) 
 It is true that Henry Spies, directly after the Haymarket 
 meeting, stated to the police officers that he received this 
 wound while standing in the door of Zepf's saloon, and 
 that it was a stray shot from the direction of the Hay- 
 market meeting; but he says frankly that the statement 
 was not true, and was resorted to by him to prevent his 
 own arrest, his brothers August and Chris having been 
 already arrested. That it was not true is physically 
 demonstrated by the direction of the wound itself. 
 
(3-) In this connection we deem it proper to call atten- 
 tion to the fact that when August Spies was first arrested, 
 he gave to the police officials this same account of his 
 movements on the night of that meeting, and told them 
 that Legner was with him, as testified by Officer James 
 Bonfield (A., 27; I, 349,350); except that Bonfield says 
 that Spies stated that he went through the alley and 
 came out on Randolph street, after the explosion of the 
 bomb. 
 
 It further appears in the record (i A., 4), that 
 Ernst Legner was a witness before the grand jury; and 
 that his name was indorsed as one of the witnesses 
 for the state on the indictment, but was not used as 
 a witness by the prosecution. We claim, therefore, 
 that it follows as an irresistible conclusion that Ernst 
 Legner, when under oath, gave substantially the same 
 account as to Spies being on the wagon when the 
 police came up, and his helping Spies to dismount from 
 the wagon at the time of the explosion, that was gi%'en by 
 Spies to Bonfield; or the state would have had Legner 
 present and put him upon the stand to contradict this 
 testimony of Mr. Spies and his brother Henry. We 
 argue that Legner's testimony would have fully corrobo- 
 rated the testimony of August Spies and his brother 
 Henry throughout, or he would have been upon the 
 stand to contradict them. 
 
 But, in addition to this testimon}' of August and Henry 
 Spies, that August Spies remained upon the wagon until 
 the order of dispersal was given, and until the very in- 
 stant preceding the explosion of the bomb, and that there- 
 fore it was a physical impossibility that he should have 
 gone from the wagon into the alley, struck, a match, and 
 with it lighted the fuse of the bomb, we call attention to 
 the following testimony: 
 
63 
 
 (4-) Joseph Bach testifies (A., 2S0, 281; M, 404,405) 
 that he and Mithicher were standing upon a plat- 
 form by the door of the building south of the alley, on 
 the Desplaines street east sidewalk, their position being 
 some six feet or more from the alley; from this ele- 
 vation they could look, over the- heads of the crowd stand- 
 ing upon the sidewalk and in the alley space, and have a 
 distinct view of the wagon and its occupants, and those 
 immediately about it; when the police came up he 
 looked at them and then at the wagon; that he saw 
 Henry Spies (to whom he had shortly before spoken, 
 when he himself went up near the wagon, and then re- 
 turned to his point of observation), and noticed August 
 Spies attempt to get from the wagon to the sidewalk; 
 that immediately thereafter he turned to go away, and 
 had taken but one or two steps when the bomb exploded; 
 -il was at the instant before the explosion of the bomb that 
 he noticed Aiis^iist Spies irctting off the wagon, and 
 Henry standing with his arm up to help him down; that 
 he did not see August Spies, shortly before the explosion 
 of the bomb, dismount from the wagon and go to the al- 
 ley near which he stood. 
 
 (5.) Max Mitlacher, a brother-in-law of Bach, who was 
 with him at the time (A, 284-85), corroborates Bach in 
 every particular. He says (Vol. M, 430) that he saw, 
 after the police came tip, Fielden and Spies standing upon 
 the wagon, and saw Spies jump down from the wagon, 
 on the east side, to the sidewalk, and that he saw Henry 
 Spies reach up and help August dismount, though Hen- 
 ry's back was towards him and he did not see his face, 
 but saw his hat; and that he did not see August Spies 
 leave the wagon in advance and come to the alley. 
 
 (6.) John Holloway (A., 22g et seq.) says he stood on the 
 corner of the alley, against the lamp-post, when the 
 
64 
 
 police came (M, 58) ; he looked at the wagon, when the 
 command to disperse was given (M, 61); he did not 
 observe anybody leaving the wagon fj-ior to the appearance 
 of the police. 
 
 (7.) Sleeper T. Ingram, a workingman in the employ of 
 Crane Bros., living at home with his parents (A., 2S6,. 
 287), says he was upon the steps of Crane Bros.' estab- 
 lishment, immediately east of the wagon and but a few 
 feet from it, when the police came up; Fielden and Spies 
 were on the wagon at that time (M, 449); as Fielden 
 made the remark that they were peaceable. Spies ttirned 
 around and started to go off the wagon; he reached his 
 left hand down to be assisted, stooped and jumped, and 
 had no more than got to the sidewalk when the bomb 
 exploded. (M, 451.) 
 
 (8.) Conrad Messer (A., 208) testified that when the 
 police came up and the command to disperse was given, he 
 saw both Fielden and Spies on the wagon (L, 40c), and 
 that Spies left the wagon about the same time that'^Fielden 
 did, perhaps two or three seconds before; that he saw 
 Spies on the wagon after the captain commenced to give 
 the command for the dispersing of the meeting ( L, 401). 
 
 (9.) August Krumm testifies (A., 210: L, 414, 416) that 
 he and a friend of his, named Albright, were in the 
 alley, near the mouth of it, and near the building to the 
 south, at the time the police came up; a short while before 
 the police came up he himself struck a match and lighted 
 his pipe, and held it while Albright also lighted his pipe; 
 that no other match was lighted nor was any fuse lighted 
 in that alley at that time; that he did not see Spies come 
 toward that alley nor into it at any time that evening. 
 
 (10) William Albright (A., 217, 218) corroborates this 
 testimony of Krumm in every particular. 
 
 (11.) William Murphy (A., 255) says that, five or ten 
 
65 
 
 minutes before the police arrived, he climbed upon the 
 wagon to look for a friend whom he supposed to be in the 
 crowd, and remained on the wagon until he heard the word 
 "disperse"; there were about six persons in the wagon 
 when he got up; no one got down from the wagon before 
 he himself dismounted. 
 
 (i2.) Adolph Tennes (A., 259; M, 269) says that at 
 the time the officers came upon the meeting, he stood about 
 four or five feet south of the wagon; that as soon as he 
 heard the order to disperse given, he started to run; and 
 that at the the time he started to run August Spies zvas 
 still on the wagon. 
 
 (13.) Mr. Fielden testifies that Spies was at his side 
 on the wagon when Ward was talking with him. (A., 26S ; 
 M, 318.) 
 
 It is thus demonstrated, by a conclusive preponderance 
 of testimony, that Mr. Spies did not leave the wagon 
 until the order to disperse had been given; it is therefore 
 impossible that he should have stood on the sidewalk at 
 the side of the wagon in conversation with somebody 
 before Gilmer went into the alley. The fact is, Gilmer 
 said on his direct examination that Spies came down from 
 the wagon into the alley and lighted the bomb (A,, 141; 
 K, 363). But upon cross-examination, he stated that 
 at the time Spies came into the alley, he, Gilmer, was 
 standing about twelve or fourteen feet from the mouth of 
 the alley, and was forced to admit that it was physically 
 impossible for him to have seen the wagon from that 
 point; finding himself thus cornered, he said Spies did 
 not get down off of the wagon, but came from towards 
 the wagon, where he had seen him standing on the side- 
 walk, before he, Gilmer, went into the alley (A., 144; K, 
 378-3S0). It is further conclusively shown by the testi- 
 mony of the above witnesses that Spies did not enter the 
 
66 
 
 alley at all, did not there light a match and with that 
 
 match light a bomb or the fuse, and that the story of Mr. 
 
 Gilmer, so far as it attempts to implicate Spies in that 
 occurrence, is absolutely untrue. 
 
 3. Fischer was at Zepf's Hall. 
 
 But neither was Fischer there. Fischer was at that 
 moment in Zepf's Hall, to which point he had gone some 
 little time before. In support of this assertion, we call 
 attention to the following testimony: 
 
 (i.) Otto Wandray testifies (A, 247, 248; Vol. M, 190, 
 196) that he met Fischer at the Haymarket meeting be- 
 tween 9 and 10 o'clock; that after listening to the speak- 
 ing for about half an hour they went to Zepf's Hall, 
 where they had a glass of beer, sitting at a table close 
 behind and a little north of the stove. At the time of the 
 explosion of the bomb, Fischer zvas at Wandray^ s side at 
 Zepfs Hall; when he and Fischer entered Zepf'« saloon, 
 he looked at the clock and it was then a little after 10 
 o'clock. 
 
 (2.) As to Wandray's testimony, we cite, as a matter 
 of confirmation, that Lieut. John D. Shea, of the police 
 force, a witness for the State (A., 60; J, 72), admitted 
 that he had a conversation with Fischer while under 
 arrest at police headquarters, wherein Fischer stated to 
 him that on the evening of May 4th he was at Zepf's 
 Hall at the time of the explosion of the bomb, in com- 
 pany with Wandray; that directly thereafter Wandray 
 was scut for by Shea and examined, attd stated that 
 Fischer ivas in the hall with him at the time of the ex- 
 plosion. 
 
 (3.) Mrs. Lizzie May Holmes (A., 262: M, 287, 288) 
 swears that she went in company with Mrs. Parsons, Mr. 
 
67 
 
 Parsons and Mr. Brown, from the Haymarket meeting to 
 Zepf s Hall shortly before the explosion of the bomb, and 
 was in Zepf's Hall with those parties when the bomb 
 exploded; that afti.T entering the hall, she sazu Fiichcr 
 sitting at the tabic pirther north, and saw him there from 
 time to time thereafter, up to the explosion of the bomb, 
 and does not think that he left the building at all in that 
 interval. 
 
 (4.) Thos. Brown testifies (A., 238, 239; M, 124, 125) 
 that he went to Zepf's Hall on the night of the Hay- 
 market meeting, while Fielden was speaking, in com- 
 pany with Mr. and Mrs. Parsons and Mrs. Holmes; 
 when the party went into the saloon, witness savj Fischer 
 there; this was about four or five minutes before the 
 bomb exploded; witness did not see Fischer go out of 
 the room in that interval. 
 
 (5.) Albert R. Parsons testifies (A., 314, 315; N, 115) 
 that, after moving the adjournment of the Haymarket 
 meeting, he went, in company with Mr. Brown, Mrs. 
 Parsons and Mrs. Holmes, to Zepf's saloon, as before 
 stated; that after entering the saloon, he noticed Mr. 
 Fischer sitting at one of the tables, and spoke to him, 
 sitting at the table himself a few moments, and then went 
 around to where the ladies were; that almost instantly 
 thereafter he saw the flash of the explosion of the bomb, 
 followed by the roar of that explosion, and almost simul- 
 tanously saw and heard the volley of revolvers. 
 
 By the testimony of these witnesses, therefore, Mr. 
 Gilmer's statement that he was almost certain, in fact, 
 quite sure, that Fischer was one of the group in the 
 alley connected with the bomb-throwing, is completely 
 refuted, and the fact that Fischer was at the time of the 
 explosion in Zepf's Hall, and not in Crane Bros.' alley, is 
 established, without other contradiction than this opinion 
 of Gilmer. 
 
68 
 
 4- The bomb was not thrown from the alley. 
 
 We further maintain that the evidence overwhelm- 
 ingly shows, without other contradiction than that of 
 Gilmer himself, that this bomb was in fact not thrown 
 out of the alley at all. We call attention in support of 
 this position to the following testimony: 
 
 ( I.) Officer Louis Haas, one of the witnesses of the 
 state (A., 128; K, 252, 253), testified that he was 
 attending the meeting in citizen's clothes, and that at the 
 time of the throwing of the bomb he was standing in the 
 center of the street, but within five or six feet of the 
 wagon; that he saw the bomb, which came from about 
 jive or six feet south of the corner of the alley. 
 
 (2.) Paul C. Hull, a reporter of the Daily News, also a 
 witness of the state (A., 116), testifies that he was 
 standing, at the time of the explosion of the bomb, upon 
 the landing at the head of the stairway on the brick 
 building at the north-west corner of Randolph and Des- 
 plaines streets; that directly opposite to where he stood 
 was the pile of boxes testified of as south of the lamp- 
 post, on the east side of Desplaines street; that he saw 
 the bomb in its progress through the air before its ex- 
 plosion, and, according to his recollection (K, 124), 
 it seemed to come from about ffleen to twenty feet south 
 of Crane's alley, flying over the heads of the police. On 
 cross-examination he further testified (A., 118; K, 141) 
 that his recollection is that the bomb struck the ground 
 about on a line with the south line of the alley, and that 
 it apparently fell north from the point where he first saw 
 it in the air. 
 
 (3.) H. E. O. Heinemann, a reporter for the Chicago 
 Tribune, another witness for the State, testifies (A., 
 
^9 
 
 126; K, 235), that at the time of the explosion of the 
 bomb he was on the east side of the sidewalk of 
 Desplaines street, about half way between Crane Bros.' 
 alley and Randolph street. That he saw the bomb or 
 burning fuse rise out of the crowd, and that it rose very 
 near the south-east corner of the alley. 
 
 On behalf of the defendants, the testimony as to the 
 point from which the bomb was thrown was as follows: 
 
 (4.) Barton Simonson (A., 178, 179; L, 71 et seq.) 
 testified that at the time the police came up, and in 
 fact during substantially the entire meeting, he stood 
 upon the stairway of the building at the north-west 
 corner of Randolph and Desplaines, about half way up 
 the stairs, which brought his head probably twenty 
 feet from the ground, and gave him a clear view over 
 the heads of the audience; that directly after the com- 
 mand to disperse had been given he saw the bomb come 
 up from a -point nearly twenty feet south of the south line 
 of Crane's alley, from about the center of the sidewalk, 
 on the east side of the street, from behind some boxes. 
 
 (5.) Ludwig Zeller testified (A., 184; L, 149, 150), that 
 he stood near the lamp-post on the alley, and after the order 
 to disperse was given, turned to walk south to Randolph 
 street. As he turned and started south he saw the lighted 
 fuse go through the Tsivc from six, eight or ten feet south of 
 the lamp; that it went in a north-westerly direction in 
 the midst of the police, and was followed immediately by 
 the explosion. Upon cross-examination (A., 185; L, 159) 
 he stated more particularly that he was standing at the 
 momeitt the- bomb jwas thrown some five or six feet south 
 ■of the alley, and saw the lighted fuse about eight or ten 
 feet soicth of him. 
 
 (6.) Fredk. Liebel (A., 188, 1S9; L, 201-203) says that 
 he also was standing near the lamp-post, and when 
 
70 
 
 the police came up and the order to disperse was given 
 turned to go south and get out of the crowd, and as he 
 was proceeding south saw the lighted fuse, which at the 
 time he took to be the stump of a lighted cigar, thrown 
 from the sidewalk, at a point which he took to be near 
 midway between the alley and Randolph street. And he 
 says that the bomb went in a north-westerly direction, 
 and then exploded. 
 
 (7.) Dr. James D. Taylor (A., 191, 192 ; L, 230, et seq.), 
 after stating that he stood over the curbstone at the 
 intersection of the street and alley on the north side of 
 Crane Bros.' alley, sa3's that after the police and the 
 order to disperse was given, he saw the bomb thrown. 
 He says he saw the bomb in the air, somewhere between 
 twenty and forty feeet south of the alley, and the matt 
 ■who threw it stood beyond a number of boxes which 
 stood south nf the lamf-post ; that he revisited the ground 
 the next morning after the occurrence, and saw the 
 boxes still there; that he did not see the man who 
 threw the bomb, and when the bomb was thrown could 
 see nothing but his head; that when he first saw the 
 bomb he took it to be a boy's fire-cracker; that it circled 
 through the air in a north-westerly direction, and alighted 
 between the first and second lines of police, a little west 
 of the center of the street, and perhaps a little south of 
 the line of the alley. 
 
 (8.) William Urban (A., 201; L, 344, et seq.) states 
 that he saw something like a fire-cracker in the air, 
 followed by the explosion, and then the pistol firing; that 
 what looked to him like a fire-cracker must have started 
 from fifteen to eighteen feet south of the lamf-post at 
 Crane'' s alley; that it went very fast, made a kind of a 
 circle, going north-westerly, and about one or two seconds 
 after he first observed it he heard the explosion. 
 
71 
 
 (p.) August Krumm (A,2io; L, 415), after explaining 
 that he stood near the mouth of the alley and next the build- 
 ing on the south, states that he saw something looking like 
 an extinguished match go through the air and drop about 
 the middle of the street, which he says must have started 
 from about twenty feet south of the alley; was about 
 twelve feet up in the air when he saw it, and that it did 
 not start and could not have started out of the alley; that 
 he saw the streak of fire, and right after that heard the 
 explosion of the bomb. 
 
 (10.) William Albright (A., 217; L,493) swears that 
 he was with Krumm, as detailed by the latter, and that the 
 bomb was not lighted in nor thrown from the alley -vhere 
 they stood. 
 
 (11.) Joseph Bach and (12) Max Mitlacher whose 
 testimon}' we have already considered upon another point, 
 both testify that immediately before the explosion the}' 
 were looking towards the wagon, and that they did not 
 see any object thrown out of the alley into the street. (A., 
 281, M, 407,408; A., 285; M, 433.) 
 
 (13.) John Holloway (A., 230, 231), who stood against 
 the lamp-post at Crane's alley (M, 58), and was looking at 
 the speaker's wagon at the time of the dispersal and until 
 the explosion of the bomb (M, 59, 60), says he is sure noth- 
 ing came out of the alley while he stood there. (M, 63.) 
 In the nature of things, if the bomb had been thrown from 
 out of the alley it could not have escaped his attention. 
 
 (14.) George Koehler testifies (A., 218; Vol. L, 508- 
 518) \kvaX he stood on the north-west corner of Randolp 
 and Desplaines streets when the police came up, and saw 
 the bomb come from the east side of the street from oppo- 
 site where he stood from the middle of the sidewalk and 
 flying in a north-westerly direction. 
 
 (15.) Edward Lehnert (A, 234; Vol. M, 89, 90), after 
 
72 
 
 stating that he stood on the west side of Desplaines street, 
 about thirty paces north from Randolph, and twenty 
 paces south from opposite the wagon, states that from 
 that point he saw a streak of fire which looked like a 
 -stump of cigar in the air, which he learned later was the 
 '"bomb, and that it came from about tzuenty faces south of 
 ■ the alky, according to his best judgment, and went north- 
 "west, and struck the ground in the middle of the street, 
 :a little south of the alley. 
 
 (16.) Finally, John Bernett (A., 292; M, 483, (?/ 5fY/. ) 
 testifies as follows: That he is not acquainted with any 
 of the defendants, although he had heard some of them 
 speak; was not a socialist, communist or anarchist; was 
 at the Haymarket meeting at the time the bomb exploded; 
 that at the time of the explosion he stood about thirty- 
 eight feet south of Crane's alley; that on the Wednesday 
 preceding his testimony he had made a careful exami- 
 nation of the ground to find out the locality where he 
 stood; that he saw the man who threw the bomb, and 
 saw the bomb go through the air; that its direction was 
 west and a little north; that the man who threw the 
 bomb was right in front of Bernett at the tifne, aud was 
 about BernetCs size, having a mustache with no chin 
 beard. (We would here observe, that Bernett was 
 a man of about five feet nine inches in height.) 
 When shown Mr. SchnaubeWs photograph and asked 
 if he recognized that as being the man who threw 
 the bomb, he said that the photograph had been shown 
 him by Mr. Furthman about two weeks before 
 his testifying, and that it was not the picture of the 
 bomb-thrower, and that he had so told Mr. Furthman. 
 On cross-examination (A., 293) he stated that he had had 
 different interviews with the representatives of the prose- 
 cution and had told Capt. Schaack and Mr. Grinnell that 
 
73 
 
 the man who threw the bomb was in front of the witness, 
 and he could not tell how he did look; that he told Mr. 
 Furthman that he thought the bomb was thrown from 
 nboiit fifteen steps south of the alley, counting a step at 
 about two and a half feet; that on that night there was 
 3. pile of boxes south of the lamp-post which was on the 
 corner of the alley; that he went to the central station 
 on the 7th day of May, and talked to Officer Bonfield in 
 the presence of Mr. Grinnell; that he did not think that 
 at that time he said the bomb was thrown from behind 
 the boxes, nor did he think that some weeks ago he stated 
 it was thrown from a point twenty to twenty-five feet 
 south of the alley; did not remember how many feet he 
 ■did state the distance was, but thinks he has it right in his 
 present testimony. On re-direct examination (A., 294], 
 he stated that he told Capt. Schaack that the man that 
 threw the bomb was but little larger than himself, 
 Jiad a mustache and no chin whiskers, and that he has 
 said so all the time; that he had never measured the dis- 
 tance from the alley to the place where he stood on that 
 night until the Wednesday preceding his testimony; that 
 when the bomb was thrown he saw the motion of throw- 
 ing; saw the fire right from the hand; followed the light 
 with his eye, and saw the light where the bomb exploded, 
 heard the explosion, saw the flash of the bomb, and then 
 ran away. 
 
 Here we have Bernett, an absolutely disinterested and 
 unimpeachable witness. We say unimpeachable, because 
 it developed upon the cross-examination of this witness 
 that he had made substantially the same statement over 
 and again to the representatives of the state — to Mr. 
 Grinnell, Capt. Schaack and Officer Bonfield; and if it 
 had been possible to impeach Mr. Bernett, we assume 
 that the state would have made that attempt, knowing 
 
74 
 
 as long in advance as they did substantially what his 
 testimony would be. No such attempt was made. 
 There was an effort made to show that he had esti- 
 mated the distance south from the alley of the bomb- 
 thrower differently at different times; but this ver}' evi- 
 dence shows that he had always located the bomb- 
 thrower south of the alley, and on the east sidewalk of 
 Desplaines street. 
 
 But in this direct issue of veracity between Bernett on 
 the one side and Gilmer on the other, we find Gilmer ab- 
 solutely unsupported by a single other witness in the 
 record; while Bernett is conclusively corroborated hy fif- 
 teen witnesses, directly b}' three of the state's witnesses,. 
 Haas, Hull and Heinemann, and nine witnesses for the 
 defendants, namely, Simonson, Zeller, Liebel, Taylor, Ur- 
 ban, Krumm, Lehnert, Albright and Koehlcr, and inferen- 
 tially by the testimony of Bach, Mitlacher and Holloway. 
 As between the two, therefore, no man who is not wilfully 
 determined to disregard all the rules of evidence can hesi- 
 tate in according credence to the statement of Mr. Ber- 
 nett, and in rejecting absolutely the story of Gilmer. 
 
 5. Gilmer's impeachment. 
 
 But in addition to all this Gilmer was successfully im- 
 peached. Nine citizens of Chicago, called to the witness 
 stand in behalf of the defendants, testified unequivocally 
 that they knew Harry L. Gilmer, were acquainted with 
 his general reputation for truth and veracity in the neigh- 
 borhood where he resided, and among his neighbors and 
 acquaintances, that that reputation was bad, and that they^ 
 xvoiild not believe him under oath. These witnesses were 
 as follows: 
 
■ (I.) Lucius M. Moses (A., 194, 195; L, 268-273), 
 a grocer, sixty-four years old, residing at 301 West 
 Randolph street, in which neighborhood Gilmer had beer* 
 living for a number of months. 
 
 (2.) Mrs. B. P. Lee (A., 195, 196; L, 279), residing 
 at 295 West Randolph street, and keeping a boarding- 
 house. 
 
 (3.) John G. Brixey (A., 199), living at 297 West 
 Randolph street, to whom for a time Gilmer lived as next- 
 door neighbor. Mr. Brixey had known Mr. Gilmer for 
 a considerable period of time, and on two occasions had 
 lived adjacent to him. And on cross-examination he gave 
 the names of a number of parties whom he had heard 
 speak of Gilmer's reputation for veracity. 
 
 (4.) John Garrick (A., 200), residing at 279 Fulton 
 street, formerly chief deputy sheriff under Sheriff Kern, 
 and a man of propert)', in whose house and in whose 
 neighborhood Gilmer lived at one time. 
 
 (5.) Mrs. MaryGrubb (A., 227), residing at 22 North 
 Ann street, and in whose house Gilmer at one time lived 
 for a number of weeks. 
 
 (6.) Phineas H. Adams (A., 250), a machinist, en- 
 gaged in business with his brother at 31 South Canal 
 street, who at one time lived in the same block with 
 Gilmer. 
 
 (7.) Edward H. Castle (A., 258) residing at 51 Wal- 
 nut street, seventy-five years old, who had been a resi- 
 dent of Cook county since 1839, of whom Gilmer had 
 one time been a tenant, and who is a man of large 
 property, as appears from the testimony. 
 
 (8.) H. S. Howe (A., 259), sixty-two years old, and 
 in the undertaking business. 
 
 (9.) John W. Gage (A., 292), residing at 216 S. 
 Paulina street, in the painting and wall paper business. 
 
76 
 
 forty-five years of age, employing all the way up to forty 
 men in his business. On cross-examination Gage stated 
 that Gilmer lived next door to him about four months. 
 
 It is true that an effort was made to meet this impeach- 
 ment of the reputation of Mr. Gilmer by the introduction 
 of various witnesses by the slate. The witnesses intro- 
 duced included eight brought from Des Moines, Iowa, to 
 testify as to Mr. Gilmer's reputation while he lived in 
 that city, about ten years ago, which had not been at- 
 tacked; and about an equal number of citizens of Chi- 
 cago. Concerning this attempt to sustain Mr. Gilmer's 
 reputation, we have a few suggestions to submit. 
 
 First. Judge Cole and Governor Merrill, of Iowa, 
 were among the witnesses produced by the state. Both 
 of them testified that they zi'cre not in Chicago on the 
 evening of May ^th at the Palmer House or elseivhere; 
 that they were not expecting to be in Chicago at that 
 time\ that they had no appointment in Chicago at or 
 about that time to meet Mr. Gilmer, or to meet anybody 
 else; and that they had never communicated zuith Mr. 
 Gilmer; that they had never had an}^ correspondence with 
 him, nor made any such appointment with him; thus es- 
 tablishing conclusively that when Mr. Gilmer stated upon 
 the stand, that he went to the Palmer House on the night 
 of May 4th expecting there to meet Mr. Merrill and 
 Judge Cole, he was stating an invention instead of a 
 fact; the purpose doubtless being to impress the jury 
 with his supposed consequence and the dignity of his re- 
 lations among men. 
 
 Second. Concerning these witnesses, and all of the wit- 
 nesses from Iowa, we beg further to suggest that they 
 were substantially all of them occupying a different zvalk 
 of life from that in which Mr. Gilmer moved, and who, 
 substantiallv, all of them, admitted that they did not 
 
knozv his reputation zvhile living in lozva among his imme- 
 diate neighbors and acquaintances for truth and' veracit}-, 
 but simply that they had been residents of the same city 
 where they had known him slightly, and where they had 
 heard no special question about his reputation. Judge 
 Cole, for example, simply lived in the same city, and had 
 had Gilmer do a little painting for him; but beyond that 
 practically knew nothing about him. 
 
 Third. So as to the witnesses called from Chicago to 
 testify as to his reputation. They were in the main 
 worthy citizens, but they were men who confessedly, 
 as brought out on their respective cross-examinations > 
 did not commingle in the society of which Mr. Gilmer 
 was a member, did not move in the same walk of 
 life, had never lived in the same neighborhood in ivhich he 
 lived; and most of them admitted that in fact they never had 
 known where Gilmer did Uveal any time. Not one of them 
 knew him in the intimacy of daily association in a neigh- 
 borly wa}^, these parties at the most being able, as they were 
 forced to admit on their respective cross-examinations, to 
 state that they were members of the Union Veteran Club 
 along with Mr. Gilmer, or members of Battery D, and 
 had casually met him in those associations and nowhere 
 else, and talked with others in those associations who had 
 met him in like manner; associations in which he would 
 naturally seek to be esteemed, and where he would 
 naturally be upon his good behavior for purely selfish 
 considerations. When, however, we enter the circle of 
 his neighbors, daily acquaintances and associates in work 
 and business, living near where he lived, sometimes in 
 the same house or under the same roof, we find that 
 he was a man whose reputation could be most suc- 
 cessfully impeached; while not a single witness was 
 produced by the State out of the list of the man's neigh- 
 
78 
 
 bors and acquaintances to speak a word in his behalf. 
 Was there any design on the part of the representatives 
 of the State in thus hmiting their investigation as to Mr. 
 Gilmer's reputation? And was there, likewise, any, de- 
 sign upon their part to possibly impose upon the jur}- by 
 the dignity of the men whom they would produce, who 
 were ready to swear that they considered his reputation 
 good, although they did not know what it was? 
 
 We understand the correct rule in reference to attempts 
 to impeach or support testimony of witnesses to be that 
 laid down by this court in the case of Frye v. The Bank 
 of Illinois, II 111., 367, as found in the opinion of the 
 court at page 379, where it is said: "The proper ques- 
 " tion to be put to a witness to impeach another is, whether 
 " he knows the general refutation of the person sought 
 " to be impeached among his neighbors for truth and ve- 
 " racity. If this question be answered affirmatively, the 
 « witness may then be inquired of as to what that reputa- 
 *' tion is, and whether from that reputation he would be- 
 " lieve him on oath." And a number of authorities are 
 cited in support of the rule thus announced. 
 
 In the light of this rule of law, we insist that the effort 
 thus made to sustain Mr. Gilmer utterly failed, for the 
 reason that not a single neighbor, not a single acquaint- 
 ance accustomed to associate with him in daily life, and 
 commingle with his neighbors and daily associates, was 
 produced; that the cross-e.xamination of every witness 
 called by the state in this behalf conclusively shows that 
 they knew nothing of the general refutation of Gilmer 
 for truth and veracity, and that the reputation to which 
 those witnesses pretended to testify did not come from 
 Gilmer's neighbors and associates, and that it was error 
 for the court to admit the testimony of such witnesses 
 over the objection and exception of the defendants. 
 
79 
 
 But further than lliat, the defendants called to the 
 stand as a witness W. A. S. Graham, a reporter for the 
 Chicago Times (Abst., 321, 322, Vol. N, 144, 149). He 
 said that he had occupied the position of reporter upon 
 the Times for twenty-five months, and had been a news- 
 paper man for eight years; that he knew Harry L. 
 Gilmer since the 5th day of May, the day following the 
 Haymarket riot; that on that day he saw Gilmer in the 
 corridor of the basement in the City Hall, just outside 
 the police headquarters; that he had a conversation with 
 Gilmer on that occasion in regard to what he saw at the 
 Haymarket, and who threw the bomb. 
 
 At this point Mr. Gilmer was recalled by the defendants 
 ior further cross-e.xamination, which developed the fact 
 (A., 321, 322; M, 145-47) that Mr. Graham was the 
 reporter whom Gilmer mentions in his cross-examination 
 {A., 143; K, 370) as one of the parties to whom he stated, 
 on May 5th or 6th, at the central station, that he believed 
 he could identify the man who threw the bomb if he ever 
 saw him again. He further stated that he did not say to 
 Mr. Graham in that conversation that he saw the man 
 throw the bomb, but his back was toward Gilmer, and 
 he could not see him very well, and that he believed he 
 had whiskers; he did not think that he said at that 
 time and place that he saw the man light the fuse and 
 throw the bomb — did not say it was a man of medium 
 size, and that he saw him light the fuse andXhvow the 
 bomb; that he had no such conversation with Mr. Gra- 
 ham. 
 
 Mr. Graham then, further examined, testified that in 
 the conversation referred to Gilmer stated to Graham that 
 he (Gilmer) saw the man light the fuse and throw the 
 bomb, and added, " I think I could identify him if I saw 
 •"him." Graham proceeded substantially as follows: "I 
 
8o 
 
 " asked him what kind of a looking man he was, and 
 " Gilmer said ' he was a man of medium height, and I 
 " think he had whiskers, and wore a soft, black slouch 
 " hat, but his back was turned towards me.'' And to the 
 " best of my recollection, Gilmer said the man had dark 
 " clothes. He said nothing about anybody else in that con- 
 " nectionP 
 
 Upon cross-examination Mr. Graham stated: " I had 
 " this conversation about 4 o'clock in the afternoon 
 " of May 5th. I talked with him about three or four 
 " minutes. He said nothing about there being more than 
 ' one man at that location, a knot of men, or any- 
 " thing of that kind; he said that one man lighted the 
 '■'■fuse and threw the bomb; he did not say anything about 
 " how it was lighted, whether with a match or a cigar; I 
 " did not ask him that; he said he was standing in Crane's 
 " alley when it was done." 
 
 Mr. Graham is an unimpeached witness; it cannot be 
 conceived that he had any interest — particularly when his 
 relations to the newspaper and the condition of public 
 opinion and sentiment at the time he testified are consid- 
 ered — to pervert his testimony in the service of the ac- 
 cused. If his testimony is true, then Gilmer's is false.- 
 Not onl}' does Graham contradict Gilmer as to the sub- 
 stance of the conversation at the central station, on the after- 
 noon of May 4th, but if Graham tells the truth, then the 
 version of affairs which Gilmer gave at the time, when the 
 events were fresh in his mind, is absolutely irreconcilable 
 with the version given by him as a witness upon the stand. 
 Upon the stand he swears that the man had whiskers, and 
 he pretended to recognize a photograph. To Graham he 
 stated that the man had his back toward him, and would 
 only say that he thought he had whiskers, and he be- 
 lieved he could recognize him if he saw him again. Upon 
 
8i 
 
 the witness stand he stated that he saw August Spies 
 hght the fuse, and a totally different man throw the bomb, 
 while still another of the defendants stood by, watching 
 the operation. To Graham he stated that he saw the 
 man li^ht the fuse and thnnv the bomb, speaking of a 
 single transaction b}- one individual, and making no pre- 
 tense whatever that other parties were at the time pres- 
 ent or interested in this operation. He stated to Gra- 
 ham that he could identify the man who threw the bomb, 
 but did not mention anything about the man who lighted 
 the fuse of the bomb, although he claimed (A., 146; K, 
 394) that he had knozun Spies by sight for a year and a 
 half, and had very frequently seen and heard him speak 
 at public meetings. If the story told by Gilmer upon the 
 stand were true, could he have given to Graham the ver- 
 sion of the affair to which Graham testifies? 
 
 If corroboration of Graham upon this point is needed, 
 it is to be found in the fact that in his opening statement 
 to the jury, after having had repeated interviews with 
 Gilmer, as the record shows, and having advised him- 
 self thoroughly of the story which Gilmer was prepared 
 to tell, Mr. Grinnell, in reference to the bomb-throwing, 
 did not give the detail of this story as told by Gilmer upon 
 the stand, (i A., 32; O, 91.) Is it creditable that Mr. 
 Grinnell willfully suppressed matters within his knowl- 
 edge in reference to the details attending the throwing of 
 the bomb? If Mr. Grinnell knew, at the time he made his 
 opening statement, that Mr. Gilmer would testify that 
 August Spies lighted the fuse of the bomb, that Rudolph 
 Schnaubelt threw the bomb, and that Adolph Fischer 
 stood by while this was being done, he certainly would, 
 as in fairness bound to do, have so stated in his opening. 
 
 The effort of the state, therefore, to show that the 
 Ha\market bomb was thrown by Rudolph Schnaubelt, 
 
the fuse thereof lighted b}' August Spies, and that Adolph 
 Fischer stood by while the bomb was lighted and thrown, 
 res'.s upon the unsupported testimony of a single witness, 
 whose subsequent conduct in keeping this information to 
 himself cannot be explained consistently with any theory 
 of honesty of purpose or sincerity of utterance; who stands 
 impeached upon this record as to his general reputation 
 for truth and veracity, and who is contradicted by a score 
 ■of unimpeached witnesses as to the most vital and material 
 points in his statement. We think we might safely dis- 
 miss this branch of the case as absolutely and finally dis- 
 posed of. 
 
 Taking it altogether, there is an absolute want of 
 credible evidence, which connects Mr. Spies with the act 
 of throwing the bomb at the Haymarket, which shows 
 or tends to show that he had any knowledge of, or gave 
 his aid or assistance to any plan for using violence at that 
 -or an}' other meeting by or against anybod}-. 
 
 Adolph Fischer. 
 
 The testimony shows that Adolph Fischer was a com- 
 positor on the Arbeiter Zeitung, of which Spies and Schwab 
 were the editors. On the morning of May 4th, he 
 caused the printing and distribution of the circular calling 
 the Haymarket meeting for that evening, and requested 
 Mr. Spies to speak. As before stated, when Spies' 
 attention was called to the form of the circular, he insisted 
 that the line "Workingmen, Arm Yourselves," etc., should 
 be stricken out, and Fischer caused this to be done. 
 Fischer was at the Haymarket during a part of the time 
 as an auditor, but took no part in the meeting itself, and 
 as shown by the evidence heretofore considered in con- 
 
83 
 
 mection with ihe case of Mr. Spies and the testimony of 
 Harry L. Gilmer, he was, in fact, in Zepf's Hall at the 
 time of the explosion of the bomb. No utterance of 
 Fischer's suggesting or urging violence upon that even- 
 ing, either in speech or print, is in this record. The evi- 
 dence not only shows that he was not present when the 
 act which resulted in the death of Mathias J. Degan was 
 committed, but it absolutely fails to show that he did or 
 said anything by way of aiding, encouraging, advising, 
 abetting or assisting the performance of that act. 
 
 There is but little that remains to be said about this 
 branch of the case as to Mr. Fischer, the evidence upon 
 these points having been already so fully considered in 
 presenting our views as to the cases attempted to be made 
 against others of the plaintiffs in error. 
 
 But it is proper that we should here enter upon the 
 consideration of another fact proved in this case, upon 
 which the state relies as entitling it to claim that this con- 
 viction of Adolph Fischer shall be sustained. 
 
 The West Lake Street Meeting Conspiracy. 
 
 It is claimed that on the night of Monday, "May 3, 1886, 
 there was a meeting held at 54 West Lake street, 
 attended by Fischer and Engel of the plaintiffs in error, at 
 which a conspiracy was entered into, and at which the 
 calling of the Haj-market meeting was resolved upon. 
 In our view, the testimony as to this meeting was irrele- 
 vant to the issue to be determined in this case; and when 
 the testimony of the witnesses who speak as to that 
 meeting was introduced, it came in subject to our objc- 
 tion, and was retained in the record as against our motion 
 to exclude. We shall present briefly an outline of that 
 
84 
 
 testimony, and then suggest to the court the grounds of 
 our objection to it and our motion for its exclusion. 
 
 The State introduced as witnesses, who testified in re- 
 gard to this Monday night meeting, Godfried Waller, 
 who presided at the meeting, Bernard Schrade and Gus- 
 tave Lehmann, who were present, and Greif, the pro- 
 prietor of the hall. The leading witness was the in- 
 former, Godfried Waller. He says (A., 4: I, 52, el scq:\ 
 he went to the meeting pursuant to an advertisement 
 which he saw in the Fackel (the Sunday issue of the 
 Arbeiter Zeitung) of May 2d. A translation into English 
 of that advertisement is as follows: " Y — Come Monday 
 night;" which notice he says meant a call for the armed 
 men of the various groups to meet at 54 West Lake street, 
 Greif 's Hall. Reaching the building about 8 r. m., it was 
 found that the halls were all fully occupied with working- 
 men's meetings, and that the only place where a meeting 
 could be held pursuant to this notice was in the basement. 
 He says he called the meeting to order at about half-past 
 eight, and that there were some seventy or eighty present, 
 while the testimony of Schrade, Lehmann and Greif 
 shows that there were in attendance not more than 
 about thirty to forty. 
 
 Describing the occurrences of the meeting, this wit- 
 ness says that there was first some talk about si.\ men 
 supposed to have been killed at McCormick's; that there 
 were present circulars headed " Revenge," and treating 
 about that occurrence; then Mr. Engel stated a resolu- 
 tion passed by a prior meeting of the north-west side 
 group, and it was afterwards resolved by the meeting there 
 present to adopt the plan of action reported, which was to 
 the effect, that if the word " Ruhe " should be published 
 under the heading Brief kasten (letter-box), of the Arbeiter 
 Zeitung, it should be a signal for the armed men to meet. 
 
8< 
 
 The north-west side group had determined upon Wickt- r 
 parte as their meeting place in that case. A committee 
 should observe the movement in the city, and if a conflict 
 should occur, the committee should report to the armed 
 men, who should then storm the police stations by throw- 
 ing a bomb, and should shoot down everything that 
 would come out or in their way. The police station on 
 North avenue was referred to, but no other, the action 
 be\ond that to be determined by circumstances. 
 
 This program having been agreed upon, as this witness 
 states, he himself then suggested that there ought to be a 
 meeting of workingmen called for Tuesday morning on 
 Market square. Fischer said that would be a mouse 
 trap and that the meeting should be on the Haymarket in 
 the evening. It was then resolved that the meeting should 
 be held at 8 p. m. at the Haymarket; and it was stated 
 that the purpose of the meeting was to cheer up the 
 workingmen so that they should be prepared in case a 
 conflict would happen. Fischer was commissioned to 
 call the meeting through hand-bills; he went away to 
 order them, but came back after half an hour and said the 
 printing establishment was closed. It was said that the 
 armed men should not participate in the meeting on the 
 Haymarket. Asked in direct examination, " What was 
 '' said, if anything, as to what should be done in case 
 " the police should attempt to disperse the Haymarket 
 " meeting ?" he replied, " There was nothing said about 
 ■" the Haymarket. There zvas nothing expected that the 
 ^' folice zvotdd get to the Haymarket.'''' Those present 
 were representatives from the west, south and north side 
 groups. A committee, composed of one or two from 
 each group, was to be sent to the Haymarket; but this 
 committee was not onlj' to observe the movement on the 
 Haymarket square, but in different parts of the city; he 
 
86 
 
 only knew one member of the proposed committee, 
 named Kraemer; if a conflict happened in the daytime, 
 the committee was to cause the publication of the word 
 Ruhe; while if it happened at night, they were to report 
 to the members, personally, at their homes. He did not, 
 himself, on the 4th of May, understand why the word 
 Ruhe was published, as it was to be inserted only in the 
 event that a revolution had broken out. Fischer first 
 mentioned the word Ruhe. Schnaubelt was present at 
 the Lake street meeting, and said that the resolution 
 adopted should be communicated to members of the 
 organization in other localities, so that the movement 
 should commence in other places also. This same witness- 
 further stated that this plan of operations introduced at 
 the meeting at 54 West Lake street, by Mr. Engel, wa* 
 a plan which Engel had proposed at a meeting of the 
 north-west side group on Sunday morning, May 2d, at its- 
 meeting-place on Emma street, at which meeting he says- 
 both Fischer and Engel were present. 
 
 On cross-examination this witness states that, at the 
 meeting at Emma street and at that meeting at Greif's 
 Hall, Mr. Engel stated that the plan proposed by him 
 was to be followed only in the event of a police at- 
 tack, and that the workingmen should only defend them- 
 selves if thus attacked by the police. He repeated posi- 
 tively that nothing was said as to any action to be taken 
 at the Haymarket; that they zvere not to do anything- 
 at the Haymarket square; that the plan was that they 
 were not to be present there at all. They did not think 
 the police xvould conic to the Haymarket ; no frefarations 
 zvere made for meeting any -police attack there. He fur- 
 ther slated that on the night of May 4th he was with Fischer, 
 walking about the streets in the neigborhood of the Hay- 
 market for a time, and then went to a meeting of the fur- 
 
nilure-workers' union at Zepf's Hall, and was there when 
 the bomb exploded; that Fischer and himself walked to- 
 gether over to the Desplaines station, where the police were- 
 mounting five or six patrol wagons, upon which the wit- 
 ness said, " I suppose the}' are getting ready to drive out 
 " to McCormick's, so that they might be out there early 
 "in the morning;" to which Mr. Fischer assented. He 
 stated that the principal purpose of the Haymarket meet- 
 ing was to protest against the action of the police at the 
 riot at McCormick's factory, and that while he was with 
 Fischer at the Haymarket nothing was said between 
 them about preparations to meet an attack by the police^ 
 and Fischer did not ask him why he was not at Wicker 
 park. He admitted that he had received various sums of 
 money from Capt. Schaack, and that his wife also had 
 received moneys. 
 
 Bernard Schrade, testifying as to the same meeting 
 (A., 9 to 12) says, when he reached the meeting 
 in the basement. Waller was presiding, and explained 
 what had been spoken of prior to his coming; Waller 
 stated that so manj- men had been shot at McCormick"s 
 by the police, and that a mass-meeting was to be held at 
 Haymarket square, and that they should be prepared in 
 case the police should go beyond their bounds and attack 
 them; that he heard nothing about assembling in other 
 parts of the city; that circulars headed " Revenge "' 
 were distributed; that he was present at the meeting on 
 Emma street on the Sunday previous, and that in that 
 meeting it was suggested in effect that there might be 
 trouble after the ist of May, in which event they were to 
 help one another — that if they should get into a conflict 
 with the police they should mutually aid one another, and 
 that the north-western group should meet at Wicker 
 park in the event of a police attack, to defend themselves 
 
88 
 
 as well as the}- could; but that nothing ivas siid about 
 dviianiitc, and the zvord " stuff'''' zvas not used, and that 
 nothing- was said about telegraph wires; that it was sug- 
 gested that in case of an outbreak, it would be desirable 
 to cripple the etlectiveness of the firemen by cutting their 
 hose. He says further, that he heard nothing whatever 
 about the word Rnhe in the meeting at 54 West Lake 
 street, and that he did not see it in the Arbeiter Zeitung. 
 Upon cross-examination he stated that notliins; zuas said 
 at any of the meetings about dynamite or bombs, and 
 nothing was said about a meeting at any particular time 
 to throw bombs; that it was not agreed to throw bombs 
 at the Haymarket meeting; that while at that meeting 
 he, himself, had no bomb, and didn't know dynamite if he 
 should see it; that he knew of no one who was going to 
 take a bomb to that meeting; that he was at the meeting, 
 and when he left it everything was quiet; that he did not 
 anticipate any trunhle there, and that he left the Hay- 
 market only on account of the approach of the storm. 
 
 Thomas Greif, the proprietor of Greif's hall, 54 West 
 Lake street, says (A., 24, 25) that on Monday evening. 
 May 3d, a man rented the basement for a meeting, and 
 told Greif, " if the Y folks come, to tell them to go down- 
 stairs." Witness had to go down-stairs once to tap the 
 beer. There were two men standing on the stairs talking 
 together: there were twenty-five or thirty men present 
 when he was down there at about 9 o'clock. 
 
 Gustaf Lehmann (^A., 73), testified that he attended 
 this meeting at 54 West Lake street, on the even- 
 ing of May 3d, reaching there at a quarter of 9; but 
 Lehmann could give no account of the occurrences in the 
 meeting, for the reason, as he states, that he was deputed 
 to step outside and see that there was no eavesdropping 
 b\- persons going down the front way to the water-closet, 
 
who had to pass by from the door opening into the area 
 way from the basement. He said, however, that he went 
 into the meeting twice, and on one occasion heard Fischer 
 say that he was going to have some handbills printed. 
 
 This is the entire testimony of the state as to the Mon- 
 day night meeting. Our position in reference to it is this: 
 that if it establishes a conspiracy at all, it was not a con- 
 spiracy which contemplated or provided for the throwing 
 of a bomb or the use of any violence by any of the co- 
 conspirators at the Ha3'market meeting on the night of 
 May 4th; and that, therefore, the introduction of this 
 testimony was improper, as not being relevant to the 
 issue which was under consideration; and that it was 
 erroneous, as having a manifest tendency to prejudice the 
 jur}- and thus injure the plaintiffs in error. 
 
 This testimony moreover was allowed to come in and to 
 have full force as against all of the plaintiffs in error, 
 although no effort was made to show that any of them, 
 other than Fischer and Engel, were present at either the 
 Emma street meeting or the West Lake street meeting, 
 save possibly a slight attempt in that direction as to Lingg, 
 which we shall consider hereafter. In other words, the 
 plaintiffs in error, other than Fischer and Engel, were 
 compelled to meet, in the minds of the jury, the full 
 impression of this testimony over their objection and ex- 
 ception (A., 4; 1, 57), and a motion to exclude the same 
 was likewise overruled (A., S: I, 106). 
 
 Our understanding of the law is, that when a conspiracy 
 lo do an unlawful act is proved and an unlawful act 
 within the purview of the conspiracy is subsequently done 
 by one of the conspirators in pursuance of the common 
 design, then all of the conspirators who are parties to the 
 original design are equally liable with the doer of the 
 deed. 
 
9° 
 
 If this be a correct statement of the rule of law as ap- 
 plicable to such cases, and we think it will not be seriously 
 questioned, then it is incumbent upon the state, when at- 
 tempting to establish the guilt of a conspirator not en- 
 gaged in the very act itself as an accessor}' before the fact,, 
 to show, in addition to the fact that there was a con- 
 spiracy to do an unlawful act: 
 
 First. That the accused was a party to such con- 
 spirac}-. 
 
 Second. That the unlawful act charged was committed 
 "in furtherance of the original design," and "in the 
 attempt to execute the common purpose." 
 
 Third. That such act was done by one identified as a> 
 party to the conspiracy, or by the procurement of one 
 of sucli parties, " in prosecution of the common object." 
 
 As to each of these points, we understand the burden- 
 is upon the prosecution to make a case beyond any reas- 
 onable doubt by competent testimony. Even if a con- 
 spiracy were proved and an unlawful act were done by 
 one of the conspirators, \et the conspirators would not 
 be responsible unless that act was done in pursuance of 
 the conspiracy, and " in the attempt to e.xecute the com- 
 mon purpose," and was within the " natural and probable 
 consequences that may arise from " such execution. la 
 other words, if a co-conspirator should, after the forma- 
 tion of the conspiracy, commit a different crime, acting; 
 in that behalf upon his own responsibility, and without 
 consultation with his associates, he alone must bear the 
 consequences of his evil deed, and cannot involve his 
 associates in the penalty. 
 
 Let us test the evidence now under consideration by 
 these rules. 
 
91 
 
 I. 6V.V of the plaintiffs in error zvcrc not parlies to the 
 conspiracy. 
 
 Only two, or at the very most, three, of the plaintiffs 
 in error, are shown to have had any knowledge of. 
 or to have yielded any acquiescence to, the program 
 or plan of operations agreed upon at the meeting 
 at 54 West Lake street. Before the testimony con- 
 cerning that meeting could be competent as against 
 plaintiffs in error, other than those present, it was incum- 
 bent upon the state to show, by legal evidence, some 
 actual connection between the other plaintiffs in error and 
 that meeting, either by pre-arrangement and consent to the 
 proposed scheme, or by subsequent acquiescence and par- 
 ticipation in the design. Not only had no such evidence 
 been introduced in this case up to the time the testimony 
 of Waller and Schrade was introduced, and received 
 over the objection of the plaintiff's in error, but in fact no 
 legal evidence was adduced in the entire trial, which con- 
 nects the plaintiffs in error other than Fischer and Engel, 
 save perhaps Lingg, with the West Lake street meeting, 
 or the designs then and there adopted. The state failed 
 to show, and certainly it failed to show beyond a rea- 
 sonable doubt, that the accused other than Fischer and 
 Engel were parties- to the conspiracy, and as to them 
 one of the essential requirements of guilt on the ground 
 of the West Lake street conspiracy fails. 
 
 II. The thr Giving of the bomb at the Hayniarkcl ivas 
 absolutely foreign to the original design. 
 
 The design itself was absolutely foreign, in legal 
 contemplation, to the Ha3'market tragedy. Whatever 
 may be said of the idea of the parties associated in the 
 
92 
 
 West Lake street meetin<r, it is evident that they did not 
 have in view the throwing of bombs by individual mem- 
 bers of their groups, upon their individual judgment, but 
 that they were providing for concerted action in the 
 contingency of an unlawful attack b}' the police upon 
 vvorkingmen, and that in the event of such contingency 
 the conspirators were to be notified in a certain manner. 
 The evidence further shows that the meeting of Tues- 
 da}' night was not at all within the general scope of the 
 plan agreed upon. In fact, that date was too near at 
 hand to allow of the carrying out of the details of their 
 own plan, which contemplated, according to the testimony, 
 the communication with bodies outside of Chicago. The 
 witnesses further swear that after this general plan of 
 operations had been discussed, adopted and disposed of, 
 the suggestion was then made that there ought to be a 
 meeting of laboring men to protest against the con- 
 duct of the police at the McCormick riot; it was dis- 
 tinctl}' agreed that the members of this association should 
 not be present; there was no expectation at the Mon- 
 day night meeting that there would be any pohce dis- 
 turbance or interference at the proposed Tuesday night 
 meeting. There was no plan or arrangement for any act 
 io be done by tlie conspirators or any of tlieni on Tuesday 
 night at tlie proposed meeting. 
 
 On the contrary, it appears that only a committee 
 should observe the movements in tlie city generally, and 
 that when trouble should arise in the daytime they should 
 cause the publication of the word "Ruhe"; if at night, 
 they should notify the conspirators at their homes. If 
 thus notified, then they should meet in certain places and 
 proceed by concerted action. 
 
 Nothing of the kind was done. Though the word 
 ^' Ruhe " appeared in the Arbeiter Zeitung, as above 
 
shown, still there is no evidence that any of the conspira- 
 tors acted upon it, that they met pursuant thereto in their 
 appointed meeting places: Wicker park, etc.; or that 
 they proceeded to attack any station or march down to 
 the heart of the city to come to the rescue of a body of 
 attacked strikers. According to the arrangement at the 
 West Lake street meeting, the conspirators ought to have 
 been notified at once, when the police attacked the Hay- 
 market meeting. This was not done; tw part of the 
 design alleged to have been agreed upon on Monday 
 night was carried out. But somebody threw a bomb 
 into the ranks of the police. If he was a member 
 of that conspiracy — of which we claim there is no proof 
 in the record — then he acted in direct opposition to the 
 plan agreed upon, he disregarded the directions of his asso- 
 ciates, he defeated their objects, and his act was as much 
 his individual act, as if he had been a total stranger to the 
 conspiracy. 
 
 As it appears from the testimon}' of the informers, that 
 there was no expectation of violence at the Ha3'market 
 meeting, and no provision therefor, as, on the contrary, it 
 was expressly agreed, that the conspirators should not 
 attend or do anything at the same, it cannot be main- 
 tained that the crime charged was within the " natural 
 and probable consequences" that might arise from the 
 carrying into execution of the original design. 
 
 III. There is no credible evidence that the bomb was 
 thrown by a party to the conspiracy. 
 
 The only attempt made by the state to show that the 
 bomb was thrown by a member of the conspiracy is the 
 testimony of Harry L. Gilmer. We have demonstrated 
 in the preceding pages that the overwhelming preponder- 
 
94 
 
 ance of the evidence absolutely refutes Gilmer's testimony; 
 that the bomb was not thrown out of the alley at all, but 
 from a point variously estimated as between fifteen and 
 thirty-five feet south of the alley, that Gilmer's descrip- 
 tion of the bomb-thrower as a man of five feet eight, nine 
 or ten inches in height, does not apply to Rudolph Schnau- 
 belt, a man six feet and three inches tall; that the whole 
 story of the group in the alley is without foundation, 
 evidentl}' an afterthought of Gilmer, and contradicted by 
 the incontestable evidence as to Spies' and Fischer's move- 
 ments, and finally that Gilmer was successfully impeached 
 as to his character for truth and veracity. 
 
 Aside from this we have upon the part of the defend- 
 ants the following testimony to show that Schnaubelt had 
 left the Haymarket meeting five or ten minutes prior to 
 the explosion of the bomb, evidently with the intention of 
 going home. 
 
 Edward Lehnert (A., 233, 234; M, 82 d seg.) says 
 he knew Schnaubelt, and that he met him on the west 
 side of Desplaines street, opposite the speakers' wagon, 
 about the time that the dark cloud came up, and before 
 the explosion of the bomb; that August Krueger was 
 present, and that Krueger spoke to Schnaubelt, when 
 the two went away toward Randolph street. 
 
 It was further offered to prove by this witness that in 
 the conversation which he then and there had with 
 Schnaubelt, Schnaubelt stated to Lehnert that he did not 
 understand English, had expected that German speakers 
 would address the meeting; that he did not wish to staj^ 
 any longer and zt'cis going home, and asked Lehnert if 
 he would go along. Lehnert stated that he did not go in the 
 same direction, whereupon Schnaubelt went away with 
 Krueger. 
 
 We respeclfuilv submit that this testimony was compe- 
 
95 
 
 tent as part of the res gestae, in connection with evidence 
 -as to the movements of Rudolph Schnaubelt, who, at that 
 time, upon the testimony of the state, stood charged 
 with throwing the bomb, and that its exclusion by the 
 •court, to which the defendants excepted (A., 234; M, 89), 
 was error. 
 
 Krueger testifies in reference to this same occurrence 
 {A., 243; M, 157), that he met Schnaubelt at the Hay- 
 market meeting, standing with Mr. Lehnert on the west side 
 ■of Desplaines street, a little north of Randolph, about ten 
 o'clock; that Schnaubelt stayed there about five minutes. 
 Witness -went zuilh Schnaubelt down Randolph street 
 up to Clinton, a distance of over two blocks, where he 
 turned north on Clinton street, while Schnaubelt proceeded 
 ■east on Randolph, but how much further no testimony 
 ■discloses. We were denied the privilege of putting in 
 the evidence which would have shown affirmatively to 
 the jury the reason of Schnaubelt's leaving the meeting, 
 and that he was leaving it finally, and with no thought 
 ■of returning to it. On the other hand, there is no 
 •evidence that Schnaubelt was at the meeting at the 
 time of the explosion, except the impeached and contra- 
 •dictory testimony of Gilmer, who attempts to identify him 
 from a photograph. 
 
 The evidence is conclusive that Schnaubelt did not 
 throw the bomb. It is perhaps enough to say in regard 
 to the testimony of Gilmer, that so completely and over- 
 whelmingly was he impeached, contradicted and discred- 
 ited, that the state did not ask a single instruction to the 
 jury based upon the beltej by them that Rudolph Schnau- 
 hclt threw that bomb as detailed by Gilmer. The testi- 
 mony of Gilmer was abandoned by the representatives 
 of the state as unworthy of credence or consideration, in the 
 instructions asked b}" them. 
 
96 
 
 There is no other evidence as to who did that act. 
 Our claim, therefore, is that the state failed to establish 
 that the bomb was thrown by a member of the conspiracy, 
 or by the froctirement of one of the conspirators in pros- 
 ecution of the common object. 
 
 The result of the foregoing investigation shows the tes- 
 timony as to the West Lake street meeting conspiracy to 
 have been incompetent as against all the plaintiffs in error, 
 even Fischer and En gel, and therefore it cannot affect any 
 of them. 
 
 Taking the testimon}' as a whole, we maintain that 
 there is an entire absence of credible evidence showing that 
 Adolph Fischer was present at, or ever agreed to the 
 throwing of a bomb at the Haymarket meeting, ever 
 expected any such act, ever did anything toward provid- 
 ing for such violence, ever entered into any conspiracy 
 having that act as an object, or even as an incident of its 
 consummation. The testimony in regard to the Sunday 
 and the Monday night meetings, as given by the state's 
 own witnesses, absolutely refutes the theory that the 
 Haymarket bomb was thrown as the result of a con- 
 spiracy to which Fischer, Engel and others were parties, 
 and for which they can be held upon the principle of 
 accessoryship before the fact. 
 
 George Excel. 
 
 The case attempted by the state to be made against 
 George Engel in connection with the Haymarket meet- 
 ing has already been considered in a large measure in the 
 preceding pages. One additional matter requires brief 
 consideration. 
 
 There was no pretense that Engel was present at the 
 
97 
 
 Haymarket meeting a: the time that the bomb was 
 thrown, nor for some considerable time prior thereto 
 though there is evidence tending to show that he was at 
 the locaHty of the meeting early in the evening. Waller 
 testifies (A., 6; I, 73) that after the bomb was exploded, 
 and after he had left Zepf's Hall, he proceeded imme- 
 diately home, by way of Engel's house, stopping in there; 
 that he found Engel at home with several friends, as he 
 expresses it, " around a jovial glass of beer," to whom 
 he told what had occurred at the Haymarket. 
 
 He says that upon this announcement being made, he 
 told the party there gathered that he thought they had 
 better go home; to which Engel assented in effect, saying 
 yes, they should all go home; and that nothing else 
 occurred. 
 
 Concerning this meeting at Engel's house after the 
 bomb-throwing, one other witness testifies, namely August 
 Krueger (A., 243). Krueger says that he was at the 
 Haymarket meeting, and remained there until about 
 10 o'clock; that he then left the meeting and went to 
 Engel's house, reaching it about a quarter past 10 o'clock; 
 that Mr. and Mrs. Engel were there, and the witness 
 drank a pint of beer with them ; that later, Waller came in, 
 said that he came from the Haymarket, and that three 
 hundred men had been shot by the police, and that " we 
 ought to go down there and do something." To this 
 Engel responded that whoever threw that bomb did a 
 foolish lhino\ it was nonsense, and he did not sympathize 
 with such a butchery, and he told Waller he had better 
 go home as quick as possible; he said the policemen were 
 just as good people, and that the revolution must grow 
 out of the people, then the police and militia would throw 
 away their arms and go with the people. 
 
 From the concurring testimony of these two witnesses. 
 
it appears l^eyond question that at the time the bomb was 
 thrown Enprel was quietly at home with a little party of 
 friends, not anticipating any violence or any unlawful con- 
 duct; and that when he was advised of what had occurred 
 at the Haymarket, he immediately deprecated such con- 
 duct as unwise, denouncing it as a butchery to which he 
 ■was opposed. Krueger swears that to Waller's propo- 
 sition that something should be done by the parties there 
 gathered, Mr, Engel responded that they should all go 
 home. Waller denies that he made the suggestion of 
 which Krueger speaks, but admits that Engel concurred 
 in the .suggestion that they should go to their homes 
 quietly. 
 
 If the Haymarket meeting had been planned with refer- 
 rence to carrying out the programme of action discussed 
 and alleged to have been agreed upon at the Monday night 
 meeting, then the natural thing for Engel and his associ- 
 ates, when the news was brought to them of the outbreak 
 at the Haymarket, would have been to have gathered 
 themselves together and inaugurated their movement 
 against the police. The fact that no such suggestion came 
 from Engel; and that if such a suggestion was made 
 tfrom any source, it found no entertainment with him, is 
 evidence to our mind, along with all the other testimony 
 in the case, that the event of the Haymarket was a mat- 
 ter of absolute surprise to Mr. Engel. 
 
 Nothing in his conduct, as testified to by these witnesses, 
 gives color for a moment to the suggestion that he con- 
 sidered the event of the Haymarket as a matter growing 
 out of an}^ purpose or enterprise entertained by him, or 
 as within the purview of any understanding or agreement, 
 to which he was a party. The bomb was thrown in his 
 absence, by some party acting without any reference 
 whatever to Mr. EngeFs attitude, views or utterances. In 
 
99 
 
 other words, Mr. Engel never aided, advised, assisted, 
 encouraged or abetted the perpetration of the crime at the 
 Ha3market. 
 
 Louis Lingg. 
 
 The evidence introduced by the state shows that Louis 
 Lingg did not attend the , Haymarket meeting, nor was 
 within a distance of about two miles thereof during the 
 entire evening. The incriminatory evidence against 
 Lingg is chiefly that of William Seliger, coupled with 
 the fact that Lingg manufactured a number of dynamite 
 bombs. But there is no evidence in the record to show 
 that Lingg knew that a bomb would be thrown at the 
 Haymarket, or that he gave a bomb of his manufacture 
 to any person for the purpose of having it there thrown, 
 or had any knowledge or intimation that any bomb made 
 by him might or would be thrown by any person what- 
 ever on that occasion. 
 
 Seliger testifies (A., 44, el scq.) substantially as fol- 
 lows: " On Tuesday I rose at half-past 7, and after 
 " 1 got up Lingg came. I had previously told him 
 " that I wanted those things (bomb and bomb material) 
 " removed from my dwelling. He told me to work dili- 
 " gently at those bombs, and they would be taken away 
 "that day; I took some coffee and after a time I worked 
 " at some shells — at some loaded shells. I drilled holes 
 " through which the bolt went, a shell like this (indicat- 
 " ing shell introduced in evidence). I worked on the 
 " shells half an hour. Lingg went to the west side to a 
 "meeting; got back probably after i o'clock. He said 
 " I didn't do much; I ought to have worked more dili- 
 " gentl3^ I said: 'I hadn't any pleasure at the work.' 
 " Lingg said: 'Well we will have to work very dili- 
 " gently this afternoon.' During the afternoon I did dif- 
 
\ferent work, at the shells. In the morning I had a con- 
 '■ versation about the bolts. He told me he had not 
 ' enough of them. He gave me one and told me to go 
 ■ to Clybourne avenue and get some that he had already 
 ' spoken to the man about. I got about fifty. I worked 
 ' at the bombs during the whole of the afternoon, at dif- 
 ' ferent times. Huebner, Munsenberg and Heuman 
 were helping. I worked in the front room, also in 
 Lingg's room and the rear room. Lingg first worked 
 at gas or water pipes, such as these (indicating). 
 There were probably thirty or forty or fifty bombs 
 made that afternoon. The round bombs had been 
 cast once before by Lingg, in the rear room on mj' 
 stove, probably six weeks previous to the q.th of May. 
 The first bomb I ever saw was in Lingg's room; that 
 was still before that; at that time he told me he 
 was going to make bombs; I saw dynamite for the first 
 time in Lingg's room, about five or si.x weeks previous 
 to the /|th of May; Lingg said every working man 
 should get some dynamite, that there should be consider- 
 able agitation; that every working man should learn to 
 handle these things; during that Tuesday afternoon 
 Lingg said those bombs were going to be good fodder 
 for the capitalists and the police when they came to 
 protect the capitalists; nothing was said about when 
 they wanted the bombs completed or ready; I only told 
 him that I wanted these things out of my room; there 
 was onl}' a remark that the}' were to be used that even- 
 ing, but nothing positive as to time. I left the house at 
 half-past 8 that evening. Huebner was at the house 
 probably from 4 to 6 o'clock; I did not see what he 
 did; he worked in the front room with Lingg; I was 
 in Lingg's room; Munsenberg was there as long as 
 tluebner; Thielen was there half an hour — quite tljat; 
 
" I did not see what he was doing. The Lehmanns were 
 " at the house for a little while. I did not see what they 
 " were doing; they were in the front room. Heumann 
 " also worked at the bombs. I left that house in the 
 " evening with Lingg. We had a little trunk with 
 " bombs in. The trunk was probably two feet long, one 
 " foot high and one foot wide. It was covered with 
 " coarse linen. There were round and pipe bombs in it. 
 " They were loaded with dynamite and caps fi.xed to 
 ■' them. I don't know how many there were. The 
 ■' trunk might have weighed from thirty to fifty pounds. 
 ' We pulled a stick, which Lingg had broken, 
 •' through the handle. That is the way we 
 
 ' carried the trunk, which was taken to Neff's Hall, 
 ' 58 Cly bourn avenue. On the way to Neff's Hall, 
 ' Munsenberg met us. We took the package into the 
 ' building, and through the saloon on the side into the 
 ' hallway that led to the rear. After the bombs were 
 ' put down in the passage way, there were different 
 ' ones there, three or four, who took bombs out for them- 
 ' selves. I took two pipe bombs myself. Carried them 
 ' in my pocket. We went away from Neff's Hall and 
 ' left that package in the passage. The hall back of 
 ' Neff's Hall is known under the name of the " Shanty of 
 
 • the Communists.' Different socialistic and anarchistic 
 ■organizations met there. The north side group met 
 
 • there; I heard that the Saxon Bund met there. I don't 
 ■ know any others that met there. When I left Neff's Hall, 
 
 • Thielen and Gustav Lehmann were with me. Later, 
 two large men of the Lehr und Wehr Verein came to 
 us; I believe they all had bombs. We went on to Cly- 
 hourn avenue, north, toward Lincoln avenue, to the 
 Larrabee street station, where we halted. Lingg and 
 m\-self halted there. I don't know what had become of 
 
the others. Some went ahead of us. Lingg and I had 
 ' a conversation, that there should be made a disturb- 
 
 ■ ance everywhere on the north side, and keep the poHce 
 
 • from going over to the west side. In front of the 
 
 ■ Larrabee street station Lingg said it might be a beau- 
 
 • tiful thing if we would walk over and throw one or 
 
 • two bombs into the station. There were two police- 
 ' men sitting in front of the station, and Lingg said 
 ' if the others came out these two could not do much. 
 ' We would shoot these two down. Then we went 
 
 further north to Lincoln avenue and Larrabee street, 
 where we took a glass of beer. Webster avenue sta- 
 tion is near there. After we left the saloon we went 
 a few blocks north, then turned about and came back to 
 North avenue and Larrabee street. While we stood 
 
 • there the patrol wagon passed. We were standing 
 south of North avenue and Larrabee street. Lingg said 
 
 ■ that he was going to throw a bomb; that was the best 
 
 ■ opportunity to throw the bomb, and I said: ' It would 
 
 ■ not have any purpose.' Then he became quite wild, 
 e.xcited; said I should give him a light. I was sm.oking 
 a cigar, and I jumped into the front opening before a 
 store and lighted a match, as if I intended to light 
 a cigar, so I could not give him a light. When I had 
 lighted my cigar, the patrol wagon was just passing. 
 
 • Lingg said he was going to go after the wagon to see 
 
 • what had happened, saying that something had certainly 
 
 • happened on the west side, some trouble; the patrol 
 wagon was completely manned, going south on Larra- 
 
 • bee street; we were four or five houses distant from 
 
 • the station; then I went into a boarding house between 
 
 • Mohawk and Larrabee streets and lighted a cigar; then 
 we went towards home. First Lingg wanted to wait 
 
 • until the patrol wagon would come back, but I iaipor- 
 
I03 
 
 tuned him to go home with me. We got home proba- 
 bly shortly before ii, I cannot tell exactly. On the- 
 way home L-ingg asked me whether I had seen a no- 
 tice that a meeting of the armed men should be held on 
 the west side; I said I had seen nothing; Lingg 
 wanted to go out; I took the Arbeiter Zeitung, tore it 
 in two parts, he took one and I one; thereupon he said:. 
 ' Here it is!' and called my attention to the word Kiihe. 
 This here (paper marked People's Exhibit No. 4),. 
 is the same that I saw in my house. I didn't know 
 the meaning of the word Ruhe until the time I saw 
 it. Lingg said there was to have been a meeting 
 on the west side that night, and he was going to go at 
 once to it — that Ruhe meant that everything was to go- 
 topsy-turvy; that there was to be trouble; he said that 
 a meeting had been held at which it was determined that 
 the word Ruhe should go into the paper, when all the 
 armed men should appear at 54 West Lake street; that 
 there should be trouble. After that talk we went 
 away; Lingg wanted to go to the west side, and I 
 talked with him to go with me to 58 Clybourn ave- 
 nue. Lingg and I went there; there were several per- 
 sons present at Neff's Hall. I did not speak with 
 Lingg at Neff's Hall; a certain Hermann said to him 
 in an energetic tone of voice: 'You are the fault of all: 
 of it.' I did not hear what Lingg said to that; they 
 spoke in a subdued tone; somebody said a bomb had! 
 fallen which had killed many and wounded many; I did! 
 
 • not hear what Lingg said to that. On the wav home 
 
 ■ Lingg said that he was even now scolded, chided for 
 
 ■ the work he had done; we got home shortly after 
 
 • twelve. We laid the bombs off on our way on Sigel 
 ' street between Sedgwick and Hurlbut, under an ele- 
 ' vated sidewalk. I laid two pipe bombs there; I saw 
 
I04 
 
 " Lingg put some bombs there; I don't know what 
 " kind." 
 
 On cross-examination this witness admitted that he had 
 been under arrest, had himself been indicted for murder 
 in this same matter, that he had been furnished money 
 from time to time by Capt. Schaack, and that he had 
 from time to time, at the instance of the officers, signed 
 different written statements as to the occurrences testified 
 of, statements that differed from one another, but had 
 finally made substantially the same statement as he had 
 testified to. He also stated that Schaack had from time 
 to time paid his wife money, since his arrest, and stated 
 (A., 50) that the agreement on Tuesday afternoon 
 was that they were to go that evening with the bombs 
 they were manufacturing, to Clybourn avenue; that 
 there. was no agreement that the bombs were to be taken 
 anywhere else, nor what was to be done with them after 
 they were taken there; that he had never heard of any 
 agreement that any of the bombs manufactured on May 4th 
 were to be taken by anybody to the Hay market; that 
 thev zuei-e not on that occasion making bombs to take to 
 tlie Haymarket and destroy the folice; they were to be 
 taken to Clybourn avenue that evening, and the witness 
 stated that he could not say that a single bomb was made 
 for use at the Haymarket meeting. 
 
 Mrs. Seliger's testimony (A., 51-53) substantially cor- 
 roborates the testimony of her husband as to the fact that 
 Lingg was making bombs, and as to the fact that the 
 bomb-making was carried on at her house on the 4th day 
 of May, 1886. 
 
 Concerning these matters, Gustaf Lehmann testifies 
 (A., 73; J, 198, et seq.) that he went to Lingg's room on 
 the afternoon of May 4th, reaching there about 5 o'clock: 
 thai he there saw Lingg, Seliger, Huebner and a black- 
 
smith whose name he could not remember; he remained 
 there about ten minutes; they did some work in the bed- 
 room which the witness did not understand; Lint^g and 
 Huebner had a cloth tied around their faces; later, after 
 going away for a time, witness returned to Lingg's room 
 about 7 o'clock, and remained there a few minutes; that 
 at that time Huebner was cutting a coil of fuse into pieces; 
 ■during the afternoon, Lingg gave to the witness a small 
 band satchel, with a tin box in it, three round bombs, 
 two coils of fuse and some caps. Lingg said to the 
 witness that he wanted him to keep these things so that 
 tno one could find them; witness took them home with 
 him to the wood shed, and that night carried them 
 away to the prairie, near Cl3'bourn avenue, behind 
 •Ogden's Grove: about half-past nine he went to Neff's 
 Hall, because Lingg had told him on Monday' night that, 
 if he wanted to know something, he should come to 58 
 'Clybourn avenue on Tuesdaj' evening; he stayed about 
 ten minutes at Nefl"'s Hall; he did not see anybody there 
 •whom he knew except the barkeeper; later that night, 
 witness met Seliger and Lingg on the sidewalk on Lar- 
 rabee street near Clybourn avenue, and conversed with 
 them for a few minutes; either Lingg or Seliger sug- 
 gested that they should not all keep together, and there- 
 upon they separated. 
 
 Moriz Neff, (A., 82, S3,) testifies that he is the pro- 
 prietor of the saloon at 58 Clybourn avenue, and that on 
 the night when the bomb was thrown, Lingg, Seliger and 
 a stranger came to his saloon, bringing a satchel, arriving 
 about a quarter past 8; they went out of the side door of 
 the saloon with the satchel or bag; Lingg asked him if 
 somebody had asked for him; he saw Lingg and Seliger 
 .again that night about 11 o'clock; during the whole even- 
 ing nobody had inquired for Lingg. After Lingg went 
 
[o6 
 
 away upon his first visit, a number of persons came into 
 the saloon, among them the Hermanns, the Lehmanns, 
 the Hagemanns and Hirschberger; shortl}^ after these 
 Lingg and Seliger came in, and all talked together. Wit- 
 ness did not pay much attention to the conversation, but 
 heard some one of the party speak out very loud: "That 
 " is all your fault." Some of the parties stated that a. 
 bomb had been thrown among the police, and some ofJ 
 them had been killed, but he could not tell whether any 
 of the parties to the conversation had been at the Hay- 
 market meeting, whether they were speaking from knowl— 
 edge or from hearsay. 
 
 All this testimon}- came in under objection, and partic- 
 ularly under objection in behalf of the defendants otheir 
 than Lingg. 
 
 One of the witnesses for the State, namely Capt- 
 Schaack. said that Lingg had admitted to him that 
 he was present at the meeting at No. 54 West Lake- 
 street on the night of May 3d. But that he was present at 
 that meeting, was conclusively disproved by the testimony 
 of Ernst Niendorf (A., 276), who had been called as a 
 witness by the state, and that of Jacob Sherman (A., 276)^ 
 both of whom swear that Lingg was present at a meet- 
 ing of the Carpenters' Union at Zept's Hall on the night. 
 of May 3d, from 8 until after 1 1 o'clock. 
 
 It is perfectly evident from the testimonj' of Seliger,. 
 above quoted, that Lingg was not at the meeting at 54. 
 West Lake street, and that he had no clear or intelligent 
 comprehension of the plan that was agreed upon at that- 
 meeting, and particularly of the significance of the word^ 
 Rtihe if it should appear. He stated on the night of May 
 4tb, so Seliger says, that the word Ruhe was a signal for 
 the armed men of the various sections to meet at 54 West 
 Lake street; but, according to Waller's testimony, no 
 
I07 
 
 such significance whatever attached to the use of that 
 word. 
 
 The direct case against Louis Lingg consists of the 
 following facts: (i) That he did manufacture bombs. 
 (2) That he was specially active in preparing bombs on 
 the 4th day of May, 1886, which bombs he assisted in 
 carrying to Neff's saloon, 58 Clybourn avenue, a point 
 more than two miles distant from the Haymarket, and where 
 he arrived with Seliger about a quarter-past 8 o'clock. 
 And (3) that he proposed to Seliger, if we accept Sel'i- 
 ger's testimony, an attack upon the police out on Larrabee 
 street, also two miles from the Haymarket. 
 
 As to Seliger's testimony, it must be borne in mind that 
 it is the evidence of a man, who, upon his own showing, 
 supposed himself to be swearing for his life. Such tes- 
 timony should always be taken with great caution, and 
 scrutinized with extreme care — particularly where, as in 
 this case, the party admits that he had been led up 
 to the point of the testimony given through repeated 
 statements extorted by the police, while both himself 
 and his wife were under arrest, and practically as the 
 price of their liberty. Contradictions in the testimony of 
 such a witness are matters for grave consideration. When, 
 therefore, Mr. Seliger says that there was, on the after- 
 noon of May 4th a remark made that the bombs were to 
 be used that night,; but practically in the same breath 
 says: "Nothing was said about when they wanted the 
 " bombs completed or ready, and nothing positive was 
 " mentioned as to the time when the bombs were to be 
 '•used" (A., 46], such a contradiction is not without 
 significance. 
 
 Again, it is rather singular that the only person who 
 did anything which looked like acting upon the signal 
 "Ruhe " should have been Lingg ( namely, his proposal 
 
io8 
 
 to attack the police on Larrabee street), who at the 
 time did not knoiv that thai signal zvas published, but 
 learned of it only after he had returned home late at 
 night. (A., 47; I, 521.) 
 
 In the face of the proof that Lingg did not attend 
 the Haymarket meeting, and was not in direct com- 
 munication with anybody shown to have been at that 
 meeting, in the absence of all evidence that any one 
 of his bombs was taken to that meeting, we submit 
 that it cannot be presumed, cannot legally be in- 
 ferred, that he knew or understood that any one of the 
 bombs manufactured by him was to be taken to the Hay- 
 market meeting, or to be thrown by any person upon that 
 occasion. The most we think that can fairly be con- 
 cluded in reference to Lingg is, that he was completing 
 the manufacture of a number of bombs which had been 
 begun weeks before b}- him, and when a Haymarket 
 meeting was not in the imagination of any mortal, in 
 order to have them ready generally for use by the work- 
 ingmen in the event of a general outbreak in the city, or 
 a general conflict between the police and the strikers, and 
 nOL with reference to their particular use upon the occa- 
 sion of the Haymarket meeting. 
 
 We are brought, then, to the simple question whether 
 a conviction in this case was justified as against Louis 
 Lingg because he was a bomb-maker. 
 
 Upon this point an instruction was asked to be given to 
 the jury, which was refused by the court. We desire to 
 call attention, not only to that instruction, which we be- 
 lieve presented a correct principle of law, but to the cir- 
 cumstances attending the refusal of that instruction by 
 Judge Gary. The instruction asked was as follows 
 (I A., 23; 0,32): 
 
 " It is not enough to warrant the conviction of the 
 
I09 
 
 " defendant Lingg that he may have manufactured the 
 " bomb, the explosion of which killed Mathias J. Degan. 
 " He must have aided, abetted or advised the exploding 
 " of the bomb, or of the doing of some illegal act, or the 
 " doing of a legal act in an unlawful manner, in the 
 " furtherance of which, and as incident thereto, the same 
 " was exploded and said Degan killed. If, as to the 
 " defendant Lingg, the jury should find beyond all rea- 
 " sonable doubt that he did in fact manufacture said 
 " bomb, but are not satisfied beyond all reasonable doubt 
 " that he aided, advised, counseled or abetted the throw- 
 " ing of said missile, or the doing of any unlawful act 
 «' which resulted in the explosion of said bomb, your 
 " verdict should acquit him, as far as the establishment 
 " of his guilt is attempted by the manufacture of said 
 " missile or bomb." 
 
 The circumstances attending this instruction, and its 
 handling by Judge Garj', present some peculiar features. 
 (i A., 23; O, 33.) The instruction, after being examined 
 by Judge Gary, was marked as " given." The judge pro- 
 ceeded to read it to the jury in connection with the other 
 instructions given in behalf of the defendants. The record 
 shows that he read it half way through. In other words, 
 he read it far enough to show to the jury that it was an 
 instruction applicable to the case of Louis Lingg, and 
 presenting broadly the doctrine that a man could not be 
 hung for a murder accomplished by a weapon manu- 
 factured by him simply because he manufactured the 
 weapon, without other evidence connecting him with its 
 use. Judge Gary then stopped, and, in the presence of 
 the jui'}-, said, in effect, as disclosed by the record 
 (i A., 23; O, 33), that an instruction often im- 
 pressed one differently when read aloud, and there- 
 upon, in the presence of the jury, marked the instruc- 
 
tion " refused," and declined to read the balance of it. 
 That this conduct could not fail to prejudice the jury 
 against Louis Lingg, is manifest. The action of the 
 court itself was erroneous; its effect was just as preju- 
 dicial to Louis Lingg as if he had read the instruction 
 through, and then orally said: "Gentlemen of the jury, 
 that is not the law." Such a veibal statement would 
 have amounted to an instruction to the jury, not in writ- 
 ing, and, therefore, clearly illegal. 
 
 McEwen v. Morey, 60 111., 32. 
 Rev. Stat. 111., Chap, no, Sec. 52. 
 
 That this instruction asked in behalf of Louis Lingg 
 should have been given, we think too clear to admit of 
 serious doubt. It even so commended itself to the judg- 
 ment of the trial court as to secure in the first instance 
 his sanction. But not only did the court thus act in 
 reference to this particular instruction naming Louis 
 Lingg, but even a general instruction asked in his interest 
 was denied. The instruction was as follows, viz. (i A., 
 i6; 0,15): 
 
 " The court further instructs the jury that the mere 
 " manufacture and disposition of deadly weapons does not 
 " of itself make the party so manufacturing or disposing 
 " thereof responsible for murder committed therewith by 
 " third parties. Before such manufacturer or distributor 
 " can be held liable for a murder committed by a third 
 " party, it must be made to appear by credible evidence, 
 " be)'ond all reasonable doubt, that such manufacturer or 
 " distributor countenanced, advised, aided, encouraged 
 " or abetted the particular act of such third party, which 
 " resulted in the homicide, and was thus himself in con- 
 " templation of law accessory to the particular act 
 " charged as a crime." 
 
 Does not this instruction announce a correct rule of 
 
law? No equivalent for it is to be found in the instruc- 
 tions given. And certainly tfie situation of the case upon 
 the evidence justified the asking of this instruction. If 
 ■so, was not the refusal to give it clear error.'' 
 
 Whatever may be our criticism upon the matter of 
 smanufacturing dynamite bombs for any purpose, there 
 lis no law within this State which makes the mere 
 «ianufacture of such missiles a crime punishable with 
 •death or otherwise. Louis Lingg could not have been 
 ■convicted of murder because of all this matter detailed 
 by Seliger and his wife and Lehmann, even if it were 
 <;lear that the bomb thrown at the Haymarket had come 
 from his hands, if it had been thrown by a third party acting 
 xipon his own responsibility and without Lingg's knowl- 
 -edge, consent, aid, assistance, advice or encouragement. 
 For example, the manufacturers of revolvers, bowie knives, 
 ■dirks, poisoned daggers, Gatling guns, air guns, have never 
 been held responsible for the consequences of the use of 
 these weapons by a third party acting sua sponle. These 
 weapons are harmless in themselves, and cannot be in- 
 •volved in the commission of crime until some free moral 
 agent intelligently applies them to some purpose of de- 
 struction. Nor is this rule atiected by the fact, if con- 
 ceded, that the manufacturer must have known that the 
 natural use to which the implement manufactured would 
 l>e put would be the taking of human life. We may 
 •deprecate such industry, but we cannot say that the 
 mere pursuit of the industry makes the man engaged 
 in it responsible for every use of the implement pro- 
 duced. By wa}' of illustration, we may suppose that 
 ■some third party, an enemy of Lingg's, had obtained one 
 •of the bombs of his manufacture and use for the purpose 
 of deliberate murder, with the design of involving Lingg 
 himself in ruin, and with it committed a crime to 
 
which Lingg was a stranger; such result would not 
 follow. In order to justify a legal conviction of murderj 
 there must be satisfactory and conclusive proof of the 
 commission by the 'party accused, in his own person or 
 through another acting under his aid and advice, of the 
 crime alleged. It will not do to allow our horror over the 
 use of this terrible explosive to carry us away from the 
 moorings of the law. It will not do for us to allow the- 
 realm of jurisprudence to be invaded by the mere dic- 
 tates of supposed policy. We must stand by fixed prin- 
 ciples of general application. Only thus can the law be 
 administered as a science, and be made the protection of 
 the innocent and the terror only of the guilt}-. 
 
 We submit and insist that this record is barren of evi- 
 dence justifying the conclusion by tJie jury that Louis 
 Lingg was a party to a conspiracy to throw a bomb on 
 the night of May 4, 1886, or to a coinmon object in the 
 attempt to execute which that bomb was thrown. The 
 evidence is conclusive that Lingg did not throw the 
 bomb, did not stand b}- and assist the perpetration of 
 the crime. It follows as an irresistable conclusion from^ 
 Seliger's testimony, that whatever Lingg did, whatever 
 he may have attempted or proposed on the north side, he 
 had no knowledge that a bomb would be thrown at the 
 Haymarket meeting. The evidence fails to show, that 
 without being present, he had advised, encouraged, aided 
 or abetted the perpetration of the crime charged in the 
 indictment. 
 
 The Haymarket Meeting. 
 
 It is perhaps fitting that at this juncture a little space 
 should be devoted to the consideration of the Haymarket 
 meeting itself, its special features, and the facts leading up 
 
"3 
 
 to, and resulting in, the tragedy of the night of Maj- 4, 
 1886. 
 
 The Haymarket, so-called, is a widening of Randolph 
 street between Desplaines and Halsted streets, extending 
 a distance of two blocks. (People's Exhibit i. Vol, of 
 Ex.) The territory was sufficiently large for the hold- 
 ing of an immense meeting, and the evidence shows that 
 when it was called a very large attendance was expected. 
 This expectation was not realized. Only here and there 
 small groups of men gathered on the Haymarket square, 
 and the speakers were late in arriving. At the hour 
 named, 7:30 p. m., no one was upon the ground to call 
 the people together or to open the meeting. There is no 
 contradiction of the testimony as to these points. It is 
 proved alike by the witnesses for the State and for the 
 defense, that no move was made toward the calling to 
 order of the meeting itself until August Spies, looking 
 around for a suitable rostrum from which to address the 
 crowd, selected the truck wagon which he found standing 
 close to the edge of the sidewalk in Desplaines street, 
 and directly in front of the steps leading up to the door 
 entering into the Crane Bros, manufacturing establishment. 
 The wagon stood with the rear to the south, the tongue 
 to the north; and the end of the wagon was some six or 
 eight feet, or more, north of the north line of the Crane 
 Bros.' alley. This is a short alley, as shown by the plat, 
 which enters the block from Desplaines street toward 
 the east upon the south line of Crane Bros.' building, and 
 extends about half way through the block, then makes 
 a junction with another short alley extending out from 
 the point of junction southward to Randolph street. This 
 alley is a perfect cul-de-sac as it there existed, and all 
 egress from it could be stopped by a handful of men at 
 the Randolph street exit. 
 
Having selected this wagon Mr. Spies mounted it at 
 about half-past eight o'clock and inquired for Parsons. 
 Parsons not responding, Spies dismounted from the 
 Avagon and went in search of him, being absent, as 
 ■estimated by the difft;rent witnesses, from five to ten 
 ■minutes, and returning again, mounted the wagon and 
 ■commenced to speak. He spoke about twenty minutes. 
 As soon as Parsons and Fielden arrived Spies brought 
 his remarks to a close and introduced Parsons. Parsons 
 ■did not commence to speak until about nine o'clock; he 
 spoke from three-quarters of an hour to an hour. At the 
 end of Parsons' speech Fielden was introduced. He 
 spoke about twenty minutes; and about twenty minutes 
 past lO o'clock at night, his speech was interrupted b}' the 
 arrival of the police, the order to disperse, and the sub- 
 sequent explosion of the bomb. 
 
 From its beginning to its close, the meeting was as 
 ■orderly as any ordinary outdoor meeting. Mr. English, 
 the Tribune reporter, says (A., 133; K, 284): " // zi'as 
 " a feaceable and quiet meeting- for an outdoor meeting. 
 '" I didn't see any turbulence. I was there all the time." 
 
 Mayor Harrison tells us (A., 174; L, 27 et seq.), that 
 having had a conversation with Inspector John Bonfield, 
 and arranged for the presence of the police at the Des- 
 plaines street station, to be held in readiness against possi- 
 ble violence by the Haymarket meeting, he concluded to 
 attend the same in person, so as to personally order its 
 dispersion if, in his judgment, it assumed a dangerous ten- 
 dency. It was his own determination to do this, against 
 the will of the police. He attended the meeting from its 
 beginning until near the close of Parson's address. Here 
 is his testimon}' (A., 175; L, 36 ct seq.) : 
 
 " I did, in fact, take no action at the meeting about dis- 
 " persing it. There were occasional replies from the 
 
"5 
 
 ■ audience, as ' Shoot him,' ' Hang him,' or the like, but I 
 
 • don't think, from the directions in which they came, 
 
 ■ here and there and around, that there were more than 
 
 ■ two or three hundred actual sympathizers with the 
 ' speakers. Several times cries of ' Hang him ' would 
 ' come from a boy in the outskirts, and the crowd would 
 
 ■ laugh. I felt that the majority of the crowd were idle 
 ' spectators, and the replies nearly as much what might 
 
 • be called ' guying ' as absolute applause. Some of the 
 
 ■ replies were evidently bitter; they came from immedi- 
 ately around the stand. The audience numbered from 
 
 ■ eight hundred to one thousand. The people in attend- 
 ance, so far as I could see during the half hour before 
 the speaking commenced, were apparently laborers or 
 mechanics, and the majority of them not English-speak- 
 ing people, mostly Germans. There was no sug- 
 gestion made by either of the speakers look- 
 ing toward calling for the immediate use of 
 force or violence towards any person that night; 
 if there had been, I should have dispersed them at once. 
 After I came back from the station Parsons was still 
 
 ■ speaking, but evidently approaching a close. It was 
 becoming cloudy, and looked like threatening rain, and 
 I thought the thing was about over. There was not 
 onc-fotirth of the crowd that had been there during the 
 evening, listening to the speakers at that time. In the 
 crowd I heard a great many Germans use expressions 
 of their being dissatisfied with bringing them there for 
 this speaking. When I went to the station, during Par- 
 sons' speech, I stated to Capt. Bonfield that I thought 
 the speeches were about ov^r; that nothing had occurred 
 yet, or looked likely to occur, to require interference, and 
 that he had better issue orders to his reserves at the 
 other stations to go home. Bonfield replied that he had 
 
ii6 
 
 " reached the same conclusion from reports brought to him, 
 " but he thought it would be best to retain the men in the 
 " station until the meeting broke up, and then referred to 
 " a rumor that he had heard that night, which he thought 
 " would make it necessary for him to keep his men there, 
 " which I concurred in. During my attendance of the 
 " meeting I saw no weapons at all upon any person." 
 
 Upon cross-examination he says (A., 176) the rumor 
 referred to was related to him by Capt. Bontield 
 immediately after his reaching the station. Bonfield 
 told him that he had just received information that 
 the Haymarket meeting, or a part of it, would go 
 over to the Milwaukee and St. Paul freight houses, then 
 filled with scabs, and blow it up. There was also an ap- 
 prehension or fear on Mayor Harrison's part that this 
 meeting might be held merely to attract the [attention of 
 the police to the Haymarket, while the real attack, if any, 
 should be made that night on McCormick's. Those 
 were the contingencies in regard to which he was listen- 
 ing to those speeches. In listening to the speeches, he 
 concluded it was not an organization to destroy property 
 that night, and went home. 
 
 This is the testimony of the chief executive officer of 
 the city, who was there upon the ground, charged with 
 the duty of preserving the peace and preventing violence. 
 We think it useless to quote from the testimon}- of a 
 score of other witnesses, in order to show that the meet- 
 ing was peaceable and orderly during the time that Ma^-or 
 Harrison was present. We shall only attempt to answer 
 the question: Did the meeting change its character after 
 Mr. Harrison left it? 
 
 If the meeting commenced to disintegrate while Par- 
 sons was speaking, it had practically dissolved before Mr. 
 Fielden was interrupted by the arrival of the police. 
 
117 
 
 Upon the proposal by Parsons of an adjournment of tlie 
 meeting to Zepf's Hall, the meeting dwindled to about 
 one-third or one-fourth of its original proportions. Major 
 Harrison's statement that there were at no time more 
 than eight hundred to one thousand men in attendance, is 
 supported by substantially all the witnesses who testified 
 in regard to the size of the meeting. 
 
 It is also admitted by substantially all the witnesses that 
 not more than three to five hundred were left upon the 
 ground, when the meeting came to a close, some standing 
 immediately around the wagon, others upon the opposite 
 sidewalks of the street. Fielden continued his address, 
 approaching a close, and had in fact said the words, " In 
 " conclusion," as he neared the end of his speech. Sud- 
 denly he was stopped by the arrival of a police force of 
 about one hundred and eighty men, the head of the col- 
 umn being halted by the officer in command about the 
 north Hne of the alley projected, and within six or eight 
 feet of the wagon itself. There is no pretense that there 
 was any difficulty experienced by the head of the column 
 in reaching this position. There was no such crowd as to 
 interfere with their free and rapid movement. 
 
 As to the character of this movement of the police, 
 the testimony of the officers themselves shows that 
 the order to fall in was given urgently; there was 
 no halting of the head of the column until the com- 
 plete column was formed; the head of the column 
 moved without halting, at a rapid march, so that those 
 who came later out of the station 'and formed the 
 second and third companies of the column were compelled 
 to proceed almost, if not quite, at a double quick, in order 
 to get their position in the line, and that they did not in 
 fact gain that position until the head of the column had 
 reached the position of the halt. This appears from the 
 
testimony of Lieut. Stanton (A., i6; I, 216); Ferguson 
 (A., 183; L, 133), and Gleason (A., 203; L, 362, 363 )> 
 No explanation is given by any of the officers in charge 
 of the force that night of this haste. Here was in process 
 of dissolution, a meeting from which no violence or dan- 
 ger was apprehended a few minutes before. Capt. Bon- 
 field says that he was in receipt of constant information 
 from this meeting. We are, therefore, warranted in say- 
 ing that when he ordered his men to fall in, he must have 
 known that the meeting was about to break up and the 
 people to go home; that he knew up to the time of the 
 latest advices received b}^ him no proposal to do any 
 unlawful act had been advanced, and no turbulent or law- 
 less character had been developed in the meeting itself. 
 Substantiall}' all of the witnesses concur in saying that 
 the meeting was more enthusiastic and responsive while 
 Parsons spoke than when Fielden spoke, a position 
 vouched for by the fact that the audience was rapidly 
 scattering during the progress of Mr. Fielden's speech^ 
 and explained b)- the fact that those present were wearied 
 of their long standing in the cold street. 
 
 This meeting, being reached by the police, Capt. Ward 
 gave at once the command: " In the name of the people 
 " of the State of Illinois, I command this meeting immedi- 
 " ately and peaceably to disperse," followed in the ver}- 
 same breath by the words: "And I call upon you and 
 " you (turning to bystanders) to assist." 
 
 To assist in what? In dispersing a meeting that was 
 refusing to peaceably disperse upon lawful command? In 
 dispersing a riotous or unlawful assemblage and arresting 
 and securing the rioters? In suppressing a disorderly and 
 tumultuous. gathering that was threatening the peace and 
 dignity of the city and of the State? 
 
 The law of the State of Illinois in reference to the 
 
119 
 
 suppression of unlawful assemblages, as found in sections 
 253 and 254 of Div. i, Chap. 38, R. S. 111. Crim. Code, 
 clearly contemplates that when a meeting admittedly of 
 a riotous or tumultuous character, is ordered to disperse 
 by proper authority, a reasonable opportunity to comply 
 with such order shall be afforded before any demonstra- 
 tion of violence or force shall be made, so likely in itself 
 to precipitate the very evil to be guarded against, by 
 unnecessarily irritating the populace. Nothing of this 
 kind occurred at the Haymarket meeting. When the 
 order to disperse was given, no reasonable and proper 
 opportunity for compliance with that order was afforded 
 in the first instance, but there was an immediate call upon 
 the bystanders to assist in the forcible dispersion of a 
 meeting that ^vas confessedly quiet, orderly, peaceable, 
 small in numbers, and upon the ver}' eve of voluntary 
 dispersion. 
 
 Replying simply that the meeting was peaceable, Mr. 
 Fielden at once dismounted from the truck, and the 
 others that were on it in like manner proceeded to alight, 
 and were in the act of separating promptly and without 
 any delay whatever, as is conceded in all the testimony,, 
 when the bomb was thrown. 
 
 Immediately following the explosion of the bomb, there 
 was a great amount of pistol shooting. It is claimed by 
 the police that somewhere from fifty to seventy-five, or 
 possibly one hundred shots were fired into them from 
 both sides of the street, before any shot was fired by the 
 police. We believe we are justified in saying that the 
 claim that the explosion of the bomb was followed by a 
 volley from the crowd, as though the one had been the 
 signal for the other, is a claim that grevv up after the 
 Haymarket meeting, finding support from the assertions 
 of men who, like Mr. Hull, could remember what oc->- 
 
curred on that night several months afterwards much 
 better than they could the next morning. Mr. Hull was 
 a reporter for the Daily News, attended the meeting that 
 night, standing at the head of the stairs on the north- 
 west corner of Desplaines and Randolph. On cross- 
 examination he says (A., 117, 118; K, 129, 135 et seq.): 
 
 " I wrote the account of the Haymarket meeting, de- 
 " scribing the throwing of the bomb and what followed 
 " immediately, which account was published in the Daily 
 " News on the following morning. It was correct, ac- 
 " cording to my impression at that time. My impression 
 " has decidedly improved since. I was as well advised at 
 " the time as I am now, but my recollection was not 
 " clear at the time. / have said noivhere in this report 
 " (report in the Daily News of May 5, 1886) that the 
 " crowd fired upon the police. I did say that the police 
 " required no orders before tiring upon the crowd. I 
 " wrote this about an hour after the occurrence. After 
 " describing the explosion of the bomb I used this lan- 
 "guage in my report: ' For an instant after the explo- 
 " sion, the crowd seemed paralyzed, but with the revolver 
 " shots cracking like a tattoo on a mighty drum, and the 
 " bullets flying in the air, the mob plunged away in the 
 " darkness with a yell of rage and fear.' " 
 
 That the crowd opened fire upon the police is explicit!}' 
 denied by the following witnesses: Simondson (A., 179; 
 L, 73); Zeller (A., 185; L, 157); Richter (A., 187; L, 
 iSi); Liebel (A., 189; L, 202,203); Taylor (A., 192; 
 L, 233); Stenner (A., 196; L, 283); Gutscher (A., 197; 
 L, 301, 302); Raab (A., 198; L, 315, 316); Urban (A., 
 202; L, 349); Hiersemenzel (A., 207; L, 387); Messer 
 (A., 208; L, 401) ; Lindinger (A., 216; L, 475) ; Koehler 
 (A., 219; L, 514, 515); Heidekrueger (A., 222; L, 545, 
 546); Schmidt (A., 223; L, 552); Schwindt (A., 223; 
 
I>, 557); Hollovvay (A., 230; M, 64); Lehnert (A., 234; 
 jVI, 91); Snyder (A., 237; M, 112); Waldo (A., 245; 
 M, 170); Ingram (A., 287, 28S; M, 451); Schultz (A., 
 J78; M, 3S2), from whose testimony it also appears that 
 the police pursued fleeing, inoffensive, defenseless citizens, 
 •clubbing and shooting them. 
 
 In this connection we beg to cite the following testi- 
 mony of Dr. Taylor: "When I revisited the ground the 
 •" next morning I noticed bullet-marks on the wall of 
 -" Crane's building, which forms the north side of Crane's 
 ■" alley. I could not find one hiillet-niark on the wall at 
 -'' the south side of the alley. I examined a telegraph pole 
 ■" on the west side of Desplaines street, north of Crane's 
 ■" alley. I noticed that all the ferforations were on the 
 •" south side of that telegraph pole. I did not find one 
 ■" pistol shot or fresh mark, upon the north side. The 
 ■" pole is not there noiv; about a week and a half ago I 
 -" observed for the first time that it was not there any 
 ■^' longer." This testimony was not attempted to be con- 
 Ttradicted. Comment upon that seems to us unnecessary. 
 Even of the witnesses for the state, the following 
 honestly admit that they cannot say that the crowd first 
 iiired upon the police: 
 
 Lieut. Stanton says (A., 16; I, 222) he fired inimc- 
 'diately upon the explosion of the bomb, and he could not 
 swear whether the police or the crowd fired first. 
 
 Reporter Freeman says (A., 106; K, 41, 42) he don't 
 .know where the firing began first, and that he retreated 
 into the alley because he satv no firing from tl ere, while 
 the police claimed that the crowd fired from the side- 
 walk and the alley. 
 
 Officer Cosgrove (A., 121; K, 170) says he can't tell, 
 'ivhether the police fired first or the other side. 
 
 Reporter Heinemann (A., 126; K, 253) says he could 
 
not say, whether the first shots came from the police or 
 the crowd. 
 
 The police, after the explosion of the bomb, nred 
 indiscriminately, and in wild confusion, shooting each 
 other as well as pursuing the fleeing people in every 
 direction and firing upon them. 
 
 Compare the testimony of Simondson: "The police 
 " were not only shooting upon the crowd, but I noticed 
 " several of them shoot just as the)' happened to throw 
 "their arms" (A., 179; L, 74), with that of Dr. Fleming,, 
 that the bullet which he extracted from officer Krueger"^ 
 knee was a police regulation bullet (A., 246, 247; M,. 
 179 et seq.) 
 
 This is, perhaps, not the proper place for an arraign- 
 ment of the police for their action in menacingly march- 
 ing in such numbers and in the manner specified upon a 
 peaceable meeting of citizens upon the eve of its adjourn- 
 ment. Neither shall we enter into a consideration of the 
 unconstitutionality- of this dispersion. We shall only aski 
 What excuse is there for this movement? What occasior* 
 was there for the police to thus interfere with this meeting? 
 
 While the foregoing evidence shows the peaceable and 
 orderly' character of the meeting until its dispersion, it also- 
 appears that none of the parties connected with the calling 
 of that meeting had any criminal design in view in the 
 calling thereof. It was believed by the parties who called 
 the meeting that a great wrong had been done in the city 
 of Chicago shortly prior thereto, and the call itself referred 
 to this alleged grievance. Perhaps they were mistaken as 
 to their view of the occurrence to which they referred,, 
 but certainly they had a right, and there was no crime in- 
 volved in the exercise of that right, to call a meeting of 
 citizens for the purpose of protesting against those sup- 
 posed grievances; and this was all that was done in con- 
 
123 
 
 nection with the calling of the Haymarket meeting, and 
 all that was designed. The impression that got abroad, 
 that it was a part of the design of the meeting to make 
 a disturbance, was expressly disclaimed by Mr. Spies 
 when he took the speakers' stand, and the entire tend- 
 ency of the addresses was the very reverse of inciting to 
 any present riot or lawlessness. 
 
 The evidence utterly fails to show that any of these 
 plaintiff's in error knew that a bomb was to be thrown by 
 any one. It presents an instance of a meeting where 
 some one, unknown to the public and to the plaintiffs in 
 error, threw the bomb and did the kilHng; and the ques- 
 tion is, whether the plaintiffs in error are to be convicted 
 as accessories to a crime they did not know was to be com- 
 mitted, did not advise, aid or abet, and in which the really 
 guilty party is as unknown to them as to the public. 
 
 OUR POSITIONS UPON THIS STATE OF THE CASE. 
 
 It is proper that at this point we should present to the 
 court our views, and the authorities sustaining them,, 
 touching the case attempted to be made by the state upon 
 the evidence thus far considered, and which in our view 
 certainly includes all the testimony in this record which 
 was properly before the jury for their consideration in the 
 determination of the issues presented to them. 
 
 I. Mere participation in an unlawful assemblv 
 
 DOES NOT make RESPONSIBLE FOR THE INDEPENDENT 
 CRIME OF A PARTICIPANT. 
 
 The only two plaintiffs in error who were shown by 
 credible evidence to have been present at the meeting of 
 May 4, 1886, at the time of the explosion of the bomb. 
 
are Fielden and Spies. Neither of them, however, had 
 procured its being called. The evidence shows that it 
 was a lawful assemblage. But even if there were grounds 
 to question its legality, if, for the sake of argument, we 
 should admit that the meeting were an unlawful meeting: 
 though in , that case all who attended it were equally 
 touched with its unlawful character; yet mere presence 
 at, participation in, or responsibility for, the calling of an 
 unlazvfiil assemblage, does not make such participants or 
 attendants responsible for the independent, lawless or 
 criminal conduct of persons attending that meeting, for- 
 eign to the general purposes and design thereof. Even 
 if this meeting of May 4th should be deemed an unlaw- 
 ful meeting because of its purpose or of its character, yet 
 the plaintiffs in error attendant at that meeting would not, 
 for that reason, be responsible for a crime committed at 
 the meeting by some person unknown to them and a 
 stranger to their counsels, or acting without reference to 
 their views, and not under their procurement. The law 
 upon this subject is clearly and well stated in i Wharton 
 Criminal Law, the latter part of sec. 220, where it is 
 said: 
 
 " Where homicide is committed collaterally by one or 
 " more of a body unlawfully associated, from causes hav- 
 " ing no connection with the common object, the respon- 
 " sibility for such homicide attaches exxlusively to its 
 •' actual perpetrators. ***!(: must also be remem- 
 " bered that a rioter is not responsible on an indictment 
 " for murder for a death incidentally caused by officers 
 " engaged in suppressing a riot, nor in an aflray are the 
 " original parlies responsible for a death caused by strang- 
 " ers wantonly and adversely breaking in." 
 
 And the same author further says in the same work, 
 section 397: 
 
" It should be observed, however, That while the parties 
 " are responsible for consequent acts growing out of gen- 
 " eral design, they are not for independent acts growing 
 " out of the particular malice of individuals. Thus, if 
 " one of the party on his own hook turn aside to commit 
 " a felony foreign to the original design, his companions 
 '■ do not participate in his guilt. It must be remembered 
 " that to make out the coy-pus delicti in such cases, it is 
 " essential to show that the party charged struck either 
 " actually or constructively the fatal blow, and consented 
 " to the common design." 
 
 This rule is based upon natural right, and may be 
 stated perhaps in these words: that one man's malice 
 
 OR MISCONDUCT SHALL NOT CREATE ANOTHER MAn's 
 GL^LT. 
 
 Speaking under this point, Mr. Wharton says (Crimi- 
 nal Law, § 1 60): 
 
 " We may expand this rule still further, and hold that 
 " the defendant, no matter how wrongful may have 
 " been his conduct, is not responsible for the acts of in- 
 " dependent parties performed on the objects of the crime 
 " without his concert." And many illustrations are given 
 by the learned author in the section referred to of this 
 doctrine, which show its reasonableness and propriety. 
 
 So Mr. Bishop, in the first volume of his work on 
 Criminal Law, seventh edition, in his chapter treating 
 upon " Combinations of persons in crime," speaks as fol- 
 lows (Sec. 633): 
 
 "A mere presence is not sufficient; nor is it alone 
 " sufficient in addition, that the person present, unknown 
 " to the other, mentally approves what is done. There 
 " must be something going a little further; as, for exam- 
 « pie, some word or act. The party to be charged ' must,' 
 " in the language of Cockburn, chief justice, ' incite or 
 
126 
 
 " procure or encourage l/ie act!' His will must in some 
 " degree contribute to what is done." 
 
 And further, the same author says in Sec. 634 of the 
 same work, as follows: 
 
 " From the proposition that mere presence at the com- 
 " mission of a crime does not render a person guiltj', it 
 " results, that, if two or more are lawfully together, and 
 " one does a criminal thing without the concurrence of the 
 " others, they are not thereby involved in his guilt. * * * 
 " Even where persons are unlawfully together, and by 
 " concurrent understanding are in the actual perpetration 
 " of some crime, if one of them, of his sole volition and 
 " not in pursuance of the main purpose, does a criminal 
 " thing, in no waj'^ connected with what was mutually 
 " contemplated, he only is liable." 
 
 The learned author follows with many cases illustrating 
 the doctrine thus laid down, and, in summing up his ob- 
 servations on this subject, he says, in Sec. 641 : 
 
 " The true view is doubtless as follows: One is re- 
 *' sponsible for what of wrong flows directly from his 
 " corrupt intentions; but not, though intending wrong, 
 " for the product of another's independent act. * * * 
 *' If the wrong done was a further and independent 
 " product of the mind of the doer, the other is not crimi- 
 " nal therein merely because when it was done he meant 
 " to be a partaker with the doer in a different wrong." 
 
 Among the cases cited by the authors above quoted in 
 support of the text as advanced by theni, we single out 
 the following, by way of illustrating and enforcing the 
 rule: 
 
 In Regina v. Sheet el al., 4 Foster & Fin., N. P. Cases, 
 931, the evidence showed that the defendants were joined 
 in the misdemeanor of poaching. Being attacked by the 
 gamekeeper of the premises upon which they were tres- 
 
127 
 
 passing, a struggle ensued, in the course of which the 
 gun of Skeet was discharged, icilling the gamekeeper. 
 The indictment was for murder. Charging the jury. 
 Pollack, C. B., said: 
 
 " As regards the other prisoners — there is no evidence 
 ^' against them; and it is admitted that they cannot be 
 '' Hable except upon the doctrine of constructive homi- 
 ^' cide, which, as I have already laid down, does not ap- 
 " ply where the only evidence is that the parties were 
 ■" engaged in an unlawful purpose: not \)€m<g felonious. It 
 *' only applies in cases where the common purpose is 
 ■" felonious, as in cases of burglary: where all the far lies 
 ■" are aware that deadly zveapons are taken with a view to 
 *' inflict death or commit felonious violence if resistance is 
 ■" offered. That doctrine arose from the desire on the 
 ■" part of the old lawyers to render all parties who were 
 " jointly engaged in the commission of a felony responsi- 
 •" ble for deadly violence committed in the course of its 
 '■'• execution. But that doctrine has been much limited in 
 ■" later times, and only applies in cases of felony, where 
 ■" there is evidence of a felonious design to carry out the 
 •" unlawful purpose at all hazards, and whatever may be 
 •" the consequences. The possession of a gun would not 
 " be any evidence of this, for a gun is used in poaching. 
 " And poaching of itself is only an unlawful act and a 
 •*' mere misdemeanor. Therefore, as there is no evidence 
 " against the other prisoners of complicity in any such 
 ■" design, or in the act of firing, they must all be acquitted 
 ■" both of murder and of manslaughter." 
 
 In Rex v. Hawkins, 3 Car. & Payne, 392, it appears 
 that a gang of poachers attacked the gamekeeper, beat 
 bim and left him senseless upon the ground, after which 
 one of the number returned and robbed him. Under an 
 indictment against defendants, and one Williams, who 
 
did the robbing, but who was not in custody, the defend- 
 ants were acquitted under the charge of Park, Justice,, 
 who, in his instruction, used the following language: 
 
 " It appears to me that Williams is alone guilty of this 
 " robbery. It appears that there was no common intent to- 
 " steal the keeper's property. They went out with the 
 " common intent to kill game, and perhaps to resist the 
 " keepers; but the whole intention of stealing the prop- 
 " erty is confined to Williams alone. They must be 
 " acquitted of the robbery." 
 
 In support of the doctrine of this case the learned anno- 
 tators append the following note: "To make all guilt}-,. 
 " ' the fact must appear to have been committed strictly in- 
 " ' prosecution of the purpose for which the party was- 
 " ' assembled; and, therefore, if divers persons be engaged 
 " ' in an unlawful act, and one of them, with malice pre- 
 " ' pense against one of his companions, kills him, the rest 
 " ' are not concerned in the guilt of that act, because it 
 i' ' hath no connection with the crime in contemplation.' 
 " So, where two men were beating a third in the street, 
 " and a stranger made an observation of the cruelty of 
 " the act, and one of them stabbed him, this was not mur- 
 " der in both, though both were committing an unlawful 
 " act; because only one of them intended to do injury to 
 " the person killed, i Curw. Hawk., p. loi. 
 
 " In Pliijumer^s case, a smuggler, in a scuffle with the 
 " revenue officers, shot one of his comrades (upon a 
 " grudge of his own); the question was, whether the 
 " whole gang was guilty of murder: and it was held, that 
 " as it did not appear that the gun was discharged in 
 " prosecution of the purpose for which the party had assetn- 
 " d/ed, it was only murder in him who did it. Cited i Rus- 
 " sell, 652; Hodgson case, i Leach, 6 S. P. And if sev- 
 " eral are out for the purpose of committing a felony. 
 
129 
 
 " and upon an alarm run different ways, and one of 
 " them maim a pursuer to avoid being taken, the others 
 " are not to be considered principals in such act. Rex v. 
 « White, Russell & Ry. C. C. R., 99." 
 
 So in Bex v. Collison, 4 Car. & Payne's, 565, the doc- 
 trine was laid down that in order to hold one guilty as an 
 accessory before the fact, it must be proved that the crim- 
 inal act was the result of a covmion purpose. The facts in 
 that case were as follows: Two private watchmen, seeing 
 the prisoner and another person with two carts laden with 
 apples, went up and walked along with them, intending 
 as soon as they could procure assistance to secure them, 
 believing the apples to be stolen. One of the watchmen 
 walked beside one prisoner, and the other beside the other 
 person at some distance from the first. While walking 
 along, the prisoner's companion stepped back, and, with 
 a bludgeon which he carried, struck and wounded the 
 watchman with whom he had been walking. The huv 
 in that case was laid down as follows: 
 
 "To make the prisoner a principal, the jury must be 
 " satisfied that, when he and his companion went out with 
 " a common illegal purpose of committing the felony of 
 " stealing apples, they also entertained the common guilty 
 " purpose of resisting to death, or with extreme violence, 
 " all who might endeavor to apprehend them; but if they 
 " had only the common purpose of stealing apples, and 
 '* the violence of the prisoner's companion was merely the 
 " result of the situation in which he found himself, and 
 " proceeded from the impulse of the moment, without 
 " any previous concert, the prisoner will be entitled to an 
 " acquittal." 
 
 In Regina v. Price, 8 Cox's Criminal Cases, 96, the 
 facts briefly were: that the prisoners, six in number, who 
 were shipmates, for some unknown cause, chased a Ger- 
 
I30 
 
 man sailor belonging to another ship through the streets of 
 Falmouth, brutally assaulting him, and as he took refuge 
 from their attack against a railing, he was stabbed by one 
 of them with a knife, of which wound he died in a few 
 minutes. The evidence as to whose hands inflicted the 
 wound was absolutely conflicting. Two of the witnesses 
 who saw the transaction at the same spot and the same 
 moment differed in their identification, one of them swear- 
 ing positively that the stabber was one of the prisoners 
 who had whiskers, and the other as positively swearing 
 that the murderer was another of the prisoners who had 
 no whiskers, and each swore that he had marked his 
 man at the time by this very peculiarity. Byles, Justice, 
 in charging the jury, laid down the law as follows: 
 
 "^Six men were charged with the willful murder of a 
 " German sailor by stabbing him. The deceased was a 
 " peaceable unoffending person. The stab was given by 
 " one individual of the six. Now, supposing they could 
 " fix upon the hand that stabbed, the first question would 
 " be what was his offense, and what was the offense of 
 " the other five.-^ The individual who stabbed was clearly 
 " guilty of murder, whether he intended to kill or not. 
 " If they could point out the man who gave that stab, and 
 "■ they should be of opinion that they had selected the 
 '•'■ right man, he was guilty of murder. The next ques- 
 "■ tion would be, in what condition were the other five 
 « men? The deceased sailor was leaning against some 
 " iron railings when the stab was given, but before that 
 " he had been assaulted in a barbarous and dastardly 
 " manner by these six men ; but did the other five men 
 " contemplate the use of the knife, or was it the inde- 
 " pendent act of the man who used it? First, then, they 
 ''■ were all guilty of murder if they participated in the 
 "*' common design and intention to kill. If they should 
 
" think the others did not intend and design to kill, yet 
 " these others would also be guilty of murder if the knife 
 " were used in pursuance of one common design to use 
 " it, because then the hand that used the knife was the 
 " hand of all of them. Supposing there was no common 
 " design to use the knife, if, being present at the moment 
 " of stabbing, they assented and manifested their assent 
 " by assisting in the offense, they were guilty of murder. 
 " First, then, there must be a common design to kill; 
 " secondly, there must be a comtnon design to use a mur- 
 " derous instrument ; thirdly, there must be presence at 
 " the time and assent to and assistance in the use of the 
 " knife. If, however, the jury should find neither of 
 " these three modes of putting the cases proved against 
 " the five, it would be their duty to find the stabber guilty 
 " and to acquit the others." 
 
 There was a verdict of not guilty. 
 
 In Duffefs case, i Lewin, C. C, 194, Park, Justice, 
 laid down the law that "if three go out to commit a felony 
 " and one of them, unknown to the others, puts a pistol in 
 " his pocket and commits a felony of another kind, such as 
 " murder, the two who did not concur in this second felony 
 " will not be guilty of it, notwithstanding it happened while 
 " they were engaged with him in the felonious act for 
 " which they went out." 
 
 In Regina v. Luck, 3 Foster & Fin, N. P. Cases, 483, 
 it appears that more than nine men, of whom seven were 
 armed with guns, being out at night in pursuit of game, 
 were met as they passed through a field from one wood 
 to another by a party of gamekeepers without firearms, 
 but who at once assaulted them with sticks, and one of 
 them with a dangerous weapon, a ilail, liable to inflict 
 deadly injury, with which he struck one of the parties, 
 upon which another one of them fired and killed him. 
 
132 
 
 The grand jury were directed to throw out the bills for 
 murder, and the whole party were indicted for man- 
 slaughter. The case was tried before Byles, Justice, 
 who charged the jury as follows: 
 
 " The questions are, who fired the fatal shot, and who 
 " were parties to the act? for, whoever it was that fired the 
 " fatal shot was clearly guilt}^ of manslaughter. The use of 
 " the flail, although it might reduce the offense from murder 
 " to manslaughter, could not reduce it any lower. * * * So 
 " all who were aiding and abetting in the act were equally 
 " gtiilty of that crime. Now, as to Luck — the prisoner 
 " chiefly charged with the offense — the chief evidence 
 " against him was that of an accomplice, and it was per- 
 " fectly true that the evidence of an accomplice required 
 " corroboration, and that not merely as to the fringe and 
 " margin of the case, but as to its substance, and above all as 
 " to the persons accused ; but here, although the accomplice 
 " who had been admitted evidence stated that the man who 
 " fired the shot was Luck, the other accomplice who had 
 " made statements inculpating the others — Allchin — had 
 " said that it was Burgess. So that it had depended merely 
 " on the choice by the police of one or the other of those 
 " prisoners as witnesses for the crown, whether the man 
 '• charged with firing the shot would be Luck or Bur- 
 " gess;" [as in the case at bar, it depended wholly upon 
 the choice by the representatives of the state as to their 
 choice between Gilmer and Burnett, the testimony of both 
 of whom they knew since weeks before the trial, whether 
 the state would undertake to prove that the bomb in ques- 
 tion was thrown by Schnaubelt or thrown by the unknown 
 party described by Burnett.] "The question then was as to 
 "the other and independent evidence against Luck; and 
 " as to that, although there was ample and abundant evi- 
 " dence that he was there [which there is not as to Schnau- 
 
133 
 
 ' belt in the case at bar], there was no positive evidence 
 ' that he had fired the fatal shot. There was positive 
 ' evidence that the gun was seen pointed at the game- 
 ' keepers, and that was not reconcilable with the theorv 
 ' of an accident. There was evidence of belief that the 
 ' man was Luck, but no positive evidence, and at nighi, 
 ' in a scuffle like this, it was very difficult to get such evi- 
 ' dence. The jury might vehemently suspect that Luck 
 ' was the man that fired the gun, but in a case of this 
 ' nature, on a charge on which very serious punishment 
 ' must follow on conviction, and on which, indeed, his life 
 ' had been in danger, they must be satisfied, beyond all 
 ' reasonable doubt, that he did fire it in order to convict 
 ' him on the present charge on that ground. But in the 
 
 • next place, even assuming that it could not be ascer- 
 
 • tained who fired the shot, all who were present and 
 ' u'P.re paj-ties to the act were certainly guilty; and it had 
 '■ been held and admitted that if all were in a row or line 
 
 ■ when the gun was pointed and fired, that would be 
 
 ■ strong evidence of a common purpose or design to shoot. 
 
 ■ It is, however, for your consideration that though there 
 ' were seven guns, only one was fired, and it is not clear 
 ' that it v;as fired when the men were in a line. And on 
 
 • the point, whether there was a common purpose to 
 
 ■ shoot, it is most material, for, if the men had all a design 
 
 ■ to shoot — and many of them had guns — why did they not 
 ' all shoot? Or, at all events, why did not more than 
 
 ' one shoot? This argument equally applies, whoever it 
 ' was that fired the gun. But if Luck fired the shot, was 
 
 ■ it so fired by him in consequence of a severe personal 
 ■encounter he had had with the keeper? If so, then it 
 ' would not be fired in pursuance of any common design. 
 ' A'ozv, if yon cannot say -who fired the shot, then von 
 ' should not convict any of the prisoners unless satis-lied 
 
" thai all of thejn were parties to the act." The jury- 
 found a verdict of not guilty as to all the prisoners. 
 
 A strong case supporting this doctrine which we con- 
 tend for is Stale v. Hildreth, 9th Ired. Law, 4-10, also re- 
 ported in 51st Am. Decisions, 369. In that case two 
 brothers were present at the homicide, one doing the 
 killing, and the other standing by, and not attempting in 
 any way to interfere. The jur}' were instructed in effect 
 on this state of facts, that the bystanding brother was 
 guilty of murder if, after he entered the field where the 
 homicide was committed and, joining his brother, he dis- 
 covered that his brother intended to use the knife in time 
 to prevent it, but did not act so as to effect a prevention. 
 The court in commenting upon this instruction said: 
 
 " We think it inaccurate. For supposing the prisoner 
 " to have no previous concert with his brother, and that 
 " during the combat he first discovered that the other in- 
 " tended to use the fatal weapon, we think he was not 
 " guilty of murder, although he made the discovery in 
 " time to prevent Robert from actually giving the stab. 
 " If one who is present and sees that a felony is about 
 "being committed does in no manner interfere, he does 
 "not thereby participate in the felony committed. Every 
 " person may upon such occasion prevent, if he can, the 
 " perpetration of so high a crime; but he is not bound to 
 " do so at the peril otherwise of partaking of the guilt. It 
 " is necessary in order to convict that he should do or 
 " say something, showing his consent to the violence 
 " proposed and contributing to its execution." 
 
 In an able note to the case, as printed in the 51st Am. 
 Decisions, the author says: 
 
 " A mere presence of a person at the place of the com- 
 " mission of a crime is not of itself sufficient to justify the 
 " conclusion that he assents to it. There must be some 
 
^35 
 
 " evidence of his participation in the offense to render him 
 " guilty either as accessory or as the aider and abettor. 
 " His presence is, of course, a circumstance which may 
 " be taken into consideration in determining whether or 
 " not he is guilty of aiding and abetting. ' In order 
 " to render a person an accomplice to the principal in the 
 " felony he must be aiding and abetting at the fact, or 
 " ready to offer assistance, if necessary; therefore if A 
 " happeneth to be present at a murder, for instance, and 
 " taketh no part in it, nor interfereth to prevent it nor 
 " punisheth the murderer, nor levyeth hue and crie after 
 " him, this strange behavior, though highly criminal, will 
 " not of itself render him either principal or accessory. 
 " Foster, 350.' " And a large number of cases are cited 
 by the author in support of the doctrine of the text. 
 
 So, in the case of While v. The People, 81 III, 333, this 
 court, in reversing a judgment for error in an instruction 
 in a case where two were present at the homicide, which 
 was committed by one of them, but there was no evidence 
 that the other aided, abetted or assisted in the killing, 
 recognize clearly the distinction for which we contend, 
 namely, that in order to hold the defendant guilty as ac- 
 cessory before the fact to the perpetration of a crime, 
 there must be more than his mere presence at the com- 
 mission of the criminal act, or even his consent to the 
 perpetration of the crime; there must be, within the con- 
 templation of our statute, an aiding, abetting or assisting 
 in its perpetration. The language of this court upon this 
 point is as follows (page 337) : 
 
 " By the second instruction the jury are told that one 
 " who stands by when a crime is committed in his pres- 
 " ence by another, and consents to the perpetration of the 
 " crime, is a principal in the offense, and must be punished 
 " as such. The law is, that one who ' stands by and aids. 
 
136 
 
 •' abets or assists =•= * * the perpetration of the crime ' 
 " is an accessory, and ' shall be considered as principal, 
 " etc. ( R. S., 1874, page 393, sec. 274.) 
 
 " There is a plain distinction between '■consenting'' to a 
 " crime and ' aiding, abetting or assisting ' in its perpe- 
 " tration. Aiding, abetting or assisting are affirmative in 
 " their character. The consenting may be a mere nega- 
 " tive acquiescence, not in any wa}' made known at the 
 "time to the principal malefactor. Such consenting, 
 " though involving moral turpitude, does not come up to 
 '• the meaning of the words of the statute." 
 
 We do not understand that the law of the above cases 
 has ever been seriously questioned or qualified since its 
 enunciation, or that there is any substantial conflict as to 
 the rule above stated and considered. Whatever vari- 
 ance may be found in the text writers or in the authori- 
 ties will, we think, be found to be simply the enunciation 
 of modified or different rules as applicable to ditTerent cir- 
 cumstances appearing in the cases respectively. 
 
 All the cases above quoted proceed upon the theory 
 that the accused was associated with the criminal actor in 
 an unlawful enterprise, but not a party by act or advice 
 in the crime. Our position, of course, is, that the Haj'- 
 market meeting was a lawful meeting under our consti- 
 tutions, and tiiat participation in that meeting and its 
 avowed purposes was lawful. At this meeting an unlawful 
 act was done, in which the plaintiffs in error did not par- 
 ticipate, even those present. Of course, such presence 
 would not cast upon those who were there responsibility 
 for a crime thus committed. This position follows from 
 the cases above cited; and in its support we will cite but 
 one other authority. 
 
 The case of U. S. v. Jona, 3 Washington C. C'R., 
 209, is a strong case in point. There the defendant, wiio 
 
was the first lieutenant of an American privateer, the Re- 
 venore, was indicted for piracy committed on a Portu- 
 j;uese vessel, and for assaulting the Portguese captain and 
 •crew, and putting them in bodily fear, etc. The defend- 
 ant was charged with boarding the vessel, and, by force 
 and intimidation, taking from her many articles, not claim- 
 ing the vessel as prize, but pretending that the Revenge 
 •was an English vessel, and that the articles would be paid 
 for iby an order on the English consul. 
 
 The evidence showed that a part}', of whom the de- 
 fendant was one, visited the Portuguese vessel for the 
 •ostensible purpose of searching her, and that while upon 
 the vessel, there were various acts of lawlessness, includ- 
 ing robbery or theft, committed, but the testimony was 
 •conflicting as to whether the defendant had any personal 
 participation therein. After presenting to the jury the 
 testimony for their consideration, Washington, Justice, 
 dosed a very careful and elaborate charge, as follows: 
 
 " Should you incline to acquit the prisoner of any active 
 " participation in this robbery, he cannot be convicted 
 ■" upon the ground of his being a member of the society 
 " which committed the offense. * * * If the thing to be 
 " accomplished be lawful, as the visitation of this vessel 
 -" was, and all but one of the party commit felony, though 
 " in the presence of that one, but without his participation, 
 *' the crime of his companions is not imputable to him." 
 There was a verdict of not guilty in the case. 
 
 We therefore maintain that neither the presence of 
 5pies and Fielden at the Haymarket meeting at the 
 time of the explosion of the bomb, nor the prior presence 
 ■of Parsons, Fischer and Engel thereat, nor anything dis- 
 ■closed in this record, made them respectively liable crimi- 
 mally for the consequences of the bomb-throwing. 
 
 So much for the law, as we understand it, applicable 
 
138 
 
 to those of the plaintiff's in error who were shown by the 
 testimony to have been present at the Haymaricet meet- 
 ing when the bomb was thrown, but as to whom the proof 
 utterly fails to show that they personally advised, aided, 
 abetted, encouraged or procured the throwing of the 
 missile. Their mere presence is no proof of their guilt, 
 and does not attach to them any hability for the conse- 
 quences of the act which resulted in the death of Mr. 
 Degan; and the state, we insist, utterly failed to make out 
 sucli a case on the evidence as entitled them to a verdict 
 and judgment, even as against these plaintiffs in error. 
 
 II. IN ORDER TO HOLD THE ACCUSED AS ACCESSORIES 
 
 ON THE GROUND OF CONSPIRACY, THE PRINCIPAL ACTOR 
 
 MUST BE IDENTIFIED AS A CO-CONSPIRATOR. 
 
 Let us now turn to the law applicable, in our judg- 
 ment, to the case made by the stale against the plaintiffs 
 in error connected with or involved in the so-called con- 
 spiracy meeting on Monday night. May 3d, and the 
 Emma street meeting the day preceding. 
 
 Laying out of view, for a moment, our position upon 
 the evidence, that the crime of the Haymarket was not 
 at all within the scope or purview of the alleged conspir- 
 acy, or agreement, of Monday night, as demonstrated 
 above (pp. 91-93), our position upon the law is, that 
 there could be no legal conviction of the parties to that 
 Monday night conspiracy (in this case plaintiffs in error, 
 Fisher and Engel), without proof beyond all reasonable 
 doubt that the bomb was in fact thrown by the hand of 
 one of the conspirators, or by the procurement of some 
 of them; and to this end, there must be such an identifi- 
 cation of the doer of the crime as brings him into casual 
 erlationship zvith tlie alleged conspirators. 
 
U9 
 
 We cite, as sustaining this proposition, the text of 
 Sec. 325 Wharton's Criminal Evidence, as follows: 
 " The corpus delicti, the proof of which is essential to 
 " sustain a conviction, consists of a criminal act; and to- 
 " sustain a conviction there must be proof of the defend- 
 " ants' guilty agency in the production of such act." 
 And from the note to the same section as follows: " The- 
 " latter feature, namely, criminal agency, is often lost sight 
 " of, but is as essential as is the object itself, of crime. 
 " Acts, in some shape, are essential to the corpus delicti, 
 " so far as concerns the guilt of the party accused. A. 
 " may have designed the death of the deceased, yet, if 
 " the death has been caused by another. A., no matter 
 " how morally guilty, is not amenable, if he has done and 
 " advised nothing in respect to the death, to the penalties 
 '• of the law. Gellius, VII, 3." 
 
 In Ogden v. The State, 12 Wis., 553, the court say: 
 " In order to establish the guilt of Ogden, it was first 
 '' incumbent on the prosecutor to prove the guilt of 
 " Wright as alleged in the indictment. This done, he 
 " must then prove that Ogden previously procured, hired, 
 « advised or commanded Wright to commit the felony. 
 " Both these facts must be established by competent evi- 
 " dence. Now, however the confessions of Wright, as 
 " to the first, might have been used against him, had he 
 " been indicted and put on bis trial, it is very evident that 
 " as against Ogden they were wholly inadmissible. As 
 " to him, they were mere hearsay, and open to all the 
 " objections which exist to that kind of testimon}'. I^or^ 
 " hoivever clearly it may have appeared that Ogden coiin- 
 " seled and advised Wright to commit the offense, yet, if 
 " Wright never did so in point of fact, and the barn was 
 " set on fire by some one else, or by other means, then Ogden 
 " -was innocent of the crime of the commissioii of zvhich he 
 " stood charged.'''' 
 
140 
 
 In Hatchet V. Commomvealth, 75 Virginia, 925, the court 
 sa}-: " It is necessary to show that the substantive offense, 
 -" to which he is charged as having been accessory, has 
 " been committed by the frincipal felon" 
 
 There can be, however, no principal felon in contempla- 
 tion of the law, except in the case of one who has com- 
 mitted a crime in concert with or at the instance and un- 
 der the advice, or with the aid and assistance of those 
 who, in the law, are called accessories. The very idea 
 of principal felon involves the idea of relationship between 
 himself and the accessories; involves the exclusion by 
 legal evidence of the idea that the felony may have been 
 committed sua spoiite, and without any reference what- 
 ever to third parties, and uninfluenced by them. If, then, 
 it be the law that it is necessary to show that the crime 
 has been committed b}' "the principal felon," this means 
 that is necessary to show, when seeking to hold one re- 
 sponsible as an accessory to a crime, that the hand which 
 committed the otTense was, in law, the hand of the ac- 
 cessory; that is, a hand controlled or moved by him. 
 
 So, in the case of Joiics v. The State, 64 Georgia, 697, 
 a judgment finding Jones guilty of murder as principal in 
 the second degree, he having been indicted jointly with 
 Jackson Sellers, as principal in the first degree, but tried 
 separate!}', was set aside, on the ground that // did not 
 appear in the record that there was evidence showing- the 
 guilt of the principal in the first degree; the court hold- 
 ing that the guilt of the principal in the first degree was 
 necessary to be established as a condition precedent to the 
 conviction of the principal in the second degree. 
 
 We contend that in the case at bar the state failed to 
 show by credible evidence who threw the bomb (pp. 93- 
 96). For this reason we argue that no casual relation- 
 ship between his act and the Monday night conspiracy, 
 
or any other conspiracy, has been established; and there- 
 fore, even if it were conceded that some of the phuntiffs in 
 error sanctioned and approved of a crime, such as was 
 committed at the Haymarket, before its execution, this 
 alone does not make them liable as accessories to that 
 crime. 
 
 III. IN ORDER TO HOLD THE ACCUSED AS ACCESSORIES 
 ON THE GROUND OF CONSPIRACY, THE CRIME CHARGED 
 MUST HAVE BEEN WITHIN THE PURVIEW OF SUCH CON- 
 SPIRACY AND COMMITTED IN FURTHERANCE THEREOF. 
 
 The parties to the alleged Monday night conspiracy 
 could not, by reason of their participation therein, properly 
 be adjudged guilty, in view of the fact that the crime of 
 the Haymarket was not within the contemplation of the 
 conspirators, nor within the general scope and purpose of 
 the alleged conspiracy. 
 
 In the case of the Slate v. Lucas, 55 Iowa, 321, the 
 doctrine is broadly and correctly laid down, that " an ac- 
 ' cessory to one crime does not thereby become ansvver- 
 " able for another and different crime committed inten- 
 " tionally by his principals at the same time." The state- 
 ment of the case is very brief and is as follows: " The de- 
 " fendant, Frank Lucas, was indicted jointly with Charles 
 " Wood and James White for a robbery from the person 
 " of R. G. Edwards, perpetrated by assaulting and wound- 
 " ing him with deadly weapons. The defendant was 
 " tried, convicted, sentenced and committed to the peni- 
 " tentiary for twelve years." 
 
 It appears from the opinion of the court that the prose- 
 cutor was assaulted by Wood and White, knocked down 
 and robbed on the night of August 24, 1879. That on 
 
142 
 
 the same night a safe in the mill where the prosecutor was 
 night watchman was blown open and robbed. Lucas tes- 
 tified that he had nothing to do with robbing Edwards, 
 was not at the mill at all, that he rowed Wood and Harris 
 in a skiff' from LaCrosse to Lansing and landed near the 
 mill about 9 o'clock, on the night of the robbery; that 
 Wood and Harris went up-town and left him to watch the 
 boat; that afterwards they came down to the boat in a 
 hurry and directed him to row over to Wisconsin; that on 
 the way he saw them dividing some money; that when 
 ihey reached the Wisconsin shore they sunk the boat, and 
 that on the way to LaCrosse Wood told him all that had 
 happened and gave him two revolvers to carry. The 
 court thereupon instructed the jury: 
 
 " If you believe from all the evidence that the defend- 
 ^' ant did not leave the boat after the arrival at Lansing; 
 " yet, if you also believe that he had knowledge of the in- 
 " tent of his associates to commit crime, either of robbery 
 " of the man Edwards or of robbing the safe in Barclay 
 " & Hemmingway's mill, or any other crime, and rowed 
 " them ashore for such purpose, and waited in the boat 
 <' for them during their absence in committing the crime, 
 " then you will find him guilty." Concerning this in- 
 struction as applicable to that case, the court say: 
 
 " The doctrine of this instruction is, that if the defend- 
 " ant knew of the intent of his associates, to rob the safe 
 " in Barclay & Hemmingway's mill, and rowed them ashore 
 " for that purpose, and awaited their return, he is guilty 
 " of the robbery of Edwards. This doctrine is not cor- 
 " rect. It is true, the accessory is liable for all that en- 
 "sues ufon the execution of the unlaurful act contemplated ; 
 •" as, if A. commanded B. to beat C, and he beat him so 
 " that he dies, A. is accessory to the murder. So if A. 
 " commanded B. to burn the house of C, and in doing so 
 
143 
 
 " the house of D. is also burned, A. is accessory to the 
 •" burning of D.'s house. So, in this case, if Lucas had 
 " knowledge of the intention to rob the safe, and aided 
 ^' and abetted his associates in the commission of that of- 
 ^' fense, and if, in furthering that purpose, a fatal assault 
 ^' had been made on Edwards, the defendant would have 
 ^' been accessory to the crime. 
 
 " But, if the accessory order or advise one crime, and 
 ^' the -princi-pal intentionally conwiit another; as, for in- 
 ^' stance, to burn a house, and instead of that he committed 
 '■'■ a larceny; or, to commit a crime against A., and instead 
 " of so doing, he intentionally commit the same crime 
 " against B., the accessory zvill not be answerable. It follows 
 " that the defendant cannot be convicted of a robbery of 
 " Edwards, from the mere fact that he abetted his associates 
 " in the robbery of Barclay & Hemmingway's safe." 
 
 In Watts V. The State, 5th W. Va., 532, the defendant 
 was charged as accessory to the crime of felon}' and burg- 
 lary. There was proof tending to show that Watts 
 hired two parties to whip a man named Saunders; that 
 these men went to the house where Saunders was a 
 lodger, and pursuing Perry and his wife to Saunders' 
 room, knocked Perry down and ravished Mrs. Perry, 
 Saunders having made his escape. There was no evi- 
 dence that Watts incited or advised, in any manner, the 
 commission of the rape upon Mrs. Perry, evidence of 
 which was permitted to go to the jur}'. It was held that 
 this was error. In passing upon the question the court 
 uses the following language: 
 
 " If the crime by the principal felon was committed un- 
 " der the influence of the flagitious advice of the other 
 ' party, and the event, though possibly falling out beyond 
 " the original intent of the latter, was, nevertheless, in 
 " the ordinary course of things, a piobable consequence of 
 
144 
 
 " that felony, he is guilty of being accessory to the crime 
 "actually committed. But if the principal, following the 
 " suggestions of his own heart, willfully and knowingly 
 " commit a felony of another kind, on a different subject,- 
 " he alone is guilty. (3 Greenleaf's Evidence, Sec. 50.), 
 " And if the principal totally and substantially departs- 
 '■from his instructions, as if, being solicited to burn a barn^ 
 '■'■ he, moreover, commits a robbery while so doing''"' [as in< 
 the case at bar, supposing the bomb-thrower to be a. 
 party to the Monday night conspiracy, he threw a bomb- 
 when the police attacked the meeting, instead of notifying: 
 his co-conspiralors in the manner agreed upon] '■'■he stands: 
 " single in the latter crime, and the other is not heldrespons- 
 " iblefor it as accessory. (3 Greenleaf's Evidence, Sec. 44.); 
 
 " It was certainly improper to admit the testimony of 
 " Perry and his wife as to the rape, because that was a 
 " distinct substantive ofiense from that charged in the 
 " indictment (r Wharton's Criminal Law, Sec. 647), and 
 " had no connection whatever with the felony charged^ 
 " because it was a total and substantial departure from. 
 " that instruction (3 Greenleaf's Evidence, Sec. 44), and 
 " the defendant could not be held responsible as accessory 
 " thereto. The admitting of such testimony, being evidence 
 " of a crime ever shocking to civilized society, was well 
 " calculated to draw away the minds of the jurors from. 
 " the points in issue, and to excite prejudice and mislead 
 " them, and thus prevent a fair and impartial verdict." 
 
 So the rule is laid down in 4th Blackstone's Comment- 
 aries, page 23, as cited with approbation in The State v. 
 Absence, 4 Porter, 397, that in order to establish the guilt 
 of the principal in the second degree (accessory) " there 
 " must be a participation in the felonious design, or, at least,. 
 " the oflense must be within the compass of the original 
 " intention to constitute a principal in the second degree."' 
 
145 
 
 THE ILLEGITIMATE EVIDENCE. 
 
 We believe we have in the preceding pages considered 
 substantially the entire testimony which tends directly to 
 connect the plaintiffs in error with the event of the .-jth of 
 May, 1886, or with the matters occurring in immediate 
 connection with that meeting, and have stated our position 
 thereon. It becomes necessary for us now to consider a 
 vast amount of testimon}-, which was introduced on behalf 
 of the state over the objection of the plaintiffs in error, and 
 the rulings of the court in connection with the introduc- 
 tion of that testimony — testimony much of which had 
 certainly no direct relation with or reference to the throw- 
 ing of the bomb on May 4, 1886, but which was allowed 
 to be introduced upon the theory that the plaintiffs in 
 error were parties in a general combination or conspiracy 
 to overthrow by force the existing order of society, 
 which combination had been entered into by them at 
 some unknown antecedent date. There was confessedly 
 no direct evidence that they had so conspired, but this 
 conspiracy was attempted to be made out by the proof 
 of a series of facts and circumstances extending through 
 a long period of time. 
 
 The attitude of the court in reference to this matter 
 was developed in connection with the examination of 
 Gottfried Waller on the first day of the trial of the cause 
 after the jury had been impaneled. After Mr. Waller had 
 testified as to the alleged conspiracy meeting of Monday 
 night, May 3, 1886, this question was asked: "Mr, 
 Waller, did you ever have any bombs ? " To this ques- 
 tion objection was interposed and fully argued. Our ob- 
 jection to the question, in brief, was that the question 
 called for immaterial and irrelevant testimony. Gottfried 
 
146 
 
 "Waller was not indicted with the plaintiffs in error for the 
 ■murder of Degan, and whether he did or did not have 
 Ijombs, or what he personally did or did not do, could 
 have no proper bearing upon the determination of the 
 issue whether the plaintiffs in error caused the throwing 
 of the bomb on the night of May 4th; but particularly it 
 •was objected that there was no limitation in the question; 
 it was not proposed to inquire of Mr. Waller whether he 
 had a bomb on the night of May 4th, but as to whether 
 he ever had a bomb, thus practically allowing an unre- 
 stricted investigation as to outside occurrences not con- 
 nected with the plaintiffs in error, and through an 
 unlimited period of time. When the answer to that ques- 
 tion came in, it served to illustrate the force of our objec- 
 tions; being, that the witness had a gas-pipe bomb in his 
 possession on Thanksgiving day, 1885, which he received 
 from plaintiff' in error Fischer, and which he disposed of 
 subsequently to some unknown person, who thereafter 
 exploded it in a hollow tree. We desire to call attention 
 in detail to the ruling of the court upon our objection to 
 this class of testimony, and which he persisted in during 
 "the entire trial. 
 
 Let it be remembered that at the time this ruling was 
 
 • announced, the only conspiracy attempted to be established 
 by the state was the agreement entered into at the Mon- 
 
 • day night meeting, as described by the witness Waller, at 
 which of all the plaintiffs in error only Fischer and Engcl 
 -vere present, and with which none of the other plaintiffs 
 in error had been connected. The court's ruling was as 
 
 :follows (T, 89, cl seq.): 
 
 " If the fact be that a large number of men concurred 
 " with each other in preparing to use force for the de- 
 ■" struction of human life, upon occasions wJiicli zvere not 
 -" yet Joreseen, but upon some principles which they sub- 
 
147 
 
 " stantially agreed upon, as, for example, taking the words 
 " of this witness, if a large number of men agreed together 
 " to kill the police, if they were found in conflict with 
 " strikers — I believe is the phrase — leaving- it to the agents 
 " of violence to determine whether the titne and occasion 
 " had comejor the use of the violence, then if the time and 
 " occasion do come when the violence is used, are not all 
 " parties who agreed beforehand in preparing the means 
 " of death, and agreed in the use of them upon the time 
 " and occasion, equally liable? 
 
 There had been no proof whatever in the record, and 
 there was no proof afterwards introduced, of an agree- 
 ment between a large number of men to " kill the police," 
 " leaving it to the agents of violence to determine whether 
 " the time and occasion had come for the use of the 
 " violence." 
 
 Such a statement of the witness Waller's testimony was 
 an absolute perversion of his evidence. The witness 
 Waller had testified that certain parties in that meeting 
 agreed among themselves that if the police should attack 
 the strikers, then the parties to the alleged agreement 
 would come to the rescue of the strikers, and join in the 
 conflict with the police. But the witness Waller further 
 had expressly sworn that nothing was to be left to the 
 agents of violence, that is to sa}', the individual perpetrator 
 of the violent act, as to determining whether the time and 
 occasion had come for the use of violence. On the con- 
 trary, he had sworn positively that a committee was ap- 
 pointed whose dut)' it should be to observe the movements 
 throughout the city generally, and in the event of an attack 
 by the police, to report in a certain manner to the parties 
 to the agreement, who were thereupon to meet at certain 
 meeting places in the outskirts of the city and then unitedly 
 proceed to the rescue of the attacked workingmen, with 
 
■148 
 
 the understanding that each group in its joint capacity- 
 should act independently, according to the general plan, 
 (A., 5; 1,65). 
 
 Where in all of Waller's testimony can anything be 
 found warranting the suggestion that there was an agree- 
 ment entered into " to kill the police," or whereby it was 
 left to the individual members of the conspiracy " to deter- 
 " mine whether the time and occasion had come " for the 
 use of violence? The court then proceeded and said: 
 
 " Suppose the state are prepared to prove that there 
 " was a general combination and agreement that weapons 
 " of death should be prepared to use against the police, if 
 " they came in conflict with the workingmen or strikers' 
 " meetings — that is, if the police undertook to enforce the 
 " laws of the state, and prevent breaches of the peace and 
 " destruction of property, that then they would assault 
 " and kill the police, but the time and occasion at which 
 " the assault was to be were not foreseen, but were to be 
 " determined by the parties who were to use the force 
 " when in their judgment the time and occasion had 
 " come, and then when the police are found attempting 
 " to preserve the peace, some one or more of the persons 
 " who have been parties to this combination or agreement 
 " do kill, are not all who entered into the combination and 
 " agreement equally liable? " 
 
 There was no evidence up to the time of this sugges- 
 tion that the state were prepared to prove a general com- 
 bination and agreement " for the preparation for weapons 
 " of death to be used against the police if they came in 
 " conflict with the workingmen or strikers' meeting, in 
 " an effort by the police to enforce the laws of the state, 
 " prevent breaches of the peace and destruction of prop- 
 " erty"; there was no proof of a proposal in such an 
 event to assault and kill the police. And again we say 
 
149 
 
 there was no proof that it was proposed to leave to the 
 determination and judgment of the individual using vio- 
 lence the time and occasion therefor, and there was no 
 proof, either then or at the end of the trial, that " some 
 "one or more of the parties to the conspiracy did kill." 
 Could anything be more calculated to mislead the jury, 
 more calculated to put into their minds a false and un- 
 founded hypothesis which would color their judgment 
 in the way of all the testimon}^ that might be presented 
 to them than a suggestion of this character coming out of 
 the lips of the judge presiding? 
 
 His suggestions were, in our opinion, fully as errone- 
 ous as would have been instructions presenting the same 
 hypothesis. It is error for the court to suggest in the 
 presence of the jury, either by instructions or in the 
 course of rulings or remarks, an hypothesis which is not 
 supported by the testimony before the jury. The tend- 
 ency of such action upon the part of the court is to lead 
 the jury away from the true issue and to set them to im- 
 agining things not suggested by the testimony, because it 
 is made apparent to them that such views are in the 
 mind of the presiding judge. 
 
 State V. Harkin, 7 Nev., 382. 
 
 Hair v. Little, 28 Ala., 236. 
 
 Andrews v. Ketcham, 77 111., 377. 
 
 Then the court proceeded as follows: 
 
 " Unless the state is permitted to prove, step by step, 
 ■" piece by piece, what did occur, it never can be proved, 
 " although it may have existed. The only way in which 
 " it can be made to appear, if it did exist, is by introduc- 
 " ing, piece by piece, what did occur." 
 
 Yet no rule of law is better established than that, in 
 the effort to establish the guilt of a party on the ground 
 
15° 
 
 that he is a member of a conspiracy having an unlaw- 
 ful object in view, there must be at least a -prima 
 facie case made of the alleged conspiracy, before the 
 individual acts and utterances of one or other of the 
 alleged conspirators can be given in evidence as against 
 his alleged co-conspirators. It is true that in some 
 jurisdictions it has been the custom of the court to 
 accept in lieu of the proof of establishing a prima facie 
 conspiracy the assurance of the representatives of the 
 state that such proof would be produced, the court hold- 
 ing that unless such proof should subsequently be pro- 
 duced the evidence should be excluded. But we do 
 not understand that to be the rule established by this 
 court. This court has laid down the rule, justified by all 
 experience, that the erroneous introduction of testimony 
 likely to prejudice a party to the litigation is not cured by 
 the subsequent exclusion of that testimony. 
 Hoive V. Rosine, 87 111., 105. 
 
 This rule being established by this court, there can be 
 no doubt that in a capital case, where a conspiracy is al- 
 leged as the basis of liability, the principle should be 
 rigidly adhered to that the state must make out, by legal 
 evidence, at least z. prima facie case of conspiracy before 
 such testimony as was proposed here to be called for from 
 Mr. Waller should have been admitted by the judge 
 as evidence against all of tlic plaintiffs in error. It 
 may be that the burden of proving a conspiracy is 
 increased by adherence to this rule; but the rule is too 
 well established to admit of its being set aside at conven- 
 ience, and it is too important to the just protection of the 
 rights of the accused to be lightly disregarded. No sub- 
 sequent ruling in this case, for instance, could have oblit- 
 erated from the minds of the jury the prejudice instilled 
 
by such observations of the court as we are here criticis— 
 ing, and by such testimony as, under this rule, the court 
 permitted to come before the jury. 
 
 And for a third repetition of the same unwarranted 
 hypothesis, the court stated as follows: 
 
 " If there was a general combination and agreement 
 " among a great number of individuals to kill foJiccmcn 
 " if they came in conflict with parties who they were the 
 " friends of — meetings of workingmen and strikers — if 
 " there was a combination and agreement to kill the police 
 " if they were attempting to preserve the peace — if there 
 " was such a combination and agreement among a great 
 " number of men, the object of which was something 
 " beyond mere local disturbance, it don't make any differ- 
 " ence whether that object was to create a new form of 
 " civil society or not — if there was this combination and 
 " agreement among a great number of people, prepara- 
 " tion for it to assault and kill the police upon some 
 " occasion which might occur in the future, and whether 
 " the f roper occasion had occtirred, was left to the parties 
 " zuho tised the violence at that time, and then that violence 
 " was used, and resulted in the death of the police, every- 
 " body who is a party to that combination and agreement 
 " is guilty of the results." 
 
 Here the hypothesis complained of was changed from 
 the form of a question to the enunciation of a rule, a 
 rule, we venture to say, absolutely without support in any 
 accredited authority, as we will show more fully here- 
 after. But not content with this third restatement of this 
 proposition, the presiding judge proceeded to say: 
 
 " If the time and occasion zvere left to the different con- 
 " spirators, or to the different parties to the agreement, 
 " and then when the time did come, in the judgment of 
 
152 
 
 " some one of those, and he did use the force and kill, 
 " then they are all liable." 
 
 We challenge the production of a syllable of testimony 
 to show that the plaintiffs in error, or any of them, were 
 parties to an agreement at any time under which it was 
 proposed to use force and kill, the time and occasion of 
 the use of such force and the doing of such homicide 
 being left to the " judgment of some one " of the alleged 
 conspirators. 
 
 The vice of this hypothesis, thus continually reiterated 
 in the hearing of the jury, was not at all relieved by the 
 fact that the court added : 
 
 " Whether that is the case here or not is for this 
 "jury to determine, after they shall have heard all of 
 « the evidence that there is bearing upon that question." 
 
 Such a question was not before the jury upon any evi- 
 dence that had up to that time been submitted, or was 
 thereafter adduced during the whole trial. Such a ques- 
 tion was not before the jury in any of the pleadings in 
 the case. The trial court brought forward that question 
 upon his own motion, and without any support in the 
 record, thus suggesting a false issue, to the manifest 
 prejudice of the plaintiffs in error. 
 
 Then to rivet and doubly rivet the errors above pointed 
 out, the court added : 
 
 " I have not a particle of doubt in my own mind 
 *• that it is entirely competent for the state to show, 
 " if they can, that these several defendants have advocated 
 " the use of deadly juissiles against the police upon occa- 
 « sions which they anticipated might arise in the future — 
 " that it is competent for them to show that they intended 
 " that that use should be made, not by an agreement be/urc- 
 « hand as to the specific occasion when they should be 
 " used, bid that they should be used zviien in the Judgment 
 
153 
 
 *' of the -person using than the lime had come, they have 
 *' a right to go on to prove what they can upon that sub- 
 *'ject — all that these parties have said and done, and all 
 " preparations which they have made in contemplation 
 -" o£ an attack upon the civil authorities." 
 
 The record will be searched in vain for evidence of 
 any such agreement, to which the plaintiffs in error were 
 parties. Certainly Mr. Waller had not detailed anything 
 looking in that direction. Finally, to crown the vice of 
 the entire ruling, the judge closed as follows: 
 
 " A general plan of that sort would be composed of a 
 *' great multitude of people; there would be a great many 
 *' incidents; there would be a great many times and occa- 
 " sions, if it lasted long enough, in which some portion of 
 *' what they contemplated doing would be done. Now, 
 *' any one of those instances or occasions, any small por- 
 *' tion of the whole which they contemplated, when it be- 
 ■" came the subject of an investigation, would involve the 
 -" showing of that whole combination and agreement from 
 " beginning to end, so as to show, in fact, that it was a 
 " small portion of that great whole, that it was in fact an 
 " incident of the great plan which they had." 
 
 We need not further criticise this most erroneous ruling 
 and address in the presence of the jury. 
 
 From the time of its announcement by Judge Gary 
 the representatives of the state almost entirely aban- 
 doned the effort to establish any direct relationship 
 between the Monday night meeting conspiracy and the 
 throwing of the bomb at the Haymarket meeting. Under 
 the suggestion of the presiding judge the scheme was 
 adopted of establishing, in the dramatic language of coun- 
 sel, " a gigantip conspiracy against the law," a supposed 
 ■" general conspiracy," broad enough in its general pur- 
 pose to include every conceivable crime, from murder and 
 
154 
 
 treason to assaults and street brawls. The effort was aban- 
 doned to show that the plaintiffs in error advised, designed, 
 arranged, aided, encouraged or abetted " the perpetration 
 " of the crime," that is, the throwing of the bomb, or the 
 commission of a felony at the time and place, in the attempt 
 to execute which the crime charged was perpetrated. 
 Not one instruction was asked by the state based upon- 
 such a theory. But the avowed theory of the prosecution 
 was to establish the responsibility of the plaintiffs in error 
 for this murder, by showing that they were engaged in a 
 general plan to bring about, if necessary by the use of 
 force, a reorganization of society, the overthrow of the 
 existing social order; the claim being that the violence 
 used at the Haymarket meeting was the result and in 
 furtherance of that plan. 
 
 Plainly stated, the position of the state, sanctioned by 
 the ruling of the court, was substantially this: That if the 
 plaintiffs in error were desiring to bring about at some time 
 in the future a change in the organization of society, and 
 were expecting and preparing to use force in connection 
 with the accomplishment of that design, and had called upon 
 people to arm themselves and prepare for the approaching 
 revolution, then they should be responsible as for murder 
 for a death resulting from violence at a public meetings 
 without proof that that meeting was intended by them to 
 result in violence, without proof that any violence at that 
 meeting was contemplated, advised or prepared for by 
 any of them, without proof that any of them ever knew 
 the party who threw the bomb, and in the face of the 
 proof that several of them were not present at the meet- 
 ing, and had no knowledge even of its holding. As a 
 corrollary to this theory, the representatives of the state 
 contended that these plaintiffs in error were guilty of 
 murder if they had given general advice to the public to 
 
155 
 
 use violence, leaving it for the jury lo guess that some 
 individual, acting under such advice, committed this par- 
 ticular crime. 
 
 Under this ruling many days of the trial were devoted 
 to the introduction of testimony which, in our judgment, 
 was totally foreign to the issue in this case. 
 
 It would undul}' extend this argument for us to present 
 this testimony at length. It may be classified with refer- 
 ence to its subject matter into certain divisions, however, 
 concerning which we may express at reasonable length 
 our criticisms upon its introduction. 
 
 I. NEWSPAPER LITERATURE. 
 
 A vast amount of literature was introduced into the 
 case, found in the volume of exhibits, which in our judg- 
 ment had no proper place in the trial of the cause, and 
 which could not but have a tendency to jeopardize the 
 rights of the plaintiffs in error. 
 
 There were introduced and read in evidence a large 
 number of editorials, notices, communications and re- 
 prints (i) from the files of the Arbeiter Zeitung, running 
 through a period of nearly two years prior to the Hay- 
 market meeting; (2) from the Alarm, running through 
 substantially the same period of time; and (3) from one 
 number of the Anarchist. 
 
 (r.) As to the Arbeiter Zeitung, it appeared from the 
 testimony (A. 40 ct seq.), that it was a German daily 
 paper, having a Sunday issue called Die Fackel and a 
 weekly issue called Vorbote, published by the Socialistic 
 Publishing Society, a corporation duly organized under 
 the laws of the State of Illinois; that Spies, Schwab, 
 Fischer and Neebe were among the stockholders of. 
 
156 
 
 that corporation, and that Spies and Schwab were 
 the editors of the above publications. They were 
 employed as such by the corporation at the salary 
 of $i8 per week each. (A., 297, 308); Fischer was 
 a compositor in the Arbeiter Zeitung office (A., 40). 
 But there is no evidence that any of the other plaintiffs in 
 error had anything to do with the Arbeiter Zeitung, or 
 that any of the editorials, communications, quotations 
 from other publications or notices were ever known to or 
 approved by any of the plaintiffs m error other than Spies 
 and Schwab. 
 
 (2.) As to the Alarm, it appears that it was a semi- 
 monthly English paper, published by the Socialistic Pub- 
 lishing Society, at 107 5th avenue, that Parsons was its 
 editor (A., 40), and that, on one occasion, when Parsons 
 was absent from the cit)'. Spies assumed the temporary 
 editorial management thereof (A., 308) ; Fielden had two 
 dollars' worth of stock in the Alarm; but aside from 
 Parsons and Spies, there is no evidence showing that any 
 other of the plaintiffs in error had any responsibility for 
 or connection with the publication of any of the matters 
 appearing in the Alarm. 
 
 (3.) As to the Anarchist, it appears (A., 83; J, 270) 
 that its publication was undertaken because the par- 
 ties interested therein were not satisfied with the atti- 
 tude of other socialistic publications in the city of Chi- 
 cago. So far as the record discloses, there was but one 
 issue of this paper, and apparently Engel had some connec- 
 tion with it, a note in the paper directing that complaints 
 should be addressed to G. Engel, and it appearing that 
 in an address to the north side group he solicited support 
 for its publication. (A., 83.) There is no evidence that 
 he wrote any of the matters appearing in the Anarchist, 
 and no evidence that any of the plaintiffs in error had 
 
any connection with or responsibility for the contents of 
 the single issue of that paper. 
 
 Some of the articles in the Alarm and Arbeiter Zeitung 
 contained information or directions as to the manufacture 
 and use of explosives, sometimes apparently contributed 
 originally for one or the other of the papers; and some- 
 times copied from, and credited to, other publications. 
 The whole information upon this subject was such as 
 could be obtained from any scientific publication treating 
 upon explosives and from any of our current periodicals, 
 where such matters are occasionally considered. 
 
 Besides this, the worst that can be said of the publica- 
 tions referred to is that they strongly advocated the rights 
 of labor, claimed that the capitalistic classes robbed the 
 workingmen of their due, urged the wage classes to pre- 
 pare for the impending conflict, and advised them to arm 
 themselves with guns, revolvers and dynamite. Partic- 
 ularly the issues of these papers within several months 
 prior to the 4th of May contained much denunciation of 
 the capitalists, and predictions that the eight-hour demand 
 would not be complied with, but that the attempt by the 
 workingmen to enforce it would result in violence, owing 
 to the determined resistance of the capitalistic class, sup- 
 ported by the police, militia and Pinkertons, and much 
 exhortation to the laboring men to prepare for this con- 
 test, in order that they might sustain themselves as against 
 the attacks which it was predicted would be made upon 
 them, and which it was said were being made upon them. 
 
 But all this matter was general in its character, and had 
 no reference to or bearing upon the meeting on the 4th of 
 May, except that in the afternoon issue of the Arbeiter 
 Zeitung of that date the circular calling the meeting and 
 one or two little paragraphs urging the workingmen to 
 attend the same in large numbers was published; but 
 
158 
 
 even in that issue there was no exhortation to prepare for 
 nor any suggestion of violence, or the contemplated use 
 of force at that meeting. The meeting was treated as a 
 meeting, not of socialists and anarchists, but as a mass- 
 meeting of wage-workers for the purpose of agitation. 
 
 Our claim is that all this mass of literature which was 
 admitted against all plaintiffs in error, over their objec- 
 tion and exception, was incompetent, and that by its in- 
 evitable tendency to inflame the prejudices, its introduc- 
 tion tended manifestl}' to the wrong and injury of the 
 plaintiffs in error. 
 
 But particularly, we complain as to those portions of 
 these publications in which there was purported to be 
 given reports of alleged meetings held in different parts 
 of the city, and of speeches made at the same by some 
 of the plaintiffs in error and other parties. Our position 
 was, and is, that the fact of such meetings or what occurred 
 thereat could not be proved by any such published reports, 
 no matter in what publication appearing. The fact is, 
 that the only proof attempted to be introduced by the 
 state as to a great number of meetings was proof of 
 published reports of this kind. 
 
 Let us illustrate the injurious tendency of this irrele- 
 vant matter. In overruling the motion to instruct the 
 jur}- to find a verdict of not guilty as to Oscar Neebe at 
 the close of the state's evidence, the presiding judge, in 
 assigning grounds for refusing said motion, amongst other 
 things, stated that it appeared that Oscar Neebe had pre- 
 sided at socialistic meetings. The only support for that 
 claim is in the reports of one or two meetings published 
 in these papers, in which it was stated that Neebe pre- 
 sided. There was no attempt made to identify the Mr. 
 Neebe alleged to have presided with Oscar Neebe, the 
 plaintiff in error in this case; and there was no attempt 
 
159 
 
 •made to show by affirmative and competent evidence 
 that he was in fact present at or presided over such meet- 
 ing; while neither in these published reports thus 
 erroneously admitted, nor in any evidence submitted by 
 the state, was there any attempt made to show that 
 Neebe ever said a word at any of these meetings, or took 
 any part therein, beyond the published report of his occu- 
 pancy of the chair. 
 
 Upon what legal ground can the introduction of this 
 •class of matter be justified? Was there ever before a 
 case where it was attempted to involve men in the conse- 
 quences of crime by the wholesale introduction of news- 
 papers upon the suggestion and inference that they were 
 either connected in some way, as stockholders or other- 
 wise, with the issuance of these papers, or that they were 
 supposed to be in sympathy with the contents and atti- 
 tude thereof? We submit that there is no rule of law 
 yet established in our jurisprudence which can justify the 
 ruling of the court admitting this mass of testimony. 
 
 An inspection of the volume of exhibits will further 
 show that there was allowed to be introduced, over the 
 objection and exception of the plaintiffs in error, a large 
 number of commtmications published in the Arbeiter 
 Zeitung, the Alarm and the Anarchist. So far as the 
 Arbeiter Zeitung is concerned, it is in evidence that most 
 of these communications were published in a column 
 which bore at the head the note that the paper was not 
 responsible for the views of correspondents. In spite of 
 all this, here was a large amount of matter permitted to 
 be brought in, confessedly having no relation whatever to 
 the Haymarket meeting or the occurrences there, the 
 writers not even being identified in any manner by the 
 evidence in this record. Is this the law? Is such evi- 
 dence competent upon such an issue? 
 
i6o 
 
 Not content to stop, however, with this latitude, the 
 state went still further, and, under the ruling of the court, 
 introduced in evidence, as against all the plaintiffs in error, 
 a translation of the platform of the International Work- 
 ingpeople's Association, adopted in convention in Pitts- 
 burg in 1883, as published in the Arbeiter Zeitung; in 
 other words, a translation of a translation. 
 
 Further than this, articles copied by the Alarm and the 
 Arbeiter Zeitung from other publications, such as Truth, 
 San Francisco, and Die Freiheit, published in New York, 
 were read in extenso; notably one article on street war- 
 fare contributed by an officer of the United States army 
 to Truth, and reprinted therefrom (People's Exhibit 48;. 
 I A., 172); and seveial articles upon explosives published 
 in the Freiheit and reprinted therefrom. 
 
 Another illustration of the same matter was the republi- 
 cation of an article by the Russian nihilist, Bakunin, upon 
 the revolutionist; an article which has passed into the cur- 
 rent literature of the day and may be found by searching^ 
 the files of almost any of the great daily papers published 
 in the civilized world during the last decade. Even such a 
 publication as this was permitted to be read in evidence 
 as against all the defendants, because it was found pub- 
 lished in one of these papers referred to. 
 
 In short, the state was allowed to ransack the files of 
 these papers for a period of years, and to introduce for 
 the consideration of the jury whatever they chose to select 
 out of this mass of printed matter. What had all this 
 matter to do with the issue before the jury? Let the 
 tendency of it be what it may; let the matter be wise or 
 unwise; let it be mistaken in its claim of grievances, 
 foolish in its denunciation of supposed wrongs, unwise in 
 its advocacy of proposed remedies — still what has all this- 
 matter to do legitimately with the issue before the jury? 
 
ir. JOHANN MOST'S BOOK. 
 
 There was introduced in evidence, as against all the 
 plaintiffs in error, over their objection and exception, a 
 translation of Johann Most's book on the Science of 
 Revolutionary Warfare, and read to the jury in extenso. 
 (People's Exhibit 15, Vol. of Ex.; i A., 142, et seq.) It is 
 a treatise of over fifty pages of printed matter upon ex- 
 plosives, and all the details of modern revolutionary war- 
 fare. 
 
 Our objection to the introduction of this work was two- 
 fold. 
 
 First, on account of its irrelevancy and immateriality; 
 secondly, because no connection between this work and 
 its publication to the plaintiffs in error was established by 
 the evidence. 
 
 This book is openly published by the International 
 News Company in the city of New York, as appears 
 from the imprint. Its writer is shown by the evidence to 
 be a resident of that city. Confessedly it was published 
 long before the Haymarket meeting was dreamed of. 
 There can be no claim that the writer of the book or the 
 publishers thereof knew that a meeting would be held on 
 the 4th day of May, 1886, or at any other time, at the 
 Haymarket in Chicago, or at any other place, at which a 
 bomb would be thrown, resulting in the death of Mathias 
 J. Degan. Here was an entirely foreign matter brought 
 into this case for no other purpose than to prejudice the 
 jury. 
 
 But neither was it connected by any legal evidence in 
 any manner with the plaintiffs in error. The work is printed 
 in German. Two of the plaintiffs in error, Fielden and 
 Parsons, cannot read German (A., 269; M, 320), and 
 
l62 
 
 therefore never could have read this work, which confess- 
 edly was never translated into English until this 
 was done by the prosecution in connection with the 
 trial of this case. There is no evidence showing that this 
 book was ever in the possession of any of the plaintiffs in 
 error, nor any evidence showing that it was ever read by 
 any of them. 
 
 The evidence by which the introduction of this book in 
 this case was attempted to be justified, and which evidence 
 itself, in our judgment, was incompetent and came in, in 
 each instance, over the objection and exception of plaintiffs 
 in error, was as follows: 
 
 Fricke testified that he had seen the book in the library 
 of the International Workingpeople's Association, in the 
 Arbeiter Zeitung building (A., 41; I, 474); that Hirsch- 
 berger, the librarian, sold copies of that book at social- 
 istic picnics and mass-meetings; at some of them Spies, 
 Parsons, Fielden were present; sometimes Neebe, some- 
 times Schwab, and perhaps Fischer (A., 41; 1,475-6). 
 
 On cross-examination he admitted that none of the 
 plaintiffs in error had anything to do with the selling of 
 that book at those picnics, and he could not even tell that 
 any of them saw the book there sold or exposed for sale. 
 (A., 42, 43; 1,485,486.) 
 
 Schrade says (A., 11; I, 159) he saw the book sold at 
 workingmen's meetings, but does not say who sold or 
 bought it, or that any of the plaintiffs in error were con- 
 nected with it. 
 
 Seliger testifies that he saw the book at public meet- 
 ings of the north side group, where one Huebner, the 
 librarian, sold them. (A., 49; T, 532.) 
 
 There was also in evidence a little announcement ap- 
 pearing in the announcement column of several issues of 
 the Arbeiter Zeitung, which read substantially as follows: 
 
i63 
 
 " Most's Revolutionary Warfare has arrived and can be 
 " had of the librarian at ten cents a copy." 
 
 That this evidence was inadmissible and incompetent, 
 as bearing not the remotest relation to the Haymarket 
 meeting, and for the reason that it was not shown that 
 any of the plaintiffs in error ever saw the book at that 
 library, or knew anything about its selling at any of those 
 places, is too clear for argument. Still, it was admitted 
 by the court, and used as the basis for the admission of 
 the contents of the book itself. But does incompetent 
 evidence become competent because there is a foundation 
 for it which is itself incompetent? 
 
 Again, Officer Bonfield saj's that Fischer admitted to 
 him having read about fulminating caps in Most's Science 
 of War (A., 28; I, 354); and Capt. Schaack states that 
 Lingg said to him he had learned to make bombs from 
 scientific books of warfare published by Most, of New 
 York (A., 159; K, 507) ; both of these alleged admissions 
 were made after the 4th of Ma)', and could at best be 
 evidence against Lingg and Fischer respectively, but not 
 as against any of the other plaintiffs in error. Besides, in 
 neither case was it attempted to show that the book re- 
 ferred to was the same as that introduced in evidence. 
 Does that make the contents of the book admissible? Sup- 
 pose Lingg had said he learned to make bombs from articles 
 in the EncyclopEedia Britannica (and information on that 
 subject can be found there), what rational man would 
 claim that thereby the contents of the Encyclopedia 
 Britannica became admissible and competent evidence? 
 
 The introduction of the book and the reading of it be- 
 fore the jury could have no other tendency than to stimu- 
 late the prejudices of the jury, and possibly arouse their 
 fears or at least their apprehension. And we confidently 
 submit that it is too clear to require or justify further 
 
164 
 
 argument, that the admission of this publication in evi- 
 dence was unwarranted by any precedent, and contrary 
 to every known rule of law governing the admissibility 
 of evidence. Here was a voluminous, incendiary, out- 
 rageous publication, going into the detail of the manu- 
 facture of explosives and arms, and the manner of pre- 
 paring them, filled with vile suggestions as to how to 
 apply the results of modern science to the work of de- 
 struction of the capitalistic system, abounding in advice to 
 persons who, as members of the so-called revolutionary 
 forces, might propose to engage in the use of these 
 weapons and explosives. But the fact remains that it had 
 nothing whatever to do either in its contents or in the 
 circumstances of its publication with the Haymarket 
 meeting, or the offense there committed; nor even with 
 any supposed revolutionary movement in the city of Chi- 
 cago. It was altogether general in its terms, suggestions 
 and advice. We think it is safe to say that the state 
 could not have made out even their theory of the con- 
 spiracy to bring about a revolution and use force for the 
 overthrow of civil society against these defendants, or any 
 of them, but for the introduction of Herr Most's book, 
 and presenting it to the jury and inflaming their minds by 
 a recital of the bloody theories therein suggested. These 
 theories were inter alios acta, for which the defendants 
 were in no wise responsible. 
 
 III. VARIOUS OBJECTS. 
 
 Another specification of incompetent evidence to which 
 the plaintiffs in error, in each instance, objected, was the 
 introduction before the jury of various objects, particulars 
 of which may be suggested as follows: 
 
 First. The state was aOowed to introduce and ex- 
 
i6s 
 
 hibit before the jury a large amount of soiled clothing, 
 accompanied by the explanation that it had been worn on 
 the night of the Haymarket by divers officers other than 
 Mr. Degan; and as the soiled and blood-stained garments 
 were held up before the jury, various holes therein, sup- 
 posed to have been made by fragments of the shell, were 
 pointed out. (A., 158; K, 501-503.) What had this 
 soiled and rent clothing to do with the question whether 
 or not the plaintiffs in error were responsible for the death 
 of IMathias J. Degan? It was not his clothing that was 
 thus introduced; and it was not shown that the clothing 
 belonged to officers who died; but as much or as little of 
 this soiled wear as the representatives of the state chose 
 to bring into court was permitted to be paraded before 
 the horrified gaze of the jury. Was it for the purpose 
 of enabling the jury intelligently to determine the issue 
 before it, upon the proper determination of which rested 
 the fate of eight fellow-beings, or was it a vulgar appeal 
 to their passions, fears and prejudices, calculated, if not 
 designed, to pervert the judgment and to turn justice 
 awry? 
 
 Second. The state was permitted to introduce a large 
 mass of fragments of boxes, kegs and other articles which 
 had been fractured in experiments made by police officers 
 after the 4th of May, and in some instances after the be- 
 ginning of the present trial, with dynamite, claimed to 
 have been found at the Arbeiter Zeitung office, and dyna- 
 mite alleged to have been removed from bombs found in 
 a trunk of Louis Lingg, and admitted in both cases to 
 have been seized unlawfully and without warrant. Testi- 
 mony in regard to these experiments was given by Schaack 
 (A., 160, 161; K, 516 et seg.), and Buck (A., 60). 
 Ostensibly the purpose of this was to show the power of 
 that dynamite. In making our objection to the introduc- 
 
1 66 
 
 tion of this material, the plaintiffs in error admitted in 
 open court that the material experimented with was dyna- 
 mite, and that dynamite was one of the most powerful of 
 modern explosives. What occasion was there to go be- 
 yond this, and to bring in such material as broken barrel 
 staves, indented iron, torn links, etc., etc.? It may be 
 said that this is not a vital point, even if its impropriety 
 be admitted; but we desire to call attention to it as an in- 
 dication of what we think may be properly called the at- 
 mosphere of the trial. 
 
 Third. Near the close of the state's case (A., 163) ev- 
 idence was admitted of the finding under a sidewalk of 
 four tin cans filled with some combustible material, in the 
 north-western part of the city, on the 2d of June, 1886, 
 more than four zvecks after the Hayinarkct meeting. Two 
 views of one of these cans are shown in the photograph 
 " People's Exhibit 131." The location where these cans 
 were found was about three miles fro7n the Haymarket, 
 and about a mile and a half away from Wicker Park. 
 (A., 163; K, 554.) Evidence was permitted to be intro- 
 duced as to an experiment made with one of them by Of- 
 ficer Coughlin (A., 164), and when the cans were them- 
 selves allowed to be introduced before the jury it appeared 
 that they were provided with an inner chamber of glass 
 filled with gunpowder, and reached by a slow-burning 
 fuse. There was no pretense that any of these articles 
 had anything to do with the murder of Degan. He was 
 not killed by anything of this sort. There was no effort 
 made to connect any of the plaintiffs in error directly or 
 remotely with these cans or with their construction. It 
 was not attempted to be shown that any of them had ever 
 manufactured such cans, or advised their manufacture or 
 use, or had anything whatever to do with the construc- 
 tion or distribution thereof. 
 
i67 
 
 One objection to the introduction of these cans is based 
 upon the twofold around that they were not found until 
 nearly a month after the Haymarket meeting, and there- 
 fore might have been constructed and placed where they 
 were as a part of a deliberate efTort to manufacture testi- 
 mony for a conviction; and upon the further ground that 
 there was no connection shown between them, their manu- 
 facture or disposition and the plaintiffs in error or any of 
 them. The court in the first place ruled them incompetent. 
 But upon the suggestion on behalf of the state that such 
 cans were described in Herr Most's book as adapted for 
 the purposes of making conflagrations in cities where 
 such a course was resolved upon, the court allowed the 
 cans to be introduced in connection with the reading be- 
 fore the jury of the description from Most's book. Thus 
 Most's book, itself illegitimate evidence, was used as a 
 bridge for introducing other illegitimate evidence, such as 
 the tin cans. This, and the fact that the detective, Johnson, 
 described some such instrument, and testified as to having 
 seen it in a meeting of the American group (A., 94; J, 
 408), was taken as an excuse for the introduction into 
 evidence of those tin cans, although there was no pretense 
 that they could be traced to the possession of any of the 
 plaintiffs in error, or that any one of them had any con- 
 nection with or knowledge of them. No attempt was 
 made to show that any alleged conspiracy entered into 
 between the plaintiffs in error, or between them or other 
 parties, contemplated the conflagration of the city, or the 
 use of implements of this character for any purpose. If 
 such evidence had been attempted to be adduced, it would 
 have been incompetent, because the throwing of the Hay- 
 market bomb could not have been within the purview of 
 such a conspiracy. In our judgment the court, in overruling 
 our objection, and allowing this evidence to go before the 
 
jury, permitted a base appeal to be made to the passions 
 ■of the jurors, with a view to produce in their minds the 
 impression that these defendants, as supposed disciples of 
 Johann Most, were plotting for a universal conflagration 
 of the city of Chicago. 
 
 It was upon and by the introduction of such testimony 
 as this that the State sought to support the charge that 
 these plaintiffs in error murdered Mathias J. Degan on 
 the night of May 4, 1886, by throwing or causing to be 
 thrown the dynamite bomb whose explosion resulted in 
 the destruction of his life. Further comment seems to us 
 unnecessary. 
 
 Fourth. The state was allowed to introduce in evidence 
 a galvanized iron structure which w^s given to the police 
 by Mr Engel, being taken by him from his cellar, where 
 it had been stored for a considerable period of time. 
 
 The evidence introduced by the state in reference to 
 this structure was that the galvanized iron which formed 
 the body of it was rolled and cut about a year before the 
 ist of May, 1886, by a tinner (A., 148; K, 428), upon 
 the order of Mr. Engel. Officer Quinn testified that Engel 
 stated, when this instrument was found in his basement, 
 that he thought it was made for the purpose of making 
 bombs. (A., 147; K, 416.I But the state's evidence 
 also showed affirmatively that this structure had never 
 been in fact used for any purpose, that there never had 
 been any fire in it. (A., 148; K, 427.) Yet the state was 
 permitted to show by the testimony of Bonfield, who 
 claimed to be an expert, that, and in what manner, it could 
 be used for the melting of metals. (A., 148.) What 
 had that to do with the issue which the jur}' were called 
 upon to determine in this case? Was the introduction of 
 this structure legitimate, proper? Was such testimony 
 relevant and material? And even if, by a stretch of dis- 
 
i69 
 
 •cietion, considered competent as against Engel, was it 
 ■competent as against the otiier plaintiff's in error? 
 
 Fifth. There were introduced various flags and mot- 
 toes containing inscriptions, such as "Every government is 
 ■" a conspiracy against the people," and the like, which 
 ■were claimed to have been found by the police in a small 
 room off the library in the Arbeiter Zeitung building 
 (A., 171, 172), and admittedly like all the other stuff" 
 found there taken without legal warrant. This evidence 
 was admitted as against all the plaintiffs in error. 
 
 Sixth. The following was the evidence introduced by 
 the state in regard to dynamite found in the Arbeiter 
 Zeitung building on May 5, 1S86, and admitted as to all 
 plaintiffs in error: 
 
 Detective Jones and Officer Flynn say (A., 62; 
 J, 92; A., 65; J, 120) that they were present when 
 a locksmith opened a desk in the corner of the office on 
 the second floor of the building, in which desk was found 
 a coil of fuse, two bars of d3'namite, and a box containing 
 ten fulminating caps. 
 
 That these articles had been in the possession of 
 Mr. Spies for a long period appears from the testi- 
 mony of Mr. Williamson, a witness for the state, formerly 
 a reporter of the Chicago Daily News, who says 
 that these very articles were exhibited to him on the 
 might of the dedication of the new board of trade in 
 April, 1885. (A., 55; J, 7, e/ se$^.) Mr. Spies says in 
 regard thereto (A., 307; N, 68): "I have had in 
 *<■ my desk, for two years, two giant-powder cartridges, 
 •*' a roll of fuse and some detonating caps. Originally 
 « I bought them to experiment with them, as I had read 
 *' a good deal about dynamite and wanted to get ac- 
 ■" quainted with it, but I never had occasion to go out for 
 •" that purpose, as I was too much occupied. The re- 
 
I70 
 
 " porters used to bother me a good deal, and then when- 
 " they would come to the office for something sensational 
 " I would show them these giant cartridges. They are 
 " the same that were referred to here by certain witnesses 
 " as having been shown on the evening of the board of 
 " trade demonstration. One of them will yet show a 
 " little hole in which I put that evening one of those caps 
 " to explain to the reporter how terrible a thing it was.'^ 
 Besides, there was introduced by the state evidence 
 tending to show that a package of dynamite was foundi 
 on May 5th in the closet oft' the editorial room on the 
 third floor of the Arbeiter Zeitung building. The wit- 
 nesses who testify in regard to this find are Officer Duffy 
 (A., 63) and Officer Marks (A., 138), while Officer xMc- 
 Keough (A., 64) testifies to having seen the package 
 there, and Officer Haas (A., 81) says that he saw the 
 package put on a chair by Officer Marks. Mr. Spies 
 says that he kiiozvs absolutely nothing about that package 
 of dynamite, and that he never saw it before it was 
 produced in court during the trial. (A., 307, 16S.) Mr. 
 Lindemeyer says that he calcimined the Arbeiter Zeitung 
 building from May 2d until May 5th; that he kept his 
 clothes and tools in the closet in the rear of the editorial- 
 room of the Arbeiter Zeitung, on the third floor. On' 
 May 4th, about noon-time, he made search for a missing 
 brush in that closet, got on a chair and examined the 
 shelves in that closet ; that he found no large package, 
 no bundle, no dynamite on the shelf; that there was no 
 indication of greasiness there (A, 232; N. 74, e/ seg.). 
 The package of dynamite being produced in court, in 
 substantiall}' the same shape as when claimed to have 
 been found in the Arbeiter Zeitung building, and exhibited 
 to Mr. Lindemeyer, he said that he saw no such package 
 on May 4th in that closet so searched by hira (A., 277;. 
 N,376). 
 
A very suspicious circumstance regarding the find- 
 ing of this dynamite is the fact that while Officers 
 Haas and Marks stated positively that this dynamite was 
 found oti the third floor of that btiilding. Officer Duffy, who 
 was the first of these witnesses examined, just as posi- 
 tively claimed to have found the same on the second floor 
 of the building: It will be found from examination of the 
 testimony of Officer Duffy, that he locates the room in 
 which the stuff was io\ind,flrst, as being on the first floor 
 of the Arbeiter Zeitung office; second, as on the second 
 floor of the building; third, as two floors below the type- 
 setting room, and fourth, as being one floor below the 
 third floor. All these locations refer to the same floor, 
 namely, the second -floor of the Arbeiter Zeitung building. 
 Mr. Dufty could not be more positive or unequivocal as 
 to his location of that room. After, however, the other 
 officers had just as unequivocally and positively located 
 the finding of the dynamite on the third floor of that build- 
 ing, Mr. Dufty was recalled (A., 85), and stated that, at 
 the request off the state's attorney, he had made another 
 examination of the Arbeiter Zeitung building, and found 
 that he had made a mistake in regard to the floor on 
 which the dynamite was found; that, in fact, the closet 
 from which it was taken was two floors above the saloon. 
 
 That Mr. Spies had no desire of concealing any fact 
 within his knowledge will appear from his whole testi- 
 mony, which we claim is a model of fairness and can- 
 dor. Nobody, except a few officers, all of whom, 
 at the time of their testifying, and for 3'ears, were in the 
 detective service of the police force, testifies to having 
 ever seen that package of dynamite in the Arbeiter Zei- 
 tung building on May 5th, or at any time prior thereto. 
 It is at least singular that the different officers claim to 
 have found it on different floors of the building. Was it 
 put there for the purpose of manufacturing evidence? 
 
172 
 
 Seventh. There were introduced and paraded before 
 the jur}', as against all the plaintiffs in error, the following 
 articles found upon Fischer at the time of his arrest: A 
 file ground sharp to an edge, a revolver, one fulminating 
 cap, and a belt and sheath, the brass buckle on the belt 
 bearing the letters " L. & W. V." (A., 39, 40.) 
 
 On the morning of the 5th of May, these articles were in 
 the drawer of a table in the composing room of the Arbeiter 
 Zeitung building. They belonged to Fischer, and Asch- 
 enbrenner, one of the compositors, told him to take them 
 away so as not to get anybody else into trouble. (A., 89, 
 90.) At that time the officers were engaged in the build- 
 ing, making searches and arrests. Fischer strapped the 
 revolver and belt upon his body under his clothing. On 
 going out of the building he was arrested. This testi- 
 mony introduced by the state (A., 90) sufficiently ex- 
 plains how these articles came to be found upon Fischer's 
 person at the time of his arrest. There is no pretense that 
 he wore any of them on the night of the 4th of May, 
 1886, or that either of these weapons were in any man- 
 ner instrumental in producing the death of Mathias J. 
 Degan, or anybody else; yet they were allowed to be in- 
 troduced, not simply as against Fischer as being found 
 upon him when arrested, but also as against all the plaintiffs 
 in error. 
 
 Eighth. The state was allowed, over the objection 
 of the plaintiffs in error, to introduce evidence of a 
 number of dynamite bombs of dit^erent construction, al- 
 leged to have been found long after the Haymarket 
 meeting, the manufacture or possession of which was 
 not traced to any of the plaintiffs in error, without any at- 
 tempt to establish any connection between such "finds" 
 and any of the plaintiffs in error. Under this head be- 
 longs the evidence of Officer McNamara (A., 166"), who 
 
173 
 
 claimed to have found thirty loaded and one " empty gas- 
 pipe bombs " (the latter would probably be called a piece 
 of gas-pipe by ordinary mortals) on May 23d, about 
 three weeks after the Haymarket meeting, and about three 
 mid a half miles distant from the Haytiiarket. For all 
 that appears in this record, these various so-called bombs 
 may have been manufactured after the 4th of May, and 
 placed where they were found, for the express purpose 
 of manufacturing evidence against the defendants. We 
 submit that the introduction of such testimony, in the ab- 
 sence of the establishment by legal evidence of any con- 
 nection between these articles and the plaintiffs in error, 
 was clearly erroneous and had a manifest tendency to 
 prejudice the case of the plaintiffs in error. We again 
 ask, what bearing had the finding of these bombs upon 
 the legitimate and proper determination of the question 
 whether the plaintiffs in error threw or advised or caused 
 to be thrown the bomb which killed Degan? 
 
 iv. compelling the accused to iilte evidence against 
 themsel^t:s. 
 
 We complain that the court erred in compelling the 
 plaintiffs in error to give evidence against themselves. In 
 this regard the court erred (i) in overruling our objections to 
 various questions asked by the state upon cross-examina- 
 tion of the plaintiffs in error, when upon the stand as 
 witnesses, and (2) in permitting the state to introduce in 
 evidence, over the objections and exceptions of plaintiffs 
 in error, a number of objects and articles unlawfully 
 seized by the representatives of the state. 
 
174 
 
 (l.) IMPROPER CROSS-EXAMINATION. 
 
 We understand that under the statute allowing defend- 
 ants to testify in their own behalf, the defendant, when he 
 takes the stand, is subject to the most rigid and full cross- 
 examination. But we do not understand that he hereby 
 subjects himself to having one of his constitutional safe- 
 guards broken down and being required to give evidence 
 against himself, upon the pretense of cross-examination 
 as to matter which is not covered bj' anj' inquiry upon 
 examination in chief, but which, if germane to the issue, 
 should have been introduced by the state in the presenta- 
 tion of its case. 
 
 Called upon the stand as a witness in his own behalf, 
 Mr. Fielden was definitely interrogated, after a few gen- 
 eral questions as to age, place of birth, etc., as to his oc- 
 cupation, his engagement on the day of the Haymarket 
 tragedy, his actions and utterances in that connection and 
 immediately thereafter. That was all. He stated that 
 he was a teamster, and on the 4th day of May, 18S6, he 
 was busy hauling stone, according to his custom, until a 
 late hour in the afternoon. Upon cross-examination, over 
 the objection of the plaintiffs in error, the state was 
 allowed to interrogate Mr. Fielden as to whether he had 
 not made various labor speeches, or socialistic speeches, 
 at various places and on divers occasions. That he had 
 made such speeches had been proved by the state as a 
 part of their original case. No effort had been made by 
 Mr. Fielden, when upon the stand, to contradict the 
 state's testimony in that particular. Not one question 
 had been asked of Mr. Fielden regarding his connection 
 with the labor movement, or speeches made by him in its 
 interest. But to this objection it was answered b}- the 
 
175 
 
 presiding judge that Mr. Fielden had been examined with 
 reference to showing that his occupation was that of a 
 teamster, the tendency of which was to show that he 
 ■was leading an industrious and quiet Hfe, and that it was 
 •competent for the state in cross-examination to show 
 whether that was his whole life or only a part of it. 
 <M, 333-) 
 
 Under this ruling, Mr. Fielden was required to answer 
 such questions in cross-examination as the following 
 (A., 271 ctseq.): 
 
 " Did you ever meet with any other English-speaking 
 " group in this city or county r" 
 
 " How many times have you spoken on the lake front 
 ■"on Sunday afternoons?" 
 
 " Did you make a speech there on the night of the 
 ■" opening of the new board of trade?" 
 
 " Did you have anything to do with the management 
 "of the Alarm?" 
 
 " Did you read the Alarm?" 
 
 " Didn't you read this paper to keep track of the 
 " socialistic history as it was being made?" 
 
 We submit that this ruling of the court was a palpable 
 violation of the spirit and letter of the constitution and 
 was clearly erroneous. There was the same setting 
 aside, under the ruling of the court, of this constitutional 
 safeguard, that no accused person shall be compelled to 
 give evidence against himself, in the case of Spies, who 
 was compelled to answer questions like the following 
 (A., 310): 
 
 " Were you in the habit of making speeches at the 
 meetings of the American group?" 
 
 " Have you addressed meetings on the lake front?" 
 
 " Do you know Herr Most?" 
 
 " How long have you known him?" etc. 
 
176 
 
 In this connection, the state was permitted to ask, and 
 the plaintiff in error. Spies, compelled to answer, questions 
 as to his correspondence with Most, as to his having re- 
 ceived or answered a certain letter and a certain postal 
 card alleged to have been written by Most and addressed 
 to Spies, etc. 
 
 Nothing can be found in the testimony of Mr. Spies- 
 on his direct examination by which it could be claimed 
 the above inquiries are covered. It was illegitimate 
 cross-examination, it materially tended to prejudice Mr.. 
 Spies, and the court clearly erred in overruling our ob- 
 jections to this line of inquiry. 
 
 But not content with that, the state introduced in evi- 
 dence translations of that letter itself, as well as the 
 postal, in connection with the cross-examination of Mr. 
 Spies, and our objections to their introduction were over- 
 ruled by the court, and the letter and postal admitted as- 
 evidence against all the plaintiffs in error. 
 
 The evidence in reference to this letter and postal 
 was substantially this: They were found in the desk 
 of August Spies in the Arbeiter Zeitung building after 
 his arrest and upon the search of that building. 
 When Mr. Spies was upon the witness stand he was 
 compelled, under the ruling of the court, to testify, and 
 upon this point the State made him their witness, that 
 he had no recollection as to having 7-eceived or read either 
 the letter or postal, the matter having entirely passed 
 out of his mind; but he recognized the handwriting as 
 that of Most, and stated that he had no doubt that he must 
 have received the same in due course of mail, as they were 
 addressed to him. But he did not think he had ever an- 
 swered it, and he stated positively that he never carried on 
 any correspondence zvith Most. He further stated that 
 he knows positively that he did not give the directions 
 
177 
 
 where to ship the material vientioned in the letter. (A., 
 310,311). 
 
 The introduction of this letter and postal was clearly 
 illegal and erroneous on four different grounds: 
 
 (i.) This evidence was immaterial and irrelevant to the 
 issue before the jury. The letter was dated 1S84; it related 
 to the troubles in the Hocking Valley, and inquired of Mr. 
 Spies as to whether a party named in the letter, and rep- 
 resented as residing somewhere in the Hocking Valley, 
 was a reliable and proper party with whom to communi- 
 cate, and in that connection the suggestion was made in 
 the letter that the writer had some " medicine " which he 
 could send to the Hocking Valley if sure it would i^each 
 the proper parties. It was a letter from a stranger to 
 these proceedings, not one charged as jointly liable with 
 the plaintiffs in error for participating in their design; a 
 letter of questionable import, which was not answered by 
 its recipient. Can such a letter be competent evidence 
 even against a party to whom it was addressed, let 
 alone a number of otlier parties joined with him in 
 the defense, who are not shown to have ever 
 seen, heard of or in any way been connected 
 with it? What was the purpose of the introduction of 
 this letter into this case? Was it to prove that Mr. Most 
 was desiring to help the miners in the Hocking Valley 
 to commit deeds of violence by furnishing them with the 
 necessary material for that purpose? There was no sug- 
 gestion in the letter that Mr. Spies was a party to any 
 such plan, or that any dynamite or " medicine " was to be 
 forwarded by him or through him. The inquiry upon 
 that branch was simply as to whether Mr. Spies knew 
 the party named and his character. What had the Hock- 
 ing Valley troubles in 1884, settled years before the Hay- 
 market tragedy, to do with the throwing of the bomb 
 
178 
 
 apon the night of the 4th of May, 1886? Was the real 
 purpose of the forcing of this letter into the record to 
 plant in the minds of the jury by illegitimate evidence 
 the suspicion of some combination, arrangement or under- 
 standing between Mr. Most and the plaintiffs in error, 
 because of his letter and postal addressed to Mr. Spies? 
 If this was the real purpose sought to be accomplished 
 through the introduction of this evidence, then we re- 
 spectfully submit that the purpose condemns the action 
 of the court as strongly as does the law. 
 
 (2.) This evidence came in through illegitimate cross- 
 examination. Nothing in regard to it, nothing by which 
 these matters can be conceived to have been covered, was 
 adverted to upon the direct examination of Mr. Spies. In 
 other words, it was new matter elicited from the plaintiff 
 in error. It was therefore a compelling a witness to give 
 evidence against himself and a palpable violation of the 
 constitutional safeguard mentioned. This court has held 
 that illegitimate cross-examination of the defendant in a 
 criminal case is ground for a reversal. 
 
 Gifford V. People, 87 111., 210, 214. 
 
 (3.) It is never competent to introduce in evidence 
 against a party an unanswered letter addressed to him, 
 even when found among his effects and in his possession, 
 without evidence that the letter has been acted upon or 
 invited by the party to whom it is addressed, and even 
 where a tacit recognition is claimed, the whole corre- 
 spondence which constitutes the recognition must be given. 
 In support of this proposition, we cite: 
 
 Wharton's Criminal Evidence, 9th Edition, 
 §§ 644 and 682. 
 
 The case of Commonwealth v. Ed overly, lotii Allen, 1S4, 
 is directl}' in point. The defendant there was indicted for 
 having counterfeit money in his possession, knowing it to 
 
179 
 
 be counterfeit. There was offered in evidence a letter 
 received by the defendant from the post-ofFice, immediately 
 before his arrest, containing one or more of the counter- 
 feit bills, but which letter was not read by him, nor an- 
 swered by him, being seized upon the arrest of the de- 
 fendant, immediately after its receipt. The Supreme 
 court, in reversing the case, used the following language 
 (p. 187): 
 
 " An unanswered letter is inadmissible, although the 
 " statements contained in it are well known to the party 
 " to whom it was sent; and this is held on the ground 
 " that a letter written to a party by a third person, to 
 " which no reply is made, does not show an acquiescence 
 " in the facts stated in the letter. * * * 
 
 " It would be an immaterial error if the contents of the 
 *' letter were unimportant; but on looking at them it is 
 " clear that they were of a nature to prejudice the minds 
 *' of the jury against the defendant." 
 
 The case was reversed solely on this ground. 
 
 (4.) This evidence was illegal on the ground that 
 the letter and postal referred to were seized without war- 
 rant of law. But this leads us to the second subdivision of 
 our complaints under this head: 
 
 II. Objects unlawfully seized. 
 
 Officer Jones says (A., 62; J, 91, ei scq.) he was 
 present on May 5th at the Arbeiter Zeitung office when 
 a locksmith opened different drawers in different offices. 
 The locksmith opened the desk in the corner of the office 
 on the second floor of the building. In the drawer of 
 the desk he found, among other things, a number of 
 letters directed to Mr. Spies. (A., 63; J., 106.) He 
 
i8o 
 
 had no search warrant in going through the building. 
 
 (J-- i03> 4-) 
 
 Officer Flynn was with Officer Jones at the time he 
 searched the desk of Mr. Spies. He says [A., 65) : " We 
 " found this box of letters (indicating); they were all 
 " found in Mr. Spies' drawer; l/ie desk u'as fried open. 
 " 1 took the letters, put them into this box, carried them 
 " to the station and delivered them to Mr. Furthmann " 
 (assistant state's attorney). 
 
 This search and seizure being in palpable violation of 
 the provisions of the federal constitution, fourth amend- 
 ment, and of the constitution of the State of Illinois, we re- 
 spectfully submit that the admission of any of this matter 
 in this record was improper, as being in effect a compel- 
 ling of the plaintiffs in error to give testimony against 
 themselves contrary to the provision of the fifth amend- 
 ment of the federal constitution and to the provision of 
 article 2 of our constitution of 1S70. In support of this 
 position we cite Boyd v. The United Slates, 116 U. S., 
 616. The case is a very late one and very full)' con- 
 sidered by the Supreme court, and the opinion very ably 
 presents the views of that tribunal. 
 
 This case arose upon the question of the constitution- 
 ality of the act of Congress providing that upon any com- 
 plaint for violation of the revenue laws the parties accused 
 are required by the courts to produce their books, in- 
 voices and papers for inspection and for use in evidence 
 against them ; and upon their failure to do so the aver- 
 ments of the complaint would be taken against them as 
 confessed. The Supreme court of the United States, after 
 citing and commenting at length upon various decisions, 
 amongst others the opinion of Lord Camden in Entick v. 
 Carrington, 19th Howell State Trials, 1,029, proceeds as 
 follows: 
 
" The principles laid down in this opinion(of Lord Cam- 
 den) affect the very essence of constitutional liberty and 
 security. They reach further than the concrete form of 
 the case then before the court with its adventitious cir- 
 cumstances; they apply to all invasions on the part of 
 the government and its employes of the sanctity of a 
 man's home and the privacies of life. It is not the 
 breaking in of his doors and the rummaging of his draw- 
 ers that constitutes the essence of the ofiense, but it is 
 the invasion of his indefeasible right of personal secu- 
 rity, personal liberty and private propert)% where that 
 right has never been forfeited by his conviction of some 
 public offense; — it is the invasion of this sacred right 
 which underlies and constitutes the essence of Lord 
 Camden's judgment. Breaking into a house and open- 
 ing boxes and drawers are c'-xumstances of aggrava- 
 tion ; but any forcible and compulsory extortion of a 
 man's own testimony, or of his private papers to be used 
 as evidence to convict him of crime, or to forfeit his 
 goods, are within the condemnation of that judgment. 
 In this regard the fourth and fifth amendments run 
 almost into each other. * * * Any compulsory 
 discovery by extorting the party's oath, or compelling 
 the production of his private books and papers, to 
 convict him of crime, or to forfeit his propert}^ is con- 
 
 ' trary to the principles of a free government. It is ab- 
 horrent to the instincts of an Englishman; it is abhor- 
 
 ' rent to the instincts of an American. It may suit the 
 purposes of despotic power, but it cannot abide the 
 
 ■ pure atmosphere of political liberty and personal 
 
 • freedom. * * * Wg are further of opinion that 
 ' a compulsory production of the private books and 
 
 • papers of the owner of goods sought to be forfeited 
 ' in such a suit is compelling him to be a witness 
 
" against himself, within the meaning of the fifth amend- 
 " ment to the constitution, and is the equivalent of 
 " a search and seizure — and an unreasonable search 
 " and seizure —within the meaning of the fourth amend- 
 " ment. Though the proceeding in question is di- 
 " vested of many of the aggravating incidents of actual 
 " search and seizure, yet, as before said, it contains their 
 " substance and essence, and effects their substantial pur- 
 " pose. It may be that it is an obnoxious thing in its 
 " mildest and least repulsive form; but illegitimate and 
 " unconstitutional practices get their first footing in that 
 " way, namely, by silent approaches and slight deviations 
 " from legal means of procedure. This can only be ob- 
 " viated by adhering to the rule that constitutional pro- 
 " visions for the security of persons and property should 
 •' be liberally construed. A close and literal construc- 
 " tion deprives them of half their efficacy, and leads to 
 " gradual depreciation of the right, as if it consisted more 
 " in sound than in substance. It is the duty of courts to 
 " be watchful for the constitutional rights of the citizen 
 " and against any stealthy encroachments thereon. Their 
 " motto should be obsia principiisy 
 
 A vast amount of other evidence was introduced which 
 comes directly within the principle laid down in the case 
 of Boyd v. U. S., supra, as, for instance, all of the mat- 
 ter taken from the Arbeiter Zeitung building, including 
 manuscripts, type, flags and mottoes, the dynamite 
 cartridges, percussion caps and fuse taken from the desk 
 of Mr. Spies, the articles taken from Fischer's person at 
 the time of his arrest, etc., etc. That all these articles 
 were unlawfully obtained by the representatives of the state 
 appears from the testimony of Bonfield (A., 29, I, 368), 
 Slayton (A., 39, I, 460), Furthmann (A., 43) and others. 
 
 Perhaps the most striking illustration of the violation 
 
i83 
 
 of this constitutional safeguard was the introduction iil 
 evidence of a bunch of keys (A., 62; J., 94), which 
 Officer Jones says he got from Detective Bonfield, and 
 tried into the drawer where he found the dynamite, fuse 
 and the letters referred to. (A., 62; J., 91, 92.) As to 
 the manner in which these keys, which were permitted to 
 be introduced in evidence, were obtained from Mr. Spies, 
 Detective Bonfield testifies as follows (A., 29; I., 369); 
 " I took Spies and Schwab into the front room of the 
 " Central Station ; we searched Spies, and took the per- 
 " sonal effects from him ; / took Mr. Spies' keys out of his 
 '■^pocket; everything I found, little slips of paper, etc. / 
 " literally went through him. 1 had no warrant for any- 
 " thing of that kind" 
 
 These searches and seizures were clearly within the 
 prohibition of the federal and the state constitutions. The 
 entries and seizures were clearly unauthorized and 
 illegal; and this character is not taken ofi:" by the fact 
 that they were made by those claiming to be in the act 
 the representatives of law, the servants of the govern- 
 ment. Nay, the lawlessness of this act is all the more 
 reprehensible in view of the parties to this conduct. 
 
 Unless we are prepared to say that the law laid down 
 by the Supreme court of the United States in the case of 
 Boyd V. U. S. is all nonsense and sentimentality, then all 
 of this matter which came in over the objection and ex- 
 ception of all the plaintiffs in error was evidence extorted 
 from them, and there was error in the rulings of the 
 court in admitting the same. 
 
 The principle is the same as that by which it is neces- 
 sary to show that the confession of a defendant was not 
 obtained by holding out promises or threats to him, be- 
 fore his confession is admissible in evidence against him. 
 Wharton's Crim. Ev., §§ 646, et seq. 
 
184 
 
 y. SPEECHES AND PRITATE UTTERANCES OF PLAINTIFFS 
 IN ERROR. 
 
 Evidence was permitted to be offered as against 
 all the plaintiffs in error of speeches and private 
 utterances made by certain of them running through 
 an interval of about two years prior to the Hay- 
 market meeting, such speeches being made at various 
 places of gathering, notably on Sunday afternoons on 
 the lake shore, at the meetings of the American group 
 of the International Workingpeople's Association at a 
 hall at 54 West Lake street, and other halls, meetings 
 of workingmen at West Twelfth Street Turner Hall, at 
 Mueller's Hall, and at others; also speeches made at 
 Market square on Thanksgiving da}', 1885, and on the 
 night of the dedication of the new board of trade build- 
 ing in the city of Chicago, April 30, 1885. At 
 none of these meetings were there present more than 
 two or three of the plaintiffs in error, and two of them, 
 namely, Fischer and Neebe, are not shown to have spoken 
 at any of these meetings, while a large number of them 
 was held before Louis Lingg had come to the United 
 States; still this evidence was in each case permitted to 
 come in as against all of the plaintiffs in error, over their 
 objection and exception and against the special objection 
 and exception in each instance of the plaintiffs in error 
 not present on the occasion of said respective speakings. 
 And the evidence included not only speeches made b}- 
 plaintiffs in error, but also speeches made by others 
 at the same meetings, the meetings being in ever}- 
 instance public, in many cases outdoor meetings, and at- 
 tended by large numbers of persons, not only those in 
 
^85 
 
 sympathy with the views of the speakers, but also those 
 •opposed. 
 
 At no one of these meetings from the beginning to the 
 ■end of the series will it be pretended there was any 
 •special reference to the Haymarket meeting, or to the 
 initiation of revolution at that or any other particular date. 
 The talk was general in its character. 
 
 To emphasize our objection to this class of testimony, 
 and at the same time to show its unreliable character in 
 many instances, we shall call attention to some of the 
 occasions testified of. 
 
 («.) The Meeting on the night of the opening of 
 THE NEW Board of Trade. 
 
 Concerning the proceedings and utterances on the 
 evening of the dedication of the board of trade of 
 the city of Chicago, occurring in April, 1885, it ap- 
 pears that a meeting of wage-workers was held on the 
 Market square, and from there organized a procession 
 which marched down to the neighborhood of the chamber 
 of commerce; being met by cordons of police on the 
 different streets, and prevented from getting nearer to the 
 building than a block upon either side, marched around 
 the building, halting at one point, and sang the Marseillaise, 
 and thence marched to 5th avenue in front of the Arbeiter 
 Zeitung building, where the crowd was briefly addressed 
 from the windows of the building by Parsons and Fielden, 
 after which they dispersed. 
 
 Detective Sullivan's testimony (A., 80, 81), with 
 which detective Trehorn (A., 77, ct seq.) sub- 
 stantially agrees, is to the effect that at the Mar- 
 ket square Parsons made a speech about the board 
 
1 86 
 
 of trade, showing by figures how the poor man was^ 
 robbed; then he denounced the police as blood-hounds, 
 the militia as servants of the capitalists, robbing the labor- 
 ing classes, and invited them all in a body to go to the 
 board of trade, force their way into it, and partake of the 
 twenty-dollar dishes at that supper. Fielden spoke after 
 Parsons, denouncing the police and militia as blood- 
 hounds, and urging the crowd to force themselves in to- 
 the board of trade and partake of that twenty-dollar 
 supper; at the time of this speaking there was a company 
 of militia drilling upon the Market square, to which 
 Schwab called attention, arid the witness and detective 
 Trehorn went over and requested them to leave, which 
 they did. Then they formed a procession, some carrying; 
 red flags, marching around the board of trade and finally 
 stopping at 107 5th avenue. Parsons then spoke from 
 the window again, denouncing the policemen and militia 
 as blood-hounds, stating that they had stopped them from 
 going into the board of trade; that a good many of his 
 audience could not afford to pay twenty cents for a meal, 
 let alone twenty dollars; and that if they would follow 
 him he would raid different places, mentioning Marshall 
 Field's; then Fielden spoke from the window and wanted 
 the crowd to follow him; that arguments had failed, and 
 they would have to use the gun and dynamite. As to the 
 occurrences while the procession was in motion, and during 
 and after the speeches from the window at 5th avenue, 
 the witnesses named are substantially corroborated by AL 
 H. Williamson, a reporter. (A., 54, 55.) These witnesses 
 admit, however, that no movement was made or attempted 
 from sth avenue, but the crowd quietly dispersed and 
 went home. Parsons and Fielden stepped quietly back 
 from the window into the rooms of the building, and re- 
 mained there until after the audience had dispersed. SuUi- 
 
i87 
 
 van, Trehorn and Williamson then had a conversation' 
 with Parsons in the room from which the addresses had 
 been made, while Fielden, Spies and Schwab were in the 
 room, in which they say they were shown a dynamite 
 cartridge, a coil of fuse, and some fulminating caps. 
 Parsons made some talk, as to the possible use of dyna- 
 mite in the future in the event of contests with the police,, 
 and spoke of its power as an explosive, and said, in answer 
 to an inquiry by them, that they did not attack the board 
 of trade building that night because the blood-hounds 
 were in the way, and they were not prepared for action. 
 
 The testimony of Sullivan, Trehorn and Williamson 
 differs materially from that of another witness, detective 
 Johnson, called by the prosecution, who testifies with ref- 
 erence to the same occurrence. While the first three 
 witnesses testified simply from recollection as to alleged 
 proceedings and utterances occurring about fifteen months 
 before they were upon the stand as witnesses, Johnson, in 
 testifying, had before him, for the purpose of refreshing 
 his recollection, detailed reports in zvriting, which had 
 been made by him officially to the superintendent of Pin- 
 kerton's national detective agency, by which he was em- 
 ployed (A., 94) ; and it appeared from endorsements 
 thereon that these reports were at some time submitted 
 to other parties for examination, most of them being 
 endorsed by the name of Lyman J. Gage. (A., 103; 
 K, 2.) 
 
 Johnson's testimony, based upon his written reports, 
 and fortified by them directly, contradicts the testi- 
 mony of the three witnesses above mentioned, as to 
 what was said in all the speeches on the occasion 
 in question, in the matter of any suggestion or pro- 
 posal to use violence. Testifying from h's notes, he 
 says (A., 97; J, 402) that at this meeting on the night of 
 
the 30th of April, 1885, Parsons and Fielden were pres- 
 ent; that Parsons said they had assembled to determine 
 in what way best to celebrate the dedication of the new 
 board of trade building. Fielden said: "I want all the 
 " workingmen in Chicago to arm themselves and sweep 
 "the capitalists oft" the face of the earth." Parsons then 
 said: " Every workingman in Chicago must save a little 
 " of his wages each week until he can buy a Colt re- 
 " volver and Winchester rifle, for the only way that 
 " workingmen can get their rights is at the point of the 
 " bayonet. We want you to form a procession now, and 
 "we will march to the board of trade; we will halt there, 
 " and while the band is playing, we will sing the Mar- 
 " seillaise." Witness was himself in the procession. 
 
 On cross-examination (A., 1:03; 5,450,457) he stated 
 that he never at any of the meetings heard of an arrange- 
 ment for blowing up the board of trade building or any 
 other building in the city of Chicago, or for taking the life 
 of any one, or for the sacking of any store in the city of 
 Chicago. At the meeting on the night of the opening of 
 the new board of trade, no violence was proposed in any 
 of the speeches: witness heard of no proposal of violence of 
 any kind. He heard Parsons when he first got up state 
 the object of the meeting; heard Fielden speak and Par- 
 sons when he replied, and was there when the procession 
 moved. Parsons said there were the board of trade men 
 sitting down to this twenty-dollar supper, while the poor 
 workingmen had to starve; but witness did not hear either 
 Parsons or Fielden or anybody else say that they would 
 go down by force into the board of trade and eat of that 
 twenty-dollar stiff cr ; he says he was listening all the time. 
 
 The importance of this testimony of Johnson, in its con- 
 tradiction of the testimony of Williamson, Sullivan and 
 Trehorn, cannot be overestimated. Johnson was a Pin- 
 
i89 
 
 kerton detective, who, under the direction of that agency, 
 joined the socialists in Chicago; became a member of the 
 American group, and attended through nearly one year 
 substantially all of their meetings, making written reports 
 of what he heard and saw there (A., 94). He swears 
 positively that he heard no proposal to invade the board 
 of trade building by force, to take the supper there by 
 force, to blow up that building, or any other building in 
 the city of Chicago, to sack any building or place, and 
 that he never heard such propositions in any of the meet- 
 ings he attended, and of which he made detailed reports. 
 If the testimony of this witness is reliable, and he is ac- 
 credited by the state, and certainly had no inducement to 
 favor the plaintiffs in error, and testified " by the book," 
 then the testimony of the other witnesses as to this board 
 of trade meeting must be taken with much allowance. 
 
 Now, what had all this testimony about the occurrences 
 on the night of the dedication of the new board of trade 
 building to do with the Haymarket meeting and the kill- 
 ing of Degan thereat? 
 
 (3.) The West i2th Street Turner Hall 
 Meeting. 
 
 Take, as another illustration, the testimony of M. E. 
 Dickson, formerly a Times reporter (A., 113), con- 
 cerning a meeting at West 12th street Turner Hall. 
 Witness says that this was a meeting publicly called 
 for the discussion of the socialistic platform; that a 
 circular had been issued, in which public men, clergy- 
 men, employers and others were invited to be pres- 
 ent to discuss the question; that the hall was crowded; 
 that during the meeting Parsons, Fielden and Spies spoke. 
 
1 90 
 
 Parsons referring to the degradation of labor, claiming 
 it was brought about by what was known as the rights of 
 private property, and from statistics showing that the 
 average man with a capital of five thousand dollars was 
 enabled to make four thousand a year and thus get rich, 
 while his employe, who made money for him, obtained 
 but three hundred and forty dollars; that there were over 
 two million heads of families in the United States who 
 were in want, or bordering upon want, and it would be 
 hard for the man who stood in the way of liberty and 
 equality to all. Fielden said that the majority were starv- 
 ini^ because of over-production; that as a socialist he be- 
 lieved in the equal right of every man to live; that the 
 present condition of the laboring man was due to the 
 domination of capital, and they could expect no remedy 
 from legislatures; that there were enough present in that 
 hall to take Chicago from the grasp of the capitalists; 
 that capital must divide with labor; and that the time was 
 coming when a contest would arise; he was no alarmist, 
 but the socialist should be prepared for the victory when 
 it did come. Spies spoke in German, advising the work- 
 ingmen to organize in order to obtain their rights, and 
 that they might be prepared for the emergency. Then 
 resolutions were adopted denouncing the capitalistic class 
 and those who had refused to come and hear the truth 
 spoken and discuss the question. 
 
 (c.) The American Group. 
 
 A large amount of evidence was permitted to be intro- 
 duced in reference to the meetings of the American group, 
 so called, particularly in connection with the testimony of 
 Johnson, the Pinkerton detective. 
 
It appears from the testimony that Parsons, Fielden 
 and Spies were members of the American Group of the 
 International Workingpeople's Association. The latter 
 is an association of working people throughout the civil- 
 ized world, formed for the purpose of agitating for a 
 •change in the existing social conditions. The meetings 
 of the American group were always ^public and open to 
 everybody. Those who joined the group were furnished 
 with a membership card, the dues were ten cents per 
 month; but if any person was unable, or for any reason 
 indisposed to pay the dues, he did not thereby lose his 
 membership or standing in the society. All this appears 
 from the testimony of Johnson himself. (A., 102.) It 
 also appears that the attendance of these meetings was 
 never larger than tivenly-five people (A., 56; J, 24), 
 and that the proceedings were always reported in the 
 newspapers the next morning (A., 56; J, r6.) 
 
 The effect of the testimony referred to, which came 
 in under objection, was that at the various meetings of 
 this group there were speeches, statistical and otherwise, 
 and airing of the supposed grievances of the working peo- 
 ple, urging to organize, and advice to prepare and arm 
 for resistance against the alleged oppressions which they 
 were suffering. But there is no pretense that the American 
 group, in any of its meetings, ever considered the holding 
 of the Haymarket meeting or the use of violence in con- 
 nection with the same. It was therefore irrelevant and 
 incompetent, and, because prejudicial, its admission was 
 •error. What place f. i. had in this record the testimony 
 of Johnson, that at the meeting of March 22, 1885, a 
 resolution of sympathy was introduced by a man named 
 Bishop, not one of the plaintiffs, for a girl alleged to have 
 teen outraged by her master, a man of high social stand- 
 ing, and whose case had been refused consideration by 
 
192 
 
 the magistrate to whom it was presented. Johnson says 
 that, in connection with the offering of this resolution, Mr. 
 Spies stated in effect that this was a fine opportunity- for 
 some young man to go and shoot the wrongdoer, and thus 
 avenge the girl. (A., 96; I, 394-5.) He was, however, 
 compelled to admit upon cross-examination that here, also, 
 his memory ran beyond his report; for, with his report be- 
 fore him, he had to admit (A., 103 ; J, 440 ) that his zvriltcn 
 official report states that another man, named Keagan, 
 made that remark, and that no such remark is there at- 
 tributed to Spies. Was lestimon}- of this kind admissible? 
 But we go a step beyond, to consider the unarmed 
 " armed section " of the American group, of which John- 
 son testifies in c.xtenso. (A., 98, 99.) He describes a 
 meeting at which the suggestion was made that those 
 members of the American group who desired to do so 
 could join the armed section, and that thereupon a number 
 of them, including himself, expressed their wiUingness to 
 become members thereof. Fielden and Parsons also 
 belonged to it. Several meetings were held at which 
 the members present were put through certain marching 
 maneuvers, but they zvere never, in fact, armed; never 
 practiced or drilled vjilh arms. Johnson also describes an 
 alleged improved dynamite bomb which he claims was 
 exhibited there by the drill-master at the first meeting. 
 Certain it is that the armed section, so-called, was simply 
 an unarmed body of less than a score of men — members 
 of the American group — who held, all told, probably not 
 more than half a dozen meetings, in which they drilled 
 simply in marching maneuvers. There is no pretense 
 that this " armed " section without arms called the 
 Haymarket meeting, or plotted the throwing of the bomb 
 or any other violence at the same. This testimony, as all 
 of Johnson's, came in under objection. (A., 95; J, 391.) 
 
193 
 
 [d.) Private Conversations of Mr. Spies. 
 
 (i.) Luther Moulton and Georji;e W. Shook testified 
 that on the 22d of February, 18S5, at Grand Rapids, in the 
 State of Michigan, Spies stated, in a conversation with 
 them, that he belonged to an organization whose purpose 
 was the reorganization of society upon a more equitable 
 basis, that the laboring man might have a better and a 
 fairer division of the products of labor; that he expressed 
 no confidence in the ballot as a means to accomplish this 
 end, and stated that force and arms was the only way in 
 which the result could be reached; that they were pre- 
 pared for such a demonstration in Chicago, and in all the 
 commercial centers of the country; that they had about 
 three thousand men organized in Chicago; that they had 
 superior means of warfare; that they would rapidly gain 
 accessions to their ranks, if they were successful, from the 
 laboring men, to whom they would hold out inducements. 
 The demonstrations would be made when laboring men 
 were idle in large numbers. He thought there might be 
 bloodshed, for that happened frequently in the case of 
 revolution, which might be crime if the revolution failed, 
 but not otherwise. Moulton says that no details were 
 given in regard to the means or mode of warfare, but 
 thinks the term " explosives " was used in connection with 
 arms, though he remembers nothing definite; that noth- 
 ing was said about the police or militia, except in general 
 terms that they were prepared to successfully resist and 
 destroy such forces. (A., 20, 21.) This testimony came 
 in over the objections and exceptions of the plaintiff's in 
 error, and particularly of those other than Spies, and a 
 motion to exclude it was likewise overruled. Testimouy 
 of declaratory statements made in a -private conversation 
 
194 
 
 iy Spies outside of this stale, a year and a quarter before 
 the Haymarket evening, was here admitted not only as 
 evidence against Spies, but against all plaintiffs in error. 
 (2.) Harry Wilkinson testified (A., 67 et seq.) that he 
 was a reporter for the Chicago Daily News, and in Janu- 
 ary, 1886, had several interviews with Spies, as a result 
 of which he wrote up an article published in the Chicago 
 Daily News of January 14th. He says that he was in- 
 troduced to Spies for the purposes of that conversation, 
 ■«hich occurred at the Arbeiter Zeitung, by Joseph 
 Gruenhut. Later Mr. Gruenhut, Mr. Spies and Mr. 
 Wilkinson went to a restaurant together, where Mr. 
 Wilkinson set up the wine, and a conversation ensued, 
 illustrated by Mr. Spies by the use of tooth-picks laid 
 upon the table-cloth, in which Mr. Spies indicated a policy 
 of street warfare, much the same as that detailed by an 
 officer of the United States army as published in the San 
 Francisco Truth, and republished in the Alarm. (People's 
 Exhibit 48; I A., 172.) Among other things Mr. Spies told 
 him that the socialists in Chicago had a body of very tall 
 and very strong men, ivho could throw Jive-pound bombs 
 I JO paces with t/ieir hands. He says distinctly he tried to 
 find out from Spies when the social revolution was to be 
 inaugurated, but that Spies did not fix any date, either 
 precisely or approximately. He says, however, that at 
 another interview Spies said it would probably occur in 
 the first conflict with the police and militia; that if there 
 should be an universal strike for the eight-hour system 
 there would probably be a conflict brought about. He 
 further states that Spies showed him an empty shell of a 
 proposed dynamite bomb, which, by Spies' permission, 
 he carried away and gave to Mr. M. E. Stone, editor of 
 the Chicago Dail}' News, who retained the same, and 
 that shell was introduced in evidence in the case. He 
 
195 
 
 further says that Spies spoke of there being a large num- 
 ber of men organized and ready for service in the event 
 of a revolution, and that he got the idea, from what Spies 
 said, that they had a number of thousand bombs ready 
 for use. The witness had advised Mr. Spies, previous to 
 his interviews, that he was assigned to this work by Mr. 
 Stone, editor of the Daily News. 
 
 Mr. Joseph Gruenhut, also testified in behalf of the 
 state, and examined as to the same conversation, says 
 (A., 109; K, 59) that the conversation between Wilkin- 
 son and Spies was carried on in an half joking manner, 
 lasting perhaps a quarter of an hour, while they were 
 taking their supper; and he saj's distinctly on cross-exam- 
 ination (A., 109; K, 66) that m this conversation no date 
 ■was fixed when there was going to begin trouble in 
 Chicago; that Spies' conversation was zvholly upon gen- 
 eral principles, and that nothing was said as to any attack 
 about May ist. 
 
 Mr. Spies' version of these conversations with Mr. 
 Wilkinson may be found in his testimony (A., 304-306); 
 he says it was a general discussion of the possibilities of 
 street warfare under modern science (A., 306), with no 
 suggestion whatever of any time or place for the inaugura- 
 tion of the conflict with the constituted authorities. 
 
 (e.) The Eight-Hour Agitation Meeting at West 
 I2TH Street Turner Hall. 
 
 James K. Magie (A., 23; I, 309 et seq.) and H. E. O. 
 Heinemann (A., 30,31; I, 380 et seq.) show that in 
 October, 1885, at a meeting at West 12th street Turner 
 Hall, the intended eight-hour movement was under dis- 
 cussion. Only Spies and Fielden, of the plaintiffs in 
 
196 
 
 error, were present. Resolutions were adopted which 
 stated that the probabilities were that the property-own- 
 ing class would resist any attempt of the laborers to 
 enforce the eight-hour demand, by calling to aid the po- 
 lice and militia, and if the workingmen were determined 
 on carrying their point they would have to arm them- 
 selves and be ready to enforce their demands by the same 
 means that the property-owning class would use. The 
 resolution concluded with the sentence: " Death to the 
 '• enemies of the human race — our despoilers." Mr. 
 Heinemann expressly says (A., 31; I, 385): " I would 
 " not be certain whether the resolutions stated the time 
 " when this should culminate; the ist of May was desig- 
 " nated in so far as a commencement of the eight-hour 
 «• movement was fixed for that date." 
 
 There were about 500 people present, and after full 
 discussion, pro and con, the resolutions were adopted by 
 a very strong vote (A., 24; I., 319, 320.) 
 
 That the wage-workers throughout the United States 
 fixed upon the ist of May, 1886, for the inauguration of 
 the eight-hour movement as early as two years before 
 that date, is historic and furthermore appears from the 
 record. But the above testimony in regard to the resolu- 
 tions passed at the meeting at West 12th street Turner 
 Hall, and that of Moulton and Wilkinson above consid- 
 ered, was used by the state as a basis for their claim, that 
 the plaintiffs in error were engaged in a conspiracy to 
 inaugurate the social revolution on May ist. 
 
 This claim is too absurd to deserve serious refutation. 
 Perhaps the best answer to it is the reply which Spies gave 
 Wilkinson when he asked him if the anarchists and social- 
 ists were going to make a revolution: " Revolutions are 
 " not made by individuals or conspirators, but are simpl}' 
 " the logic of events resting in the condition of things." 
 
197 
 
 ( /.) The general tendency of these utterances. 
 
 There is a vast amount of other testimony concerning 
 speeches and conversations attributed to the various ac- 
 cused, which was admitted in every instance as against 
 all the plaintiffs in error, over their objection and excep- 
 tion, and particularly of those not present at the respective 
 occasions. The worst that can be said of these utter- 
 ances is that they were full of predictions of an impend- 
 ing conflict between laborers and capitalists, urging the 
 laboring men to prepare for that conflict by arming them- 
 selves, advising them to buy guns and revolvers, and 
 particularly commending to them as a weapon for such 
 warfare the latest product of science in the development 
 of explosives, namely, dynamite. But a careful inspection 
 of all these speeches will show that none of them ever 
 counseled an initiation of a conflict by the working people, 
 nor fixed any date, nor designated any place for the 
 bringing on of such contest — the position of the speakers 
 being that the present societary relations were wrong; 
 that the producing classes did not get the share they were 
 entitled to; that the power held by the capitalists was 
 founded upon force; that the capitatists would not, in all 
 probability, yield peaceably to the just demands of the 
 working classes, but in case the latter should insist upon 
 their rights, would call out the militia and police force 
 against them, and that they should be prepared to meet, 
 when that conflict came, force with force, coupled with 
 the suggestion, at times, that if they should thoroughly 
 prepare themselves for the conflict, they might achieve a 
 bloodless victory. None of the speeches ever referred 
 directly or indirectly to the meeting of the night of May 
 4, 1 886, or any other particular occasion, or counseled 
 
any act of violence, or suggested the use of explosives of 
 any kind at that meeting. 
 
 Again, we ask, what has this testimony to do with the 
 issue before the jury? What proper place had it in this 
 record? That such testimony had a tendency to prejudice 
 the jury against plaintiffs in error, or, more properly 
 speaking, to intensify the prejudice with which they en- 
 tered the jury box, we freely admit, and for this very 
 reason claim that its introduction was material error. 
 
 VI. OTHER ILLEGITIMATE EVIDENCE. 
 
 Dr. Murphy (A., 152-157), Dr. Lee (A., 163, 164), 
 and Dr. Baxier| (A., 162), were permitted to testify, 
 at great length, to the details of the wounds and their 
 medical U-eat7nent of a large number of police officers 
 other than Degan, supposed to have been injured 
 or killed by the explosion of the Haj'market bomb, 
 or by pistol-balls. These horrifying details poured 
 into the ears of the jury, through hours of 
 the examination of these witnesses, were calculated 
 to stir their prejudices to such an extent as perhaps 
 to absolutely unsettle the judgment; but certainly no man 
 can claim that this class of testimony had any proper place 
 in the investigation of the issue, which was not the extent 
 of the injuries resulting from the explosion of the bomb, 
 but simplv whether the plaintiffs in error were legally re- 
 sponsible for the explosion of that bomb, which confess- 
 edly resulted in the death of Mathias J. Degan. 
 
 Another illustration of the admission of improper testi- 
 mony occurred in the examination of Fred. P. Rosback, 
 for the State. Upon his examination the following took 
 place (A., 84, 85; J, 282, 283), viz.: 
 
199 
 
 " Q. What is 3'our business? 
 
 " A. Machinist. 
 
 " Q. Where is your place of business? 
 
 " A. 224 East Washington street. 
 
 " Q. Do j-ou know Rudolph Schnaubelt? 
 
 " A. Yes, sir. 
 
 " Q. Did he work for you? 
 
 " A. Yes, sir. 
 
 " Q. Do you remember the night of the throwing of 
 the bomb? 
 
 " A. Yes. 
 * * * * * * * 
 
 " Q. Did you see him on Tuesday? 
 " A. Yes. 
 
 " Q. On Tuesday, when you saw him, did he have a 
 beard on? 
 "A. Yes. 
 
 " Q. When did you next see him? 
 " A. I next saw him Wednesday morning. 
 " Q. At what hour? 
 " A. He came to work at 7 o'clock? 
 " Q. Did he have a beard on that day? 
 
 (Objected to.) 
 " Mr. Grinnell: It is for the purpose of identification. 
 
 (Objection overruled; exception.) 
 " Q. Did he have a beard on on Wednesda}'? 
 " A. Yes. 
 
 " Q. Did you see him Thursday? 
 " A. Yes. 
 " Q. Did he have a beard on then? 
 
 (Objected to; objection overruled, and exception.) 
 " A. Thursday morning he had his beard shaved off, 
 " Q. Did he have a mustache on? 
 " A. He had a mustache, but it was clipped of}'." 
 
What was the purpose of this examination? Was it for 
 ihe purpose of identification, as suggested by the state's 
 attorney? How was that purpose aided by this examina- 
 tion? Is it not obvious that this evidence served not at 
 all for the purpose of identification, but that it did serve to 
 get before the jury the fact that Mr. Schnaubelt, shortly 
 after the bomb-throwing, shaved his beard and clipped 
 his mustache, thus suggesting disguise? And if this was 
 the sole tendency of this evidence, and the natural and ob- 
 vious tendency thereof, are we not justified in charging 
 that such was the purpose of its offering, despite the con- 
 trary suggestion by the state's attorney, on the familiar 
 principle that every man is presumed to intend the nat- 
 ural consequences of his action? But whether this result 
 was intended or not, this evidence was clearly incompe- 
 tent, upon the familiar principle that no evidence of the 
 acts of alleged conspirators post the crime, are competent 
 against their supposed co-conspirators. Schnaubelt was 
 not on trial. The alleged change in his appearance 
 specially inquired of, even to the point of asking a leading 
 question, occurred, if at all, as shown by the above tes- 
 mony, after the night of May 4. It was grossly improper 
 to allow this evidence, and the testimony could not but 
 have a strong tendency to prejudice the jury. It was evi- 
 dence that might have been competent against Schnau- 
 belt upon the issue raised by the testimony of Gilmer, had 
 Schnaubelt been on trial. Its introduction in his absence 
 cannot be excused. 
 
 It is said by Mr. Wharton (Crim. Ev., § 750,) that when 
 a suspected person attempt to escape or to evade 
 threatened prosecution, or resorts to flight or acts of dis- 
 guise, this may be shown as tending to evidence con- 
 sciousness of guilt; but in § 699 of the same work, he 
 says: 
 
" When the common enterprise is at an end, whether 
 -" by accomplishment or abandonment, no one of the con- 
 •" spirators is permitted by any subsequent act or declara- 
 -" lion of his own to affect the others. Even the most 
 -"solemn admission made by him after the conspiracy is 
 " at an end is not evidence against accomplices. Nor can 
 -" the flight of one conspirator after such time be put in 
 " evidence against the others." 
 
 In the case of People v. Stanley, 47 Cal., 112, the Su- 
 preme court of California used the following language: 
 
 " It is well settled that the flight of a person suspected 
 -" of a crime is a circumstance to be weighed by the jury, 
 -" as tending in some degree to prove a consciousness of 
 -" guilt, and is entitled to more or less weight according 
 -" to the circumstance of the particular case. Such evi- 
 •*' dence is received, ' not as a part of the res gestce, of the 
 " criminal act itself, but as indicative of a guilty mind.' 
 " (Roscoe on Criminal Evidence, 18.) At most, it is but 
 -" a circumstance tending to establish a consciousness of 
 -" guilt in the person fleeing; and it would be extending 
 "" the principle to a great length to hold that the flight of 
 ^' one person tends to establish the guilt of another person. 
 -" We have been referred to no case which goes to that 
 ■" extent." In that case there was a reversal upon the 
 sole ground that evidence was admitted of the flight of 
 an alleged co-conspirator. 
 
 In support of the general proposition that " when the 
 
 -*' common purpose is at an end, whether by accomplish- 
 
 •" ment or abandonment, no one of the conspirators is per- 
 
 ■" mitted by any subsequent act or declaration of his own 
 
 ■■" to affect the others," we cite, without special comment: 
 
 Snozuden v. State, 7 Baxter, 482. 
 
 People V. Aleck, 61 Cal., 137. 
 
 State V. SohJc, 14 Nev., 453. 
 
Commonwealth v. Thompson, 99 Mass., 444- 
 
 State V. West/all, 49 Iowa, 328. 
 
 Strady v. State, 5 Caldwell, 300. 
 
 State V. Fuller, 39 Vermont, 74. 
 
 Hunter \. Commonwealth,^ Grattan, 641^ 
 
 Hudson V. Commonwealth, 2 Duval, 531 
 
 (Ky). 
 
 Rueber v. State, 25 Ohio State, 464. 
 People V. Stevens, 47 Mich., 411. 
 Peo^/e V. Arnold, 46 Mich., 68. 
 Spencer v. State, 31 Tex., 64. 
 yl3e V. ^7a^e, 31 Texas, 416. 
 Co7nmonwealth v. Ingraham, 7 Gray, 46. 
 Ormsbee v. People, 53 New York,»47 2. 
 , Morris v. 5/fl/^, 50 Ohio, 439. 
 
 67«/e V. Ariiold, 48 Iowa, 566. 
 5^a/e V. Rawler, 65 N. C, 334. 
 Phillips V. 5/«/f, 6 Tex. Appeal, 314. 
 
 We cannot, without unduly extending the limits of this- 
 argument, attempt to review in detail all of the testimony 
 which was permitted to be introduced in the prosecution- 
 of this cause over the objection of plaintiffs in error, that 
 in our view was illegitimate as being immaterial and. 
 irrelevant to the issue before the jury. The specifications 
 of this class of testimony which we have above given 
 were intended to bring into clear relief the general scope- 
 of the inquiry which was permitted to be entered upor> 
 by the court, and to show how far from the real issue the 
 case was permitted to drift. 
 
203 
 
 OUR POSITIONS UPON THE EVIDENCE ILLEGITI- 
 MATELY INTRODUCED. 
 
 The apparent purpose of the proofs thus specified was 
 to establish a general conspiracy against the law; a plan 
 to bring about a revolution in the order of society — :a 
 purpose to change the existing social condition, and to 
 that end, if necessary, to resort to force. 
 
 There was no pretense that that testinnony tended to 
 show that the commission of the particular crime charged 
 in the indictment was ever arranged for or advised. The 
 claim was that such acts of violence were likely to fall 
 out if an attempt should be made at any time to accom- 
 plish the purposes of this general conspiracy or agree- 
 ment. 
 
 I. There is no Responsibility for the Act of an 
 Associate in Purpose, but not in Action. 
 
 The evidence tends to show, that all of the plaintiffs 
 in error favored the idea of a change in the order 
 of society, and especially of the abolition of the wage 
 system; and that some of the plaintiffs advocated the 
 use of force, if this should become necessary, in order 
 to bring about that change. The most which all that evi- 
 dence tends to show, is that there was a community of 
 purpose or desire among the plaintiffs in error in regard 
 to these principles. But the state's own evidence shows 
 that the different plaintiffs in error worked in different 
 directions, under different plans, with different means. 
 And it is a well established principle, that if a body of 
 associates, entertaining a common purpose, start for the 
 attainment of that result by different processes, acting in- 
 
204 
 
 dependently of each other in their attempts to reach the 
 common end, the mere community of purpose or desire 
 does not make the parties entertaining it responsible for 
 the acts of their associates in desire, but not associates in 
 action. In other words, if a number of persons start out 
 to accomplish a certain end, but afterwards divide their 
 forces, one set adopting one plan to reach that end, with- 
 out the knowledge or concurrence of the other set, such 
 other set are not responsible for the independent plan or 
 conspiracy of the supposed actors. 
 
 Our claim is that the liability of an accessory to the 
 penalties of the law is conditioned upon legal proof that 
 the accessory advised, abetted or encouraged the perpe- 
 tration of the particular crime charged, or engaged in 
 so7ne felony which, in contemplation of the law, involved 
 the particular crime as a probable result, at the time and 
 under the ^circumstances of the perpetration of the 
 offense. 
 
 The law is well settled that where different parties are 
 engaged in a like conspiracy, but as to the particular act 
 done are proceeding independently and without concert, 
 only the parties to the act can be held responsible for it. 
 In other words, parties cannot be held criminally liable 
 because of sympathy with or participation in a general 
 desire, but only because of aiding, abetting, assisting or 
 encouraging " the perpetration of the crime." 
 
 The law upon this subject is well stated in 2 Starkey 
 on Evidence, Part I, Philadelphia Ed. 1842, *324, as fol- 
 lows: 
 
 " Where it appeared that there was a conspiracy to 
 " raise war in the North riding of Yorkshire, and that 
 " there was at the same time a conspiracy in the West 
 " riding, in which latter one it took place, and there was 
 " no evidence to show that those in the one riding knew 
 
" of the conspiracy in the other, it was held that the 
 " former could not be implicated in the acts of the latter, 
 " although they concurred at the same time to the same 
 " object." 
 
 We think it desirable, in order to show the full scope 
 of this ruling, to refer to the original text of Kellyng's 
 Crown Cases on the Law of High Treason, *24, where 
 the action of the justices upon this case is stated as fol- 
 lows: 
 
 " In the next place, we being informed that there was- 
 " a conspiracy to raise a war in the North riding of 
 " Yorkshire, as well as the West riding, where some did 
 " actually appear in arms, yet it could not be proved that 
 " those in the North riding did agree to the rising that 
 " there was in the West riding, or that they knew any- 
 " thing about it, and so would not be within the first reso- 
 '• lution," namely, would not be responsible for the acts of 
 the conspirators in the West riding. To apply the doc- 
 trine of this case to the case at bar, even if it should be 
 conceded that upon the part of all the plaintiffs in error 
 there was a general unity of design to bring about a revo- 
 lution in the order of society; yet, if certain of the plain- 
 tiffs in error, of their own motion, and without any con- 
 cert of action or consultation with the other plaintiffs in 
 error, proceeded to do an act of their own volition, and 
 upon their own responsibility, which was not at the time 
 within the contemplation or expectation of the other 
 plaintiffs in error, such other plaintiffs in error would not 
 be implicated in the consequences of such independent 
 act. 
 
 Another case which recognizes the same doctrine is that 
 of State V. Trice, 88 North Carolina, 627. In that case, 
 CufT Trice was indicted, together with Charles Trice and 
 Mack Cross, for conspiracy to commit rape, and for the 
 
2o6 
 
 preparation of certain powders to be used in that connec- 
 tion, and for conspiracy and agreement to give such pow- 
 ders to some person to the jurymen unknown. The 
 evidence tended to show that Cuff Trice did pretend to 
 be a manufacturer and vendor of powders calculated to 
 overcome the resistance of women, and that he gave some 
 of these powders to the co-defendants, telling them at the 
 same time that by using the powders they could overcome 
 any woman. There was a verdict and judgment against 
 the defendants, which was set aside by the court on the 
 ground, amongst others, that the evidence did not connect 
 the defendant Cuff Trice with the particular assault made 
 by Charles Trice upon Fidelia TTpchurch or Effie Up- 
 church, both of whom it was charged Charles Trice at- 
 tempted to rape. The position taken by the court was, 
 in effect, that the mere selling of the powder in question, 
 even when accompanied by a statement of its alleged 
 purpose, w^ould not make the vendor a party to a crime 
 subsequently attempted to be committed by the vendee, 
 nor bring the vendor in as a conspirator with the vendee 
 in an assault made by the vendee upon some person or 
 persons unknown to the vendor, and without the vendor's 
 direct concurrence and advice. [This case, by the way, 
 fits exactly the facts, upon which alone Louis Lingg was 
 attempted to be made responsible for the Haymarket 
 tragedy. Unless it could be shown that he gave a bomb 
 of his manufacture to a person for the purpose of throw- 
 ing it at the particular time and place — in other words, 
 unless he advised and aided '■'■the perpetration of the 
 crime" he should have been acquitted under the doctrine 
 laid down in this case.] 
 
31. Evidence of Distinct Substantive Offenses 
 IS Inadmissible. 
 
 The proof offered and received, under the theory 
 -adopted and declared by the trial court, was proof tending 
 to establish a conspiracy, not for the object of using 
 violence at the Haymarket, but one unconnected with 
 that crime. Conspiracy, under our law is a separate 
 and independent crime. The effort made by the State 
 ■was therefore in effect an effort to convict the plain- 
 tiffs in error of the crime charged under this indictment 
 by offering proof that the}-^ were parties to a separate 
 •crime which did not specially relate to or contemplate the 
 particular crime charged. As applicable to such an eflbrt, 
 ■we call attention to the statement of the rule, as given in 
 Wharton's Criminal Evidence, §30, where it is said: 
 
 " A defendant ought not to be convicted of the offense 
 ^'charged, simply because he has been guiltj' of another 
 " offense. Hence, when offered simply for the purpose of 
 " proving his commission of the offense on trial, evidence 
 ^'of his participation, either in act or design, in commis- 
 " sion or in preparation, in other independent crimes, can- 
 -" not be received." 
 
 This is laid down as the general rule. 
 
 In SchaJJ')ier v. The Commoyiwealth, 72 Penn. State, 60, 
 the law is thus stated b}' Agnew, Justice, delivering the 
 opinion of the court: 
 
 " It is a general rule that a distinct crime, unconnected 
 ■" with that laid in the indictment, cannot be given in evi- 
 " dence against a prisoner. It is not proper to raise a 
 •" presumption of guilt on the ground that, having com- 
 " mitted one crime, the depravity it exhibits makes it 
 ^' likely he would commit another. Logically, the com- 
 
• 208 
 
 " mission of an independent offense is not proof in itself of 
 " the commission of another crime. Yet, it cannot be said to 
 " be without influence on the mind, for certainly, if one be 
 " shown to be guilty of another crime, equally heinous, it 
 " will prompt a more ready belief that he might have com- 
 " mitted the one with which he is charged; it therefore pre- 
 " disposes the mind of the juror to believe the prisoner 
 " guilty. To make one criminal act evidence of another,^ 
 " the connection between them must have existed in the 
 " mind of the actor, linking them together for some purpose- 
 "he intended to accomplish; or it must be necessary to 
 " identify the person of the actor by a connection which 
 " shows that he who committed the one must have done- 
 " the other. Without this obvious connection, it is not 
 " only unjust to the prisoner to compel him to acquit 
 " himself of two offenses instead of one, but it is detri- 
 " mental to justice to burthen a trial with multiplied issues 
 " that tend to confuse and mislead the jury." 
 
 This rule has been very strongly laid down by thi& 
 court. It is said in Kribs v. The People, S2 111., 424, as 
 follows (p. 426) : 
 
 " On the trial the court allowed the people, over the 
 "objection of the defendant (who was indicted for em- 
 " bezzlement), to prove that the defendant had collected or 
 " received money belonging to other parties, and on several! 
 " occasions, which he had fraudulently converted to his- 
 " own use. This was error. The evidence should have 
 " been confined to the charge for which the defendant was; 
 " indicted. On the trial of this indictment the law did not 
 " require him to come prepared to meet other charges, 
 " nor does it follow, because he may have been guilty of 
 " other like offenses, that he was guilty of the offense 
 " charged in the indictment." 
 
 " The evidence should have been confined strictly to> 
 
2 op 
 
 " the offense charged in the indictment. This was not, 
 " however, done, but improper testimony allowed to go 
 •' to the jur.y, which could not fail to prejudice the rights 
 " of the defendant." 
 
 For the error above indicated alone the case was re- 
 versed. 
 
 To the same effect, we cite Walls v. T/ie State, 5 W. 
 Va., 532. 
 
 So in JJeviiie v. The People, 100 111., 290, it is said 
 
 (P- 293): 
 
 " In view of * * the consideration that the life of the 
 '' accused was involved in the issue, it became highly im- 
 " portant to him, as well as essential to the due adminis- 
 " tration of justice in the prosecution of the case, that 
 " the state should be held to at least a substantial, 
 " if not a strict observance of the well-established rules 
 " governing the production of testimony, in its efforts to 
 " establish the charge against him. The trial should have 
 " been conducted with the utmost fairness, and no matter 
 " or thing should have been admitted in evidence, against 
 " the objections of the accused, which did not prove or 
 " tend to prove the issue, more especially if the evidence, 
 " when admitted, would have had an improper influence 
 " upon the minds of the jury, or place the accused at a 
 " disadvantage before them." 
 
 The same rule was applied in Sutton v. Johnson, 62 
 111., 209. 
 
 Under this head, we desire to quote further from i 
 Phillips on Evidence, 765, 766 (p. 644, 5th Am. Ed.): 
 
 " In criminal cases, it is purely the duty of courts of 
 " justice to prevent evidence being given which would 
 " support a charge against prisoner of which he was not 
 " previously apprised under the pretext of it supporting 
 *' some presumption of the offense which is the subject of 
 
2IO 
 
 " the indictment. In treason, therefore, no evidence is to 
 " be admitted of any overt act that is not expressly laid 
 " in the indictment. This was the rule at common law. 
 " It is again prescribed and enforced by the statute of 
 " William III, which contains an express provision to that 
 " effect in consequence of some encroachments that had 
 " been made in several state prosecutions. The meaning 
 " of the rule is not that the whole detail of facts should 
 " be set forth, but that no overt act, amounting to a 
 " distinct, independent charge, though falling under the 
 " same head of treason, shall be given in evidence, unless 
 " it be expressly laid in the indictment; but still, not con- 
 " duced to the proof of any of the overt acts that are 
 " made, it may be admitted as evidence of such overt 
 " acts." 
 
 While Roscoe, in his work upon criminal evidence, yth 
 Am. Ed., § 90, p. 90, thus states the rule: 
 
 " It maybe laid down, as a general rule, that in criminal 
 " as in civil cases the evidence shall be confined to the 
 " point in issue. In criminal proceedings it has been 
 " observed that the necessity is stronger, if possible, than 
 " in civil cases of strictly enforcing this rule; for where a 
 " prisoner is charged with an offense, it is of the utmost 
 " importance to him that the facts laid before the jur^- 
 " shall consist exclusively of the transaction which forms 
 " the subject of the indictment and matters relating 
 " thereto, which alone he could be expected to come pre- 
 " pared to answer." 
 
 In Kiiic/iillozv v. The Stale. 5 Humph., 9, the court say 
 (p. 12): 
 
 " It is well settled that no proof of the admission of one 
 " distinct substantive oftense shall be received upon a trial 
 " for the commission of another; a fortiori, shall not state- 
 " ments of an intention to commit it; the only tendency of 
 
*' such testimony necessarily is to prejudice the minds of 
 " of a jur}-, as it can by no possibility establish or eluci- 
 *' date the crime charged." 
 
 The same court, in 3 Coldwell's Reports, 362, Wiley \. 
 The Slate, uses the following language (p. 372) : " The 
 " general rule is that nothing shall be given in evidence 
 " which does not directly tend to the proof or disproof 
 " of the matter in issue; and evidence of a distinct sub- 
 " stantive offense cannot be admitted in support of an- 
 " other offense." 
 
 We think we may here pause for a moment to apply 
 the rule thus well expressed to the case at bar, and the 
 improper evidence adverted to. Here is a vast amount 
 of testimony of speeches, public utterances and publica- 
 tions tending to show the expression of an intention or 
 purpose on the part of some of the plaintiffs in error to 
 bring about a change in the order of society, and, if needs 
 be to the accomplishment of that end, to resort to force. 
 How can these statements of their intent to engage in this 
 enterprise, which may, for the sake of the argument, be 
 conceded to be criminal, if purposed to be accomplished 
 by the use of force, be competent upon an inquiry as to 
 whether or not these particular parties are responsible 
 for the commission of a -particular offense at the partictilar 
 time and place, where all the evidence shows there was 
 no intent or design on the part of any of them to then or 
 there attempt to carry out their supposed general plan or 
 illegal design, but where the crime charged is com- 
 mitted by some unknown party, not shown to have been 
 acting under their advice, direction or encouragement in 
 the perpetration of the crime. Take, for an illustration, 
 the testimony of detective Johnson, above quoted, that at 
 a meeting of the American group, at which an outrage 
 committed by one Wright upon his servant, a young girl, 
 
was under discussion. Spies said that this was a fine 
 opportunity for one of our young'men to shoot Wright; 
 or the testimony of other detectives, that on the night of 
 the board of trade demonstration Parsons said, the next 
 time they would be prepared with dynamite, and many 
 such alleged expressions of an intention to do unlawful 
 acts in the future. Can we not say, adopting the lan- 
 guage of the Supreme court of Tennessee just quoted, 
 " the only tendency of such testimony necessarily is to 
 " prejudice the minds of the jury, as it can by no possibil- 
 " ity establish or elucidate the crime charged?" 
 
 III. A PRIMA FACIE Conspiracy must be estab- 
 lished BEFORE the AcTS AND DECLARATIONS OF AN 
 ALLEGED Co-CONSPIRATOR CAN BE EVIDENCE AGAINST 
 ANOTHER. 
 
 In the case of the State v. George, 7 Ired., 321, where 
 acts and declarations of a party other than the defendant 
 were allowed to be introduced against him, upon the 
 statement made by the prosecutor that he intended to in- 
 troduce witnesses to prove a conspiracy between the pris- 
 oner and such third person, a reversal was ordered upon 
 this ground. Separate but concurring opinions were 
 submitted by diflerent members of the court. We quote, 
 as, perhaps, one of the best expositions of the law upon 
 this point, from the opinion of Ruffin, Chief Justice, com- 
 mencing at page 328 of the report: 
 
 " I think there ought to be a venire de novo upon the 
 " ground, simply, that the acts and declarations of the 
 " woman, which were given in evidence, are not of such 
 « a nature as can affect the prisoner. To make the acts 
 " and declarations of one prisoner those of another, or to 
 " allow them to operate against another, // tmist appear 
 
213 
 
 *' that there was a common interest or purpose between 
 " them ; as applied to the case before us, that there was 
 " a conspiracy to murder the deceased formed between 
 
 his wife and the prisoner. 
 
 In further support of this proposition we cite Roscoe's 
 Criminal Evidence (7 Am. Ed., 1874, § 4i7» P- 4^6)- 
 The learned author there speaks as follows: " Supposing 
 " that the existence of a conspiracy may in the first in- 
 ■" stance be proved, without showing the participation or 
 " knowledge of the defendants, // is still a question whether 
 '■'■the declarations of some of the -persons engaged in t/ie 
 ■^'■conspiracy may be given in evidence against others, in 
 " order to prove its existence; and upon principle such 
 " evidence appears to be inadmissible." 
 
 Mr. Roscoe then further says (same Ed., p. 417, § 418) 
 as follows: "After the existence of a conspiracy is estab- 
 " lished and the particular defendants have been proved to 
 " have been parties to it, the acts of other conspirators 
 ■" may in all cases be given in evidence against them, if 
 " done in furtherance of the common object of the con- 
 " spiracy, as also may letters written and declarations 
 " made by other conspirators, if they are part of the res 
 " gestce of the conspiracy and no mere admissions." 
 
 See further on this point, i Greenleaf, Evid., § m- 
 
 That the erroneous introduction of evidence is not 
 cured by its subsequent exclusion was decided in Howe 
 V. Rosine, 87 III, 105. 
 
 IV. Acts and Declarations of an alleged Co- 
 conspirator, TO BE Evidence against another, must 
 BE in the Prosecution of the Criminal Conspiracy. 
 
 In People v. Stanley, 47 Cal., 113, the court used the 
 following language (p. 118): 
 
 " The rule is well settled that the acts of an accomplice 
 
214 
 
 " are not evidence against the accused, unless they con- 
 " stitute part of the res gestcp, and occur during the pend- 
 " ency of the criminal enterprise, and are in furtherance- 
 " of its objects." 
 
 In State v. George, 7 Ired., 321, the court say: 
 
 " Before the acts and declarations of one of the conspira- 
 " tors can be received against another, it must be shown 
 " that they were acts done and declarations uttered in 
 " furtherance of the common design, or in execution of 
 " the conspiracy. They must be acts and declarations of 
 " the one that were authorized b\' the other, or such 
 " as became necessary in the prosecution of the I'oint 
 " business or criminal conspiracy." 
 
 In Rex V. Hardy, 25th State Trials, i, the majority of 
 the judges held that a letter purported to be written from 
 one alleged conspirator to another was not admissible in 
 evidence save as against the party writing it, using the 
 following language: " A bare relation of facts b}- ar^ 
 " alleged conspirator to a stranger was merely an admis- 
 " sion which might affect himself, but which could not 
 " affect a co-conspirator, since it was not an act done in 
 " the prosecution of that conspiracy." This rule is ap- 
 proved by Mr. Starkie in his valuable work on evidence, 
 2d ed., vol. 2, page 326. 
 
 Concerning the propriety of this rule there can be nc 
 question or doubt whatever. In the light of this rule, how 
 stands the action of the court in allowing the introduction 
 into the record of bombs, tin cans filled with explosive 
 material, and other materials of that sort, found long after 
 the Haymarket meeting? There is no evidence by whoni 
 these instruments were manufactured, and it cannot be 
 presumed that they were manufactured by some parties 
 to a conspiracy in which the plaintiffs in error were im- 
 plicated, and had been manufactured for use in carrying 
 
215 
 
 out the purposes of that conspiracy. Besides, they were 
 found weeks after the 4th of May, and for all that 
 appears in the record, such manufacture may have been 
 after the occurrences of the 4th of May. Can it be said, 
 that this was evidence of " acts of accomplices," and can 
 it be claimed that the manufacture and secretion of the 
 articles occurred "during the pendency of a criminal en- 
 " terprise, and in furtherance of its objects? " 
 
 How, in the light of this rule, stands the introduction 
 of evidence against all flaintiffs in error of the testimonj' 
 as to Mr. Spies' conduct and utterances at Grand Rapids, 
 or as to his conversations with the reporter Wilkinson in 
 January, 1886? A declaration made by Spies, more than 
 a year before the Haymarket meeting, outside of this 
 state, or a private conversation with a reporter at the 
 dinner table, months before the 4th of May, and in either 
 instance merely narrative of what had or would be done, 
 certainly constitute no part of the res gestae, and were 
 not in furtherance of the objects of the alleged criminal 
 enterprise. Is not such talk as that to Wilkinson, who 
 was at the time engaged in securing the material for an 
 article in the News of Chicago, the very thing to frustrate 
 any criminal design, if such an one had existed? 
 
 A further illustration of the disregard of the above rule, 
 is the evidence of Rosback as to the change in Schnau- 
 belt's appearance made by the shaving of his beard two 
 days after the Haymarket meeting. Was this the act of 
 an accomplice "during the pendency of the criminal en- 
 terprise," was it part of the res gestae, was it in further- 
 ance of the objects of the alleged criminal enterprise? 
 
 Or the admission of evidence, with which the record 
 abounds, as to the utterances and writings of third par- 
 ties, not attempted by the evidence to be connected in any 
 manner with the alleged conspiracy? For example, the 
 
2l6 
 
 introduction in evidence of the platform of the Interna- 
 tional Workingpeople's Association; or of the translation 
 of Herr Most's book? Under the law, as above declared, 
 all this testimony was clearly incompetent, especially in 
 the manner in which it wiis permitted to come in by the 
 court, to wit, as against all the plaintiffs in error. 
 
 The errors of the court in the rulings in reference to 
 the admissibility of the evidence were the more flagrant 
 in this case, in our judgment, in view of the fact that 
 upon an application formally made to the court, a sep- 
 arate trial asked for on behalf of four of the plaintiffs in 
 error, in the first instance, namely, Spies, Schwab, Fielden 
 and Neebe, and a like application on behalf of Parsons 
 when he came into court and presented himself at the bar 
 for trial, were denied. The motion for separate trial first 
 interposed was supported by affidavits, and was substan- 
 tially as set forth in pages 4 and 5 of Vol. i of the ab- 
 stract. The grounds for the application for a separate 
 trial were: 
 
 First. That the testimony against them would be 
 materially different from that against the other defendants 
 with whom they were jointly indicted. 
 
 Second. Testimony which might be competent against 
 their co-defendants might be incompetent and prejudicial 
 as to them. 
 
 Third. That they were advised that evidence of an 
 alleged conspiracy would be introduced, with which said 
 petitioners were not connected. 
 
 Fourth. That their defense would be imperiled by 
 such testimony because of its length. 
 
 Fifth. That they were advised that illegitimate evi- 
 dence would be submitted to the jury with regard to an 
 alleged conspiracy, which might be competent as against 
 their co-defendants. 
 
217 
 
 Sixth. That they did not believe that they could have 
 a fair and impartial trial jointly with their co-defendants. 
 
 The affidavit of Spies, Fielden, Schwab and Neebe 
 showed upon information that upon the trial the prosecu- 
 tion intended to introduce evidence to show that some of 
 the defendants participated in a meeting held May 2d, 
 and in a meeting held May 3d, in which it was agreed 
 that violence might or would be used thereafter, and that 
 it would be claimed that Degan's death was caused bj' 
 such conspiracy; that affiants had been furnished with a 
 list of over a hundred witnesses, from which it was appre- 
 hended that the trial would be very protracted; that if 
 the great mass of testimony was brought in, it would be 
 impossible for the jury to intelligently keep the testimony, 
 as applicable to them, separate from that which might be 
 applicable to their co-defendants; and that by a separate 
 trial alone could they be sure of securing an impartial 
 trial. To this was appended the affidavit of counsel for 
 the plaintiffs in error, that they believed the statements of 
 the foregoing affidavit to be true. 
 
 This motion for a separate trial was overruled, to which 
 the plaintiffs exxepted. It seems to us that it cannot be 
 necessary to argue at any great length that the plaintiffs 
 in error who joined in this application were entitled to 
 have the same granted, and that the denial to grant them 
 was error. 
 
 It is true that the matter of a separate trial, while secured 
 in many states by legislation as a right to a prisoner in 
 pursuance of what is believed to be an enlightened and 
 humane policy, is declared, in this state, to be a matter of 
 ■discretion. But here, as alwaj'S, the discretion means not 
 an arbitrary choice b}' the judge, but the exercise of a 
 sound, and, under the circumstances, fair judgment upon 
 the application made, and the case as presented. 
 
2l8 
 
 In the case of White v. The People, 8i 111., 333, the 
 court, in reversing the judgment, remanded the cause with 
 directions to give the parties charged separate trials, using^ 
 this language: "This is a case wherein it is eminently fit 
 " that these plaintiffs in error should have separate trials." 
 
 The rule is laid down in Wharton's Criminal Proceed- 
 ings and Practice, 8th Ed., Sec. 302, that where oftenses- 
 are necessarily several, there can be no joinder, and 
 among cases illustrating the te.xt, he cites: 
 
 "If A and B are jointly indicted and tried for gaming,. 
 " and the evidence shows A and others played at one time 
 "when B was not present, and that B and others played 
 "at a time when A was not present, no conviction can be 
 "had against them. If also tlie offense charged does not 
 "fully arise through the joint act of all the defendants^ 
 "but from some personal or particular act or omission of 
 " each defendant, the indictment must charge them sev^. 
 " erally and not jointly." 
 
 To the same effect we cite: People v. Vermilyea^ 
 7 Cowan, *io8. 
 
 Certainly much of the testimony in this record, which 
 was introduced as against all of the plaintiffs in error,, 
 cannot be reasonably claimed to be relevant or competent 
 as against certain of the plaintiffs in error. Take for in- 
 stance the testimony introduced by the state in reference 
 to the Emma street meeting, so-called, and the Mondaj^ 
 night meeting conspiracy, so-called, at which Fischer and 
 Engel are shown to have been present, but none of the 
 other parties; and where a distinct line of policy or action' 
 was agreed upon to which none other of the plaintiffs ir^ 
 error are shown ever to have given their assent. Whether 
 or not this testimony was relevant to the issue before the- 
 jury, and therefore admissible even as against Fischer and 
 Engel, certainl}' it was not competent as against the other 
 
219 
 
 plaintiffs in error. It was testimony calculated to prejudice 
 the jury, and under all the circumstances calculated to 
 prejudice their cause seriously. It seems to us there can 
 be no doubt whatever that the case was one where sepa- 
 rate trials should have been ordered upon the application 
 presented to the court, and that there was error in the 
 action of the court in this respect. 
 
 THE COURT ERRED IN HIS RULING UPON THE 
 MOTION, AT THE CLOSE OF THE STATE'S CASE, 
 FOR AN INSTRUCTION TO THE JURY TO FIND 
 OSCAR NEEBE AND OTHER OF THE PLAINTIFFS 
 IN ERROR NOT GUILTY. 
 
 I. THE MOTION IN BEHALF OF OSCAR NEEBE. 
 
 At the time this motion was submitted, the only evi- 
 dence in the record against Oscar Neebe tended to estab- 
 lish these and no other facts: 
 
 (i.) That Neebe was an acquaintance of certain 
 other of the plaintiffs in error, and was met by the wit- 
 ness Gruenhut on different occasions at the office of the 
 Arbeiter Zeitung, when there was under discussion the 
 organization of certain unorganized trades for the eight- 
 hour movement in the city of Chicago. 
 
 (2.) The testimony of Franz Hein (A., 71, 72), that 
 on the night of May 3, 1886, Neebe came into his saloon 
 between 9 and 10 o'clock, showed him a copy of the 
 Revenge circular, and laid some upon the counter and 
 some upon the table, asking the witness if he had heard 
 about the McCormick riot. Witness responded that he 
 had. Thereupon Neebe said, " It is a shame the police 
 act that way, but may be the time comes that it goes the 
 
other wa}' — that they get the chance, too." Neebe said: 
 *'That is just printed nov\," when he came in, and that 
 he had got the circulars at Turner Hall, where he had 
 attended a brewers' meeting. He sta3-ed five or ten 
 minutes, drank some beer, and left. 
 
 (3.) Detective Marks (A., 138) testified that about 
 10 A. M., on the 5th of May, he visited the Arbeiter Zeitung 
 building, met Neebe on the second floor, and asked who 
 had charge of the office, to which Neebe replied, " I am 
 in charge in the absence of Mr. Spies and Schwab" (who 
 had then been arrested). Upon Marks' suggestion that 
 he would go upstairs and make a search of the floor^ 
 Neebe responded, " All right, you can go, but you will 
 not find anything there but papers and writing materials.' 
 Marks went up, and says he found, in one of the closets' 
 a package of loose dynamite; he put it on a chair, and 
 asked Neebe what it was, to which Neebe replied that he 
 didn't know, but guessed it was for cleaning type. 
 
 Detective Haas testified (A., 81) that when he went to 
 the Arbeiter Zeitung office on May 5th, he found Neebe 
 in charge of the otTice, and Mayor Harrison in conversa- 
 tion with him there; that the mayor asked who was in 
 charge, to which Neebe replied, " I am in charge, or will 
 take charge in the absence of Spies and Schwab." He 
 swears that he then went up on the third floor, and was 
 present zL'hen Officer Alarks placed the alleged -package 
 of dvnainite Just found on a chair in the center of the 
 room, but does not pretend that JVeebe was present, or 
 made the remark that he guessed the material found was 
 for cleaning type, from which we feel justified in arguing 
 that this alleged remark by Neebe was never in fact 
 made. 
 
 (4.) Officer John Stift (A., 170) says that he was 
 at the house of Neebe, on the 7th of May, and there 
 
found a thirty-eight caHber Colt's pistol, a sword, a breech- 
 loading gun, and a red flag. On cross-examination he 
 admitted that the gun may have been a sporting gun. 
 
 (5.) A number of other witnesses stated that they 
 knew Neebe {!). 
 
 (6.) It appeared from the testimony of Fricke (A., 41), 
 Henry E. O. Heineman (A., 126) and Seliger (A., 49) 
 that Neebe was at one time a member of the north side 
 group of the International Workingpeople's Association. 
 
 (7.) Fricke testifies (A., 41) that Neebe belongs to 
 the corporation publishing the Arbeiter Zeitung, and that 
 the witness had seen him at picnics and in the Arbeiter 
 Zeitung office. 
 
 Up to the time of the motion to have the jury instructed 
 to bring in a verdict of not guilty as to Neebe, the above 
 is, we believe, a fair presentation of all the testimony in 
 the record against him. There was no evidence showing 
 or tending to show that he attended the Haymarket meet- 
 ing or knew of it or of the purpose of holding it, or was 
 a party to any agreement that violence of any kind should 
 be used on this or on any other occasion. 
 
 Upon these facts the motion was urged for this instruc- 
 tion in his behalf, and that he should not be put to his de- 
 fense, or further jeopardized in the case. In reference to 
 the action of the court upon this motion we desire to call 
 particular attention to the record. 
 
 First of all, counsel for plaintiffs in error suggested 
 that they wished to make a motion which they desired to 
 argue to the court, and to that end requested that the jury 
 might be sent from the room pending the argument. The 
 court refused this application, and required that any mo- 
 tion should be made and argued in the presence of the 
 jury, to which ruling an exception was preserved. There- 
 upon the motion was made, and attention was called to 
 
the want of evidence connecting Mr. Neebe in anywise 
 with the crime committed at the Haymarket. The court 
 undertook to argue this question with counsel, and in do- 
 ing so made use of certain expressions and suggestions 
 which in our opinion were highly improper, and tended to 
 the manifest prejudice of Mr. Neebe, as well as of the 
 other plaintiffs in error. (A., 172, 173; L, i to 25.) 
 Amongst other things, the court said: "There is tes- 
 " timony from which the state will be permitted to urge 
 " upon the jury that he (Neebe) presided at meetings at 
 " which some of the speeches were made urging the kill- 
 " '"S rf ■people.'''' . We maintain that that statement of the 
 court was utterly unsupported in the record. There was 
 a statement in the report of a meeting published in one of 
 the papers which the court permitted to be read, that 
 Neebe presided at such a meeting, but it was not a meet- 
 ing where speeches were made " urging the killing of 
 " people," and such a report read from a paper was not 
 evidence showing, nor even tending to show — not evi- 
 dence from which the state would be " permitted to urge 
 " upon the jury " that Neebe in fact presided at that 
 meeting. Aside from this, even if there had been such 
 evidence, would it be material to the issue? 
 
 The court, further proceeding, said: " Is there not evi- 
 " dence in the case from which the state will be permitted 
 " to urge upon the jury that he, without being an active 
 " man in the Arbeiter Zeitung, j-et was interested in it, 
 " and it was published with his co-operation and consent, 
 " and that, therefore, what was contained in it received 
 " his assent? What inference can they urge upon this 
 "jury from the testimony, that when the officers went 
 " there after he was in charge, and asked who 
 " was in charge, he replied that he supposed that 
 " in the absence of Spies and Schwab he was in charger 
 
223 
 
 " Whether he had anything to do with the dissemina- 
 -" tion of advice to commit murder is, I think, a debata- 
 -" bk question which the jury ought to pass upon." Can 
 the making of such a remark as this, in the presence of 
 the jury, be e.vcused or justified for one moment? It 
 practically assumes that the Arbeiter Zeitung was en- 
 gaged in "the dissemination of advice to commit mur- 
 -*' der," and then expresses the opinion to the jury that it 
 was debatable upon the evidence, whether or not Mr. 
 Neebe had anything to do with the dissemination of such 
 -advice. 
 
 Evidence of "advice to commit murder," or its dissem- 
 ination, would, we respectfully submit, be wholly irrele- 
 vant, without evidence tending to show advice to commit 
 the murder charged in the indictment. In other words, 
 to put our case strongly, we submit that a man might 
 stand upon the street corners of a populous city and 
 •cry "kill, kill, kill, murder, murder, murder," by the 
 hour, day and week, without making himself thereby 
 -criminally responsible for some murder committed by 
 -some unknown party not connected by the evidence with 
 him in any manner whatever. If the question of the dis- 
 semination of " advice to commit murder," in the general 
 terms stated by the court, was not a question legally rele- 
 vant to the issue before the jury, then whether Neebe 
 had anything to do with the dissemination of such advice 
 was not "a debatable question which the jury ought to 
 " pass upon." The question, and the only question, 
 which the jury were to pass upon was whether Mr. 
 Neebe advised the commission of the murder charged in 
 the indictment, and not whether " he had anything to do 
 " with the dissemination of advice to commit murder." 
 
 Besides, is a man who has a property interest in a pa- 
 per responsible for everything published therein? And 
 
can anything be urged from the fact that Neebe took 
 charge of the Arbeiter Zeitung oflice after the arrest of 
 Schwab and Spies, except that he was interested in pre- 
 serving the property of the corporation, to which he be- 
 longed, at a time when the poHce were unlawfully tres- 
 passing upon its premises? 
 
 Then the following took place (L, 21 ): 
 "The Court: If it depended upon prior knowledge and 
 " participation at the Haymarket meeting, the question 
 " would be quite different; but if there is general advice la 
 ''comnitl murder, the lime and occasion nol being Joresecu, 
 " tlie adviser is gtcilly when il ( /) is coinniitled.'" 
 
 The impropriety of this observation of the court in con- 
 nection with this motion, in the presence of the jury, with 
 the inevitable tendency that it would have to impress upon 
 the minds of the jury the conviction that the court be- 
 lieved that Mr. Neebe had been a party to advise to com- 
 mit the Haymarket murder, and was responsible therefor, 
 cannot be overstated. As to the viciousness of the prin- 
 ciple here announced by Judge Gary as the law we shall 
 have occasion to speak further on in considering the in- 
 structions given by the court. For the present we beg 
 to say, with all due respect, that the suggestions of the 
 court in the course of the argument of this motion in Mr. 
 Neebe's behalf, and in ruling upon it, constituted a specious 
 and improper argument, calculated to influence the jury, 
 and to prejudice their minds against Mr. Neebe by 
 suggestions having no support in any legal evidence 
 in the case, and that were utterl}' unwarranted by any 
 accredited theory of law. We maintain that there 
 was no evidence in the record at the close of the case 
 attempted to be made by the stale which called upon 
 Mr. Neebe to enter upon his defense, or which justified 
 his retention for one moment in the case at the hazard 
 
225 
 
 of his life. The molion should have been granted, and 
 its refusal was palpable error. 
 
 The attitude thus assumed by the presiding judge as 
 to Mr. Neebe was maintained to the end of the case. 
 No further inculpatory evidence affecting Mr. Neebe 
 being brought out in the presentation of the case of the 
 plaintiffs in error, the following instructions were asked 
 •on his behalf, viz. (i A., i8; O, i8): 
 
 " 22. The fact, if such is the fact, that the defendant 
 " Neebe circulated or distributed or handled a few copies 
 " of the so-called Revenge circular, and while doing so 
 " said substantially: ' Six workmen have been killed at 
 " McCormick's last night by the police; perhaps the time 
 *' will 'come when it may go the other way,' is not of 
 " itself sufficient to connect him with the killing of De- 
 " gan, nor is the fact that he had in his house a red flag, 
 " a gun, a revolver and a sword sufficient, even when 
 " taken together with the other statement contained in 
 " this instruction, to connect said Neebe with the act 
 " which resulted in the death of Degan, as charged in 
 -" this indictment. 
 
 " 23. There has not been introduced any evidence in 
 •" this case to either show that the defendant Neebe, by 
 " any declaration, either spoken or written, has advised 
 ^' or encouraged the use of violence or the doing of an\' 
 " act in any way connected with the offense at the Hay- 
 " market, at which Degan was killed; nor is there any 
 " evidence that he was engaged at any time in any con- 
 " spiracy to do any unlawful act, or the doing of any act 
 " in an unlawful manner, in the furtherance of which said 
 " Degan was killed, and therefore the state has not es- 
 " tablished any case as against the defendant Neebe, and 
 " you are therefore instructed to render a verdict of not 
 " guilty as to him. 
 
" 24. The jury are instructed to return a verdict of 
 " not guilty as to the defendant Neebe." 
 
 These instructions, we maintain, fairly brought to the 
 attention of the jury all the evidence, legitimate and 
 irrevelant, tending to inculpate Mr. Neebe, and charged 
 that such evidence was not sufficient to sustain a verdict. 
 Can there be any doubt as to this? If not, then the 
 charge asked, that the jury should acquit him, ought to 
 have been given, and the refusal to do so was clearly er- 
 roneous, resulting in the jeopardizing of his life unjustly, 
 and in a verdict and judgment unrighteously to take away 
 his liberty for fifteen years. We believe that no sufficient 
 excuse for this action of the court can be advanced. 
 
 II. THE MOTION EV BEHALF OF THE OTHER PLAINTIFFS 
 IX ERROR, EXCEPT SPIES ASD FISCHER. 
 
 After the motion in behalf of Mr. Neebe, above con- 
 sidered, had been argued and ruled upon, a motion was 
 made to the court to instruct the jurj' to find a verdict of 
 not guilty as to all the defendants except Spies and 
 Fischer, which motion was overruled, and an exception 
 saved. (A., 173; L, 25.) 
 
 When the state's case closed there had been an 
 attempt made to establish by proof three distinct offenses: 
 
 (i.) A general purpose or design, even to the extent 
 of using violence, for the bringing about of a change in 
 the order of society, in which all plaintiffs in error except' 
 Neebe participated. 
 
 (2.) A particular agreement entered into, on the 
 night of Monday, May 3d, to take particular action in 
 certain specified contingencies, to which only Fischer and 
 Engel were parties. 
 
227 
 
 (3-) A combination between Spies, Schnaubelt and 
 Fischer, on the night of May 4, 1886, in the throwing of 
 the bomb which resulted in the death of Degan. 
 
 There was no evidence to show any inter-relation be- 
 tween these three distinct offenses; and no evidence to 
 show that any of the plaintiffs in error other than Spies 
 and Fischer were parties to the combination to throw the 
 bomb, to perpetrate the crime charged in the indictment. 
 We maintain that the state could have no right to experi- 
 ment in this condition of the case — to rely upon the proof 
 introduced tending directly to implicate Spies and Fischer, 
 and at the same time rely upon proofs introduced attempt- 
 ing to involve Fischer and Engel on the ground of a dis- 
 tinct conspiracy, and all of the plaintiffs in error on the 
 ground of the " general combination," which, too, was 
 distinct and separate from, and unconnected by the evi- 
 dence with, the combination of May 4th. 
 
 As to each of these issues the respective plaintiffs in 
 error had a right to a trial disembarrassed of the con- 
 sideration of the other special issues, with which they 
 were not respectively connected by the evidence, and 
 upon our motion above referred to it vvas the duty of the 
 court to put the state to its election, and, upon election, 
 to exclude all the evidence of the other distinct offenses. 
 
 In the case of Baker v. The People, 105 111., 452, there 
 was an indictment charging Clarence Baker and Eliza 
 Graves with the crime of attempting to procure and pro- 
 duce the miscarriage of Martha Van Antwerp, and there 
 was a verdict and judgment of guilty. In that case there 
 was the positive testimony of the prosecutrix. Van Ant- 
 werp, that she had had carnal intercourse with the de- 
 fendant Baker; that he procured a bottle of medicine 
 for the purpose of producing a miscarriage, and there- 
 after inserted a wire into her body with a hook upon the 
 
and. This evidence was admitted over the objection of 
 the plaintiffs in error. There was further testimony to 
 the eflect that, these efforts at abortion having proved 
 ineffective, the prosecutrix, under the advice of Baker, 
 went with him to Eliza Graves, by whom the abortion 
 was subsequently produced. 
 
 Upon this state of the case, upon a writ of error sued 
 out by Baker, who was inculpated by all the evidence, 
 tills court held as follows, viz: 
 
 " It may be observed, in conclusion, at the close of the 
 " testimony, when it affirmatively appeared that Eliza 
 " Graves was in no manner connected with the transac- 
 " tion at the residence of the prosecutrix, in which she 
 " claims a wire was used by defendant Baker alone, i/ie 
 " -people shotild have been put to their election, whether 
 " they would proceed against Baker alone for using the 
 " wire, or against them both for what occurred at the 
 " house of defendant Graves. Assuming the evidence of 
 " the prosecutrix to be true, it established two offenses: 
 " One committed by Baker alone, and the other by him 
 " and Mrs. Graves jointly; and if the prosecution elected 
 " to proceed for the latter offense, all evidence of the Jor- 
 ^ nwr shotild have been excluded from the jury, as it is 
 ^ well settled that upon the trial of a party for one offense, 
 " growing out of a specific transaction, you cannot prove 
 " a similar substantive offense founded upon another and 
 " separate transaction, but in such case the prosecution 
 " will be put to its election. * * * Yox the error in- 
 " dicated in the judgment of the court below, the judg- 
 " ment will be reversed and the cause remanded for fur- 
 " ther proceedings." 
 
 In Womack v. Tlic State, 7 Coldwell's Reports, 50S, 
 the doctrine is laid down that where the indictment 
 charges a single felony, but the proof shows two distinct 
 
felonies to have been committed, as, for example, the felo- 
 nious killing of two men by one shot, the intent to kill 
 one of the men being distinct and separate from the intent 
 to kill the other, then the State will be required to confine 
 its testimon}' to one of the felonies; or, if testimony as to 
 the other felony necessarily comes in in connection with 
 the testimony as to the one, then the court would instruct 
 the jury to confine their verdict to the issue as to one 
 felony, and to disreoard all testimony except that bearing 
 upon the one felony considered. 
 
 The effect of a granting of the motions interposed at 
 the close of the state's case would have been to give te 
 the different plaintiffs in error, apparently involved by the 
 state's proof in these different alleged offenses, the benefit 
 of a separate trial, to which, upon the evidence then in the 
 record, they were most certainly entitled. 
 
 That our objection is well taken here is evidenced, 
 first, by the fact that a motion for a separate trial in be- 
 half of certain of the plaintiffs in error was aptly pre- 
 sented but overruled; and, second, from the further fact 
 that the law awards to a defendant upon his motion for a 
 new trial the benefit of every point of this character, 
 (Wharton's Criminal Pleadings and Practice, Sec. 874.) 
 
 In People v. Vermilyea, 7 Cowan, *io8, the rule in ref- 
 erence to cases of this character is thus stated by Mr. 
 Justice Woodward (139), the rule in New York being the 
 same as in our own State, that the granting of separate 
 trials lies in the sound discretion of the court: 
 
 "I concur with the chief justice in his remark upon Mr, 
 '• Barker's motion, and particularly in the suggestion upon 
 " the question of severance. We do not consider the case 
 "before us for the purpose of deciding what the judge should 
 " do in the exercise of that discretion which he undoubtedly 
 " possesses. But I clearly hold, that were I presiding at the 
 
230 
 
 " trial of a criminal charge against persons jointly indicted, 
 " but wholly disconnected in the acts through which they 
 " are sought to be convicted, on ascertaining that fact, I 
 " should deem it my duly to grant them separate trials." 
 In State v. Roulstone, 3 Sneed's Reports, 107, it was 
 held that two defendants cannot be jointly indicted for an 
 offense in its nature necessarily individual, as, for exam- 
 ple, the uttering of obscene or libelous language, where 
 each offender must answer for his own act. In presenting 
 the rule, the court states ^^p. 109) that the duplicity in crimi- 
 nal proceedings, which is prohibited by the rule of law, 
 " consists in including two different and distinct crimes in 
 " the same count, or more than one person in a count where 
 " the acts charged were in fact several, or in their nature 
 "incapable of unity of agency." As applicable to the 
 case at bar, where is charged the single offense of murder, 
 and where the testimony in behalf of the state, if believed 
 to be true, proved the actual commission of the offense by 
 the separate and concurrent act of the plaintifTs in error, 
 Spies and Fischer," without showing any concert between 
 them and the other plaintiffs in error, or showing that their 
 act, then and there committed, was done under the aid, 
 advice, encouragement or counsel of the other plaintiffs in 
 error; in other words, where the testimony, if believed, 
 established the guilt of two of the plaintiffs in error, by 
 virtue of a several and independent act, disconnected from 
 tlie remaining plaintiffs in error, there should have been a 
 severance, which would have been accomplished by the 
 granting of the motion made; and it was error to require 
 the plaintiffs in error, other than Fischer and Spies, to 
 meet the effect in the minds of the jury of the particular 
 testimony as to their separate and independent acts. 
 
231 
 
 B. ERRORS COMPLAINED OF. 
 
 We have thus far argued in support of our contention 
 that, upon this record, the plaintiffs in error are not guilt}-. 
 We have considered this case upon what we believe to be 
 the legitimate evidence introduced, and have also reviewed 
 measurably the illegitimate evidence, calling attention to 
 the errors obtaining in connection with the introduction 
 thereof. We have shown that even upon this illegitimate 
 *;vidence the state failed to make a just claim to a convic- 
 tion, under the law applicable to the case, we have 
 further considered the erroneous action of the court in re- 
 fusing to grant our motions interposed at the close of the 
 evidence offered in behalf of the state, and have called 
 special attention to the errors of the court in refusing the 
 instructions having particular reference to the plaintiffs in 
 error, Louis Lingg and Oscar Neebe.' 
 
 We come now to the consideration of the errors 
 committed by the court on the trial other than those con- 
 sidered in connection with our review of the evidence. 
 This field of review embraces, as its principal features, the 
 errors committed by the court in the matter of the in- 
 structions, given and refused; the errors obtaining in con- 
 nection with the empaneling of the jury; the improper 
 remarks of the court; the improprieties of the closing 
 argument of the state's attorney, and the errors obtaining 
 after the verdict. To this branch of the case we most 
 earnestly ask the court's patient attention; satisfied of our 
 ability to demonstrate the truth of the proposition that 
 under all of the above heads our clients have been ag- 
 grieved by material error appearing of record. 
 
232 
 
 AA. ERRORS IN THE MATTER OF INSTRUCTIONS. 
 
 SUMMARY OF OUR COMPLAINTS. 
 
 First. In the instructions given in behalf of the people 
 and in the refusal of certain of those by the defendants, 
 the court proceeded upon the erroneous theory that par- 
 ties not present at and aiding the perpetration of the 
 crime, may be held as accessories on the ground of frior 
 advice and aid, without the State being required to in any 
 manner identify the criminal actor. 
 
 Second. The instructions given in behalf of the peo- 
 ple with reference to finding the defendants guilty as 
 accessories to an jinknown principal, were further eiro- 
 neous, in view of the fact that the evidence offered by the 
 State tended to identify the bomb-thrower as Rttdolfh 
 SchnaubcU. The people's instructions should have con- 
 formed to their evidence. 
 
 Third. The court based a number of instructions on 
 hypotheses unwarranted by any evidence. 
 
 Fourth. The instructions given for the people were 
 erroneous in assuming that there is in laiv such a thing 
 as advice to commit murder, without designating the 
 victim, time, place or occasion; in other words, that mere 
 general advice to the public at large to commit deeds of 
 violence, as contained in speeches or publications, with- 
 out reference to the particular crime charged, and without 
 specifying object, manner, time or place, works responsi- 
 bility as for murder. 
 
 Fifth. In the most vital instruction given on behalf 
 of the People, to which we shall call particular attention 
 further on, there was the fatal error of an omission oj all 
 reference to the evidence. 
 
233 
 
 Sixth. The instructions given for the people in regard 
 to what constitutes reasonable doubt were erroneous. 
 
 Seventh. The instruction to the jury limiting their 
 right to judge of the law was erroneous. 
 
 Eighth. The court refused to give an instruction allow- 
 ing the jury to consider whether the bomb in question 
 might not have been thrown by some unknown person 
 under some sudden provocation, by reason of a supposed 
 unlawful attack by the police upon a peaceable and law- 
 ful assemblage, without the knowledge, aid, counsel, pro- 
 curement or encouragement of the plaintiffs in error, or 
 any of them. 
 
 Ninth. After giving the instructions which were given 
 on behalf of the people, and such instructions as were 
 given on behalf of the defendants, the court, of its own 
 motion, gave an instruction in which he undertook to 
 summarize and condense all of the instructions in the case. 
 But this instruction was fatally defective under the rule 
 laid down by this court, in that it wholly failed to present 
 all the law of the case fully and correctly. 
 
 Tenth. The instruction given by the court in reference 
 to the form of the verdict, which was given as the last of 
 the entire series, was fatally defective in that it left to the 
 jury no alternative but to find the defendants, respectively, 
 guilty of murder, in manner and form as charged in this 
 indictment, or to acquit them. 
 
 Eleventh. The instructions given for the state are bad 
 for duplicity in presenting different theories of a supposed 
 conspiracy, and certain of those instructions are re- 
 pugnant and inconsistent in themselves. 
 
234 
 
 I. The Necessity of Identifying the Principal in 
 
 THE CASE AT BaR. 
 
 In order to illustrate our complaint in this regard, we 
 beg to call attention to instruction 4 given for the state, 
 which is as follows (i A., 7; O, 3) : 
 
 " The court further instructs the jury, as a matter of law, 
 that if they believe from the evidence in this case, beyond 
 a reasonable doubt, that the defendants, or an}' of them, 
 conspired and agreed together, or with others, to over- 
 throw the law by force, or to unlawfully resist the officers 
 of the law, and if they further believe from the evidence, 
 beyond a reasonable doubt, that in pursuance of such con- 
 spiracy, and in furtherance of the common object, a bomb 
 was thrown by a member of such conspiracy at the time, 
 and that Malhias J. Degan was killed, then such of the 
 defendants that the Jurj' believe from the evidence, beyond 
 a reasonable doubt, to have been parties to such conspir- 
 acy, are guilty of murder, whether present at the killingor 
 not, and whether the identity of the person throwing the 
 bomb be established or not.'''' 
 
 It will appear from this instruction, as in fact from all in- 
 structions given for the people, that the state entirely 
 abandoned the theory that Rudolph Schnaubelt threw 
 the bomb, and that the plaintiffs in error were accessories 
 before the fact to his crime. The instructions will be 
 searched in vain for even the slightest allusion to Gilmer's 
 testimony, the only evidence in the case by which the iden- 
 iity of the bomb-thrower was sought to be established, 
 but the theory adopted was that the bomb was thrown 
 by an unknozvn, uiidescribcd, unidentified, unindividuated 
 person. So instruction 4 says: "whether the identity ol 
 the person throwing the bomb be established or not.'''' In- 
 
235 
 
 struction s| says: " All of such conspirators are guilty of 
 " such murder, whether the person who perpetrated such 
 " murder can be identified or not" etc. With the aban- 
 donment of the theory that Rudolph Schnaubelt threw 
 the bomb, the theory that Adolph Fischer and August 
 Spies stood by and aided him was given up; and noth- 
 ing contained in any of the instructions in the slightest 
 degree indicates that that part of the evidence was relied 
 upon by the state. From this it follows that the instruc- 
 tions called upon the jury to find the plaintiffs in error 
 guilty on the ground of having, without being present at 
 the time and place of the bomb-throwing, theretofore ad- 
 vised, encouraged, aided or abetted an unknown, unidenti- 
 fied ferson in the perpetration of that crime. 
 
 There can be no conviction under our statute of a 
 party as an accessory before the fact, without legal prooj 
 showing a causal relations/iip between such alleged acces- 
 sory and the principal in the offense. 
 
 Where the evidence shows the accused present and 
 aiding, abetting or assisting the perpetration of the 
 crime, such causal relationship sufficiently appears with- 
 out proving the hand that did the act. But where a party 
 is sought to be held on the sole ground of alleged prior 
 advice, assistance, abetting or encouragement, such 
 causal relationship can, in the nature of things, only be 
 established by identifying the criminal actor; not neces- 
 sarily by name or minute description, but the fact that he 
 is the same person who was, at another time and place, 
 advised, encouraged, etc., by the accused, must be shown 
 b}' legal proof; the principal must be individuated, oth- 
 erwise the hypothesis of the criminal actor being some 
 person wholly unconnected with the accused is not ex- 
 cluded. In such a case the jury would be allowed to 
 g-uess that the criminal actor was a person advised and 
 
236 
 
 assisted beforehand by the accused, and to frestime the 
 guilt of the defendant. 
 
 To illustrate our position. If A, the defendant, is pres- 
 ent, and aiding X (the unknown, undescribed, unidenti- 
 fied principal actor) in the throwing of a bomb into a 
 Squad of police, this is sufficient to estabHsh his guilt as- 
 accessory. But suppose that A advises C, D and E to 
 throw a bomb into the police at a future time, and aft- 
 erwards, zviihoiit his being present, aiding or assisting,. 
 so7nebody throws a bomb among the police: now, unless it 
 be shown that the somebody was either C, D or E, how 
 can it be said that A advised or aided him? In other 
 words, if the somebody is an entirely unknown, unde- 
 scribed, unidentified, unindividuated person, an essential 
 element in the chain of evidence connecting the defendant 
 with the bomb-throwing is lacking. X, the unknown 
 criminal actor, may have been a person who acted inde- 
 pendently of A, unadvised, unassisted by him. We do 
 not claim that the bomb-thrower must be described by 
 name or details of personahty, but sufficient must appear 
 to establish his identity as one of the parties shown to have 
 been advised and aided, etc., by A. 
 
 In reply to this contention upon our part it will doubt- 
 less be urged that the jury were, under the instructions, 
 required to find that the bomb-thrower was a member of 
 the alleged conspiracy, as a condition of finding the guilt 
 of the accused; membership in the supposed conspiracy 
 being advanced as in law the equivalent of that aid 
 advice, assistance, etc., laid in the indictment. But our 
 reply is that this general feature of these instructions does 
 not help out the case of the people, for the reason that 
 membership in the supposed conspiracy could not be proved 
 ■withotd some evidence 0/ identification. It cannot be 
 proved that an altogether unidentified, undescribed, un- 
 
237 
 
 individuated person is a member of a band of conspirators. 
 It is not a case where the membership of the criminal 
 actor in the supposed conspiracy can be proved simply 
 by showing the commission of such a crime as contem- 
 plated by the supposed conspirators. And in this case to 
 tell the jury that any identification of the criminal actor 
 in the Hay market tragedy was unnecessary, was to tell 
 them that if they found a conspiracy and then a crime, 
 such as planned by that conspiracy, they might ouess that 
 the character of the crime sufficiently proved that the 
 criminal actor was one of the conspirators. To illustrate 
 our position: 
 
 Suppose that, in the case at bar, the only count was 
 one charging Schnaubelt as principal and the accused as 
 accessories. Would it be enough to prove a conspiracy 
 between the accused and the commission of the crime by 
 Schnaubelt? Would the jury, in such a case, be per- 
 mitted to find a verdict without any other evidence of 
 Schnaubelt's participation in the conspiracy than his com- 
 mission of the crime? Of course not! The proof of his 
 participation in the conspiracy is just as necessary to be 
 made out clearly by the evidence, in order to meet the 
 claim of advice, etc., as any other part of the case. On 
 the other hand, if the charge were limited alone to that 
 of accessoryship to an unknown bomb-thrower, here, 
 also, must be proof not only that the bomb was in fact 
 thrown by one unknown, but -proof that the unknozvn -was 
 a member of the conspiracy charged. But this cannot be 
 done without some identification; and the mere commis- 
 sion of the crime no more proves membership in the al- 
 leged conspiracy, or, in other words, meets the legal re- 
 ■quirement of such proof, in the case of an unknown actor, 
 than in the case of one whose name is known. It was, 
 therefore, clearly repugnant for the court to tell the jury 
 
238 
 
 that the bomb must have been thrown by a conspirator 
 with plaintiffs in error, and in the same breath tell them 
 that the state need not by evidence identify the bomb- 
 thrower, in a case where the claim that had to be estab- 
 lished under the instructions was that the bomb was in 
 fact thrown by an unknown person, under the advice, aid, 
 encouragement, etc., of the accused theretofore given. 
 The repugnancy in this line of instruction was clearly 
 vicious. 
 
 Thompson on Charging the Jury, pages 
 
 97, 98. 
 Woodv. Sleainboat, 19 Mo., 529, 531. 
 
 The jurors are not lawyers or expert grammarians, who 
 can apply in their true sense the various clauses of such in- 
 structions as No. 4 above set forth. This instruction in the 
 first clause requires of the jury that they must find " from 
 " the evidence, beyond a reasonable doubt, that in pursu- 
 " ance of such conspiracy and in furtherance of the com- 
 " mon object, a bomb was thrown by a member of suck 
 " conspiracy at the time^'' and then in the concluding 
 clause, when the mind of an ordinarily intelligent per- 
 son would forget, or be unable to interpret, the pre- 
 ceding section, by reason of the long clause intervening, 
 the jury are instructed that the defendants are guilty cf 
 murder, " whether the identity of the person throwing the 
 " bomb be established or not." 
 
 If the bomb-thrower is an unknown, unidentified, unin- 
 dividuated person, how can he be proved beyond a rea- 
 sonable doubt to be a member of the conspiracy? 
 
 How can a person be shown to be a member of a con- 
 spiracy beyond a reasonable doubt when the person can- 
 not be identified by the jury? If he is to be shown to be 
 a member of a conspiracy beyond a reasonable doubt, 
 surely his identity must be established, if not by name. 
 
239 
 
 then in some other way, such as by showing that he had 
 but one arm or one leg, or by some description. 
 
 If, e. ^., there had been evidence that the plaintiffs in 
 error on Monday, May 3d, had held a meeting and agreed 
 upon a plan of violence at a gathering to be called for the 
 next evening; if there had further been evidence that a 
 one-armed man with black whiskers was a party to that 
 combination, and that at the meeting on the next evening 
 a one-armed man with black whiskers threw a bomb, 
 then, although his name were unknown, and no further 
 description of details of personality could be given, still 
 here would be evidence from which a jury might fairly 
 be allowed to conclude that the identity was established 
 with reasonable certainty. But if the only fact proved 
 were that a bomb zvas thrown from the midst of a crowd 
 of a few hundred people, while no living being could tell 
 which one of them did the dastardly deed, if not the 
 slightest indication existed even as to what kind of a 
 looking man he was, how in the name of common sense 
 can it be claimed that he is proved to be, " beyond all 
 reasonable doubt," a member of the conspiracy supposed 
 in this illustration? 
 
 At the common law, no person could be convicted as 
 accessory until after a conviction of the chief offender; and 
 no evidence could be introduced to prove this, except the 
 record of his conviction. The English statute of 7 Geo. 
 IV qualified this doctrine, and our own statute was passed 
 with the intention of qualifying it. 
 
 Our statute declares that an accessory shall be con- 
 sidered as principal, and punished accordingly. This 
 only places the principal and accessory upon the same 
 footing, as far as the punishment is concerned, but 
 it does not abolish the common law distinction between 
 the principal, who actually commits the deed, and the 
 
240 
 
 accessory, who simply lends assistance. This distinction 
 is clearly upheld by our statute when it says that the 
 " accessory " may be indicted, etc., with or without the 
 " principal." It does not say that the two crimes become 
 one. As a test of this let us suppose A advises B to take 
 his pistol and kill C. A goes alone and does it. Sup- 
 pose, then, that A be indicted for advising and assisting B 
 in the killing, and B be indicted for the act of killing, and 
 in describing the body of the offense, the pleader avers 
 that B killed C " with a certain pistol, which in his right 
 " hand he there had and held," would not both have 
 to be acquitted on the doctrine of variance? It is 
 of the very essence of the conception of accessorj'ship 
 that somebody, as principal, should have committed the 
 criminal deed. Without a principal there can be no ac- 
 cessory, and therefore a person charged as accessory can- 
 not be legally convicted, unless he is shown beyond a rea- 
 sonable doubt to have assisted, etc., "the" principal. 
 
 Wharton says in his Crim. Law, Vol. i. Sec. 237: 
 " By statutes, however, now almost universally adopted, 
 " the offense of an accessory is made substantive and in- 
 " dependent, and consequently the accessor}^ may be tried 
 " independently of the principal, though in such case the 
 " guilt of the principal must be alleged and proved." 
 
 In State v. Richer, 29 Me., 84, the court, in delivering 
 its opinion and interpreting a statute which, in legal effect, 
 is similar to our own, saj's: 
 
 " By the modification of the common law, in these pro- 
 " visions, more effectual modes for the prosecuiioa and pun- 
 " ishment of accessories before the fact to felonies was in- 
 " tended. The change has the tendency to prevent the de- 
 " lays attending the trial and escape of accessories arising 
 " from the failure to bring the principals to trial. The his- 
 " tory of legislation upon this subject conclusively shows 
 
241 
 
 " that such was the purpose. These provisions in the re- 
 " vised statutes are the same as those of the statute of 183 1, 
 " Chap. 504, Sec. i. The statute of Massachusetts of 1830, 
 " Chap. 49, Sec. i, and the revised statutes of that com- 
 " monwealth of 1836 are identical with those of this state; 
 " and ail are in the same terms as those in the statute of 
 " England, 7 Geo. IV, Chap. 64, Sec. 9, which section 
 " commences with the words, ' and for the more effectual 
 " prosecution of accessories before the fact to felony, be it 
 " enacted,' etc. * * * It is insisted in behalf of the 
 " prosecution, that by the last mode it was intended that 
 " such accessory could be indicted as a principal in all re- 
 " spects, in the manner and form that he would be in- 
 " dieted if he did the act, which at common law would 
 " constitute him as principal. It is obvious that, upon 
 " such a construction, the distinction of principal and ac- 
 " cessory before the fact may be entirely disregarded. 
 " Was this the design of the legislature? We cannot 
 " believe that it was. 
 
 " In the former part of the section, the crimes of the 
 " principal and the accessory are presented as being dis- 
 " tinct. Nothing indicates an intention that they should 
 " not remain so." 
 
 Thg court, after reasoning the case, and giving a his- 
 tory of the question, etc., concludes as follows: " The 
 " guilt of the latter (the principal) will be alleged in the 
 «' same manner as if he alone had been concerned, fol- 
 " lowed by the averment of the acts done by the procurer 
 " which constitute him accessory before the fact. The 
 " guilt of the -principal is a necessary fact to be shozvn on 
 " the trial, in order to obtain a conviction of the accessory, 
 "but the record of a conviction is not required; other 
 "competent proof is sufficient." 
 
 From these cases it would seem that the object and 
 
242 
 
 Bcope of the statute of 7 Geo. IV, which is the first, fol- 
 lowed by other statutes of similar import, in Maine, 
 Massachusetts, and other states, and in the State of Illi- 
 nois, is to facilitate the punishment of accessories, and 
 not destroy the distinction which had existed between 
 principals and accessories. A person who was principal, 
 without these statutes, would still be principal; an acces- 
 sory would still be an accessory. 
 
 Now, what does it mean, when the Supreme court of 
 Maine say that " the guilt of the principal is a necessary 
 " fact to be shown on the trial, in order to obtain a con- 
 " viction of the accessory "? It surely does not mean that 
 the fact of a crime having been committed must be estab- 
 lished. It would not be necessary to speak about princi- 
 pal and accessory in order to express this idea. The idea 
 is, that there is no principal without an accessory, no acces- 
 sory without a principal, and that no man can be held as an 
 accessory, unless he be shown to have aided and advised 
 HIS principal. The guilt of the " principal," as the princi- 
 pal to ail accessory, must be shown, in order to convict 
 the " accessory," as the accessory to the principal. 
 
 In Baxter v. People, 2 Gil., 578, in passing upon the 
 provisions of our statute, in reference to accessories before 
 the fact, the following language is used by this coi^t: 
 
 " Under our statute, an accessory may be indicted and 
 *' punished as principal, and i)i such case it zvoidd be neces- 
 *' saryfor the prosecution to make out the guilt of the 
 *' PRINCIPAL, before the jury could find the defendant guilty 
 " of the murder by being an accessory to it.'''' 
 
 The purpose of our statute to make the accessory 
 before or at the fact the principal, is obviously based upon 
 the theory " that what we advise or procure another to 
 " do, in the eye of the law, we do ourselves," as has been 
 declared by this court. But upon this theory, it cannot 
 
243 
 
 be doubted that to charge the principal for the act of his 
 alleged agent, the agency, or as before stated, the causal 
 relationship, must be made out by legal evidence. No 
 liability as principal can in such case arise, without 
 clear evidence of crime by a recognized or identified 
 agent. Otherwise, for aught that appears, the criminal 
 actor may be acting independently of any advice, or under 
 the advice and instruction of another person. 
 
 By way of illustrating our position: Suppose A and B, 
 being political agitators, and desiring to bring about a 
 revolution in the conditions of society, plan and agree that 
 B, at a certain time and place, for example, some public 
 meeting, shall throw a bomb for the purpose of destroying 
 the life of a number of the police. Suppose, further, that 
 C and D, criminals, and thus having a natural antagonism 
 to the police force, having learned of the proposed meet- 
 ing, enter into a distinct agreement of their own that D 
 shall attend said meeting and throw a bomb at the police 
 with a view to committing theft and robbery in the con- 
 fusion expected to ensue. Before A could be prop- 
 erly convicted of the results of the bomb thrown at the 
 time and place arranged for, it would be necessary to 
 show that the bomb was thrown by B, and to exclude 
 the hypothesis of its being thrown by C or D, parties to 
 the other and independent conspiracy. This serves 
 to illustrate our point, that it is not sufficient to show 
 a conspiracy, if such were shown, broad enough in its 
 general scope to include the particular crime; and to 
 supplement that proof by evidence of the commission of 
 the crime. The proof must go further and show legall}-, 
 and to the exclusion of every reasonable hypothesis, 
 that the crime was committed by a party to or agent of 
 the conspiracy attempted to be established; that, in other 
 words, the perpetrator of the crime must be identified as 
 
^44 
 
 an agent of the alleged accessories, before they can be held 
 responsible for the act. But how can it be claimed that 
 that was shown in the case at bar beyond a reasonable 
 doubt, if the identity of the bomb-thrower is as unknown 
 as that of the man in the moon? 
 
 Commenting upon such statutes as ours, making acces- 
 sories indictable and punishable as principals, Mr. Bishop 
 in his Criminal Law, Sec. 71 lays down the rule that 
 statutes like these " do not supersede the necessity of 
 '■'■ proving the guilt of the frincifal.'''' 
 
 Wharton, in his work on Crim. Ev., 9th Ed., § 325 and 
 note, speaks as follows, viz.: 
 
 " The corf us delicti, the proof of which is essential to 
 "sustain a conviction, consists of a criminal act; and tO' 
 " sustain a conviction there must be proof of the defend- 
 " anth guilty agency in the production of such act." 
 
 " The latter feature, namely, criminal agency, is often 
 " lost sight of, but is as assential as is the object itself 
 " of crime. Acts, in some shape, are essential to the 
 " corpus delicti, so far as concerns the guilt of the party 
 " accused. A may have designed the death of the de- 
 " ceased, j^et if that death has been caused by another, 
 " A, no matter how morally guilty, is not amenable to the 
 " penalties of the law, if he has done and advised nothing 
 " in respect to the death. Gellius, vii, 3." 
 
 The same rule is recognized and applied in State v. 
 Crank, 13 S. C. Law Reports, 86. 
 
 Such also is the rule distinct!}' recognized in 2 Bish- 
 op's Criminal Procedure, sections 12 and 13, where the 
 learned author speaks as follows: " Seeing that the ac- 
 " cessory cannot be guilty unless his supposed principal 
 " is guilty also, the former, whether indicted with the 
 " latter or separately, can be convicted only on evidence 
 " showing, together with his own participation in the 
 
245 
 
 <' crime, the guill of his frincifal. * * * But by 
 " force of statutes in most or all of the states, the acces- 
 *' scry may be tried even in advance of his principal. And 
 " whether the trial is in advance or the two are tried to- 
 " gether, there being already no conviction of the princi- 
 ^' pal, Ihere must be farol evidence frodaced against the 
 " accessory of the frincifaPs guiltP 
 
 So in Holmes v. Commonwealth, 25 Penn. St., 221, it was 
 ruled that where an accessory was indicted the guilt of 
 the principal must be averred, and the evidence must 
 •establish his guilt before the accessory can be convicted. 
 
 Starkie on Evidence, volume 2, part 2, edition 1842, 
 page 1,381, states the law as follows: " A. and others were 
 " indicted for feloniously demolishing the house of B. It 
 •" was proved that A. and a mob of persons assembled at 
 ^' H. A. addressed the mob in violent language, and led 
 " them in a direction towards a police office, about a 
 ■<' mile from H, some of the mob from time to time leav- 
 " ing and others joining. At the police office the mob 
 " broke the windows, and then went and attacked the 
 " house of B., and set it on fire, A. not being present at 
 ■" the attack on the house nor at the fire. It was held 
 " that on this state of facts A. ought not to be convicted 
 ^' of the demolition, as it did not sufficiently appear what 
 ■" the original design of the mob at H. was, nor whether 
 ■" any of the mob who were at H. were the persons who 
 ■" demolished B.^s house.'''' 
 
 R. V. Howell, 9 C. and P., 437. 
 
 To the same effect see 
 
 Roscoe's Criminal Ev., 86 and 87. 
 
 In Fairlee v. Tlie People, 11 111., 5, this court, speak- 
 ing by Mr. Justice Caton, held bad for uncertainty an in- 
 dictment under which Fairlee had been tried and sen- 
 tenced to punishment on the charge of murder. The 
 
246 
 
 indictment set out that Fairlee, of his malice aforethought, 
 with the intent to murder the deceased by the smallpox, 
 inoculated certain third parties with the virus of such 
 smallpox, whereby they became infected with the diseases 
 as he had intended; and the grand jury further presented 
 that the smallpox with which these third parties were in- 
 fected, was a fatal and infectious disease, b}' means 
 whereof the deceased became infected with the disease 
 whereof he died, etc. The judgment in the case was 
 reversed, and the prisoner ordered to be discharged on 
 the ground that for aught that appeared to the contrary 
 the deceased might have contracted the disease from some 
 source other than through the procurement and instru- 
 mentality of the accused. 
 
 As applicable to the case at bar, [because the same cer- 
 tainty of proof is required in criminal proceedings that is 
 required in the averment of the offense in the indictment], 
 for aught that appears in the testimony in this case to 
 the contrary Mathias J. Degan may have been killed by 
 a bomb thrown by some third party wholly and utterly 
 unknown to, and in the act altogether uninfluenced by 
 the plaintiffs in error or any of them. And as the instruc- 
 tions tell the jury that the identity of the bomb-thrower 
 need not be established, they were at liberty to exclude 
 the hypothesis that he may have been a person uncon- 
 nected with the plaintiffs in error. 
 
 The case of Ritzmanv. The Peo-pic, no 111., 362, is 
 not an authority militating in the least against the position 
 we contend for. 
 
 There the evidence showed that Ritzman and others, 
 being trespassers upon the premises of the deceased, 
 were requested or orderd by him to leave such premises, 
 whereupon the parties set upon the deceased and in the 
 struggle the homicide resulted. It was admitted that the 
 
247 
 
 death resulted from a blow given eilher by the accused or 
 by some one of the party zvith zvhom the accused in that 
 case 'Mas actually farticifating in the unlawful act. It was 
 urged there that no conviction could be sustained because 
 the evidence did not show which one of the co-trespassers 
 did the killing; and with reference to that contention the 
 following language was used by this court: 
 
 "And yet we are told there can be no conviction in this 
 " case because the evidence does not show beyond a 
 " reasonable doubt the very hand that hurled the fatal 
 " missile, which sent him into eternity without a moment's 
 " warning. So far as the accused is concerned, under the 
 " proofs in this case, we think it wholly immaterial whether 
 " the missile in question was thrown by the hand of the 
 " accused or of some one of his co-trespassers. That the 
 " defendant was present, — and to say the least of it cn- 
 " couraging- the perpetration of the oflense, — cannot be 
 "denied; * * * and if the defendant was so present 
 " encouraging the perpetration of the offense, it is hardly 
 " necessary to say that, by the express provisions of our 
 " statute, he is made a principal, and equally guilty with 
 " the one who personally gave the fatal blow." 
 
 In this case, surely, the causul relationship between the 
 hand that did the act and the defendant was established. 
 He was present and encouraged the perpetration of the 
 crime, was identified with the criminal actor in the very 
 act itself. This case does not apply to the facts assumed 
 in the erroneous instructions complained of, namely, that 
 the bomb-thrower is unidentified, and that the plaintiffs in 
 error were not present and encouraging. 
 
 In the Ritzman case there was an absolute identifica- 
 tion, or, if you please, positive proof, that the one who 
 did strike the fatal blow was a cc-actor in the trespass 
 with the party accused, or the accused himself; and if 
 
248 
 
 the accused did not in fact strike the fatal blow he was 
 yet actively co-operating with the man who did so inflict 
 the mortal injury. For the proof in tiie Ritzman case 
 showed that Ritzman joined in the assault, and partici- 
 pated actively in the combat. Alike in the case of Bren- 
 min V. The People, 15 111., 511, and in the Ritzman case, 
 as we understand, the defendants being present and par- 
 ticipating in the felony, they were principals therein. 
 Wiih the doctrine of this case we have absolutely no 
 contention whatever. But it does not apply to the case 
 at bar. 
 
 II. THE INSTRUCTIONS WERE AT VARIANCE WITH THE 
 PROOF INTRODUCED BY THE STATE. 
 
 As to the general theory of the instructions given in 
 behalf of the people, there was an entire departure from 
 the case attempted to be made by the state's testimony. 
 
 The indictment which involved the plaintiffs in error, 
 together with William Seliger and Rudolph Schnaubelt, 
 as co-defendants, charged the act of throwing the bomb 
 upon each of the plaintifls in error, in concert with others, 
 and then in another series of counts charged that the 
 criminal act was committed by Rudolph Schnaubelt, act- 
 ing under the advice and with the aid and encouragement 
 or by the procurement of the plaintiffs in error. In sup- 
 port of the charge contained in this indictment, the state 
 introduced positive and direct evidence that the Hay- 
 market bomb was thrown in fact by Rudolph Schnaubelt. 
 
 As to the plaintiffs in error, the teiitimony presented by 
 the state left the case as advice and cncoiiragcinciU by litem 
 to Rudolph Schnaubelt. 
 
 This was the case that the plaintifls in error were 
 called upon to meet when the state rested in the presenta- 
 
249 
 
 tion of its evidence to the jury. Tliis was the charge 
 with which they were confronted, this the evidence they 
 were to rebut. 
 
 There can be no question whatever that under the in- 
 <iictment it would have been incompetent for the state to 
 have proved or attempted to prove, for example, that the 
 bomb was thrown by John Smith or Thomas Jones, un- 
 less they had shown that such bomb thrower was to the 
 grand jury unknown, and that his identity had been sub- 
 sequently established. The rule of law is conclusively 
 established, that if the name of the pridcipal criminal is 
 known to the grand jury it must be stated in the indict- 
 ment, that the defendants may know the charge which 
 they have to confront; and that if it appears in the course 
 of the trial that the name of the principal criminal was in 
 fact known to the grand jury, and the indictment charged 
 the principal as unknown, such indictment will be quashed. 
 
 In this case the indictment charged that Rudolph 
 Schnaubelt threw the bomb, and there was direct and 
 positive testimony introduced by the state that said 
 Schnaubelt was in fact the bomb thrower. Such evi- 
 ■dence, if believed, excluded absolutely the hypothesis that 
 anyone other than Schnaubelt threw the bomb. There 
 was absolutely no evidence introduced by the state that 
 the bomb was thrown by an unknown, unidentified man. 
 Not one count in the indictment, except the two charging 
 Rudolph Schnaubelt with having thrown the bomb and 
 the plaintiffs in error with being accessories thereto, were 
 supported, or even attempted to be supported, by the state 
 in its evidence. Our claim is that in this state of the 
 ■case the state was bound to ask of the jury a conviction 
 upon that theory, and upon none other. It had chosen to 
 present to the jury testimony which, if credible, estab- 
 lished one particular charge of the indictment, and to rest 
 
250 
 
 upon that testimony, and the plaintifts in error were called 
 upon to meet only the case made out by the state, and not 
 one of which they were not apprised in anj" manner by 
 the state's evidence. 
 
 Nor is this rule, we insist, affected in the least by the 
 fact that in certain other counts the plaintiffs in error 
 were charged as accessories to an unknown bomb-thrower. 
 The state did not attempt to sustain that charge; and not 
 having introduced evidence in support of that charge, 
 was not entitled to ask a conviction upon that theory. 
 The instructions must follozf the proofs. The state cotihf 
 have no right to ask instructions of the court that were alto- 
 gether without support from the evidence in their case, 
 altogether out of havjnony with their own testimony. The 
 case may be likened to a civil action in assumpsit, with 
 a special count upon a promissory note and the common 
 counts. Suppose, in such a case, the plaintiff introduced 
 the promissory note described in the declaration, and 
 rested there. Suppose that the defendant then intro- 
 duced evidence tending to show that that note was a for- 
 gery, and upon that testimony the case was submitted to 
 the jury; would not the plaintiff in the action be re- 
 quired to recover, if at all, upon the theory of the gen- 
 uineness of the note, and for the note alone? Could ar> 
 instruction be given on his behalf upon the theory of some 
 general indebtedness under his common counts? Would 
 not his instructions have to conform with his proofs, and 
 go upon the hypothesis supported by his testimony? 
 
 And if this is true in a civil action, can a different rule 
 be sustained in reference to criminal matters, and espe- 
 cially in capital cases? Here was a special count charging 
 that Schnaubelt threw the bomb, the plaintiffs in error 
 being accessories to that act, and only this special count 
 attempted to be supported by the testimony offered in 
 behalf of the state. 
 
251 
 
 But so completely, overwhelming!}' and absolutely was 
 this case met b)- the defendants — so conclusively was the 
 falsehood of the state's testimony demonstrated, that the 
 state in its instructions abandoned its own case. Not a 
 single instrtiction on behalf of the State presented to the 
 jury the hypothesis of accessoryship to the throwing of the 
 bomb by Schnaubelt. Dropping their special count, the 
 state attempted to recover under their common counts. 
 We maintain that the instructions of the court in behalf 
 of the state, inasmuch as they departed from the case 
 which the state had attempted to make, and upon which 
 the state rested, were altogether erroneous. 
 
 In support of the position above suggested we cite 
 briefly the following authorities: 
 
 " An indictment will be bad against an accessory, 
 " statmg the principal to be unknown to the grand jury 
 " contrary to the truth, and the judge will direct an ac- 
 " quittal." 
 
 Wharton's Criminal PI. & Pr., 8th ed.. 
 Section 112; citing in support of the text, 
 3 Campbell, 264, 265 ; 2 East's P. C, 781. 
 
 The same author says in section 104 of the same work: 
 " A known party cannot be indicted as unknown." 
 
 Citing Wharton's Cr. Ev., 8th ed., §97; 
 Geiger v. Steele, 5 Iowa, 484. 
 
 That evidence cannot be admitted to prove accessory- 
 ship to a felony committed by a person other than the 
 one na77ied iri the indictment, where the indictment is 
 special and purports to give the name of ihe principal 
 felon, is also well settled by authority. 
 
 See 2 East's Crown Law, 651, 781. 
 
 In Simmons v. State, 4th Georgia, 465, it was expressly- 
 held that where an indictment charged the defendant 
 
with an offense, or with being an accessory to a felonj', 
 committed by a party specially named, it was necessary 
 to prove that the felony was committed by that individual 
 
 So it was held in Moore v. State, 65 Indiana, 213, 
 that the proof must follow the indictment, and that if the 
 indictment charged accessoryship to an offense committed 
 "with '■persons'' whose names are unknown to the grand 
 "jury," such indictment was not sustained by proof of 
 commission of the offense " with a person whose name 
 " to the grand jury was unknown." It was said b}' the 
 Supreme court of Indiana, in that case, that the descrip- 
 tion in the indictment 7nnst be literally proved, in order 
 that the record may be a sufficient bar to a subsequent 
 prosecution for the same offense. The question there 
 arose upon the instructions under the indictment, which 
 instructions held that it was sufficient to sustain the in- 
 dictment to show by the proofs the commission of the 
 alleged offense with some person whose name was un- 
 known. For this error in the instruction the conviction 
 was set aside. 
 
 See also Wharton's Criminal Evidence, 9th edition, 
 section 97, where it is said: " When a third person is de- 
 " scribed as ' a person to the grand jurors unknown,' and 
 "it turn out he was known to the grand jurors, the 
 "variance is fatal. * ^ * A '■ person tmknozi'n'' must 
 '■•■be individuated as a specific person, though his name 
 " may not be ascertainable ^ 
 
 In Regina v. Stroud, 2 Moody, C. C, *27o, there was 
 an indictment against the prisoner for the murder of her 
 infant child. In the first count of the indictment the child 
 was described as Harriett Stroud. In the second count it 
 was described as a female infant of tender age, whose 
 name is to the jurors unknown. It appeared b}' the evi- 
 dence that the prisoner, being a single woman, gave birth 
 
253 
 
 to a female child; that the child was called tiarriett. 
 The child was baptized by the name of Harriett only, 
 not Harriett Stroud, and there was no evidence showing 
 it had ever been called by any other name except Harriett. 
 The prisoner drowned the child. The jury found the 
 prisoner guilty. The judge passed sentence of death 
 upon her. 
 
 A doubt was afterwards suggested, whether the con- 
 viction was right. It would seem, on the authority of 
 Rex V. Waters, i Mood}-, 457, that she could not be con- 
 victed on the first count, and as the child was certainly 
 known by the name of Harriett, it might be doubted 
 whether the second count would warrant conviction for 
 the murder of a child whose name is to the jurors 
 unknown, and whether there ought not to have been 
 a count for the murder of a child named Harriett. The 
 execution of the sentence had been respited in order that 
 the opinion of the judges might be obtained on the point. 
 This case was considered at a meeting of the judges in 
 Michaelmas term in 1842, and they held the conviction 
 wrong. The proper description would have been Har- 
 riett, the base-born child of the prisoner, and the want 
 of description is only excused when the name cannot be 
 known. 
 
 Though this case applies to the name of the victim of 
 the crime, still it shows the principle that the proof must 
 strictly conform to the indictment. As applied to the case 
 at bar, all counts in the indictment other than those 
 charging accessoryship to Rudolph Schitaubelt as princi- 
 pal, could not form the basis of conviction, because at 
 variance with the proof, and therefore could not be made 
 the basis of the theory of the instructions. 
 
 In Rex v. Russell and Ryan, p. 489, it was decided, if 
 the name of a prisoner is unknown, and he refuses to dis- 
 
254 
 
 close it, an indictment against him as a person whose 
 name is to the jury unknown, but who is the prisoner 
 brought before the jurors by the keeper of the prison, 
 would be good,, but it would not be sufficient to base an 
 indictment against him as a person to the jurors unknown, 
 without something to ascertain who the grand jury meant 
 to designate. 
 
 See also Blodgctt v. State, 3d Indiana, 403. 
 
 In Russell's Law of Crimes, volume 2, page 297, it is 
 said: '^'- Rex v. Robinson, the averment in the indictment 
 " always is ' to the jurors aforesaid, /. e., grand jury un- 
 'i known;' and in Rex v. Cory, Gloucester S. PR. 1832, 
 " upon it being stated in argument that it had been held 
 " that if it were alleged that property was stolen by a 
 " person unkfiowu, and it was proved at the trial that the 
 " person was known, the prisoner must be acquitted." 
 
 LiTTLEDALE, judge, says : " That case has been decided, 
 " and it is subject to some doubt. The question is, 
 <♦ whether the person is known to the grand jury. It 
 "will be difficult to prove that he was so known; and 
 " unless he was known to the grand jury I should have 
 " doubt about that case. If the case should occur where 
 " the witnesses who went before the grand jury were 
 " wholly ignorant of the parties said to be unknown, and it 
 " turned out by other evidence, e. g., by a witness called 
 " for the prisoner, that the party was known, it would 
 " deserve consideration whether the prisoner would 
 " thereby be entitled to be acquitted." 
 
 In Rex V. Walker, 3 Campbell's Reports, page 264, 
 there was an indictment against the prisoner as accessory 
 before the fact to a larceny. The indictment charged 
 that a certain person, to the jurors unknown, feloniousl}' 
 stole, took and carried away six bushels of wheat. 
 
 The grand jury had found a bill upon the evidence of 
 
255 
 
 Charles Ives, who had acknowledged that he had stolen 
 the wheat. It was now proposed to call him as a witness 
 to establish the guilt of the prisoner; but the fact being 
 opened by the prosecution, the judge interposed and di- 
 rected an acquittal. He said he considered the indict- 
 ment wrong in stating that the wheat had been stolen by 
 « ferson unknown, and asked how the person who was the 
 principal felon could be alleged to be unknown to the 
 jurors, when they had him before them and his name was 
 ■written on the back of the bill. 
 
 See fully Russell on Crimes, ubi supra. 
 
 III. Instructions based upon hypotheses unwar- 
 ranted BY THE EVIDENCE. 
 
 Instruction 5, given on behalf of the people (i A., 7; 
 O, 3) presents to the jury substantially the hypothesis 
 that the jury might find the plaintiffs in error guilt}' of 
 murder, " although the jury may further " believe from 
 ■" the evidence that the time and place for the bringing 
 ■" about of such revolution, or the destruction of such 
 " authorities, had not been definitely agreed upon by the 
 ■" conspirators, but was left to them and the exigencies of 
 " time, or to the judgment of any of the co-conspirators.'''' 
 Our objection to this part of the instruction is that 
 there was no evidence in the record to support this 
 hypothesis. We have heretofore (pp. 146-149) pre- 
 sented to the court our views upon this point quite 
 ■fully, and it may suffice here to repeat that there is ab- 
 solutely no evidence in this record to show that under 
 any agreement, understanding or conspiracy to which, it 
 is claimed on the part of the state, the plaintiffs in error, 
 or any of them, were parties, was there any provision, 
 agreement or understanding that the time and place for 
 
256 
 
 the " bringing about of revolution or tiie destruction of 
 " the authorities was left to the exigencies of time or to 
 " the judgment of any of the co-conspirators.'''' As before 
 suggested by us, there are perhaps in Bakunin's article 
 and in Most's book, and possibly in some other of the 
 literature introduced, suggestions by some of the writers 
 to the efiect that revolutionists ought themselves to pro- 
 ceed with their own enterprises without involving therein 
 any more of their fellow revolutionists than seems ab- 
 solutely necessary. But this is as far as possible from 
 evidence supporting a theory that there was a general 
 agreement by plaintiffs in error that tlie revolution was to 
 be brought on at the caprice, or upon the judgment, of 
 any individual member of the conspiracy-, as to when the 
 time or the exigency had arisen for striking the deter- 
 minative blow. In this particular this instruction is ab- 
 solutely vicious, and was calculated in the highest degree 
 to work prejudice to the plaintiffs in error. 
 
 IV. Mere general advice does not constitute 
 
 ACCESSORYSHIP. 
 
 We come now to a consideration of the most impor- 
 tant, in our view perhaps the most vicious, of all the 
 instructions asked and given in behalf of the people, to 
 wit: instruction 5| (i A., 8; O, 4), which is as follows: 
 
 "If these defendants, or anj- two or more of them, con- 
 " spired together with or not with any other person or 
 " persons to excite the people or classes of the people of 
 " this city to sedftion, tumult and riot, to use deadh' 
 " weapons against and take the lives of other persons, as 
 " a means to carry their designs and purposes into effect, 
 " and in pursuance of such conspiracy, and in furtherance 
 " of its objects, any of the persons so conspiring publicly 
 
257 
 
 " by print or speech advised or encouraged the commis- 
 " sion of murder without designating time, place or occa- 
 " sion at which it should be done, and in pursuance of, 
 " and induced by such advice or encouragement, murder 
 " was committed, then all of such conspirators are guilty 
 " of such murder, whether the person who perpetrated such 
 " murder can be identified or not. If such murder was com- 
 " mitted in pursuance of such advice or encouragement, and 
 " was induced thereby, it does not matter what change if 
 " any, in the order or condition of society, or what, if any, 
 " advantage to themselves or others, the conspirators pro- 
 " posed as the result of their conspiracy, nor does it matter 
 " whether such advice and encouragement had been fre- 
 " quent and long-continued or not, except in determining 
 " whether the perpetrator was or was not acting in pur- 
 " suance of such advice or encouragement, and was or 
 " was not induced thereb)- to commit the murder. If 
 " there was such conspiracy as in this instruction is recited, 
 " such advice or encouragement was given, and murder 
 " committed in pursuance of and induced thereby, then all 
 " such conspirators are guilty of murder. Nor does it 
 " matter, if there was such a conspiracy, how impractica- 
 " ble or impossible of success its end and aims were, nor 
 " how foolish or ill-arranged were the plans for its execu- 
 "tion, except as bearing upon the question whether there 
 "was or was not such conspirac3^" 
 
 The only act on the fart of any of the flaintiffs in error 
 required to be found under this instruction by the ftiry is 
 the mere matter of consfiring together or with others to 
 excite the people or classes of the people to riot, tumult and 
 sedition, and to the use of deadly weapons against, and 
 taking the lives of other persons. 
 
 Here is supposed a conspiracy, not to commit murder, 
 not to do any act of violence out of which murder might 
 
258 
 
 Vesult, but a conspiracy to excite, a conspiracy to solicit 
 crime. To exxite the people to deeds of violence is the 
 'only and final object of the conspiracy supposed in this 
 instruction. The law is, that each member of an unlaw- 
 ful conspiracy is responsible for all the acts done by one 
 of the conspirators in furtherance of the common design, 
 or, as applied to the conspiracy supposed in instruction 
 5^, the act of soliciting crime by print or speech by one 
 of the parties to that combination. If the mere fact of 
 'soliciting crime by print or speech were an indictable 
 offense [and it may, perhaps, constitute a common law 
 libel or a misdemeanor], then all of the conspirators 
 would be guilty as accessories to tliat offense. But the 
 instruction does not stop there. It goes on to say that if 
 murder was committed in pursuance of and " induced'''' by 
 such solicitation of crime, then all conspirators are guilty 
 of murder. 
 
 "If murder was committed," by whom? The instruc- 
 tion is silent about that. This alone would make it 
 vicious for uncertainty. But apart from that, the the 
 ory of this instruction is that if anybody, "induced" by 
 such advice, commits murder, then the parties to the 
 ■" conspiracy to excite^'' are accessories to such murder. In 
 other words, they are responsible as accessories to the act 
 of one -^vho is not a member of their conspiracy, acces- 
 sories to an act which goes beyond the common design, 
 which common design, under the theory of this instruc- 
 tion, is " excitement of the people to crime," and not the 
 commission of any act of violence. 
 
 " If murder was committed," against whom, where, 
 when? The instruction will be searched in vain from the 
 first to the last word, for any reference to the charge in 
 the indictment. The name of Degan is not mentioned, 
 the instruction does not speak about a murder committed 
 
259 
 
 in Cook county, on the 4th of May, nor is the jury re- 
 quired to find that murder was committed by means of a 
 bomb. But it says: "If murder was committed, then all 
 " of such conspirators are guilty of such murder." 
 
 This instruction was bad by reason of its stating an 
 abstract principle of law, erroneous in itself, and not based 
 upon any evidence legitimately before the jurj'. That it 
 was calculated to mislead is apparent. 
 
 Coughlin V. The People, 18 111., 266. 
 
 But, beyond this, instruction 5^ sa3's that if " any of 
 " the persons so conspiring publicly, by print or speech, 
 " advised or encouraged the commission of murder, with- 
 " out designating time, place or occasion at which it 
 " should be done, and in pursuance of and induced by such 
 ■*' advice or encouragement murder was committed, then 
 " all of such conspirators are guilty of such murder." 
 
 It will be observed that under this instruction it was not 
 necessary for the jury to find that any of the plaintiffs in 
 error advised or encouraged the commission of murder in 
 order to hold them guilty; but if any other man, not one of 
 the plaintiffs in error, but who was a party to the conspiracy 
 to excite to crime, made public speeches advising or en- 
 couraging the commission of murder, and murder was 
 committed, induced by such advice, then all of the con- 
 spirators, including the plaintiffs in error, are to be found 
 guilty. 
 
 But the instruction now under consideration is, in our 
 judgment, subject to still further special criticism. It is 
 therein said: " If any of the persons so conspiring pub- 
 " licly, by print or speech advised or encouraged the com- 
 " mission of murder, without designating time, place or 
 " occasion at which it should be done, and in pursuance of, 
 " and /W«c^(/ by such advice or encouragement murder 
 " was committed, then all of such conspirators are guilty," 
 etc. 
 
26o 
 
 This assumes that there is, in lazv, such a thing as 
 advice to murder in the abstract. As we said in another 
 connection, a man might cr}' out in the pubHc streets; 
 " Kill, kill, murder, murder," by the day and by the hour, 
 and would not advise murder in contemplation of law. 
 Unless he designates the victim, the means, the manner, 
 time or place, he has not done sufficient by his outcries 
 alone to become amenable to the law as an accessory 
 before the fact to the crime of murder. 
 
 Again, from the structure of this part of the instruction 
 it is evident that the jury were left free to judge as to the 
 nature of supposed public advice, without any instruction 
 as to what would constitute advice to commit murder. 
 Our point is that the advice should, in order to constitute 
 accessoryship, be advice to the commission of such act or 
 acts as would in law constitute murder, and that the ex- 
 press elimination in this part of the charge of any con- 
 sideration by the jury of time, place or occasion, as desig- 
 nated for the proposed offense in the supposed advice,, 
 renders the charge vicious for uncertainty. 
 
 But this vice of the instruction was intensified by the 
 suggestion of inducement under such advice. The statute 
 does not make a man liable for a crime induced by what 
 he maj' have said, but only for a crime advised directly 
 by him. 
 
 For example. I may advise men to kill a particular 
 class of people, as Chinese, or Pinkerton detectives, or 
 Mormons. As a result of such advice, or its oft repeti- 
 tion, I may induce in the minds of my hearers a light 
 regard for life, a disposition to homicide generally, so that 
 induced by such advice a murder may be committed to- 
 tally different from any advised. Will it be contended 
 that in such a case I would be responsible for the murder 
 thus induced and committed? 
 
Again, this instruction is vicious because it does not 
 require the jury to find that the advice to commit murder 
 was directed and addressed to the man who committed it. 
 This is absurd. Suppose A., a physician, in his consulta- 
 tion room advises a woman to commit abortion and tells 
 her the means by which to accomplish it. Suppose fur- 
 ther that in the ante-room, severed by a closed door 
 from the consultation room, there is waiting, accidental!}', 
 another woman, sent on an errand to the doctor. She is 
 pregnant. She is unmarried. She overhears the advice 
 given by the physician to the woman inside. It prompts 
 to her the suggestion that there would be a chance to 
 conceal her shame. " Pursuant to the advice " given by 
 the doctor to the other lady and " induce'd " by it, she 
 goes off and commits the crime of abortion without ever 
 seeing or talking to the doctor. Is the doctor an accessory 
 before the fact to her crime? The suggestion is prepos- 
 terous. 
 
 Considering the various vices of instruction 5J, above 
 criticized, it will appear that it admits of such a conse- 
 quence as the following: 
 
 If, as supposed by this instruction the plaintiffs in 
 error were parties to a conspiracy to excite the people to 
 tumult, to the use of deadly weapons for the taking 
 of human life, etc., and if in supposed furtherance of this 
 ■conspiracy some unknown member of this band of con- 
 spirators (not one of the parties accused) published an 
 article in general terms encouraging and advising assassin- 
 ation, without designating time, place or occasion, or 
 naming any victim or class of victims, and if " in pursuance 
 "of this general advice" and "induced" thereby some 
 nnknozvn person had murdered a policeman in London, 
 in the course of a private altercation, all of the parties 
 to the original conspiracy would be guilty of the London 
 
262 
 
 For observe, the instruction makes no limitation as to 
 where the supposed murder might be committed; nor at 
 what time, near or remote; nor on what occasion, a pubhc 
 meeting or a private brawl; nor who should be the victim, 
 or even class of victims. Here would be liability for 
 a crime never dreamed of by the original conspiracy, nor 
 within its scope; for it is not said in the instruction that 
 the murder done mnst be in pursuance of and induced by 
 the original conspiracy ; but only in pursuance of and in- 
 duced by the public general speech or writing of some one 
 of the supposed conspirators, which speech or writing is 
 made in furtherance of a conspiracy " to excite the people 
 " or classes of the people of this city to sedition, tumult 
 " and riot, to' use deadly weapons against and take the 
 " lives of other persons, as a means to carry their designs 
 " and purposes into effect." 
 
 Isn't this a trifle remote? Isn't it importing into crim- 
 inal law the exploded doctrine of "consequential" liability? 
 Is it not an instruction in utter disregard of the maxim 
 " Causa -proxima non rcniota sfectaimir " ? Is it not the 
 undue development of what may be termed a doctrine of 
 constructive crime? 
 
 In this instruction 5^ again, the false proposition is 
 repeated, that it is unnecessary to identify in any manner 
 the bomb-thrower, if the jury imagine or conclude that 
 it was thrown in pursuance of such advice or encourage- 
 ment, and was induced thereby. How is it possible 
 legally to conclude that an unknown party, absolutely 
 unidentified, and with no evidence connecting him with 
 the accused, ever heard their speeches, read their writ- 
 ings, or was in any relationship to them subjecting him 
 to the slightest influence by them — how is it possible, 
 legally to conclude that the act of such a man was 
 done in pursuance of such advice or encouragement, 
 and was induced thereby? Or, to put it in the Ian- 
 
263 
 
 guage of Mr. Wharton in his Ciim. Law, Vol. i §i79."- 
 " What human judge can determine that there is such a. 
 " necessary connection between one man's advice and an- 
 " other man's action as to make the former the cause of 
 " the latter?" No legal relationship under this instruction 
 is required to be established by the evidence, but the jury 
 were left absolutely free to g-uess or conclude upon any 
 basis satisfactor}' to them " as men " [vid : Instruction 13) > 
 that the unknown bomb- thrower at the Haymarket was 
 influenced in his act, was incited to his crime, was en- 
 couraged in his evil deed, by the plaintiffs in error. 
 
 When once the theory that Rudolph Schnaubelt threw 
 the bomb was abandoned, there was no evidence which, 
 warranted the hypothesis assumed in the instruction that 
 the unidentified bomb-thrower was in fact an associate in, 
 their purposes and an instrument of their designs, or even 
 a disciple of one of the band of conspirators supposed 
 in instruction 5^. 
 
 We beg to cite here again from Starkie on Evidence,, 
 volume 2, part 2, edition 1842, page 1381, who states the 
 law as follows: "A. and others were indicted for feloni- 
 " ously demolishing the house of B. It was proved that 
 " A. and a mob of persons assembled at H. A. addressed 
 " the mob in violent language, and led them in a direction 
 " towards a police office, about a mile from H., some of 
 " the mob from time to time leaving and others joining, 
 " At the police office the mob broke the windows, and 
 " then went and attacked the house of B., and set it oi\ 
 " fire, A. not being present at the attack on the house n )r 
 " at the fire. It was held that on this state of facts A, 
 " ought not to be convicted of the demolition, as it did not 
 " sufficiently appear what the original design of the mob 
 " at H. was, nor whether any of the mob who zvere at H^ 
 " were the persons zvho demolished Bh house." 
 R. V. Howell, 9 C. and P., 437. 
 
264 
 
 Wharton in his Criminal Law, 9th edition, volume i, 
 section 226, note entitled "Modes of Instigation," says: 
 " Counseling, to come zip to the definition, must be special. 
 " Mere general counsel, for instance, that all property 
 " should be regarded as held in common, will not consti- 
 " tute the party offering it accessory before the fact to a 
 " larceny; free-love publications will not constitute their 
 " authors technical parties to sexual offenses which these 
 " publications may have stimulated. Several youthful 
 " highway robbers have said that they were led into 
 "crime by reading Jack Shepard; but the author of 
 "Jack Shepard was not an accessory before the fact to 
 " the robberies to which he thus added impulse." 
 
 In volume i, section 179, of the same work, the learned 
 author says: "It would be hard, also, we must agree, if we 
 " maintain such general responsibility, to defend, in pros- 
 " ecutions for soliciting crime the publishers of Byron's 
 " ' Don Juan,' of Rousseau's ' Emile ' or Goethe's ' Elective 
 " Affinities.' Lord Chesterfield, in his letters to his son, 
 " directly advised the latter to form illicit connection with 
 " married women. Lord Chesterfield, on the reasoning 
 " here contended, would be indictable for solicitation to 
 "adultery. What human judge can determine that there 
 " /5 such a necessary connection between one matCs advice 
 " and another matCs action as to make the former the cause 
 " of the latter ? " 
 
 To further illustrate the doctrine of the text above 
 quoted, we desire to cite some matters so familiar as to 
 be historic. 
 
 Prior to the year 1S60 slavery was an institution in the 
 United States recognized by the constitution and pro- 
 tected by the laws. Upon the one side arose a body of 
 earrfest and devoted men, constituting a very small 
 minority of the people of tiie north, who denounced the 
 
265 
 
 jprovision of the constitution and these laws passed there- 
 under in unmeasured terms — advocating the aboHtion of 
 .property in slaves, and demanding, if needs be, the dissolu- 
 tion and reorganization of the union itself. These men 
 openly and constantly advocated the forcible, immediate 
 and unconditional abolition of slavery without compensa- 
 tion for the slave property thus proposed to be confiscated 
 or abolished. On the other side of the line arose prac- 
 tically a majority of the influential people of that section, 
 who, standing for the institution of slavery, and recogniz- 
 ing the tendency of these efforts of the abolitionist, de- 
 manded the dissolution of the Union as a means of but- 
 tressing about and perpetuating beyond question or inter- 
 .ference this institution. 
 
 As a result of the agitation of the first-named body of 
 men, at last John Brown organized his raid in Virginia, re- 
 sulting in the taking of human life, denounced by the law 
 as murder. He and his immediate associates, being ar- 
 rested, were tried, found guilty, sentenced, and paid the 
 penalty of their alleged crimes with their lives. But, 
 meanwhile, back of John Brown, advocating precisely 
 what he attempted, namely, the abolition of slavery by 
 •force and arms, was the abolition press of the north, the 
 abolition speakers, preachers and people. It would have 
 been easy to prove on the part of all these a general con- 
 ■spiracy to overthrow the law in reference to chattel 
 slavery, and to have shown upon their part such advice, 
 •such sentiments, such predictions of violence, bloodshed, 
 di.sorder, as would have embraced the John Brown ex- 
 pedition. 
 
 In the light of history, what would be now said of a 
 proposal to indict Horace Greeley, Wendell Phillips, Ger- 
 irit Smith, William Llo3'd Garrison, and the host of im- 
 .anortals whose names were then a reproach and a by- 
 
266 
 
 word, but are now honored in all lands, under the charge 
 of murder, and to attempt to secure to them the scaffold 
 as the end of their career, because of the act of John Brown ? 
 
 On the other side, the result of the secession agitation 
 for the preservation and perpetuity of slavery, an agita- 
 tion participated in by almost every prominent speaker in 
 the south, and by almost ever}' leading newspaper; an 
 agitation which boldly challenged and unhesitatingly pre- 
 dicted war; an agitation which made provision for the 
 struggle, and that was ready in advance for the trial of 
 arms; this agitation went forward for years, and at last 
 resulted in the great struggle of 1861 to 1865, which 
 involved our entire land and caused the sacrifice of hun- 
 dreds of thousands of lives. In the light of history, what 
 would now be said of a proposal to indict the participants 
 of this movement for murder and to bring them to the 
 scaffold, because of their advocacy of secessiou, be- 
 cause of their " gigantic conspiracy against the law?" 
 
 Let us take another illustration: At the close of the 
 war, in many parts of the south, after the enfranchisement 
 of the colored race, in large portions of the territorj- 
 there was as to numbers a dominance of the colored peo- 
 ple. The whites of these localities, in many instances, set 
 themselves deliberately and resolutely to control by any 
 and all means this colored majority, and to keep the con- 
 trol of their governmental affairs in their own hands. The 
 result was what was familiarl}' called the " shot-gun pol- 
 icy." A large proportion of the press of the south joined 
 in the continual expression of the sentiment that the white 
 race should dominate— peaceably if possible, but forcibly 
 if necessar}'. This position was advocated openly and 
 undisguisedly in the editorial columns and communications 
 of these papers, by speakers upon the rostrum and stump, 
 and the resolution becrfme in effect an agreement substan- 
 
267 
 
 tially to .deprive the black race in these particular territo- 
 ries of the free exercise of their legal rights; a conspir- 
 acy to control the goverment for the time being as against 
 what was believed to be an ignorant, incapable and mis- 
 guided majority. The result was many massacres occur- 
 ring in many parts of the country by organized bodies of 
 men — the K. K. K. and other organizations — massacres 
 as deliberate, inexcusable and cold-blooded as any per- 
 haps which have ever disgraced the annals of civilized so- 
 ciety, but which were excused or apologized for in large 
 measure by the local press on the plea of necessity. Was 
 it ever pretended that these newspaper editors and stock- 
 holders could be made liable upon indictments for murder 
 for the lawless conduct of these night-riders? Who ever 
 thought of attempting to hold as guilty of murder parties 
 not shown by legal proof to have specially advised or par- 
 ticipated in the particular crime referred to? What would 
 have been thought of a deliberate suggestion to arrest in 
 the locality of these atrocities the political leaders among 
 the whites, including the newspaper editors, compositors 
 and stockholders, and attempting to hold them for the 
 murders committed in these massacres and assassinations, 
 without any attempt to show that they participated in the 
 crime or advised the perpetration of the offense? 
 
 Again, substantially the entire press of the Pacific 
 slope for many years past has joined in the hue and cry- 
 " the Chinese must go." Against this people, columns 
 of editorials and communications were constantly appear- 
 ing, denouncing them in the most violent terms, declaring 
 them unworthy to live, and taking the position that any 
 means were justifiable to get rid of them, even to the 
 point of their physical extermination. They were in this 
 country by legal right, by virtue of treaties and pro, 
 visions deliberately entered into by this government, and 
 
268 
 
 solemnl)' sanctioned. This agitation to secure their ex- 
 clusion and expulsion from our shores amounted in effect 
 to a general conspiracy to produce the result desired. 
 As a consequence of this opposition, thus stimulated and 
 excited, to the highest pitch, numerous massacres occurred 
 from time to time in various portions of the far west, 
 where armed bodies of men deliberately set upon the 
 Chinese, in their own quarters and in their own homes, 
 murdering them mercilessl}^ and brutally. It is only 
 within a very short time that the last of these massacres 
 occurred in Wyoming. Many more lives were sacri- 
 ficed in these massacres, on many different occasions, 
 than were sacrificed at the Haymarket. But no sug- 
 gestion was ever made that the newspaper editors 
 and writers were criminally liable for these massacres, 
 and should be executed on account of them. Still less 
 did the claim ever find sane advocacy that men connected 
 with these newspapers as stockholders, or in some other 
 manner, should be indicted for the murder of these 
 Chinese. 
 
 Let it not be said that these illustrations are far-fetched. 
 The action of the people in reference to these cases 
 serves to illustrate the consensus of enlightened humanity 
 with reference to matters of this nature. It has been a 
 part of the policy of our country, and of our laws, under 
 the constitutional guaranty of' free speech, to permit the 
 utmost latitude in the matter of agitation for supposed 
 reform. And let it be remembered that, as in the case of 
 the abolition agitation, the claim of reform always in the 
 first instance finds its advocacy only in the lips of the 
 minority, while the majority den}' that the proposed change 
 is reformatory, usually contending that it is altogether 
 pernicious. We repeat that the common sense of the com- 
 munity at large has applied this general rule to matters of 
 
269 
 
 this nature; that no matter what general advice looking 
 to a general line of conduct may have been given by one 
 party, or a set of parties; and no matter to what extent 
 that general advice may have entered into the education, 
 and into the formation of the opinions and views, of the 
 particular individual subsequently committing, perhaps 
 under the direct influence of this general advice, a par- 
 ticular crime; yet, if the individual committing the crime 
 acts in the commission thereof upon his own volition and 
 responsibility, he alone must bear the penalty of the 
 crime; while the adviser can be held only when there is 
 shown, passing entirely beyond the realm of general agi- 
 tation, general advocacy of measures, general advice of 
 processes, special advice to the doer of the deed involving 
 the commission of the f articular crime, whereby the adviser 
 becomes personally involved in the turpitude of the par- 
 ticular act, as having been done at his suggestion at the 
 time and under the circumstances of its commission. 
 
 We respectfully submit that the doctrine of instruction 
 5^ and the other instructions for the people presenting the 
 same view, substantially amount to the introduction, for 
 the first time, into criminal jurisprudence, of the principle 
 that a supposed or possible moral responsibility involves 
 the penalty of legal offense. 
 
 V. Instruction 5^ contained no reference to the 
 
 EVIDENCE. 
 
 Aside from the general views of the doctrine of instruc- 
 tion 5I above considered, it is further subject to a 
 special criticism, namely, that it contained no refer- 
 ence to the evidence as the basis of the contem- 
 plated or permitted action or finding of the jury. There 
 is not from the opening to the close of this import- 
 
270 
 
 ant and vital instruction, a single reference to the evi- 
 dence. The jury are not told in it that if they find 
 from the evidence so and so, then they can conclude thus 
 and so, but they are left free to draw upon all sources of 
 information, and full rein is given to their prejudices, 
 preconceptions and even fancies. Wf do not need to 
 elaborate this criticism. A simple reading of the instruc- 
 tion shows its utter viciousness in the light of the well- 
 recognized principle of law, that the jury must, in their 
 findingF, be limited to the evidence in the case. 
 
 As to the law on this point, we will only quote what 
 our Supreme court stated in Ewing v. Rankle^ 20 111., 
 44S: "A jury should be permitted to believe nothing 
 " except that belief be occasioned by the evidence, and 
 " their minds shotdd always be directed to that, and that 
 '■• alone, as the ground of their belief." 
 
 This doctrine, flowing from the provisions of our 
 statute (Chapter no. Sec. 52, Hurd's R. S., 18S5), has 
 been upheld by a long line of decisions in this court, col- 
 lected in the recent case of Chambers v. TIic People, 105 
 111., 409, which again emphasizes that rule. 
 
 The error indicated is the more significant, as this 
 was the longest single instruction given in behalf of 
 the people, came early in the series, and was the 
 instruction which perhaps most thoroughly and com- 
 pletely presented the theory of the prosecution, and sum- 
 marized the repeated rulings of the court upon the ques- 
 tions of evidence in the progress of the trial. It was, 
 therefore, pre-eminently the most important instruction 
 given in behalf of the people, and the one which, in view 
 of the arguments which had transpired, must have been 
 most influential with the jury, and must have most deeply 
 impressed itself upon their minds. 
 
 This instruction permits the jury to surmise, zvitlioiit 
 
271 
 
 reference to the evidence in tlic case, that the allej^ed 
 murder was committed under the influence and encour- 
 agement of general advice from some member of a sup- 
 posed conspiracy, given in public speeches and writings; 
 it permits the jury to o-uess, zvithonl reference to the evi- 
 dence, Xh&X. the murder was committed by a disciple of one 
 of those conspirators. 
 
 Nor will it do to say that this defect of this instruction 
 is supplied in other instructions, for example, in the in- 
 struction given by the court upon its own motion, later, 
 where an attempt was made to limit the investigation and 
 determination of the jury to the evidence presented. In 
 crin-.inal practice, and particularly in capital cases, it is es- 
 sential that each instruction (certainly every vital instruc- 
 tion, such as this) shall be complete and correct in itself, 
 and its defects cannot be helped out if they exist by refer- 
 ence to other instructions. It is stated by Mr. Wharton 
 (Cr. PI. & Pr., 8th Ed., § 793), that " material error in 
 *' one instruction calculated to mislead is not cured by a 
 " subsequent contradictory instruction." 
 
 Accordingly, in Murray v. Commonwealth, 79 Penn. 
 State, 311, there was a reversal, because of an error in 
 one part of the charge, although that error was appar- 
 ently corrected in the general charge. So in Clem v. 
 State, 31 Indiana, it was held that an erroneous charge 
 given in behalf of the people was not cured by giving a 
 contradictory and correct charge upon the same point at 
 the request of the defendant. 
 
 So in Howard v. The State, 5^ Indiana, the same rule 
 is announced and followed, as also in People v. Valencia, 
 43 <-'al-, 543- 
 
272 
 
 VI. Erroneous Instructions as to Reasonable. 
 Doubt. 
 
 Instruction 12, given on behalf of the people, was as- 
 follows (i A., 10; O, 7): 
 
 " The court instructs the jury, as a matter of law, that 
 " in considering the case the jury are not to go beyond 
 " the evidence to hunt up doubts, nor must they entertain^ 
 " such doubts as are merelj* chimerical or conjectural. A. 
 " doubt, to justify an acquittal, must be reasonable, and 
 " it must arise from a candid and impartial investigation^ 
 " of all the evidence in the case, and unless it is such that 
 " were the same kind of doubt interposed in the graver 
 " transactions of life, it would cause a reasonable and 
 " prudent man to hesitate and pause, it is insufficient tO' 
 " authorize a verdict of not guilty. If, after considering: 
 " all the evidence, you can say you have an abiding con- 
 " viction of the truth of the charge, you are satisfied be- 
 " yond a reasonable doubt." 
 
 In Bro-wn v. State, 5 North-Eastern Reporter, 903, de- 
 cided March 30, 1886, the Supreme court of Indiana 
 said: 
 
 " In the third instruction the court undertook to- 
 " define what constituted a reasonable doubt. The jury 
 " were told, in substance, that it was not their duty to go- 
 " beyond the evidence in search of doubts based or> 
 " merely groundless conjectures; that, in order to justify 
 " an acquittal, the doubt^ should be reasonable, and arise 
 " of an impartial consideration of the evidence in the case^ 
 " and that it must be such a doubt as would cause a pru- 
 " dent and considerate man to hesitate before acting ir* 
 " the gravest and most important affairs of life; that if^ 
 "upon a careful and impartial consideration of all the 
 
273 
 
 " evidence, the jury had an abiding conviction of the de- 
 " fendant's guilt, then they were satisfied beyond a 
 " reasonable doubt. We cannot commend this instruction. 
 " It is not an accurate statement of the law upon the sub- 
 " ject of reasonable doubt. To the extent that the in- 
 " struction was liable to be understood as saying to the 
 " jury that, in order to justify an acquittal, the doubt of 
 " the defendant's guilt must arise out of the evidence, and 
 " be such as to cause a prudent man to hesitate before, 
 " acting in matters of the gravest concern, it was clearly 
 " wrong. It is not the law that in order to justify an 
 " acquittal the doubt must arise out of the evidence given, 
 " and be such as to cause a prudent man to hesitate. The 
 " doubt may arise from a want of evidence. 
 
 " In order to justify a conviction the evidence must be 
 " such as to produce in the minds of prudent men such 
 " certainly that they would act upon the conviction pro- 
 " duced without hesitation in their own most important 
 «' afiairs. Jerrell v. State, 58 Ind., 293; Stout v. Stale, 
 " 90 Ind., I." 
 
 See also note to the above case, 5 N. E. R., 905. 
 
 To the same effect is, 
 
 I Greenleaf Ev., 14th Ed., Sec. 13A and 
 
 note A. 
 Wharton Cr. Ev., 9th Ed., Sec. 718. 
 
 Instruction 13, given for the state, is also clearly obnox- 
 ious to the rule of law established by the above authori- 
 ties. It is as follows (i A., 10, 11; O, 7): 
 
 " The court further instructs the jury, as a matter of 
 " law, that the doubt which the juror is allowed to re- 
 " tain on his own mind, and under the influence of which 
 " he should frame a verdict of not guilty, must always be 
 " a reasonable one. A doubt produced by undue sensi- 
 " bility in the mind of any juror, in view of the conse- 
 
274 
 
 " quences of his verdict, is not a reasonable doubt, and a 
 " juror is not allowed to create sources or materials of 
 " doubt by resorting to trivial and fanciful suppositions 
 " and remote conjectures as to possible states of fact 
 " differing from that established by the evidence. You 
 " are not at liberty to disbelieve as jurors, if from the evi- 
 " dence you believe as men; your oath imposes upon you 
 " no obligation to doubt where no doubt would exist if no 
 " oath had been administered." 
 
 We further specially object to this instruction, that it 
 permits the jury to find a verdict against the plaintiffs in 
 error upon any conviction in reference to the issue with 
 which they entered the jury box. In the closing clause, 
 " your oath imposes upon you no obligation to doubt where 
 " no doubt would exist if no oath had been administered," 
 they are, in effect, told: If you entered this jury box con- 
 vinced of the guilt of the defendants, you are not obliged 
 to lay that persuasion aside, but maj' resolve all possible 
 doubts by that prior conviction. No other interpretation 
 can possibly be given to this instruction, particularly in 
 the light of the rulings of the court as to the competency 
 of jurors, to which we shall have occasion to call atten- 
 tion later. Again and again during the impaneling of the 
 jury, the plaintiffs in error were denied the privilege of 
 asking a proposed juror whether, if a doubt arose in his 
 own mind upon the evidence, the conviction or opinion 
 entertained at the time of the examination would control 
 the verdict or determine the action of the juror. At times 
 such questions were allowed to be asked, but at other 
 times the answering of them was disallowed. Here was, 
 in effect, in this instruction, a charge that under their 
 oaths as jurors there was no obligation upon them to en- 
 tertain any doubts which did not exist in their own minds 
 when they took their seats in the jury box. 
 
275 
 
 The further statement of this instruction, "You are not 
 " at liberty to disbelieve as jurors, if, from the evidence, 
 " you believe as men," is, we maintain, an utterly perni- 
 cious and illegal proposition. We are aware that one 
 authority can be found to support this instruction. But 
 we confidently submit that that authority is not law. 
 Many a man as a man, from evidence produced before 
 him, may be morally certain that a particular hypothesis 
 is true, who yet, if a fair and reasonable man, will say 
 without hesitation that the h3-pothesis, though fully be- 
 lieved, is not supported by the evidence adduced beyond 
 reasonable doubt. The old saw, 
 
 " A man convinced against his will 
 Is of tlie same opinion still," 
 
 is merely a familiar .expression of the truism, that many 
 men believe not only without, but against, evidence. It is 
 not true, therefore, that evidence which produces mere 
 mental persuasion of the truth of a certain hypothesis, would 
 legally support a verdict based upon such persuasion. It 
 is not true that the jury " are not at liberty to disbelieve 
 " as jurors, if, from the evidence, they believe as men "; 
 but, on the contrary, they may, as honest jurors, be com- 
 pelled to doubt, even where they are morally certain as 
 to the issue presented. It seems to us that the closing 
 part of this instruction is absolutely vicious. 
 
 The true test on a question of this kind is. What, as 
 reasonable, prudent, fair-minded men, they are justified in 
 believing the legal evidence produced establishes, and not 
 what they may choose or be able to persuade themselves 
 to believe " as men " from the evidence. Beliefs, even 
 in their relations to evidence, are largely controlled in the 
 every-day affairs of life by the prejudices or passions or 
 predispositions of men; and it would be giving a most 
 dangerous latitude to say that whatever they choose to 
 
276 
 
 believe as men, from the evidence, they may act upon as 
 jurors. How much worse when, in the language of this 
 instruction, they are told in effect that they are not at 
 liberty to disbelieve as jurors anything which from the 
 evidence they believe as men, no matter by what influ- 
 ence or considerations that belief is induced or controlled. 
 
 VII. The Jury are the Judges of the law in 
 
 CRIMINAL cases. 
 
 By instruction 13^ the court told the jury as follows: 
 (i A., 11; O, 7,8). 
 
 " The court instructs the jury that they are the judges 
 " of the law as well as the facts in this case, and if they 
 " can say, upon their oaths, that they know the law bet- 
 " ter than the court itself, they have the right to do so; 
 " but before assuming so solemn a responsibility, they 
 " should be assured that they are not acting from caprice 
 " or prejudice, that they are not controlled by their will 
 " or their wishes, but from a deep and confident convic- 
 " tion that the court is wrong and that they are right. 
 " Before saying this, upon their oaths, it is their duty to 
 " reflect whether from their study and experience they 
 " are better qualified to judge of the law than the court. 
 " If, under all the circumstances, they are prepared to 
 " say that the court is wrong in its exposition of the law, 
 " the statute has given them that right." 
 
 This instruction is, as we understand the authorities, 
 wholly without warrant in the law. It is, in effect, an 
 attempt to destroy the statutory provision making the 
 jury judges of the law, and to constrain the jury into an 
 unquestioned acceptance of the law as delivered by the 
 presiding judge. This is not the intent of the statute. 
 
277 
 
 The history of litigation is too full of the findings by the 
 courts of re%'iew of grave errors as to the view of the 
 law adopted by the trial court, and presented in the in- 
 structions, to make it permissible in a case of this kind 
 for the judge to lecture the jury upon the solemnity of 
 the responsibility which they would assume if they under- 
 took to reach a conclusion based upon their views of the 
 law as properly applicable to the case. The statute of 
 our state, which makes the jury the judges of the law, 
 did not confine this provision to such jurors who have 
 made the science of the law the study of their life, did 
 not intend to limit the power conferred thereby to men 
 " who from their study and experience are better quali- 
 " fied to judge of the law than the court." The legislature 
 could not possibly have in view a jury of that kind, 
 because every day experience teaches that juries are sel- 
 dom composed of lawyers; in fact lawyers are exempt 
 from jury service. 
 
 In support of the correctness of instruction 13^ will 
 probably be cited the case of Schnier v. The People, 23 
 111., 17. The language there used is the same as that 
 embodied in this instruction, but it is apparent, from read- 
 ing the opinion, that it was a general reasoning, and was 
 not meant to sanction an instruction to the jury of that 
 kind. 
 
 In the case of Clem v. State, 31 Indiana, 480, the pro- 
 priet}' of such an instruction as this came directly under 
 review. There the.instruction, after stating that the jury 
 might determine the law for themselves, proceeded to ad- 
 vise them that they should " be well satisfied in their own 
 " minds of the incorrectness of the law as given by the 
 " court before assuming the responsibility of determining 
 " for themselves." It was held by the Supreme court of 
 Indiana that upon careful analysis this instruction was in 
 
278 
 
 direct conflict with the provision of the constitution of that 
 state that "in all criminal cases the jury shall have the 
 " right to determine the law." 
 
 In commenting upon this matter the Supreme court of 
 Indiana used the following language: 
 
 " If the judge adorns his high place by his learning and 
 " impartialit}^ his jurors will be apt to rely upon his in- 
 " structions, because they will deem them correct. They 
 " may reasonably rely on them as a trustworthy source of 
 " information concerning the law, as they would upon a 
 " truthful witness concerning the facts, not because any 
 " rule of law requires that they must, but because their 
 " own common sense suggests the credit due to the legal 
 " opinion of such a judge. But, on the other hand, a 
 " magistrate destitute of character for either knowledge 
 " of the law or uprightness in his administration, and wlio 
 " so deports himself through the trial as to destroy con- 
 " fidence in his fairness, will not be so apt to command 
 " the confidence of his jury. He would not be worthy of 
 " it. Distrust would, in such a case, result from the e.\- 
 " ercise of a sound judgment. The constitutional pro- 
 " vision means that in criminal cases the jury shall be free 
 " to exercise this judgment. It does not proceed upon 
 " the presumption that all judges know the law, and will 
 " impartially declare it, but, on the contrary, its necessity 
 " was suggested by circumstances which proved that this 
 " was not true. Judges had, in England, stained the 
 " ermine by using their position to secure the conviction of 
 " citizens in defiance of law, to serve the purposes of party. 
 " It might be done again, and here. We were entering 
 " upon the experiment of an elective judiciary under 
 " which judges might be chosen for partisan services, and 
 "might be too ready to serve the interest that had given 
 " them position. Criminal prosecutions had ever been a 
 
279 
 
 • favorite resort of those in power in times of high ex- 
 citement. It would be some security against possible 
 
 ■ abuses to put the ultimate function of judgment of the 
 
 ■ law as well as the facts in the hands of the jury drawn 
 
 • from the body of the county; and hence it was done. 
 It is enough that it is so written. * * * The courts 
 have no authority to modify it, for that would be to de- 
 feat, in a measure -^t least, the end which it was de- 
 signed to secure." 
 
 VIII. Proper Instructions for the Defendants 
 Refused. 
 
 We believe the proper rule of law, as applicable to the 
 facts in the case at bar, is as presented in several of the 
 instructions asked in behalf of the plaintiffs in error and 
 which were refused by the court. We refer particularly 
 under this head to instructions 3, 8, 9, 11 and 18, which 
 are as follows ( i A., 1 2 f/ seq. ) : 
 
 " 3. The court instructs the jury that, in order to con- 
 " vict these defendants, they must not only find that they 
 " entered into an illegal conspiracy, and that the Hay- 
 " market meeting was an unlawful assembly in aid of said 
 " conspiracy, but in addition thereto that the bomb by 
 " which officer Degan lost his life was cast by a member 
 "of said conspiracy in aid of the common design, or by 
 "a person outside of said conspiracy, aided and ad- 
 " vised by all or some one of these defendants; but in any 
 " event, should you find such a conspiracy from the evi- 
 "dence to have been in existence, any one or more of 
 "these defendants not found beyond a reasonable doubt 
 " to have been a member thereof, and who is or are not 
 " proved beyond a reasonable doubt to have been present 
 " at the Haymarket meeting, or who, if present, did not 
 
■ knowingly counsel, aid or abet the throwing of the 
 
 ■ bomb by which officer Degan lost his life, such defend- 
 
 • ant or defendants you are bound to acquit. 
 
 " 8. If the jury believe from the evidence that the de- 
 
 ■ fendants or any one of them entered into a conspiracy 
 ' to bring about a change of government for the ameliora- 
 
 • tion of the condition of the working classes by peace- 
 ' able means, if possible, but if necessary to resort to 
 ' force for that purpose, and that in addition thereto in 
 ' pursuance of that object the Haymarket meeting was 
 ' assembled by such conspirator or conspirators to discuss 
 ' the best means to right the grievances of the working 
 ' classes, without any intention of doing any unlawful act 
 ' on that occasion, and while so assembled the bomb by 
 ' which officer Degan lost his life was thrown by a person 
 ' outside of said conspiracy, and without the knowledge 
 ' and approval of the defendant or defendants, so found 
 'to have entered into said conspiracy, then and in 
 'tliat case the court instructs the jury that they are 
 ' bound to acquit the defendants. 
 
 "9. The court instructs the jury that it is not enough 
 ' to find that the defendants unlawfully conspired to over- 
 ' throw the present form of government, and that the 
 ' Haymarket meeting was an unlawful assembly called 
 ' by these defendants in furtherance of that conspiracy, 
 ' but you mus: find, in addition thereto, that the bomb by 
 ' which officer Degan lost his life was thrown b}^ a mem- 
 ' her of said conspiracy, in aid of the common design; or 
 ' if you should find that it was thrown by a person not 
 ' proved beyond a reasonable doubt to have been a mem- 
 ' ber of said conspiracy, then you must find that these de- 
 ' fendants knowingly aided and abetted or advised such 
 ' bomb-thrower to do the act, otherwise you are bound 
 ' to acquit them. 
 
28l 
 
 " II. The court further instructs the jury, that unless 
 ■" you find from the evidence, beyond all reasonable doubt, 
 *' that there was a conspiracy existing to which the de- 
 ■" fendants or some of them were parties, and that the act 
 " resulting in the death of Mathias J. Degan was done by 
 -" somebody who was a party to said conspiracy, and in 
 ■" pursuance of the common design of said conspiracy, you 
 " must find the defendants not guilty, unless the evidence 
 ■" convinces you, beyond all reasonable doubt, that the de- 
 ■" fendants or any of them personally committed the act 
 " resulting in the death of Mathias J. Degan, as charged 
 •" in the indictment, or that the defendants or any of them 
 ■" stood by and aided, abetted or assisted, or not being 
 •" present, had advised, aided, encouraged or abetted the 
 " perpetration of the crime charged in the indictment, and 
 " then you should find guilty only those defendants as to 
 ■" whom the evidence satisfies you, beyond all reasonable 
 *' doubt, that they thus committed or aided in the commis- 
 •" sion of the crime charged in the indictment. 
 
 " iS. Although certain of the defendants may have 
 •" advised the use of force in opposition to the legally con- 
 *' stituted authorities, or the overthrow of the laws of the 
 ■" land, yet unless the jury can find, beyond all reasonable 
 -" doubt, that they specifically threw the bomb which 
 " killed Degan, or aided, advised, counseled, assisted or 
 ■" encouraged said act, or the doing of some illegal act or 
 " the accomplishment of some act by illegal means in the 
 " furtherance of which said bomb was thrown, you should 
 ■" return said defendants not guilty." 
 
 We respectfully submit that these instructions above 
 quoted correctly announce the law as applicable to the 
 case at bar, and insist that they should have been given 
 as asked, and that the refusal so to do was manifest error. 
 No other instructions given in the case presented this 
 theory. 
 
282 
 
 Two other instructions, particularly, were asked bv 
 the plaintiffs in error and refused, which we insist should 
 have been given. No. i (^i A., 12; O, 10) is as follows: 
 
 " No person can be legally convicted under the laws 
 of Illinois on account of any opinion or principles enter- 
 tained by him. It cannot be material in this case that 
 defendants, or some of them,' are or may be socialists,, 
 communists or anarcliists, and no prejudice ought to be 
 borne against them on account thereof by the jury, al- 
 though the jury may believe their doctrines are false and 
 pernicious." 
 
 What objection is there, what well-founded objection, 
 to this instruction? And certainly, in view of the char- 
 acter of the jury examinations, and particularly in view 
 of the appeals by the state's attorney in his closing argu- 
 ment to the passions and prejudices of the jury against 
 the defendants, as supposed socialists, anarchists or com- 
 munists, it was most fit and proper that an instruction of 
 this character should be given, to, at least, measurably 
 protect plaintiffs in error from the improper influence of 
 these appeals. As to these features of the address of the 
 state's attorney, we shall have occasion to comment later,, 
 but at present content ourselves with the mere reference 
 as serving to illustrate the propriety of the instructior* 
 asked, and the error of its refusal. 
 
 Instruction 13 asked in behalf of the plaintiffs in error 
 (i A., 15; Vol. O, 15), was as follows: 
 
 " The court further instructs the jury, that under the 
 constitution of this state, it is the right of the people to- 
 assemble in a peaceable manner to consult for what they 
 believe to be the common good, and that so long as such 
 meeting is peaceably conducted, orderly, and not tending 
 to riot or a breach of the peace, no official or authority 
 has or can have any legal right to attempt the dispersal 
 
283 
 
 thereof in a forcible manner. Such attempt, if made, 
 would be unwarranted and illegal, and might legally 
 be resisted with such necessary and reasonable degree 
 of force as to prevent the consummation of such dis- 
 persal. 
 
 " If the jury believe from the evidence in this cause that 
 the meeting of May 4, 1886, was called for a legal pur- 
 pose, and at the time it was ordered to disperse by the 
 police was being conducted in an orderly and peaceable 
 manner, and was about peaceably to disperse; and that 
 the defendants, or those participating in said meeting, 
 had, in connection therewith, no illegal or felonious pur- 
 pose or design, then the order for the dispersal thereof 
 was unauthorized, illegal, and in violation of the rights 
 of said assembly and of the people who were there gath- 
 ered. 
 
 "And if the jury further believe from the evidence that 
 the meeting was a quiet and orderl}' meeting, lawfully 
 convened, and that the order for its dispersal was unau- 
 thorized and illegal under the provisions of the constitu- 
 tion of this state referred to, and that upon such order 
 being given, some person in said gathering, without the 
 knowledge, aid, counsel, procurement, encouragement or 
 abetting of the defendants, or any of them, then or there- 
 tofore given, and solely because of his own passion, fear, 
 hatred, malice or ill-will, or in pursuance of his view of 
 the right of self-defense, threw a bomb among the police, 
 wherefrom resulted the murder or homicide charged in 
 the indictment, then the defendants would not be liable 
 for the results of such bomb, and your verdict should be 
 not guilty." 
 
 We respectfully submit and insist that this instruction is 
 absolutely correct in its enunciation of the law, was appli- 
 cable to the issue before the jury and the evidence which 
 
2S4 
 
 had been adduced upon that issue, and should have been 
 given. We insist that no vahd excuse can be urged for 
 the refusal to give this instruction as asked. If, in point of 
 fact, the jury should have been led, under this instruction, 
 if given, to believe from the evidence that the bomb at 
 the Hay market was thrown by some one in that gather- 
 ing, without the knowledge, aid, counsel, procurement, 
 encouragement or abetting of the defendants, or any of 
 them, then or theretofore given, and solely because of his 
 own passion, fear, hatred, malice or ill-will, or in pursu- 
 ance of his view of the right of self-defense, then the 
 defendants would not have been liable for the results of 
 such bomb, and the jury should, in that event, have found 
 a verdict of not guilty; and should have been instructed so 
 to do. The court erred, we submit, in refusing to give this 
 instruction. It called particular attention of the jur}' to the 
 evidence bearing upon the character of the meeting which 
 was then and there being held, and to the evidence bearing 
 upon the action of the police in attempting the dispersal 
 of that meeting, and stated correctly the law under the 
 constitution, as to the right to peaceable assemblage and 
 discussion of alleged grievances. These were matters 
 that, in the light of the evidence in this record, the plaint- 
 iffs in error had a right to have considered by the jury. 
 All these matters were matters which might furnish to the 
 jury some suggestion explanatory of the conduct of the 
 unknown bomb-thrower, and tending to show that his 
 action might have resulted from his own disposition and 
 the special circumstances of the hour, and not at all from 
 the advice, or by the aid or procurement of the plaintiffs 
 in error. The law was correctly stated in this instruction; 
 it presented correctly an hypothesis consistent with the 
 theory of the innocence of the defendants, and explain- 
 ing the alleged offense; and it should unquestionably have 
 
285 
 
 been given as asked. We submit that the refusal to give 
 it was error. 
 
 An affidavit of John Philip Deluse, of Indianapolis, was 
 filed in support of the motion for a new trial (i A., 28; 
 O, 81), in which he states that in the beginning of May, 
 1886, a man entered his saloon in Indianapolis, and while 
 there inquired as to how the labor movement stood in 
 that city. Being told that everything was quiet there, he 
 stated that he came from New York, and believed he 
 would go to Chicago, and then, pointing to his satchel, 
 which he held in his hand, and which seemed to be heavy, 
 he stated: "You will hear of some trouble there very 
 soon. I have got something here that will work. You 
 will hear of it." As he was passing out of the door he 
 stopped, held up his satchel, and said again: " You will 
 hear of it soon." Deluse says that the incident made no 
 special impression upon his mind at the moment, but that 
 when a day or two afterwards the news of the explosion 
 of the bomb came, he immediately put the two things 
 together and reached the conclusion that this stranger 
 was the bomb-thrower. 
 
 Now, it be may be said that this story is improbable. 
 Yet it is not impossible — it is not even unreasonable, and 
 it may be the fact — that the bomb at the Haymarket was 
 thrown by some one who was an entire stranger to these 
 plaintiffs in error, only two of whom were present at the 
 time of the explosion of the bomb, and that it was thrown by 
 some one not at all influenced by their advice or prompted 
 by their suggestions. Nay, it may have been thrown by 
 some one who was an enemy of theirs, and not at all in 
 their counsel. These suggestions serve to show the 
 humanity and wisdom of the rule for which we contend, 
 that the state must be required by its proof to connect the 
 alleged accessories with the principal felon by legal proof. 
 
286 
 
 before they can ask the conviction of the alleged acces- 
 sories, and serves to illustrate the propriety of instruction 
 13, erroneously refused. 
 
 IX. The Instruction given by Judge Gary 
 
 SUA MOTU. 
 
 After having given the instructions in behalf of the 
 people, followed by those given on behalf of the defend- 
 ants, the presiding judge of his own motion gave an in- 
 struction, which hy its terms, could not but operate to 
 supersede all other instructions given in the case. The 
 instruction referred to was in the following language 
 (A., 23, 24; O, 35) : " The statute requires that instruc- 
 " tions by the court to the jury shall be in writing, and 
 " only relate to the law of the case. The practice under 
 " the statute is that the counsel prepare, on each side, a 
 " set of instructions, and present them to the court, and if 
 " approved to be read by the court as the law of the case. 
 " It may happen, by reason of the great number pre- 
 " sented, and the hurry and confusion of passing on them 
 " in the midst of the trial, with a large audience to keep 
 " in order, that there may be some apparent inconsistency 
 '• in them, but if they are carefully scrutinized such incon- 
 " sistencies will probably disappear. In any event, how- 
 '' ever, the gist and pith of all is, that if advice and en- 
 " couragement to murder was given; if murder was done 
 " in pursuance of and materially induced by such ad- 
 " vice and encouragement, then those who gave such 
 " advice and encouragement are guilty of the murder. 
 " Unless the evidence, either direct or circumstantial, or 
 " both, proves the guilt of one or more of the defend- 
 " ants upon this principle so fully that there is no reason- 
 " able doubt of it, your duty to theai requires you to 
 
287 
 
 ■" acquit them; if it does so prove, then your duty to the 
 " state requires you to convict whoever is so proved 
 '• guilty. The case of each defendant should be consid- 
 ^' ered with the same care and scrutiny as if he alone 
 '• were cm trial. If a conspirac}-, having violence and 
 " murder as its object, is fully proved, then the acts 
 -'■ and declarations of each conspirator in furtherance 
 " of the conspiracy are the acts and declarations of each 
 •' one of the conspirators. But the declarations of any 
 " conspirator, before or after the 4th of May, which are 
 *' merely narrative as to what had been or would be done, 
 -' and not made to aid in carrying into effect the object of 
 " the conspiracy, are only evidence against the one who 
 " made them. What are the facts and what is the truth 
 ■" the jury must determine from the evidence, and from 
 " that alone. If there are any unguarded expressions in 
 *' an)' of the instructions, which seem to assume the exist- 
 " ence of any facts, or to be any intimation as to what is 
 " proved, all such expressions must be disregarded, and 
 -' the evidence only looked to to determine the facts." 
 
 Wnatever may be said as to the effort of the court 
 here, in connection with a brief summar}' of the State's 
 formal instructions, to epitomize and again present to the 
 jury the theory suggested by the court for the trial of the 
 cause, in connection with his ruling upon our objection 
 interposed during Waller's examination, it will hardly be 
 pretended that in the above instruction the court made 
 any attempt to present, or summarize, the instructions 
 given in behalf of the defendants. For example, there was 
 no suggestion in this instruction, of the rule that the jury 
 were bound to reconcile the facts, if reasonably possible, 
 with any hypothesis of innocence advanced. Neither does it 
 present the substance of the instruction for the defendants, 
 commencing near the bottom of i A., 21. Neither 
 
did it present the law in reference to what constitutes a 
 reasonable doubt. We cite these points simply as illus- 
 trations. The instruction in fact merely attempting to 
 summarize the instructions given for the state, it was 
 exactly equivalent to saying: The instructions given for 
 the defendants may seem to conflict with those given for 
 the state, but the conflict is only apparent, and in fact the 
 whole law is as given for the state, namely: and then re- 
 peating the substance of the state's instructions. 
 
 But beyond this, the instruction, we submit, was abso- 
 lutely erroneous in the principal proposition laid down. It 
 will not be denied, we think, that a man might advise one 
 murder, or the perpetration of a homicide under certain 
 circumstances; that a person listening thereto might be 
 encouraged by such advice and materially induced thereby 
 to go out and commit a totally different murder, or a to- 
 tally different homicide. For example, it might be that 
 the defendants advised resistance to an armed attack by 
 the police to the extent of homicide. A party listening 
 to such advice might go out, and, inflamed and encour- 
 aged thereby, kill a policeman who was at the time in the 
 peace of the state. It will not be pretended that under 
 such circumstances the mere giving of advice to murder 
 generally, or to do one particular murder, would make 
 the party responsible for a specific murder other than that 
 covered by the advice, however much the murderer 
 might be influenced thereby. Yet that is the scope of 
 this instruction, wherein the court says: " If advice and 
 " encouragement to murder [upon whom? where? when? 
 "by what means?] was given, if murder was done 
 " in pursuance of and materially induced by such advice 
 " and encouragement, then those who gave such advice 
 " and encouragement are guilty of the murder." Tiie 
 impropriety of the giving of this instruction, and par- 
 
289 
 
 ticularly the giving of it at the close of the defendant's 
 instructions, whereby any impression that the defendant's 
 instructions might have made upon the minds of any of the 
 jury was likely to be obliterated, is obvious in the light alike 
 of reason and authority. This court, in J/^jSTzyew v. Moicy, 
 60 111., 32, used, with reference to a final instruction given 
 on the court's own motion, and attempting to epitomize 
 the entire law of the case, the following language: 
 
 " The counsel for appellant insists that the court erred 
 " in orally qualifying or superseding the instructions 
 " already given by the remark prefacing the giving of 
 "said instruction [which remark was as follows: 'I take 
 " upon myself to concentrate all there is in these instructions 
 " into this one, as embodying all the law necessary for 
 " the case.'] The bill of exceptions does not state that 
 " the remark was orally made, though it is fairly infer- 
 " able that it was. If oral, it was in violation of the 
 " the spirit of the statute, because it would have the direct 
 " effect, though directed to counsel in the hearing of 
 " the jury, to induce the jury to disregard all the other 
 " instructions, and regard only that given by the court of 
 " his own motion, ' as embodying all the law necessary 
 " for the case.' If in writing, and directed to the jury, 
 " it would operate as a supersedure of all the other in- 
 " structions; and the one given of the court's own motion 
 " did not embody all the law necessary for the case, be- 
 " cause it withdrew from the jury all consideration of the 
 " question respecting the issuing and acceptance of the 
 " receipt given in evidence. The evidence upon that 
 " point was properly before the jury, and the defendant 
 " had the clear right to have it passed upon by the jury 
 " under the instructions which the court had given as ap- 
 " plicable to it." 
 
290 
 
 X. The Instruction as to the Form of the Verdict. 
 (I A., 24; 0,37.) 
 
 " If all of the defendants are found guilt}' the form of 
 " the verdict will be: 
 
 " We, the jury, find the defendants guilty of murder in 
 manner and form as charged in the indictment, and fix 
 " the penalty. 
 
 " If all are found not guilty the form of the verdict 
 " will be: 
 
 '• We, the jur}-, find the defendants not guilt)'. 
 
 •• If part of the defendants are found guilty and part 
 " not guilty, the form of the verdict will be: 
 
 "We, the jury, find the defendant or defendants (nam- 
 " ing him or them) not guilty; we find the defendant or 
 " defendants (naming him or them) guilty of murder in 
 " manner and form as charged in the indictment, and fix 
 " the penalty," which was duh' excepted to. 
 
 As to this instruction, our objection is that it was fa- 
 tally defective in that it left to the jury absolutel}' no al- 
 iernative as to each and every one of the plaintiffs in er- 
 ror between a verdict of not guilty and a verdict of guilty 
 of murder in manner and form as charged in the indict- 
 ment. 
 
 Now, it will not be denied but that the jury were en- 
 titled, if in their judgment the evidence so warranted, to 
 find that the offense committed was not murder, but was 
 a lower grade of homicide. In fact, after the jury went 
 from the bar, the court, upon the instance of the plain- 
 tiffs in error, permitted the preparation of an instruction 
 embodying this principle of law, and thereafter sent for 
 the jury, and upon their return into court, gave this in- 
 struction [I A., 25; O, 38, 29)'-> l^ut the giving of this 
 
2Cf\ 
 
 instruction at the time and under the circumstances it was 
 given, without giving to them an instruction with refer- 
 ence to the form of the verdict, should they find any of 
 the defendants guilty of manslaughter, certainly did not 
 serve to cure the error in the instruction as to the form 
 of the verdict above set forth. Let us take by way 
 of illustrating our position, the case of Mr. Neebe. In 
 our view there was no evidence whatever to justify 
 his being held to answer to this indictment upon the 
 evidence adduced by the state, but in the presence of 
 the jury, the court had refused our motion for an instruc- 
 tion in Mr. Neebe's favor, and had argued the circum- 
 stantial evidence supposed .to tend in some measure to 
 criminate him, and thereupon refused to allow his dis- 
 charge. Having done all this in the presence of the jury, 
 he finally follows it up by an instruction which in effect 
 said to them: " Gentlemen of the jury, you must either 
 " acquit Mr. Neebe, or you must find him guilty of mur- 
 " der in manner and form as charged in the indictment." 
 We cite Mr. Neebe's case simply for the purpose of 
 illustrating the vice of the instruction, and not because it 
 is more vicious in his case than in the case of any other of 
 the plaintiffs in error. ' When the court undertakes upon 
 its own motion to give an instruction as to the form of 
 the verdict in a capital case, the instruction must be cor- 
 rect in every particular, such that in the nature of things 
 it could not have wrought prejudice to the defendants. 
 
 XI. Theory of the Instructions as a Whole. 
 
 A brief consideration of the instructions given on be- 
 half of the state as a whole is proper at this juncture. Do 
 they, when read together, without reference to the special 
 criticisms above urged, present a fair, just and full 
 
292 
 
 view of the law applicable to the case, so as to clearly 
 and intelligently direct the jury in their investigation and 
 determination of the issue submitted to them — such a 
 summary of the law as it was the duty of the court to 
 present, to avoid possible injustice to the accused? Da 
 they secure certainly to the accused the benefit of every 
 reasonable doubt, whether arising from a consideration of 
 the evidence offered or the absence of evidence? They 
 should be, as far as possible, simple, lucid, consistent 
 homogeneous. They should not be contradictory nor 
 unnecessarily involved. They should be free from 
 duplicit}-, should fit the evidence, and should be fair to the 
 accused. 
 
 In the instructions under consideration, in fact three 
 different conspiracies, as to the object named, were pre- 
 sented. In instruction 4 the court presented the hypoth- 
 esis of a conspiracy " to overthrow the lazv by force, or 
 " to unlawfully resist the officers of the law." In instruc- 
 tion 5 the hypothesis was of " a conspiracy to over- 
 " throw the existing order of societv, and to bring about 
 " social revolution by force, or to destroy the legal 
 " authorities by force ": while instruction 5^ is based on 
 the hj'pothesis of a conspiracy " to excite the people or 
 "clas.ses of the people of this ciiy to sedition, tumult and 
 " riot, to use deadly weapons against and take the lives of 
 " other persons," etc. 
 
 Under which hypothesis did the jury find? The first 
 of instruction 4? That is only a conspiracy " to over- 
 " throw t/ie lazv by force " — for the unlawful resistance of 
 the officers of the law suggested is put disjunctively. Can 
 murder be predicated upon a conspiracy' " to overt/irozv 
 "THE LAW?" Can the law be murdered, so as to affi.v 
 the death penalty to the offender? Could Fielden's advice 
 to stab, throttle, resist and impede the law be made the 
 
293 
 
 basis of responsibility for a murder b}' an unknown man? 
 Did these instructions as a whoXtt fairly present a homo- 
 geneous, consistent and uncontradictory hypothesis upon 
 which to rest a verdict of guilt? But particularly, can 
 such instructions as these be sustained when, under each 
 of the hypotheses presented, conviction is allowed for the 
 act of a wholly unidentified principal, upon the mere 
 arbitrary finding by the jur}', without support from com- 
 petent evidence, that the criminal actor was a party with 
 the plaintiffs in error in some one of these supposed con- 
 spiracies? 
 
 Was it fair to the accused to present to the jury these 
 different hypotheses of conspiracy and to require a general 
 verdict of guilty or not guilty of " murder in manner and 
 ■" form as charged in the indictment," in view of the evi- 
 ■dence which had been allowed to go to the jury? Should 
 not the jury have been required to make their verdict 
 special in view of that evidence? For that evidence 
 tended to establish three different conspiracies, to some 
 of which the state's evidence affirmatively showed that the 
 accused were not all parties, /. e., (i) the general con- 
 spiracy "to overthrow the law;" (2) the Monda}' night 
 conspiracy, with which only Engel, Fischer, and possibly 
 Lingg were connected; and (3) the special conspiracy to 
 throw the Haymarket bomb, " /<? perpetrate the crime,'''' 
 with which the state's evidence connected only Spies, 
 Fischer, and possibly Schwab. With such diversity of 
 proof, and under the distinct hypotheses of the different 
 instructions, what did the jury in fact find? 
 
 Under a fair charge, requiring the jury to designate 
 what they found from the evidence, they might have dis- 
 closed that in their judgment the evidence, under the doc- 
 trines announced by the court, showed Spies and Schwab 
 to have been connected with conspiracies (i) and (3); 
 
294 
 
 Fischer to have been connected with conspiracies (2) and 
 (3); Engel and Lingg with conspiracies (i ) and (2); 
 Parsons and Fielden with conspiracy (i) alone; and 
 Neebe with none of these conspiracies; and only such 
 finding could be possibly iustified on the state's own evi- 
 dence. But upon such finding no judgment of guilty 
 could legally have been entered in this cause. 
 
 In O' Council v. R., 11 C. & F., 155, it was held that 
 upon a count in an indictment against eight defendants, 
 charging one conspiracy to effect certain objects, a find- 
 ing that three of the defendants were guilty generally; 
 that five of them were guilty of conspiring to effect some> 
 and not guilty as to the residue of these objects, is bad in 
 law and repugnant; inasmuch as the finding that the 
 three were guilty was a finding that they were guilly 
 of conspiring with the other five to effect all the objects 
 of the conspirac}', whereas, by the same finding it ap- 
 pears that the other five were guilty of conspiring to 
 effect only some of the objects. 
 
 Was it fair to the accused to give the instruction as to 
 the form of verdict, when under the instructions the 
 court allowed the conclusion of guilt to be guessed owl hy 
 the jury under such diverse and repugnant hypotheses,- 
 and upon such distinct proofs relating to different ones of 
 the accused? 
 
 The Rule Recognized by this Court. 
 
 It will doubtless be urged, strenuously, that the doc- 
 trine presented in the instructions for the people has 
 received the sanction of this court in the cases of Brennan 
 V. The People, 15 111., 511, and Lamb v. The People, g6 
 111., 73; and it is proper that in this connection we should 
 examine those cases. It is well settled, that only as the 
 language of an opinion is applied to the facts of the case 
 
295 
 
 before the court, can the true rule established by the 
 decision be accurately deduced. General expressions, 
 not directly pertinent to the case considered, cannot be 
 relied on as announcing a rule of general application. 
 
 Let us say here that with the rule of law as declared 
 in the cases now under review, we have no occasion to 
 differ. That rule, as interpreted by the facts in those cases 
 respectively, is no other than this: that if two or more 
 persons conspire to do an unla-djfiil act, all of those shown 
 to be parties to the conspiracy are responsible for (i) the 
 execution of the act flanned, by any one of the conspirators; 
 or (2), for the doing of any act by any one of such con- 
 spirators which naturally or necessarily results in course of an 
 ^'attempt to execute the common design;^'' on the doctrine 
 that such naturally or necessarily resultant act is at law 
 presumed to be within the intention of the conspirators. 
 There is not in the doctrine of these cases anything ihat 
 militates in the slightest degree against our contentions — 
 that if the act is an independent crime, attributable to ihe 
 unconstrained volition of the criminal actor; or if it be in 
 fact unadvised by, and foreign to the accomplishment of 
 the general design, of the alleged conspirators; or if the 
 legal proofs fail to establish beyond reasonable doubt, in 
 a case where the accused are not present aiding the act, 
 the identity of the criminal actor as a member or instru- 
 ment of the alleged conspiracy, no conviction can be 
 legally had; because in every such case the evidence fails 
 to sustain the averment that the accused had " advised, 
 " assisted, abetted or encouraged the perpetration of 
 " THE crime." 
 
 As we read the case, our position was distinctly recog- 
 nized in Brennan v. People, 15 111., 511, where, in defining 
 what was enough to establish the guilt of an accessory, 
 this language is used: 
 
 " It is sufficient i\\7\\. tlicy combined zvith those committing 
 
296 
 
 " ///(■ deed to do an unlawful act. * * * If sevsral 
 " persons conspire to do an unlawful act, and death hap- 
 " pen in the prosecution of the common object, all are 
 " ahke guilty of the homicide. The act of ONE OF 
 "THEM done in furtherance of the original design, is 
 " in consideration of law the act of all; and he who 
 " advises or encourages another to do an illegal act is 
 " responsible for all the natural or probable consequences 
 " that may arise from this participation." 
 
 Here is distinctly recognized the rule that an accessory 
 can be held guilty onl}' in case it is made to appear 
 that the criminal act was done by one acting in conjunc- 
 tion with, and under the advice and encouragement of, 
 the accused; which would involve an identification of the 
 doer of the criminal deed, as connected with and repre- 
 senting in the act the parties accused. The facts in that 
 case may be briefly stated for the purpose of illustrating 
 this rule. Certain -parties, of -whom the defendant zvas 
 one, started out together to make an illegal assault, in pur- 
 suance of -which conspiracy and in execution of ivhich pur- 
 pose the party who was the object of the assault zvas billed 
 by one of the parties to the conspiracy. The evidence 
 showed all this; and therefore established indisputably a 
 case of direct relationship between the accused and the 
 criminal actor in the very act of the commission of the 
 crime. We understand that at the common law where 
 parties combine deliberately in an assault, and murder 
 results, all are guilty as principals. In the Brennan case 
 the defense attempted to be interposed was that there was 
 no preconcert to kill; and the real point ruled in the case 
 was, that it was not necessary to prove such preconcert; 
 // was sufficient to show it was a conspiracy or agreement 
 to do an unlawful act, and that the killing zvas a 
 natural consequence of the act agreed to be done, and 
 happened in the carrying out of the illegal purpose. 
 
297 
 
 The case of Lamb v. The People, 96 111., 73, was dis- 
 posed of upon a totally different principle, involving the 
 application of the first branch of our position supra, the 
 sole point ruled in this case being, that to warrant a con- 
 viction the evidence must show that the crime charged 
 was naturall}' incidental to the conspiracy proved, 
 and not a result of the independent volition of the 
 criminal actor. It appears that in the Lamb case 
 there was proved against the accused a conspiracy to 
 commit a distinct felony, viz: a particular burglary. This 
 executed, the stolen goods were placed in the custody of 
 one of the conspirators other than Lamb for safe disposi- 
 tion. As these goods were being unloaded at a pawn- 
 shop, a police officer who came up was killed by the party 
 in charge of the goods; but this distinct felony was com- 
 mitted in the absence, and without the knowledge, partici- 
 pation or advice of Lamb. As applicable to this case 
 disclosed by the proofs, this court, while stating broadly 
 the doctrine of the liability of co-conspirators for acts 
 done ill the carrying out of the original design, yet hold 
 that there is no liability for a separate and independent 
 crime committed by one of the conspirators outside of the 
 original agreement. The whole language of the case 
 must be read as applicable to an agreement between 
 parties to commit a certain offense, and their liability for 
 crimes naturally incident to the principal specific agree- 
 ment committed by a party to the original conspiracy in 
 the prosecution thereof. 
 
 Surely, no support is afforded by these cases, fairly 
 considered, for the novel doctrines under which the con- 
 viction of plaintiffs in error was induced; that (to apply 
 these doctrines to the case at bar) if a conspiracy to over- 
 throw the law, or change the order of society, or take the 
 lives of the officers of the law, ok unlawfully resist the 
 
298 
 
 lawful authorities, or " to excite the people to sedition, tu- 
 " mult and riot, to take the lives of people," in pursuance 
 of which some conspirator " advises murder " without 
 designating^ time, place or occasion for its commission; 
 and if some of these conspirators call and attend a meeting^ 
 for the sole purpose op' denouncing an alleged grievance, 
 and at such meeting somebody does murder, all the con- 
 spirators are liable, without any evidence establishing in 
 any manner the identity of the murderer as a member of 
 the alleged conspiracy, or as advised at any time by any 
 of the alleged conspirators, the proofs of the state affirma- 
 tively showing that the murder done, the act performed, the 
 cri7tie perpetrated, was not contemplated, designed, ad- 
 vised, aided, abetted or encouraged by anv of the accused. 
 Or to put the proposition in another form, without an}' 
 evidence whatever to show that the man who threw the 
 bomb at the Haymarket meeting had been advised, as- 
 sisted, encouraged or abetted by the plaintiff's in error or 
 any of them to throw that bomb at that meeting. The 
 absence of this proof connecting the bomb-thrower as a 
 cognizable individual with the accused left a gap in the 
 case of the state which the law required to be bridged. 
 It was si.nply leaped by the whole crowd, the court in the 
 lead. It serves to illustrate how irresistible is the sweep- 
 ing current of an excited public opinion, and how under 
 it, as in a panic in an audience at the cry of fire, the cool- 
 est seem to lose their heads. 
 
 Such were the ruling and instructions under which the 
 plaintiffs in error were required in this cause to meet the 
 issue involving their lives. Let us now consider under 
 what rulings the}- were required to select the tribunal, 
 which was to pass upon the question of their guilt or in- 
 nocence, and the character of the jury selected under 
 these rulings, to whom the issue upon which thev were 
 arraigned was submitted. 
 
299 
 
 BB. ERRORS IN CONNECTION WITH THE EMPANELING OF 
 THE JURY. 
 
 I. THE LAW RELATING TO THE QUALIFICATIONS 
 OF JURORS. 
 
 a. Constitutional Provisions. 
 
 The constitution of the United States, 6th article of the 
 amendments, provides as follows: 
 
 " In all criminal prosecutions the accused shall enjoy 
 " the right to a speedy and public trial by an impartial 
 '■'■Jury of the state and district wherein the crime shall 
 " have been committed." 
 
 The constitution of this state of 1818, article 8, section 
 9, in the last clause, provides: 
 
 " In prosecutions by indictment or information the ac- 
 " cused hath a right to a speedy public trial by an nn- 
 '■'■ far tial jury of the vicinage." 
 
 The constitution of 18^8, article 13, section 9, pro- 
 vides: 
 
 " That in all criminal prosecutions the accused hath a 
 " right to be heard by himself and counsel, * * * 
 " and in prosecutions by indictment or information, a 
 " speedy public trial by an impartial jury of the county 
 " and district wherein the offense shall have been com- 
 " mitted." 
 
 The constitution of this state, 1S70, article 2, section 9, 
 provides: 
 
 " In all criminal prosecutions the accused shall have the 
 " right to appear and defend in person and by counsel, 
 " * * * and a speedy public trial by an imfarllal 
 '■'■jury of the county or district in which the offense is al- 
 " leged to have been committed." 
 
300 
 
 Therefore we have, all alike in their requirements, the 
 constitution of the United States, the constitutions of Illi- 
 nois of 1818, of 1848 and the new constitution of 1870. 
 
 No statute attempting to prescribe the qualifications of 
 jurors with reference to their opinions was ever passed in 
 the State of Illinois until after the adoption of the consti- 
 tution of 1S70, but the matter of such qualifications was 
 left entirely to the decision of the courts, pursuant to the 
 rules established by the common law and the law of this 
 •country, under the United States constitution and those 
 ■of the various states of the Union. 
 
 i). Construction of the meaning of the Constitu- 
 tion OF THE United States as to what constitutes 
 
 AN impartial jury. 
 
 The trial of Aaron Burr, for treason, held at Richmond, 
 in the Circuit court of the United States, in the summer 
 ■of 1807, presents the ablest discussion and the clearest 
 ■construction, by the highest authority, of the meaning of 
 the constitution of the United States as to what constitutes 
 •an impartial jury. The circumstances which led to the 
 trial of Aaron Burr were somewhat similar in their 
 notoriety to the case at bar. Burr had organized an 
 expedition for conquest south-west of the United States, 
 and perhaps embracing New Orleans within them; the 
 newspapers of the time were full of the details of this 
 ■expedition, and every man of intelligence had read the 
 papers on that subject, and most of them had formed an 
 •opinion of greater or less fixedness and weight. On 
 Monda)^ August 10, 1807, the jurors were summoned 
 into court, and an examination of them had, by the able 
 attorneys engaged in that cause. Some of these jurymen 
 were rejected for cause, and others were held over for 
 
argument and the decision ol the court. After a very 
 able argument by Mr. Martin, Mr. Botts, Mr. McCrea,. 
 Mr. Wirt, Mr. Hay, Mr. Wyckam and Mr. Randolph, 
 the chief justice, Marshall, decided the question as 
 follows: 
 
 " The great value of a trial by jury certainly consists 
 " in its fairness and impartiality. Those who most prize 
 " the institution prize it because it furnishes a tribunal 
 " which may be expected to be uninfluenced by any bias 
 "of the mind. I have always conceived, and still con- 
 " ceive, an impartial jury, as required by the common laWy 
 "and as secured by the constitution, must be composed of 
 "men who will fairly hear the testimony which may be 
 " offered to them, and bring in their verdict according to 
 " that testimon}' and according to the law arising on it. 
 " This is not to be expected, certainly the law does not 
 " expect it, where the jurors, before they hear the testi- 
 " mony, have deliberately formed and delivered an opinion 
 "that the person whom they are to try is guilty or inno- 
 " cent of the charge alleged against him. The jury 
 " should enter upon the trial with minds open to those 
 " impressions which the testimony and law of the case 
 " ought to make, not with those preconceived opinions 
 "which will resist those impressions. All the provisions 
 "of the law are calculated to obtain this end. 
 
 " Why is it that the most distant relative of a party 
 "cannot serve upon his jury? Certainly the single cir- 
 " cumstance of relationship, taken in itself, unconnected 
 " with its consequences, would furnish no objection. The 
 " real reason of the rule is, that the law suspects the rela- 
 "tive of partiality; suspects his mind to be under a bias 
 " which will prevent his fairly hearing and fairly deciding 
 " on the testimony which may be offered to him. The 
 "end to be obtained is an impartial jury; to secure this 
 
302 
 
 ' end, a man is prohibited from serving on it whose 
 ' connection with a part}' is such as to induce sus- 
 
 • picion of partiality. The relationship may be remote; 
 'the person ma}- never have seen the party; he may de- 
 ' clare that he feels no prejudice in the case, and yet the 
 'law cautiously incapacitates him from serving on the I'ury, 
 'because it suspects prejudice; because in general a per- 
 ' son in a similar situation would feel prejudice. It would 
 'be strange if the law were chargeable with the inconsist- 
 ' enc}^ of carefully protecting the end from being defeated 
 ' by particular means, and leaving it to be defeated by other 
 'means. It would be strange if the law would be so 
 ' solicitous to secure a fair trial as to exclude a distant, un- 
 ' known relative from the jur}', and yet be totally regard- 
 ' less of those in whose minds feelings existed much more 
 ' unfavorable to an impai'tial decision of the case. It is 
 ' admitted that where there are strong personal preju- 
 ' dices, the person entertaining them is incapacitated as a 
 ■juror, but it is denied that fixed opinions respecting guilt 
 
 • constitutes a similar incapacity. Why do personal preju- 
 ' dices constitute a just cause of challenge? Solely because 
 ■the individual who is under their influence is presumed 
 
 • to have a bias on his mind, which will prevent an impar- 
 
 • tial decision of the case according to the testimony. 
 He may declare that, notwithstanding these prejudices, 
 he is determined to listen to the evidence and be gov- 
 erned by it; but the law will not trust him. Is there 
 less reason to suspect him who has prejudged the case 
 and has deliberately formed and delivered an opin- 
 ion upon it? Such a person may believe that he 
 will be regulated by the testimony, but the law sus- 
 pects him, and certainly not without reason. He will 
 listen with more favor to that testimony which confirms 
 than to that which would change his opinion. It is not 
 
" to be expected he will weigh evidence or argument 
 " as fairly as a man whose judgment is not made up in the 
 " case. It is for this reason that a juror who has once ren- 
 " dered a verdict in a case, or who has been sworn in a 
 " jury which has been divided, cannot again be sworn on 
 " the same case. He is not suspected of personal preju- 
 " dices, but he has formed and delivered an opinion, and is, 
 " therefore, deemed unfit to be a juror in the case. * * * 
 
 " In reflecting upon this subject, which I have done 
 ^' since the adjournment of yesterday, my mind has been 
 " forcibly impressed in contemplating the question pre- 
 " cisely in its reverse.' If, instead of a panel composed 
 " of gentlemen who had almost unanimously formed, and 
 ^' publicly delivered, an opinion that the prisoner was 
 ■" guilty, the marshal had returned one composed of per- 
 " sons who had openly and publicly maintained his inno- 
 " cence, and who insist that, notwithstanding all the tes- 
 '• timony in the possession of the public, they had no 
 " doubt that his designs were perfectly innocent; who 
 " had been engaged in repeated, open and animated 
 •" altercation to prove him innocent, and that his objects 
 " were entirely opposite of those with which he was 
 " charged; would such men be considered impartial 
 "jurors? I cannot believe they would be thought so; I 
 " am confident I should not think so. I cannot declare a 
 " juror to be impartial who has advanced opinions against 
 ^' the prisoner which would be cause of challenge if ad 
 •" vanced in his favor." 
 
 There is another question passed upon by this court 
 which is material in the case at bar, and that is: suppose 
 in the Burr trial a juryman, from reading the newspaper or 
 hearing rumors, had formed and expressed an opinion, 
 that Burr entertained treasonable designs and was making 
 treasonable preparations, and arming a force for a treason- 
 
304 
 
 able expedilion, but whether or not he had committed 
 the overt act of treason the juryman had not formed and 
 expressed an opinion. The court in passing upon this 
 question decided, in substance, that mere impressions 
 founded on rumor will not disqualify the juror, but the 
 formation of an opinion which goes far toward the decision 
 of the whole case does disqualify him. The court uses 
 the following language: 
 
 " It would seem to the court that to say that any man 
 " who had formed an opinion on anj' fact conducive to 
 " the final decision of the case would therefore be con- 
 " sidered as disqualified from serving on the jury would 
 " exclude intelligent and observing men whose minds 
 " were really in a situation to decide upon the whole case 
 " according to the testimony, and would perhaps be ap- 
 " plying the letter of the rule requiring an impartial jury 
 " with a strictness which is not necessary for the preser- 
 " vation of the rule itself. But if the opinion funned 
 " be on a point so essential as to go far towards 
 " a decision of the whole case, and to have a real 
 " influence on the verdict to be rendered, the dis- 
 " tinction between a person who has formed such an 
 " opinion and one who has in his mind decided the whole 
 " case appears too slight to furnish the court with solid 
 " ground for distinguishing between them. The qiies- 
 " tion must ahvays depend on the strength and nature of 
 " the opinion which has been formed. * * * The 
 " cases put by way of illustration appeared to the court 
 " to be strongly applicable to that under consideration. 
 " They are those of burglary, of homicide, of passing 
 " counterfeit money knowing it to be counterfeit; cases 
 " in which the intention and the fact combine to cor.sti- 
 " tute the crime. 
 
 " If, in case of homicide, where the fact of killing was 
 
305 
 
 admitted or was doubtful, a juror should have made up 
 and delivered the opinion that, though uninformed 
 relative to the fact of killing, he was confident as to 
 malice; he was confident that the prisoner had deliber- 
 ately formed the intention of murdering the deceased, 
 and was prosecuting that intention up to the time of 
 his death; or if on a charge of passing bank notes 
 knowing them to be counterfeit, the juror had declared 
 that, though uncertain as to the fact of passing the 
 notes, he was confident that the prisoner knew them to 
 be counterfeit, few would think such a person suffi- 
 ciently impartial to try the case according to testimon}^ 
 The court considers these cases as strikingly analo- 
 gous." 
 
 c. Interpretation by the Supreme Court of Illi- 
 nois OF the Provisions of our Constitutions 
 Touching the Qualification of Jurors. 
 
 Prior to the adoption of the constitution of 1S70, and, 
 therefore, prior to the passage of any enactment by the 
 legislature touching the qualifications of jurors, with ref- 
 ference to their opinions, the Supreme court of this state 
 had frequently given a construction to the provisions of 
 the constitutions of 1818 and 1848, touching the qualifi- 
 cations of jurors. 
 
 Among others may be noted Ncelcy v. The People 
 (June term, 1852), 13 III, 685, where Treat, Chief Just- 
 ice, says: 
 
 " It was held in Smith v. Eames, 3 Scam., 76, that, if a 
 " juror has 7nade a decided opinion respecting the merits 
 " of the controversy, either from a personal knowledge 
 " of the facts, from the statements of the witnesses, 
 " from the relations of the parties, or from rumor, he is 
 
306 
 
 «'- disqualified from trying the case, if challenged for 
 " cause. The rule was adhered to in the case of Gard- 
 " ner v. The People, 3 Scam., 83; Vennum v. Hai-wood, 
 " I Oilman, 659, and Baxter v. The People, 3 Gil., 368, 
 " and must now be considered as the settled doctrine of 
 "■ ihis court. 
 
 " Applying this test to the present case, the jurors were 
 " clearly incompetent, and the court properh^ allowed the 
 " challenge for cause. Each of the jurors had formed a 
 " definite opinion as to the guilt or innocence of the pris- 
 " oner, based upon information as to the facts of the case, 
 " which he believed to be true. His opinion was of a 
 " -positive and not a hypothetical character. He would 
 " have entered the jur3'-box with ^ fixed opinion as to the 
 '• qnestion to be determined, which would have controlled 
 " his action as a juror, unless the testimon}- disclosed a 
 " state of facts material!}' different from what he already 
 " believed them to be." 
 
 The next case to which we call attention is that of 
 Gray v. The People, 26 111., 344 (April term, 1861), 
 which is a decision under the constitution of 1848. 
 Breese, Justice, in delivering the opinion, used the fol- 
 Ibwing language: 
 
 " It is objected that the challenge for cause of a juror, 
 "• William H. Anderson, should have been allowed. A 
 "critical examination has satisfied us this is a good point. 
 "This juror, in his examination, stated that he had read 
 '• about the case in the papers, that he did not know the 
 " defendants, that he believed the reports that there was 
 " a house-breaking; if these defendants are the persons 
 " named in the newspapers, has an opinion as to their 
 " guilt or innocence. In the papers one of the per- 
 " sons named may have been Sihis Gray; and if it should 
 "turn out that Silas Gray was one of the defendants, 
 
307 
 
 " should have an opinion as lo their guilt or innocence; 
 " does not know that Silas Gray is one of the defendants, 
 " and has no opinion of the guilt or innocence of the de- 
 " fendants. This juror, with others objected to, de- 
 " clared he had not formed or expressed an opinion of the 
 " guilt or innocence of the defendants; that he had no 
 " bias or prejudice upon his mind, and could give the 
 " defendants a fair trial, according to the law and the evi- 
 " dence. 
 
 " This possibly might be so, but he declared in his ex- 
 " amination that he believed the statements of the news- 
 " papers that there had been a housebreaking, and if the 
 " prisoners were the persons named in the newspapers, he 
 " had an opinion of their guilt or innocence. He has 
 '■^formed an opinion, if it should turn out that one of the 
 " defendants was Silas Gray. 
 
 " These opinions are not hypothetical if the newspaper 
 "statements were true, but he says he believed those 
 " statements. 
 
 " This court said, in the case of Smith v. Eames (3 
 " Scam., 80): ' If the opinion of the Juror is positive, 
 " though founded on rumor, and not hypothetical, he is 
 " disqualified.' And this has been adhered to in criminal 
 " cases. [Gardner V. The People, id., 88.) 
 
 " The prisoner ought not to be forced to encounter a 
 " pre-existing opinion, deliberately formed on statements 
 " believed to be true, and which he would be required to 
 " remove. Had the witness said he neither believed 
 " nor disbelieved the statement, he would have been com- 
 " petent." 
 
 In Collins v. The People (September term, 1868), 48 
 111., 146, delivering the opinion of the court, Walker, 
 Justice, says: 
 
 " It is insisted that the court below erred in refusing to 
 
allow the challenges of plaintiffs in error to a number of 
 jurors, comprising a part of the panel that tried him. 
 l^hese jurors stated that they had heard of the circum- 
 stances of the difficulty; that they believed the state- 
 ments, and upon these statements had fixed opinions as 
 to the merits of the case, such as would require evidence 
 
 ■ to remove or change, but that the opinion could be 
 
 ■ changed by sufficient evidence; but that they had no 
 • prejudice against the accused, and they believed they 
 
 ■ could render a fair and impartial verdict according to 
 
 ■ the evidence. 
 
 " These are substantially the statements of some five of 
 ' the jurors who tried the case, and were the ground of 
 ' challenge b}' plaintiffs in error, but which were disal- 
 ' lowed by the court trj'ing the case in the court below, 
 ' and that ruling is assigned as one of the errors in the 
 ' record brought to this court. 
 
 " It has been repeatedly held by this court, that if a 
 ' juror has a decided opinion respecting the merits of the 
 ' controversy, either from a personal knowledge of the 
 ' facts, from the statements of witnesses, from the rela- 
 ' tion of the parties, or from rumor, he is disqualified from 
 ' trying the case, if challenged for cause (^citing, among 
 ' cases, Gray v. The People, 26 111., 344). These cases 
 ' must govern this case. A prisoner should never be 
 ' required to encounter a pre-existing opinion deliberately 
 ^formed which the juror believes is true, and which the 
 •' prisoner would be obliged to overcome. When tried by 
 •' such jurors, he cannot be said to have had a fair trial, 
 ■' unless he choose to permit him to act in his case. He 
 •' has a right to be tried by men who are wholly impartial, 
 " without prepossession or prejudice against him or his 
 " cause. Tested by these rules, these jurors were incom- 
 " petent when objected to by the accused, and the court 
 
309 
 
 *' below erred in not allowing the challenges to these 
 " jurors." 
 
 We next cite Chicago & Alton Railway Company v. 
 Adler, 56 111., 344 (September term, 1870), which is the 
 first case after the adoption of the new constitution. 
 
 In that case the court, Mr. Justice Walker delivering 
 the opinion, says: 
 
 " It is first urged that the court erred in refusing to 
 *' allow the challenges of jurors made by appellants. 
 " Four of the jurors who tried the case were asked 
 ■" on their voir dire, if the evidence were evenly bal- 
 *' anced, which way they would be inclined to find, and 
 *' each answered that he would, in such case, lean against 
 " the defendants, and one of them stated that he would 
 " do so because the company was able to stand it, and he 
 " thought a private individual should ' have a little mite 
 *' the advantage.' 
 
 " It is a fundamental principle that every litigant has 
 *' a right to be tried by an itnpartial and disinterested 
 " tribunal. Bias or prejudice has always been regarded as 
 *' rendering a juryman incompetent. And when a juror 
 " avows that one litigant should have any other ad- 
 " vantage than law and evidence give him, he declares his 
 " incompetency to decide the case. He thereby proclaims 
 " that he is so far partial as to be unable to do justice 
 " between litigants, or that he is so far uninformed, and 
 " his sense of right is so blunt, that he cannot perceive 
 " justice, or, perceiving it, is unwilling to be governed 
 " by it. 
 
 " The rule is so plain and manifest that the party claim- 
 " ing to recover must prove his cause of action, it is a 
 " matter of surprise that an adult can be found who would 
 " not know that such is the common sense as well as the 
 " common honesty of the rule. No ordinary business 
 
3IO 
 
 " man would be willing that a claim pressed against 
 " him should be allowed, and he be compelled to pay it^ 
 " when the evidence for and against the claim was evenly 
 " balanced. An^ how such men can bring themselves to 
 " apply a different rule, as jurors, to the right of others,. 
 " is incompatible with the principles of justice. Nor does 
 " the fact that jurors who avow, under oath, that they 
 " would incline to favor recovery by the -plaintiff on evi- 
 " dence evenly balanced declare that they are impartial,. 
 " in the slightest degree, tend to prove their impartiality^ 
 " Their statement only tends to prove that they are so- 
 •' far lost to a sense of justice that they regard what all 
 " right-thinking men know to be wrong as just and 
 " impartial. 
 
 " To try a cause by such a jury is to authorize men 
 " who state that they will lean, in their finding, against one 
 " of the parties, unjustly to determine the right of others, 
 " and it would be no difficult task to predict, even before 
 " the evidence was heard, the verdict that would be re- 
 " turned." 
 
 We further cite Winneslieik Insurance Company v. 
 5'c//w//er, 60 111., 465 (September term, 1871). Mr. Justice 
 Thornton, delivering the opinion of the court, sa\s: 
 
 "It was error to overrule the challenge of the juror, 
 " Samuel Askey. He said that he had some prejudice in 
 "his mind against insurance companies generally; that 
 " his prejudice was founded on the fact that he could not 
 " comprehend their proceedings, that the prejudice would 
 " not affect his verdict. 
 
 " A man ma_y have a prejudice against crime; against 
 "a mean action; against dishonesty, and still be a com- 
 " petent juror. This is proper, and such prejudice will 
 " never force a jury to prejudge an innocent and honest 
 " man. 
 
311 
 
 « As to this juror, the feeling he entertained against 
 " insurance companies was of a bigoted and reprehensible 
 " character. It was not founded upon any knowledge or 
 " information of conduct which should condemn them, 
 " but merely upon the fact of his inability to understand 
 " the proceedings of these corporations. 
 
 " They must then disclose all their operations — open to 
 " him all their business transactions — in order to remove 
 " his suspicions. His prejudice, based upon the reason 
 " assigned, must have been deep seated, and would neces- 
 " sarily have afiected his verdict. 
 
 " A juror should stand indifferent between the parties. 
 " No bias should influence his judgment and swerve him 
 " from strict impartiality. It would have required as 
 " much evidence to remove his unfounded prejudice as 
 " to convince him of the justice of the defense. 
 
 " The juror said that he had no more prejudice against 
 " this than any other company, but that he had a preju- 
 " dice against all insurance companies. How is it possi- 
 " ble that his mind would not be biased, and his determin- 
 " ation, to some extent, influenced? It is not necessary 
 " that his unfavorable impressions should be so strong 
 " that they cannot be shaken by evidence. It is sufficient 
 " if proof be necessary to restore his impartiality. A 
 " party should never be compelled to produce proof to 
 " change a -preconceived opinion or prejudice which may 
 " control the action of the juror." 
 
 d. The Statute of 187^ and its Construction by 
 OUR Supreme Court. 
 
 Section 14, of chapter 78 of the Revised Statutes, and 
 passed March 12, 1874, i^' i" substance, as follows: 
 
 " It shall be a sufficient cause of challenge of a petit 
 
312 
 
 "juror that he lacks any one of the qualifications men- 
 " tioned in section two of this act." Then there follows 
 several other qualifications not material to be considered 
 in this case. The second proviso is as follows: 
 
 '■'■A?id provided, yurl/ie?; that in the trial of any crimi- 
 " nal cause, the fact that a person called as a juror has 
 " formed an opinion or impression, based upon rumor or 
 " upon newspaper statements (about the truth of which 
 "he has expressed no opinion), shall not disqualify him 
 " to serve as a juror in such case, if he shall, upon oath, 
 " slate that he believes he can fairly and impartially ren- 
 "der a verdict therein, in accordance with the law and 
 " the evidence, and the court shall be satisfied of the 
 " truth of such statement." 
 
 We now come to the cases under the statute hereto- 
 fore set forth, and which have arisen since it was passed, 
 and in which this statute has received a construction; 
 and the essence of these cases is that this stat- 
 ute declares to be competent a juryman who has 
 a slight opinion, or an opinion based upon rumor or 
 newspaper statements, and where he will swear and the 
 court is satisfied that such opinions will not affect him in 
 the rendition of a fair and imoartial verdict. This was 
 always the law, and cases which have been cited, in 
 which courts have held that such jurymen were compe- 
 tent, declare the law in accordance with this construction 
 of this statute. The qualifications of a juror are fixed by 
 the constitution. The constitution is paramount to the 
 statute, therefore this statute musi be construed in con- 
 formity with the constitution, otherwise it is wholly void. 
 
 Recurring again to the case of Aaron Burr: The 
 Burr trial was one of great notoriety like the present. 
 Chief Justice Marshall, in commenting on this case 
 (Vol. I, p. 416), says: 
 
313 
 
 " Were it possible to obtain a jury without any pre- 
 « possessions whatever respecting the gnilt or innocence 
 " of the accused, it would be extremely desirable to ob- 
 *' tain such a jury; but this is perhaps impossible and there- 
 " fore will not be required. 
 
 " The opinion which has been avowed by the court is, 
 "that light impressions which maybe fairly supposed to 
 " yield to the testimony that may be offered; which may 
 ■" leave the mind open to a fair consideration of that 
 " testimony, constitute no sufficient objection to a juror; 
 " but that those strong and deep impressions, which will 
 •" close the mind against the testimony that may be offered 
 ■"in opposition to them; which will combat that testimony 
 ■" and resist its force, do constitute a sufficient objection 
 ■" to it." 
 
 We believe that the intention of the legislature in pass- 
 ing this statute was simply to secure the law as Judge 
 Marshall has declared it in the quotation above given. 
 
 Let us see what the Supreme court of Illinois have 
 decided: 
 
 The case of Pliimmer v. TIic People, 74 111., 361 (Sep- 
 tember term, 1874), ^^ '^^'"^ ^""^"^ '^'^^'^ '" which the act of 
 March 12, 1874, came under consideration. 
 
 In that case Mr. Justice Scholfield, delivering the opinion 
 of the court, says: 
 
 " The juror Broubaker, we do not think was competent. 
 " He is unable testate that he could sit as an impartial 
 "juror in the case. He was, among others, asked 
 " this question: 'You think that you have heard reports 
 " which yoii believe to be true, in respect to the defend- 
 " ants, which would have a tendency, in some degree, to 
 " bias your mind in this respect?' and he answers: 'it 
 "may have.' 
 
 " Where the juror has been e.vposed to influences the 
 
3H 
 
 " probable effect of which is to create a prejudice in his^ 
 " mind against the defendant, which it would require evi- 
 " dence to overcome, to render him competent it should 
 " clearly appear that he can, when in the jury-box, en- 
 " tirely disregard those influences, and try the case with- 
 " out, in any degree being affected b}' them." Judgment 
 reversed. 
 
 The next case to which we would call your Honors'^ 
 attention is that of Robinson v. Randall, 82 111., 521. 
 We quote from the opinion of the court delivered by Mr. 
 Justice Craig as follows: 
 
 " As to the other juror (Mercer), we do not regard him 
 "competent. He said he had great prejudice against the 
 " traffic (the liquor traffic) ; could not give the testimony 
 " of a person engaged in the business the same weiglit he 
 " could a man engaged in other business. Under the hiw. 
 "the defendants were competent witnesses, and a juror 
 " who was so prejudiced that he could not give their evi- 
 " dence that weight which it was entitled to receive could 
 " not be regarded as a person standing indifferent between 
 "the parties, free from all bias which might swerve his 
 "judgment from all impartiality. But conceding that the 
 " court erred in not sustaining the challenge of the juror^ 
 "it was an error that did appellants no harm. The 
 "jurors were challenged peremptorily and excused, and 
 " appellants did not exhaust their challenges in the selec- 
 " tion of the entire jury before which the cause was tiied,. 
 " therefore appellants were not injured by the ruling of 
 " the court, and, as was held in Winnesheik Insurance 
 " Company v. Shrcllcr, 60 111., 465, we cannot reverse 
 " for an error that worked no injury. 
 
 "If appellants, in consequence of the ruling of the 
 " court, had exhausted their peremptory challenges, and 
 "had been compelled to accept a juror whom they might 
 
315 
 
 " have otherwise rejected, the rule might be otherwise,. 
 " but this record does not disclose such a state of facts." 
 
 Construing this statute also in the case of Wilson v. 
 The Peojt>le, 94 111., 299, the opinion of the court, delivered 
 by Mr. Justice Scholfield, bears upon the point under 
 consideration, and is as follows: 
 
 " While empaneling the jury, William Gray was called 
 " as a juror in the case, and, being first duly sworn, testi- 
 " fied in response to questions touching his qualifications 
 " as a juror: ' I have read newspaper accounts of the 
 " commission of the crime with which the defendant is 
 " charged, and have also conversed with several persons in 
 "regard to it since coming to Carthage and during my at- 
 " tendance upon this term of court; do not know whether 
 "they are witnesses in the case or not; do not know who 
 " the witnesses in the case are. From accounts I have 
 " read and from conversations I have had, / have formed 
 ^^ an opinion in the case; would have an opinion in the 
 ",case now, if the facts should turn out as I have heard 
 " them, and I think it would take some evidence to re- 
 " move that opinion; would be governed by the evidence- 
 " in the case, and can give the defendant a fair and im- 
 " partial trial, according to the law and the evidence.' 
 
 " The defendant, by his counsel, thereupon challenged 
 " said Gray for cause, but the court refused to allow the 
 " challenge, and held that he was a competent juror to try 
 " the case. To this the defendant excepted, and tlien 
 " challenged Gray peremptor.l}-. '■'■• * * We think 
 " all objection to Gray's competency is clearly removed 
 " by the statute, if indeed he would have been incom- 
 " petent otherwise. It provides in two of the clauses of 
 "section 14, chapter 78, of the revised statutes of 1874^ 
 " page 633, as follows: 
 
 " Provided, further, that it sliall not be a cause of chal- 
 
3i6 
 
 ■ lenge that a juror has read in the newspapers an account 
 ■of the commission of the crime with which the prisoner 
 ■is charged, if such juror shall state, on oath, that he 
 ■believes that he can render an impartial verdict accord- 
 
 • ing to the law and the evidence; and provided, fur- 
 
 • ther, that in the trial of any criminal cause, the fact 
 
 • that a person called as a juror has formed an opinion 
 
 ■ or impression, based upon rumor or upon newspaper 
 •statements (about the truth of which he has expressed 
 'no opinion), shall not disqualify him to serve as a juror 
 ' in such case, if he shall, upon oath, state that he be- 
 
 ■ lieves he can fairly and impartiall}' render a verdict 
 ' therein in accordance with the law and the evidence, 
 ' and the court shall be satisfied of the truth of such 
 ' statement. 
 
 " The opinion formed seems not to have been decided, 
 ' but one of a light and transient character which, at no 
 ' time, would have disqualified the juror from serving. It 
 ' was said in Smith v. Eames, 3 Scam., 81: 'If the 
 ' opinion be merely of a light and transient character such 
 ' as is usually formed by persons in every community, 
 ' upon hearing a current report, and which may be 
 ' changed by the relation of the next person met with, 
 ' and which does not show a conviction of the mind and 
 ' a fixed conclusion thereon, or if it be hypothetical, the 
 ' challenge ought not to be allowed.' * * * * 
 ' But even if the juror had been incompetent, still under 
 ' the ruling in Rohimon v. Randall, 82 111., 522, holding 
 ' that he was competent was an error that did no harm 
 ' and could not therefore be held to be ground for reversal. 
 ' The defendant exhausted but two of his peremptory 
 ' challenges, and hence, when he accepted the jurors by 
 ' whom he was tried, he was entitled to eighteen peremp- 
 ' tor}' challenges, and it must, therefore, be presumed 
 
317 
 
 " the jurors by whom he was tried were entirely unob- 
 " jectionable to him." 
 
 The foregoing Illinois cases, we believe, present the de- 
 cisions of our Supreme court upon the right of a defend- 
 ant to an impartial jury, and the construction of the 
 statute passed since our last constitution. From these de- 
 cisions it appears: n/ 
 
 1. That the constitutionality of this law has never 
 been challenged. It was intended to cover cases where 
 the juror would have been held competent at common 
 law, without such statute, and where, under the decisions,. 
 in this country, made under our various constitutions, he 
 should also have been held competent. The substance of 
 these decisions our legislature put into a statute. It seems 
 also, from these decisions, that the A^i-Co^x^X^ formation of 
 ati opmion by the juror, and having that opinion at the 
 time of his examination, of itself disqualifies such juror, 
 and the having a bias against a class of people exist- 
 ing in the community, or a class under the law com- 
 petent as witnesses, so that the same consideration and 
 heed would not be given them in reference to their testi- 
 mony as to other persons, of itself also disqualifies such 
 juryman. But having an opinion or impression not de- 
 liberately formed, but based upon rumor or newspaper 
 accounts, does not disqualify him, provided he will swear 
 that notwithstanding such opinion or impression he be- 
 lieves he can try the defendant fairly, and the court is 
 satisfied that the juror's judgment on this point is correct. '>^ 
 
 2. That when the juror has once by his statements 
 become disqualified, he cannot, after that, by swearing that 
 he can disregard his opinion or prejudice, become a com- 
 petent juror. 
 
3i8 
 
 (e.) Decisions in other States in Construction 
 OF Similar Statutes. 
 
 In Michigan is a statute similar to our own, exxept that 
 after the word " formed " are " or expressed." In the 
 38th Michigan, in the case of Stevens v. The People, 742, 
 Judge CooLEY uses the following language: "The con- 
 '• stitution of this state provides that in every criminal 
 " prosecution the accused shall have the right to a speedy 
 " public trial by an impartial Jury. Of course no legisla- 
 " tion can take this right away. In Holt v. T/ie People, 
 " 13 Mich., '224, decided long before the act of 1873 
 " was passed, it was decided by this court that the law 
 " did not require that a juror should be entirely tmim- 
 " pressed with any views as to the guilt or innocence of 
 " the person on trial, but only that he should not have an 
 "■ opinion of such a fixed and definite character as to 
 " leave a bias on his mind which would preclude his giv- 
 " ing due weight to the presumption of innocence. In 
 " that decision we followed what we believed to be the 
 " settled law of the countrj-, citing in support of it, among 
 " others, the opinion of Chief Justice Marshall in Burr's 
 " case. * * * The question on this record is, 
 " whether that jury can be an impartial one whose mem- 
 " bers are already so impressed with the guilt of the ac- 
 " cused that evidence would be required to overcome such 
 " impression. It seems to us that this question needs only 
 " to be stated; it calls for no discussion. This woman, 
 " instead of entering upon her trial supported by a pre- 
 " sumption of innocence, was, in the minds of the jury, 
 " when they were empaneled, condemned already; and 
 " by their own statements, under oath, it is manifest that 
 " this condemnation would stand against her until re- 
 
319 
 
 " moved by evidence. Under such circumstances, it is 
 " idle to inquire of jurors whether or not they can return 
 "just and impartial verdicts; the more clear and positive 
 " were their previous impressions of guilt, the more cer- 
 " tain may they be that they can act impartially in con- 
 " demning the guilty party. They go into the jury box 
 " in a state of mind that is well calculated to give a color 
 " of guilt to all the evidence; and if the accused escapes 
 ^' conviction, it will not be because the evidence has estab- 
 " lished guilt bej'ond a reasonable doubt, but because an 
 " accused party, condemned in advance, and called upon 
 " to exculpate himself before a prejudiced tribunal, has 
 ^' succeeded in doing so." 
 
 As to the importance of the action of Judge Gary in 
 substantially importing into the statute of 1874 the words, 
 " and expressed,^'' or, in other words, disregarding wholly 
 the fact that our act of 1874 does not attempt to provide for 
 the relief from disqualification of a juror who has formed 
 and expressed an opinion, etc., we call attention to the case 
 of State v. Clarke, 42 Vermont, 629. Pierpont, Chief 
 Justice, delivering the opinion of the court, says: 
 
 " The first exception taken upon the trial was to the 
 *' decision of the court allowing one Manly to sit as a 
 ^' juror in the trial of respondent, against his objection. It 
 " appears that, upon being inquired of, the juror said that 
 " he had expressed an opinion as to the guilt of the re- 
 " spondent, on reading a newspaper account of the exam- 
 " ination of the respondent before the magistrate, some 
 '• month or six weeks before; but that he has no opinion, 
 " and has formed none, and can try the case impartially 
 " on the evidence. 
 
 " This question was before this court in the case of 
 " Boardman et al. v. Wood et al., 3 Vermont, 270. That 
 " was a civil action, and the question arose upon the an- 
 
320 
 
 ' svver of a juror that lie had formed an opinion, but did 
 ' not know that he had expressed it. The court decided 
 
 ■ that to have formed an opinion did not disqualify a juror, 
 
 • but to render him incompetent, he must have expressed 
 ' that opinion. 
 
 " Judge Williams, in delivering the opinion of the court, 
 ' carefully reviews the authorities bearing upon the ques- 
 
 • tion, and shows very clearly and satisfactorily that the 
 ' rule, both in England and in this country, is that a juror 
 ' who hds foi-mcd and expressed an opinion is disqualified, 
 ' and that one who has formed an opinion without express- 
 ' ing it is not. So far as my experience and observation ex- 
 ' tend, this rule has been recognized and practiced upon, 
 ' both by the courts and the bar, ever since, in this 
 
 ■ state; and the practice, I think, has been the same, 
 ' both in civil and criminal cases. There certainly can be 
 
 ■ no good reason for relaxing the rule against the respond- 
 
 ■ ent in a criminal prosecution. In this case the juror says 
 
 ■ he expressed an opinion. That necessarily involves the 
 
 • forming of one, as he could not otherwise express it. 
 ' Having formed and expressed an opinion, he is tht- reb}- 
 
 ■ disqualified, unless what he further says shall have the 
 
 ■ effect to take the case out of the rule. It is not quite 
 
 ■ clear what the juror meant when he said that, at the 
 
 ■ time of the trial, he had no opinion, and had formed none, 
 
 ■ after having just stated that a few weeks before he had 
 
 ■ expressed one. Probably these expressions should be 
 
 ■ taken in connection with the following one: that he could 
 ' try the case impartially, and that what he meant was, 
 ' that he had no opinion, and had formed none, that would 
 
 ■ prevent his trying the case impartiall)', and undoubtedly 
 
 ■ he thought so. Men are very apt to think they can try 
 ' cases fairl}', even though they have a strong feeling in 
 ' favor of one side or the other; but whether a man who 
 
321 
 
 " has expressed an opinion on the subject to be considered 
 " can try the question fairly or not, does not depend upon 
 " his own opinion of his impartialit}'. The rule of law is 
 " that he cannot, or, at least, that the parties shall not be 
 " required to take the risk." 
 
 In the State of Texas, with the same constitutional pro- 
 vision as to the right of the accused to be tried by an Im- 
 ■par Hal jury, there is a provision in their code that a juror 
 shall be disqualified when, from hearsay or otherwise, 
 there has been established in his mind such a conclusion 
 as to the guilt or innocence of the defendant as will influ- 
 ence him in finding the verdict. It is provided further 
 that, to determine whether there is such a conclusion in 
 the juror's mind, the juror shall first be asked whether, in 
 his opinion, the conclusion will influence his verdict. If 
 he answers affirmatively, he shall be discharged; if he 
 answers negatively, he shall be examined by the court, 
 and if the court is satisfied that he will be influenced by 
 the opinion, he shall still be discharged. In the case of 
 Black V, The Stale, 42 Texas, 377, a juror, having 
 answered the questions put to him satisfactorily, was 
 accepted by the court, after due examination, and the 
 challenge for cause was disallowed, which was assigned 
 for error. The examination of the juror was to this 
 effect: "That he had read the report of the evidence in 
 " the case of The State v. A. J. Walker; that he had 
 '■'■formed an opinion thereon as to the guilt or innocence of 
 "the accused; that it would require other and different 
 "evidence to change that opinion; that the opinion so 
 " formed would not influence his verdict in the slightest 
 " degree, and that he would go into the jury-box and give 
 " the accused a fair and impartial trial, according to the 
 "law and the evidence appearing on this trial." In sus- 
 taining the error and reversing the cause, on the ground 
 
322 
 
 that the challenge to this juror was improperly overruled, 
 the court say: 
 
 "In this case the juror had read the report of the evi- 
 " dence in the Walker case — Walker and the defendant 
 " being charged with the commission of the same oflense, in 
 " the same indictment. The report referred to may be pre- 
 " sumed to be the detail of the evidence at a former trial 
 " as given in the newspapers of the city, which is usually 
 " published in cases exciting any general interest. He must 
 " have placed reliance in the report of the evidence which 
 " he read, in order to have enabled him to have formed a 
 '• conclusion at all, and the fact that, as he says himself, 
 " it would require other and different evidence to change 
 " that opinion shows, or at least renders it probable, that 
 " it was with some considerable attention to, and a consid- 
 " eration of the facts reported, that he had formed his 
 " conclusion. Under such circumstances, we are of opin- 
 " ion that the court below, in judging of the qualification 
 " of the juror, should not have been satisfied that he was 
 " an impartial juror. 
 
 " The juror took his seat in the jury-box with a con- 
 " elusion formed, when the defendant had not been heard, 
 " and without the benefit of the instruction of the court 
 " as to the law applicable to the case. If his conclusion 
 " was in favor of the prisoner's guilt, it was as a weight 
 " put in the scales of justice before the trial commenced. 
 " Whatever of obstinacy of character and pride of opin- 
 " ion he possessed had to be overcome by other evidence. 
 " There are, perhaps, but few men who do not lean in 
 " favor of preconceived opinion, founded on what they 
 " deem to be an authentic source. They look favorably 
 " upon whatever will support it, and examine with in- 
 " creased caution whatever will oppose it. The love of 
 " consistency in the formation of their judgments re- 
 
3^3 
 
 " quires this of them. No authority has been found for 
 " holding that this juror was qual'ihed, and an abundance 
 " that is in opposition to it. See Graham & Waterman 
 " New Trials, p. 377, and American authorities cited, 
 " 378, 379-" 
 
 As particularly applicable to the examination of the 
 jurors in the case at bar, we now cite the case of Wright 
 V. CommoHweallh, 32 Grattan, 941. In that case one of 
 the proposed jurors objected to stated " that he had 
 " read newspaper accounts of the offense with which 
 " prisoner was charged, and had heard rumors of the 
 " same; that upon what he had heard and read he had 
 " made up and expressed an opinion in the case; that the 
 " opinion so made up and expressed was still upon his 
 " mind; that he did not think he could do the prisoner 
 "justice; but in answer to a question from the judge, 
 " should the evidence before the jury be different from 
 " that he had read, he said his opinion would be changed; 
 " that he could conic to the trial with an unbiased and an 
 " unprejudiced mind, and give the accused a fair and 
 " impartial trial.'''' Upon this examination the challenge 
 for cause was overruled, and the juror was accepted and 
 sworn. In reversing the case for this error the Supreme 
 court used the following language (page 943) : 
 
 '■ If the juror has made up and expressed a decided 
 *' opinion as to the guilt or innocence of the accused, he is 
 " incompetent; and it does not matter whether the opin- 
 *' ion be founded on conversations with the witnesses or 
 " upon mere hearsay or rumor. It is sufficient that the 
 " opinion is decided, and has been expressed. * * * 
 " He must be able to give him a fair and impartial trial. 
 " Upon this point nothing should be left to inference or 
 " doubt. All the tests supplied by the courts, all the in- 
 " quiries made into the state of the juror's mind, are 
 
324 
 
 • merely to ascertain whether he comes to the trial free 
 from partiality and prejudice. 
 
 " If there be a reasonable doubt whether the juror pos- 
 sesses these qualifications, that doubt is sufficient to in- 
 sure his exclusion. For, as has been well said, it is not 
 only important that justice should be impartially admin- 
 istered, but that it should also flow through channels 
 as free from suspicion as possible. 
 
 " Now, in the case before us, the juror had heard of the 
 homicide, and he had read the newspaper accounts of the 
 occurrence, and upon these he had made up and expressed 
 an opinion, which he then entertained; and such was 
 the state of his mind, ' he did not think he could do the 
 prisoner justice.' It is true he subsequently stated, ir» 
 
 • answer to a question propounded by the court, that he 
 could come to the trial with an unbiased and unprejudiced 
 mind, arid give to the accused a fair and impartial trial. 
 But how was the court to decide which of these state- 
 ments was true and which was false? How was it to 
 say that the second statement more correctly and truly 
 
 ' represented the juror's feelings than the first? His first 
 
 ■ avowal showed alone he was not a fit person to sit 
 upon the trial of the accused ; his ready disavowal of 
 
 • all prejudice under the interrogation of the court fur- 
 
 • nished no satisfactory evidence of his impartiality or 
 
 ■ competency. A man who could assert in one breath 
 
 ■ that he had prejudged the accused and could not do 
 
 • him justice, and in the next assert that his mind was 
 
 • free from all prejudice, is not to be trusted with the 
 
 ■ grave and responsible duty of passing upon the guilt or 
 
 ■ innocence of a fellow-being. Such a man may per- 
 
 ■ suade himself that he is impartial, but the law does not 
 ' so regard him. Unconsciously to himself, it may be, 
 ' his prejudices will follow him into the jury box and in- 
 
325 
 
 *' fluence and control his judgment there. We are, there- 
 " fore, of opinion that this juror is incompetent, and the 
 ■" County court erred in permitting him to be sworn as 
 ^' such." 
 
 In Cm-ry v. The State, 4 Neb., 545 (January term, [/^ 
 
 1876), the question arose as to the constitutionalitj' of a 
 statute substantially like our act of March 12, 1874, ^^ 
 view of a constitutional provision similar to our own. 
 The court unhesitatingly declares that if the statute con- 
 flicted in any particular with the constitution it was of 
 course inoperative, but proceeded to give the statute such 
 a construction as we contend should have been given to 
 ■our statute in the present case. The following is the y\ 
 
 language of the court (pp. 549, 550) : 
 
 " The juror Corby was of opinion that ' he might 
 " lean a little the other waj',' that is, against the return of 
 " an impartial verdict. But it is altogether immaterial 
 " whether he leaned little or much; to render him com- 
 " petent he must not lean at all, neither for or against one 
 " party or the gather. iVb inqtiiry can be entej-ed ufon as 
 " to the extent of a juror'' s bias or prejudice; if he be not 
 " certain of their non-existence he ought not to be per- 
 " milled to sit upon the jur}' in any case." 
 
 * :i: * * * * * 
 
 " If, however, the opinion of a juror, based upon news- 
 ■" paper statements or common rumor, be not merely hypo- 
 ^' thetical but decided and so fixed as to require testimony 
 ^' to overcome it, should he be retained if challenged for 
 " that reason? We think not. Surely such a juror 
 " cannot be said to stand impartially between the parties, 
 ^' and to hold him to be competent would in our opinion 
 ■" violate not only the constitutional guaranty of a free and 
 " impartial jurj^ but also the spirit, if not the letter, of the 
 *' section of the statute above quoted." 
 
326 
 
 To the same effect is the decision of the same court in 
 F'armer v. The People, 4 Neb., 68. 
 
 We have not regarded it necessary in the contention 
 which we make before this court to attack the constitu- 
 tionality of the act of March 12, 1874, because we have 
 supposed that the act was susceptible of such a con- 
 struction as might relieve it from such objection. But our 
 contention is that the construction given to it by Judge 
 Gary makes the statute obnoxious to, and a limitation 
 upon, the constitutional provision under consideration; and 
 that such construction must, therefore, be held to be er- 
 roneous. 
 
 Upon the proposition that the clause of the constitution 
 of 1870 is to be construed in the light of the prior decis- 
 ions of this court, proceeding under a like clause in our 
 earlier constitutions; and that if this statute is necessarily 
 to receive such construction as will materially infringe 
 upon the right of the accused to an impartial Jury as thus 
 secured, i^_vvwild_^e_urKonstitutjona[, we beg to cite the 
 case of Eason v. The Stale, 6 Baxter (Tenn.),466, (April 
 term, 1873). From that case it appears (page 468) that 
 the constitution of Tennessee adopted in 1S70 contains a 
 provision guaranteeing defendants in criminal cases a trial 
 bj'an impartial jury; and that, in an act of the legislature 
 thereafter passed, there was the following provision: 
 
 " That hereafter no citizen, in any criminal prosecution 
 " in this state, shall be adjudged incompetent to act as a 
 " juror by reason of \\A\\ng /ortiied or expressed an opin- 
 " ion touching the guilt or innocence of the accused upon 
 " information derived exclusivel}' from any published ac- 
 " count of the facts of the oflense with which the defend- 
 " ant stands charged, unless the writer of said statement 
 " in said article professed to have been a witness to the 
 " same at the time of their occurrence, which must affirm- 
 
327 
 
 " ativel}'^ appear; and provided that said juror will state, 
 " upon the law and the testimony, on trial, he believes he 
 " can give the accused a fair and impartial verdict." 
 
 It will be observed that the provisions of this statute, 
 while differing in some particulars from our own, and 
 going beyond ours in the provision as to the expression of 
 the opinion formed, are otherwise of the same general 
 purport as our own, and were designed to accomplish the 
 same end to which Judge Gary used our statute of March 
 12, 1874. "^^^ constitutionality of this Tennessee act 
 was challenged in the case cited, and the court, in its 
 opinion, used the following language (470) : 
 
 " The guarantee of a trial by an ' impartial jury ' has 
 " been secured to the accused in exactly the same lan- 
 " guage in the constitutions of 1796, 1834 and 1870. They 
 " were introduced into ' the Bill of Rights ' of 1796, and 
 " we are to presume that they were adopted with a full 
 " understanding of their legal import, as ascertained and 
 " settled by judicial interpretations in England. But if 
 " there was any doubt as to this proposition, if we shall 
 " find that there has been an unbroken chain of judicial 
 " construction, from 1796 down to 1834, when the same 
 " words were again adopted in the constitution of that 
 " year; and also from 1834 down to 1870, when the 
 " same words were adopted for the third time in the con- 
 " stitution of that year; and if we find, throughout this 
 " succession of decisions, the same construction has been 
 " uniformly placed upon the words, we are forced to the 
 " conclusion that that construction is to be regarded as 
 " the true legal, judicial and constitutional meaning of an 
 " ' impartial jury.' " 
 
 The court then proceeded to cite the earlier decisions 
 of that state, including Rice v. State, i Yer., 432; Mc- 
 Gollan v. The State, 9 Yer., 192 ; Baine v. State, 3 Hum- 
 
328 ■ 
 
 jihrey, 2'j ^-j Brackjie/d v. State, i Sneed, 215, and North- 
 £eld V. State, 4 Sneed, 340, and then said: 
 
 " When the constitution o£ iSyowas adopted, the same 
 " language, which had thus been judicially interpreted, 
 " was again re-adopted, and, we have the right to pre- 
 " sume, with full knowledge of its uniform interpretation 
 " in the constitution of 1796 and 1834. This being so, 
 " this interpretation of the language becomes incorpo- 
 " rated with the constitution of 1870 as part of the 
 " fundamental law of the state. The decisions which 
 " have fixed the true meaning of the words ' impartial 
 "jury' also established the position, that a juror who is 
 " incompetent from having formed or expressed an opinion 
 " as to the guilt or innocence of the accused cannot ren- 
 " der himself ' impartial ' by expressing his belief, on his 
 " examination, that he can render a fair and impartial 
 " verdict according to law and proof, notwithstanding the 
 " opinion then in his mind. * * * 
 
 " When the constitution guarantees to the accused an 
 " ' impartial jury,' it necessarily means that he is entitled 
 " to a jury which can enter upon the examination of his 
 " case, conceding to him the full benefit of that pre- 
 " sumption of innocence which the law gives to every 
 " prisoner as a matter of right. This presumption en- 
 " titles him to an acquittal until it has been overturned 
 " by plenary proof. In the formation of a jury under the 
 " statute in question, the prisoner may have forced on 
 " him as his tryers twelve men who will enter the box 
 " with a conviction on their minds that he is guilty, and 
 " he must stand convicted, in their judgment, until he 
 " has, by full proof, overcome their conviction of his 
 " gailt, and established his innocence. This would be a 
 " virtual reversal of the fundamental principle that the 
 "law presumes the accused to be innocent until proof 
 
329 
 
 • shows him to be guilt}'. It is httle else than a mockery 
 
 • to ir}- the competency of a juror by asking if he has 
 ■ formed and expressed his opinion of the guilt or inno- 
 cence of the accused, and when he answers that he has 
 upon having heard or read the facts, then to take him 
 
 ' as an impartial juror, upon his belief that he can divest 
 
 • himself of his convictions and render a fair and impar- 
 tial verdict. A prisoner whose life or liberty is sub- 
 mitted to a jury composed of such men cannot be 
 said to have a fair trial by an impartial jur}-. We hold 
 that an impartial juror is one who enters the box in- 
 
 ' different between the parties, indifferent in feeling and 
 in opinion. Either partiality or prejudice in the usual 
 acceptance of those words, or an opinion based on the 
 supposed facts of the case, already existing in his mind, 
 renders it impossible for him to be indifferent and there- 
 fore to be impartial. If he is partial or prejudiced, he 
 will enter upon the trial predisposed to follow his par- 
 liality or prejudice in weighing testimon}'. If he enters 
 t!ie box with an opinion already made up, he will be 
 ill danger of so viewing and weighing the testimony as 
 to sustain and confirm his existing impressions. One 
 of the jurors who was put to the prisoner in this case 
 as competent stated that the impressions made on his 
 mind by reading details of the facts as they were given 
 in the newspaper were such that the proof to remove 
 them must be full. When could a jury composed of 
 men such as the juror referred to, be said to be indif- 
 ferent? Certainly never until their convictions of guilt 
 had been removed by full proof of innocence. Is it not 
 an abuse of language to call such a jury an impartial 
 one.'' To be an impartial jury, they should enter the 
 box indirterent at the time of entering it between the 
 state and the accused. The courts have gone to the 
 
33° 
 
 verge of the law in holding thai a juror who has formed 
 and expressed an opinion on mere rumor may be an 
 impartial juror. We recognize such to be the settled 
 law, but we are not disposed to go further in that di- 
 rection. It has been urged with much earnestness and 
 force that the act of the legislature in question ought to 
 be sustained upon considerations of public policy. Con- 
 siderations of this character can have no place in con- 
 sidering questions involving the constitutionality of 
 laws, except in cases where there is doubt as to the 
 power of the legislature to enact the laws. 
 
 * * * * * * 
 
 " But it is our dut}', and the highest and most responsible 
 imposed upon us, to guard the constitution against in- 
 fractions. When we are called upon to determine con- 
 stitutional questions, if we are in no doubt, our path of 
 duty is plain and straightforward." 
 
 {/■) As TO THE Propriety of Questions in Refer- 
 ence TO Peremptory Chaleenges. 
 
 The law is settled so directly in the case of C. d A. 
 R. R. Co. v. Mary A. Butlolf, 66 111., 347, that we cite 
 that case as especially bearing on this subject. That case 
 was tried before one Joseph E. Gary, judge, at Chicago — 
 the same judge who tried the present case. The point 
 saved in that case was exactly like the points saved with 
 reference to such questions in the case at bar, and is 
 stated as follows, in the language of the court: 
 
 " Upon impaneling the jury, several of the jurors were 
 « asked by defendant's counsel this question: If, upon 
 " hearing the testimony, they should find it evenly bal- 
 " anced, which way they would be inclined to decide the 
 " case? The plaintiff's counsel objected to the question. 
 
" and the court sustained the objection, and defendant 
 « excepted. 
 
 " On one ground, if no other, the question was proper 
 " as determining the exercise of the defendant's right 
 " to a peremptory challenge." * * * 
 
 The court reversed the judgment on this point alone. 
 It says: " On the first point (that is the point we have 
 " suggested) the judgment must be reversed." 
 
 The precise point in question was also settled in the 
 case of Lavin v. The People, 69 111., 303. The question 
 now considered is the only question presented in that 
 case to the Supreme court to pass upon. The opiniori 
 of Justice Craig states the case and uses the following 
 language: 
 
 " In selecting a jury to try the cause in the Criminal 
 " court, the defendant propounded to each juror called,. 
 " the following questions: First. Are you a member of 
 " a temperance society? Second. Are you connected 
 " with any society or league organized for the purpose of 
 " prosecuting a certain class of people, under what is 
 " called the new temperance law of the state; or have 
 " you ever contributed any funds for such a purpose?" 
 (Objection by the state's attorney; objection sus- 
 tained, and exception by the defendant.) 
 
 The court continues: " It is the policy of our laws \o 
 " afford each and every person who may have a cause 
 " for trial in our courts a fair and impartial trial. This 
 " can only be done by having the mind of each juror who- 
 " sits to pass judgment upon the life, liberty or rights 
 " of a suitor entirely free from bias or prejudice. Ira 
 " order to determine whether the person who may be 
 " called as a juror possesses the necessary qualifications,. 
 " whether he has prejudged the case, whether his mind is 
 " free from prejudice or bias, the suitor has the right tcv 
 
332 
 
 *' ask him questions, the answer to which may tend to 
 " show he may be challenged for cause, or disclose a 
 " state of facts from which the suitor may see proper to 
 *' reject such juror peremptorily." 
 
 The court cites and quotes, in strengthening itself in 
 tills position, from The Cotnmonzvealth v. Egan, 4 Gray, 
 18; People V. Rogers, 5 Cal., 347, in each of which cases 
 the precise question is decided. 
 
 For the error indicated, and for that error alone, the 
 ■Supreme court reversed the judgment in that case. 
 
 In the case at bar two motives operated upon the mind 
 of the person asking the questions which Judge Gary 
 refused to permit to be answered. One was to elicit 
 answers furnishing ground of challenge for cause. The 
 other was to call out facts with a view to satisfy his own 
 mind whether the juror should be challenged peremptorily. 
 At the time of asking these questions defendants still had 
 the right to challenge peremptorily; and we maintain that 
 there is no limit to the range of inquiry in reference to 
 the exercise of the right of peremptory challenge, except 
 impertinence or questions involving improprieties of life. 
 
 II. JUDGE GARY'S RULINGS ON THE QUALIFICA- 
 TION OF JURORS, AND OUR CONTENTIONS. 
 
 The complaints that we have to make with Judge Gary's 
 rulings on that point are, in substance, as follows: 
 
 His Positions are: 
 
 I. Judge Gar}', in this trial, adopted the statute alone 
 
 as the basis of the right of trial by jury. He absolutely 
 
 ignored the constitutional right of trial by an impartial 
 
 jury, and construed the statute broadly against the de- 
 
333 
 
 fendants in reference to its meaning, as though it were the 
 only provision in existence in reference to the right named, 
 and the only source of the right of trial by jury. 
 
 2. The court held that jurors were competent who had 
 formed and expressed an opinion of the guilt or innocence 
 of the accused, based upon newspaper articles and rumors, 
 and held such opinions at the time of their examination 
 and which it would require evidence to remove, provided 
 they would swear they could " fairly and impartially 
 " render a verdict therein." 
 
 The court carried his ruling to the extent of holding 
 that even where the proposed juror stated that he had 
 formed and expressed an opinion in reference to the guilt 
 or innocence of the defendants, based upon what he had 
 read, heard and believed to be true, and admitted that he 
 had talked with parties who were present at the Hay- 
 market, witnessing the occurrences there, and who de- 
 tailed the same to the juror, and whose statements were 
 believed by the juror to be true; still this did not disqual^ 
 ify the proposed juror; while continually, by the ques- 
 tions asked by the court, the position was in fact assumed 
 that a prejudice against the defendants, if it were based 
 only upon what he had heard and read in connection 
 with the Haymarket trouble, did not disqualify the 
 proposed juror, if he would state that he believed he 
 could fairly and impartially try the case and render his- 
 verdict. 
 
 3. The court held that a juryman, who had formed 
 and expressed an opinion of the guilt or innocence of the 
 accused, based upon rumors or newspaper articles, and 
 had also, in the past, expressed an opinion of the truth or 
 falsity of such rumors or articles, was thereby disqualified 
 as a juror; but the present statement by the juror, at the 
 time of his examination on his voir dire, that he believed 
 
334 
 
 then what he had heard and read to be true, and that he 
 hdiA/o}-tned and expressed an opinion of the guilt or inno- 
 •cence of the defendants, based on what he had so heard' 
 read and believed, did not disqualify him. 
 
 In other words, Judge Gary held that if a proposed 
 juryman, who had formed and expressed an opinion as to 
 the guilt or innocence of the accused, based upon news- 
 paper accounts and rumors, had also expressed an opinion 
 about the truth of such newspaper accounts and rumors 
 previous to his examination as a juror, that, in itself, dis- 
 qualified him. But if he, for the first time during his ex- 
 amination, stated that he then believed such accounts and 
 rumors to be true, and still had such an opinion of the guilt 
 or innocence of the accused, that, in itself, did not disqual- 
 ify him. 
 
 In his construction of the statute (Chap. 78, Sec. 14), 
 Judge Gary introduces the words " and expressed " 
 after the word " formed," and made it read, " formed 
 "and expressed"; and introduces, after the words in pa- 
 rentheses, " about the truth of which he has expressed an 
 ■opinion," the words " previous to his examination," and 
 not applying to a present fixed behef. 
 
 4. The fact that the proposed juror swore that the 
 opinion or prejudice which he had at the time of the 
 examination was fixed and positive, and that the juror 
 had expressed such opinion, and would require evidence, 
 and even a good deal of evidence, for its removal, the 
 court held, did not disqualify the juror, provided he would 
 swear that he believed he could render a fair and impar- 
 tial verdict in the case. 
 
 Judge Gar}' finally refused to allow the proposed jurors 
 to be asked whether their opinion concerning the guilt or 
 innocence of the defendants or their prejudice against 
 them was such as would require evidence for its removal, 
 
335 
 
 even for the purposes of determining as to exercising a 
 peremptory challenge. 
 
 5. Where proposed jurors admitted a prejudice or bias 
 against socialists, anarchists or communists, as a class, 
 the judge refused to allow the defendants to ask questions 
 as to whether that prejudice was such as materially to 
 affect the credence they would accord to the evidence of 
 the defendants, or as probably to affect them in determin- 
 ing the question of the guilt or innocence of said defend- 
 ants, if it should appear or be conceded that said defend- 
 ants, or some of them, were socialists, anarchists or com- 
 munists; and refused to allow challenges for cause on 
 account of any such confessed prejudice or bias against 
 such classes; and refused to allow this question to be 
 asked, even as to determining upon a peremptory chal- 
 lenge. 
 
 Our Positions are as follows: 
 
 I. That, when the people adopted the constitution of 
 1870, they adopted section 9 of article 2 thereof, with 
 reference to the construction it had theretofore received 
 from our Supreme court, as a provision of the constitu- 
 tions of 1818 and 1848 as to what constituted an impartial 
 jury. That the statute of 1874, i" '•^e particular under 
 consideration, is to be construed with reference and sub- 
 ject to this provision of this constitution of 1870, and the 
 interpretation theretofore given by the Supreme court. 
 If the statute necessarily requires such a construction as 
 impairs the right to an impartial jury, as heretofore held 
 by this court under the constitutions of Illinois of 1818, 
 1848 and 1870, all of which are alike, and have received 
 the same construction, it must then be held unconstitu- 
 tional and void. And, least of all, is the court permit- 
 ted to interpolate words into the statute of 1870 not found 
 
336 
 
 there, the effect of which, when thus incorporated, would 
 necessarily be to enlarge its scope or extend its operation, 
 and deny the right of the defendant to a fair and impartial 
 jur}-, guaranteed by the constitution. 
 
 The statute in question only goes the length in terms of 
 holding as follows: (a) That the formation of an opinion 
 or impression, based upon newspaper report or rumor, 
 shall not disqualify, provided, etc. Nothing is said in the 
 statute tending to remove the disqualification incident to 
 the deliberate formation of an o-pinion, or to the forma- 
 tion and expression of such an opinion, (b.) As to the 
 clause in the statute, introduced parenthetically, •' con- 
 " cerning the truth of which he has expressed no opinion," 
 if construed as relating to an expression of an opinion or 
 impression as to the truth of the report or rumor, read or 
 heard, it is not subject to any limitation as to time, but must 
 be taken as it reads. If the juror, upon his voir dire, 
 states unequivocally that he did believe and does believe the 
 truth of the accounts and rumors heard and read by him, 
 and which formed the basis of the opinion as to the guilt 
 or innocence of the defendants, formed and expressed by 
 him, and he is thereafter challenged upon that ground, 
 then the juror, at the time of the challenge, has, in the 
 past tense, expressed an opinion concerning the truth of 
 the account or rumor; and there is no warrant for the 
 position that the expression of the opinion must have pre- 
 ceded the examination in order to disqualify him. In 
 other words, the legislature cannot be presumed to 
 have intended the absurdity that the casual expression 
 of an opinion, as to the truth, for example, of a news- 
 paper report, communicated upon the street to an 
 acquaintance or friend, should be effective to disqualify 
 a man from service as a juror, when the deliberate 
 expression of the same opinion, under the sanction of 
 
337 
 
 an oath, at the time of his examination, should not be a 
 ground for his rejection. 
 
 TJiis disti)iction is not technical, but substantial. 
 The reason is this: If the opinion is based on reports 
 which, on his voir dire or on any other occasion, the 
 proposed juror says he believes to be true, this state- 
 ment furnishes a detnonstratioii that the opinion, 
 inasmuch as it is founded on accredited report, is such 
 as will require evidence for its removal. Such an 
 opinion is not hypothetical, but positive. The talcs- 
 man is not i)i the position of one saying, ''If this 
 " report be true, then my opinio7i is," etc.; but he says 
 deliberately : " I believe what I have heard and read 
 " to be true, and because I believe the truth of this 
 " report, I have a positive opinion on the question of 
 " the guilt of the accused!' Clearly, this opinion 
 would disqualify, and it ivas manifest error for the 
 court to irnport into the interpetation of the statute 
 a provision which, contrary to the manifest intention 
 of the legislature, zvotild make the statute palpably 
 obnoxious to the constitutional objection above con- 
 sidered. 
 
 2. We maintain that it was a proper subject of inquiry 
 as to the extent to which the prejudice of the proposed 
 juror against certain classes of citizens, to wit: socialists, 
 communists and anarchists, would affect the credence by 
 the proposed juror of the testimony of the defendants, in 
 the event of its being shown by proofs, or admitted, that 
 the defendants belong to such classes; and also, that it was 
 proper to inquire whether the verdict of the juror would, 
 in the juror's opinion, be influenced by the fact supposed. 
 Certainly such inquiry and examination were proper, if 
 for no other reason than for the purpose of informing de- 
 fendants, so that they could intelligently determine whether 
 
338 
 
 or not they should exercise, in the case of the proposed 
 juror, their right of peremptory challenge, even if the 
 answers to the proposed inquiries did not furnish ground 
 to sustain a chailenge_/tir catise. 
 
 3. If, having formed a decided opinion or having ex- 
 pressed it, or as to having a bias or prejudice, the juror 
 answers that he has formed, or formed and expressed such 
 an opinion, that he cannot try the case fairly, he stands 
 disqualified by the law ; notwithstanding that, by a teasing 
 and coaching process, he may be final!}' got to say he 
 thinks he can try the case fairly. A fortiori, if he says 
 six times that he cannot \xy the case fairly, and once that 
 he can, he is the more clearly disqualified. 
 
 We have stated the rulings of Judge Gary as to the 
 competency of jurors and our positions as to the law on 
 these points. We now beg leave to refer your Honors to 
 the examinations of jurors in this case, for the purpose 
 of illustrating and proving what we have asserted. We 
 give the substance of the examination, and in some cases 
 the words. 
 
 III. EX.\MINATIONS OF JURORS AS ILLUSTRATING 
 JUDGE GARY'S RULINGS. 
 
 Melon T. Carev, on the first day (Vol. A., 117 
 to 121), discloses that he had read an account of the 
 case, had talked of it, believed what he had heard and 
 read to be true, and had formed and expressed an opinion 
 as to the guilt or innocence of defendants. This jury- 
 man also expressed the belief that he could try the case 
 fairly. He was asked the question whether that was 
 such an opinion as would require evidence to remove. 
 
 The court decided that was an incompetent question. 
 
339 
 
 because it called for the opinion of the juror as to the 
 future effect of evidence upon his mind. The defend- 
 ants excepted. This juror was subsequently challenged 
 for cause, but upon another ground. 
 
 Frank Jacobson (i A., 43; Vol. A., 312 to 321) 
 said he had not, previous to this examination, expressed 
 an opinion about the truth of the newspaper accounts or 
 rumors on which he based the opinion of the guilt or in- 
 nocence of the defendants, but admitted on his voir dire 
 that he now believed the newspaper accounts and riinwrs 
 ■on -which he fortned and expressed his opinion as to the 
 guilt or innocence of the defendants, and that he still en- 
 tertained that opinion. He also said he believed he could 
 try the case fairly. This panelman was challenged for 
 cause, the court overruled this challenge, taking the 
 position in his ruling that if a juryman had, be- 
 fore his examination, read an account of the circum- 
 stances, and then expressed an opinion that he believed 
 the accounts which he read to be true, and upon those ac- 
 counts had formed and expressed an opinion as to the 
 guilt or innocence of the defendants, he was subject to 
 challenge for cause; but if he had not, previous to his ex- 
 amination, expressed an opinion that he believed that ac- 
 count, but, for the first time, on his voir dire, stated 
 that he does believe the account, and upon that belief had 
 formed and expressed and still entertained that opinion of 
 the guilt or innocence of the accused, that did not con- 
 stitute a ground for challenge. 
 
 John Johnson (i A., 53; Vol. B, 155 to 159) 
 upon his examination, stated that he had heard and 
 read the reports concerning the Haymarket affair, 
 and had discussed the matter from time to time, and 
 had formed and expressed an opinion as to the guilt or in- 
 nocence of the defendants, which he still entertained, and 
 
34° 
 
 that he believed in substance what he had read and heard^ 
 He stated further that the opinion was such as miglit pos- 
 sibly be removed by evidence contrary to what he had 
 read. He also said he believed he could tr\- the case 
 fairly. When asked as to whether his opinion was such 
 as would require evidence for its removal, and whether it 
 would require strong evidence, the court refused to allow 
 the questions to be answered, and overruled the challenge 
 for cause, to which defendants excepted, and the juror-was 
 then challenged peremptorily. 
 
 Clarence H. Hill (i A., 53; Vol. B, 187 to 196) 
 stated that he had read accounts of the Haymarket meet- 
 ing, had conversations in reference to it, and, apon the in- 
 formation derived from all sources, had formed an opin- 
 ion as to the guilt or innocence of the defendants, which 
 he still entertained, and which was based upon his belief in 
 the truth a/ what he had read, and that he was prejudiced 
 against socialists, anarchists, etc. He was finally asked: 
 " Q. You have no opinions, biases or prejudices which 
 " it vjotdd require testimony to overcome? A. Tes, sir; 
 " / have" This juror was challenged for cause, the 
 challenge was overruled, to which defendants excepted, 
 and he was thereupon challenged peremptorily by de- 
 fendants. 
 
 W. N. Upham was examined tlie first day. He 
 stated that he had read the newspaper accounts of the 
 Haymarket affair, and had conversations with various per- 
 sons upon the subject; that from all sources of information 
 he had formed an opinion upon the question of the guilt or 
 innocence of some of the defendants, which he believed he 
 had expressed to others; that he believed to be true the 
 statements -which he had heard and read, and that he ex- 
 pressed a belief that what he had heard was true. Subse- 
 quently he modified these statements through the following 
 
341 
 
 question and answer by and to the court: " Q. The question 
 *' is whether you have ever formed or expressed an opin- 
 " ion as to the guilt or innocence of any one of these eight 
 " men of the murder of Officer Degan? A. I can't say 
 " what I have expressed in words, but my opinion was thai 
 '<■ some of them are guilty.'''' He also said he believed he 
 ■could render a fair verdict on the evidence. The Court: 
 ^^ That is not any ground of challenge under the law." 
 
 He stated further that he still had the same opinion as 
 to the guilt of some of the defendants, and then the ques- 
 tion was asked as to whether testimony would be required 
 to remove that opinion before he would be unbiased and 
 free to act upon the evidence. The question was objected 
 to, quite full}' argued, and the objection was then sustained 
 "by the court. This juror was challenged for cause, the 
 challenge was overruled, the defendants excepted, and 
 then challenged peremptorily, (i A., 36; Vol. A., pp. 61 
 to 70.) 
 
 E. F. Shedd, examined on Wednesday, June 23d, stated 
 that he had read of the Haymarket affair in the papers, and 
 at the lime formed an opinion as to the guilt or innocence 
 ■of the defendants, which opinion he still entertained, no 
 circumstances having occurred to change it. That such 
 opinion was formed from the belief by him of the truth 
 of the statements which he had heard and read, and that 
 he had expressed the opinion to others. He said also, " I 
 " would have my opinion, my own opinion, until it was set 
 " aside by the whole testimony," and that it woidd require 
 evidence to remove the opinion which he had. ( i A., 45 ; 
 A., 390.) He was thereupon challenged for cause, and 
 a long argument ensued (Vol. A., pp. 391 to 399), at the 
 end of which the court overruled the challenge, and the 
 defendants excepted. 
 
 The same person was thereupon further interrogated. 
 
342 
 
 and stated that he had a prejudice against communists^ 
 anarchists and socialists as a class, which was of such a 
 character that it would prevent his listening to the tes- 
 timony and rendering an impartial verdict if it were 
 conceded or proved that the defendants belonged to such 
 class. He stated further: " I think the mere fact oj their 
 " beitig communists woidd influence my opinion as a juror. 
 " Q. And therefore you would not find the same verdict 
 " upon the same evidence as you would if they were not 
 "so — you would require additional evidence? A. Yes, 
 " sir "; and that he " would find the dejendants guilty upon 
 " less evidence than if they were lazv-abiding citizens.'''' 
 But he also said that he thought he could try the cause 
 fairly. The challenge for cause was renewed upon this 
 examination (Vol. A., 400), was overruled, the defend- 
 ants excepted, and thereafter challenged said Shedd per- 
 emptorily. 
 
 A. F. Bradley (i A., 42; Vol. A., 198 to 206) stated 
 that he had heard and read accounts of the Haymarket 
 meeting, that he had a strong prejudice against anarchists, 
 socialists and communists, so strong that he could not tell 
 whether it would affect his verdict if selected as a- 
 juror in this case or not. He was then asked whether 
 he would receive the testimony of anarchists, communists 
 or socialists as freely and readily as that of other wit- 
 nesses, which question was objected to, and the objection 
 sustained, to which defendants excepted. Thereupon the 
 following question and answer occurred: " Q. You 
 " feci that you could lay the prejudice all to one side and 
 " be governed exclusively by the testimony as it was in- 
 " troduced, and the law governing the case as given you 
 "by the court? A. No, I don't know about that, as I 
 " told you before. I don't know whether I could or not. 
 " I don't know whether I can answer that, because I 
 
343 
 
 " don't know." But the juror also stated that he thought 
 he could render a fair and impartial verdict. The juror 
 was thereupon challenged for cause, the challenge over- 
 ruled, and the defendants excepted, and Mr. Bradley was 
 subsequently challenged peremptoril}' by the defendants. 
 William Neil(i A., 57; Vol. C, 50 to 57) stated that 
 he had heard and read about the Ha3'market difficulty and 
 believed enough of what he had so heard atid read to form 
 an opinion as to the guilt or innocence of some of the de- 
 fendants, which he still entertained, but thought strong 
 evidence to the contrary would ciiange tJiat opinion; that 
 he had expressed said opinion and said, " it would take 
 " pretty strong evidence to change my opinion." And 
 again he said, "it would take strong evidence to remove 
 " the impression that I now have." That he believed his 
 opinion, based upon what he had heard and read, would 
 accompany him through the trial, and would influence him 
 in determining and getting at a result. But he also stated 
 that he believed he could give a fair verdict on whatever 
 evidence he should hear. Thereupon the juror was chal- 
 lenged for cause on all his answers, and particularly on the 
 ground that he had expressed the opinion which he still 
 entertained, which challenge was overruled; the defend- 
 ants excepted, and thereupon the juror was challenged 
 peremptorily. 
 
 James S. Oakley (i A., 59; Vol. C, 91 to 102), stated 
 that he had heard and read of the Haymarket difficulty, 
 and believed enough of what he had so read and heard to 
 form an opinion as to the guilt or innocence of some of 
 the defendants, which opinion he had expressed and still 
 entertained. He was asked if that opinion was so strong 
 and firmly fixed that it would take strong evidence to the 
 contrary to remove it. The question was refused by 
 the court, and the defendants excepted. He also stated 
 
344 
 
 that he beheved he could determine the question of the 
 guilt or innocence of the defendants upon the evidence 
 alone; but he still further stated as follows: 
 
 " Q. Still you think that the opinion vou now have and 
 " what you have read and heard would influence you in 
 "arriving at a verdict? A. I do. Q. Ton do think 
 it -would influence you? A. / doP He was further 
 asked as to his prejudice against socialists, anarchists, etc., 
 and admitted that he had such prejudice, and was then 
 asked- " Q. If it should be proven or conceded on the 
 " trial of this case that the defendants, or some of them, 
 " are anarchists or communists, would this opinion of yours 
 " in regard to these classes, that you have now expressed, 
 " influence you in arriving at a just and impartial verdict?" 
 The question was refused by the court and the defendants 
 e.xcepted. Mr. Oakley, again stating that he had ex- 
 pressed his opinion as to the guilt or innocence of the de- 
 fendants, or some of them, was challenged for cause on 
 all his answers, and particularly on the ground of the ex- 
 pression of his opinion. The challenge was overruled, 
 defendants excepted, and challenged peremptoril3\ 
 
 H. F. Chandler (i A., Vol. C, 149 to 157) stated that 
 he had read and heard of the Haymarket matter, and from 
 what he had so read and heard, ha.dyor»icd an opinion as to 
 the guilt or innocence of one or more of the defendants, 
 which he still entertained, and which he /lad expressed. 
 That he believed in the truth of the statements he had read 
 and heard, and had never questioned it. He was asked 
 and answered as follows: " Q. Is that a decided 
 " opinion as to the guilt or innocence? A. It is a dc- 
 " cidcd opinion: yes. sir. Q. Your mind is prett}^ well 
 " made up now as to their guilt or innocence? A. Yes, 
 " sir. Well, it will take evidence to satisfy me on that 
 " point. I don't know. I have simply heard one side of 
 
345 
 
 " the case. I have just read the newspaper matter. I 
 " have formed an opinion as far as that goes. Q. Would 
 " it be hard to change your opinion? A. It might be 
 " hard; I can't say. I don't know whether it would be 
 " hard or not." 
 
 He also stated that he had a strong prejudice against 
 socialists, anarchists and communists, and was then asked 
 if that prejudice would influence his verdict; which 
 question was refused by the court, and the defendants 
 excepted. He further stated that he thought he had 
 expressed his opinion as to the guilt or innocence of the 
 defendants quite frequently, and was thereupon chal- 
 lenged for cause. 
 
 The court thereupon proceeded to interrogate Mr. 
 Chandler (Vol. C, 210 to 213). He stated that he 
 had an opinion as to whether the defendants did the act 
 which caused the death of Degan, but that that opinion 
 was based wholly upon what he had heard and read 
 and not from any conversation with any person who 
 was present at the time of the transaction. Thereupon 
 the court announced the following ruling (pages 212 to 
 213): "It don't seem to me that it makes any difference 
 " in the competenc}' of a juror whether he has simply 
 " formed an opinion, or expressed an opinion which he 
 " has formed. I don't see how it makes a particle of 
 " difference in his state of mind. Every man is in favor 
 " of justice and fair dealings as between other people 
 " where his own interests are not aflected; and as I have 
 " said before, I think it must be — I think it is in the nature 
 -" of an}' man, when he wants to find out the truth of an}- 
 ^' transaction, that he will, when the original sources are 
 " presented to him, follow them, and not any hearsay that 
 *' he has ever heard." 
 
 The challenge for cause was thereupon overruled, to 
 
34^ 
 
 which defendants exxepted, and then challenged Mr- 
 Chandler peremptorily. 
 
 A. L. Ketchum stated that he had read and heard 
 about the Haymarket difficulty sufficiently to form an 
 opinion as to the guilt or innocence of some of the de- 
 fendants, which opinion he had expressed and still enter- 
 tained. Asked the question, " Is it a strong opinion f he- 
 answered, "1^5, it is." He stated, however, that he could 
 render a fair and impartial verdict, and be governed alone 
 by the testimony in the case. But he admitted that he 
 still had an opinion, which was firm. Asked if it would 
 require testimony to overcome the opinion, the court re- 
 fused the question, to which the defendants excepted 
 (i A., 6i; Vol. C, 131 to 136). 
 
 Further examined (Vol. C, 179 to 180), Mr. 
 Ketchum stated that he had formed a decided opinion as 
 to the guilt or innocence of the defendants, which he still 
 entertained and /lad theretofore expressed. He was chal- 
 lenged for cause on all his answers, the challenge was 
 overruled, and the defendants excepted, and thereupon 
 challenged peremptorily. 
 
 D. F. Swan (i A. ,63; Vol. C, 195 to 203) stated that 
 he had read and heard about the Haymarket trouble; had 
 formed an opinion as to the guilt or innocence of the de- 
 fendants, or some of them, which he still entertained, and 
 had frequently expressed. That the opinion was firmly- 
 fixed in his mind at the time of his examination. He 
 stated, however, that he believed he could be governed 
 by the evidence and the law; that he had discussed the 
 case with his neighbors and friends, and was prejudiced 
 in a general way against labor organizers. The court re- 
 fused to allow him to be questioned as to whether his ad- 
 mitted prejudice against socialists, anarchists, etc., would 
 influence his verdict, to which defendants excepted- 
 
347 
 
 Thereupon the defendants challenged Mr. Swan for 
 cause, when the court interrogated him as follows (page 
 203): " Q. Have you any feelings against either one 
 " 0/ them {the defendants), other than such as grows out 
 " of what you have heard about their connection with the 
 " Haymarket? A. No, sir. Q. That is the only feel- 
 " ing you have? A. Yes, sir. Q. And that feeling is- 
 " based upon the assumption — you have taken it for 
 " granted that what you have read and heard about them. 
 " was true, substantially? A. Yes, sir. Q. Now, do- 
 " you believe you can sit here as a juror and listen to the 
 " evidence on both sides that may be presented here on 
 " their trial, and from that evidence only make up your 
 " mind fairly and impartially as to what the real truth is 
 " about their connection with the matter? A. I guess I 
 " could. Q. Without any reference to what you have 
 " heard about it heretofore, or what you have read about 
 " it, or what you feel about it? A. Yes, sir." 
 
 Thereupon the challenge for cause was overruled, to- 
 which defendants excepted, and thereupon challenged 
 peremptorily. 
 
 Edw^ard Knauer (i a., 60; Vol. C, 103 to 109). 
 stated he had formed a pretty strong opinion as to the 
 guilt or innocence of the defendants; had expressed that 
 opinion, and still entertained it. Thought he could deter- 
 mine the guilt or innocence of defendants upon the proof 
 presented in court, but stated also that // zvould take pretty 
 good evidence to change his present opinion. 
 
 In answer to questions by the court, Mr. Knauer stated 
 he had no ill feeling against any of the defendants person-, 
 ally, that he would go by the evidence, but his opinion 
 would influence him some. He said: "I believe I could 
 " take the evidence, although some of it I have my opin- 
 " ion of." Q. You believe that you could take the evi- 
 
348 
 
 '• dence alone, and not be influenced by any opinion you 
 '■ have had hitherto, or that you have now? Do you be- 
 " lieve you can or cannot? A. Well, I guess I could." 
 
 Further interrogated by counsel for the defense, Mr. 
 Knauer said that in making up his mind as to what the 
 facts are in the case, after all the evidence should be in, 
 he xvould to some extent call upon the facts now in his mind 
 and be influenced some thereby, but he believed that he 
 ■could arrive at a fair and impartial verdict. He admitted 
 a strong prejudice against anarchists, socialists and com- 
 munists. He was asked whether he believed that that 
 prejudice would influence him in a trial in which the de- 
 fendants were conceded to be anarchists. Question re- 
 fused b)^ the court and defendants excepted. Mr. Knauer 
 ■was challenged for cause, the challenge was overruled, to 
 which defendants exxepted, and challenged peremptorily. 
 
 F. I. Wilson- (^i A., 65; Vol. C, 2S4 to 
 289) stated he had formed ajid expressed an opin- 
 ion as to the guilt or innocence of some of the 
 defendants, based upon what he had read and 
 heard about the Hay market trouble. That he be- 
 lie\'ed such opinion ivould influence him in rendering his 
 verdict. In answer to the court's question, he stated that 
 he had no acquaintance with any of the defendants. 
 ■" Are you conscious in j'our own mind of any wish or dc- 
 •" sire that there should be evidence produced on this 
 <' liial which shall prove some of these men, or any of 
 " iliem, to be guilty? A. Well, I think, possibh', I 
 ■" have. I think I have." The only feeling he had 
 against them was based upon having taken it for granted 
 that what he read about them was in the main, or part of 
 it at least, true. He believed that, sitting as a juror, the 
 ffrct of the evidence, either for or against the defendants, 
 would be increased or diminished hy what he had heard or 
 
349 
 
 read about the case. Thereupon said Wilson was chal- 
 lenged for cause; challenge overruled, and defendants 
 excepted. Further on he modified his answers, upon 
 further questions by the court, by saying: " Well, I feel 
 " that I hope that the guilty one will be discovered or 
 " punished; not necessarily these men. * * * Q. 
 " Are you conscious of any other wish or desire about 
 " the business than that the actual truth may be dis- 
 " covered? A. I don't think I am." Thereupon the 
 court overruled the challenge for cause; defendants ex- 
 cepted, and challenged said Wilson peremptorily. 
 
 John Connolly (i A., 67; Vol. C, 338 to 344) said 
 he had heard and read about the Haymarket meeting; 
 formed and frequently expressed a pretty strong opinion 
 as to the guilt or innocence of the defendants; thought he 
 was open to conversion, and might change his opinion if 
 evidence contrary to the sajne -juould be presented. Thought 
 he could determine the case upon proof presented in court 
 "if I tried pretty hard"; thought he zvonld be influenced 
 by his opinion in determining the question whether the 
 proof presented was sufficient in fact to prove the guilt 
 of the defendants beyond all reasonable doubt. Where- 
 upon Mr. Connolly was challenged for cause. 
 
 In answer to questions of the court, he said he could 
 fairly and impartially try the case upon the evidence pre- 
 sented in court; " at least I would try hard to." Didn't 
 know any of the defendants; had no feeling about them 
 one way or the other, except what grows out of what he 
 had read or heard about them. 
 
 Whereupon said challenge for cause was overruled; 
 defendants excepted, and said Connolly was peremptorily 
 challenged by defendants. 
 
 George N. Porter (i A., 77; Vol. D, ipt to 204) 
 stated he had formed and expressed an opinion as to the 
 
3SO 
 
 iguilt or innocence of defendants, which opinion he thought 
 ■would bias his judgment. He would try to go by the evi- 
 -dence, but what he had read would have a great deal to do 
 ■with his verdict. His mind was certainly biased now, and 
 it would take a great deal of evidence to change it. 
 Whereupon said Porter was challenged for cause. 
 
 On examination by the state, in answer to the question 
 ■whether he beheved he could determine alone from the 
 proof the guilt or innocence of the defendants, without 
 consulting his opinion, or without being influenced by it, 
 he said, " I hardly know how to answer that question. 
 " I should certainly try to." Being asked the same ques- 
 tion over again, he said: " Well, I rather think I could." 
 
 In answer to the court's question, Mr. Porter said: "I 
 -" think what I have heard and read before I came into 
 *' court would have some injluence with me." He was 
 afraid that what he had read and heard before and the 
 opinion he entertained would have some effect upon the 
 kind of verdict which he should render. But finally he 
 said he believed he could fairly and impartial!}' tr}' the 
 case and render a verdict according to the law and the 
 -evidence; he certainly would try to. Challenge for cause 
 was overruled by the court, and defendants excepted. 
 
 Upon further inquiry, by defendants' counsel, Mr. 
 Porter admitted that he had a prejudice against commun- 
 ists, socialists and anarchists, and said he should certainly 
 try to go by the evidence, but he thought in this case it 
 would be awful hard work for him to do it. He should 
 try very hard to do it, and he believed he could. 
 He was asked whether he ever expressed his opinion that 
 he believed the narration. He said: " Well, I don't know 
 " that I ever said it in that manv words, but I meant that, 
 -" of course, certainly. =<= * * Q. You don't know, 
 -" then, that you ever did say that you beheved what you 
 
351 
 
 •" had read, or that you believed what you heard? A. 
 -" Why, we have talked about it there a great many times, 
 " and / /lave always expressed my opinion. I believe what 
 " / liave read in the papers — believe thai the parties are 
 -" guilty. Q. Now, then, you say that you did, in the 
 •^' discussion of it, in substance, say that you believed what 
 " 3'ou had read in the papers? A. Yes, sir; I have. 
 ^' Q. And it was from what you had read in the papers 
 " that you formed an opinion. A. Yes, sir." 
 
 Whereupon counsel for defendants renewed their chal- 
 lenge for cause to Mr. Porter. 
 
 Further interrogated by the court, whether he had 
 -expressed an opinion as to the truthfulness of the account 
 itself which he had read or heard, he said: " Well, that is 
 " a pretty hard question to answer; I don't know. I 
 -" have expressed myself as believing it. I don't know. 
 " Q. Well, believing — A. Believing what I read in 
 " the papers. Q. Believing the opinion that you had 
 " about the case and the defendants, or believing the 
 " stor\' as it was printed? A. Why, believing, of course, 
 " the opinion of the defendants, and the story, believing 
 " it all, believing it just as I read it in the papers." * * * 
 " Q. Did you ever express any opinion as to whether 
 " the newspapers had got bodily or the substance of the 
 " story right or not? A. Oh, I don't know that I ever 
 " did; no, sir." 
 
 This is an instance of what we call teasing the Juryman 
 up to the proper point, or " coaching" him, by the court. 
 
 The challenge for cause was overruled by the court, de- 
 fendants excepted, and challenged Mr. Porter perempto- 
 rily. 
 
 H. N. Smith (A., 8i; Vol. D, 311 to 315) said he 
 had formed quite a decided opinion as to the guilt or inno- 
 cence of the defendants; had read the newspapers at the 
 
352 
 
 time, had had frequent conversations in regard to the mat- 
 ter; had expressed his opinion and still entertained it. He 
 said he was afraid he would listen a little more intently to 
 testimony -which concurred with his opinion than to testi- 
 mony on the other side. " Q. That is, you would be willing 
 " to have your opinion strengthened, and would hate very 
 " much to have it dissolved? A. I would. Q. Under 
 " these circumstances, do you think you could render a 
 " fair and impartial verdict? A. I don't think 1 could. 
 " Q. You think you would be prejudiced? A. I think 
 " / would be prejudiced, because my feeling is very bitter. 
 « * * * Q_ Xhe question is whether or not jour 
 " prejudice would in any way influence vou in coming to 
 " an opinion, arriving at a verdict? A. I think it would. 
 " Q. You think it would take less testimon}' as a jury- 
 " man to come to the conclusion which you now have 
 "than to come to the opposite conclusion? A. Yes, 
 "sir. Q. That is your best judgment now? A. Yes, 
 '• sir." Whereupon said Smith was challenged for cause 
 by the defendants. 
 
 On examination by the state, this talesman said he 
 thought he could determine the guilt or innocence of the 
 defendants upon the proof presented in court regardless 
 of what he had read or heard, or of his opinion. Upon 
 questions by the court he said he didn't know an}- of the 
 defendants; he had a personal feeling; some of the offi- 
 cers were personal friends of his, but he had no feeling 
 towards any of the defendants upon any ground other 
 than what he had heard or read. He had talked zuith per- 
 sons who were at the Haymarket at the time of the explo- 
 sion, but the name of no man was mentioned. 
 
 The challenge for cause was overruled, the defendants 
 excepted and challenged said Smith peremptoril}'. 
 
 Isaac W. Pinkham (A., 82; Vol. D, 339 to 344) 
 
353 
 
 said he had formed and expressed an opinion as to the 
 guilt or innocence of the defendants, which he still enter- 
 tained. That opinion would not influence him if the evi- 
 dence showed that he zvas in error. He believed he could, 
 notwithstanding that opinion, Hsten to the testimony and 
 the charge of the court and render an impartial verdict. 
 He thought he could change his opinion if he saw any 
 necessity for it. The evidence would have to show that he 
 was in error. "I suppose that my present opinion would 
 " naturally prejudice me slightly. I do not think that 
 " would prejudice me so that the evidence would not be 
 " weighed. * * * 
 
 " I believe I could weigh the evidence. I can't say 
 " any more than that. I can't tell until the time comes. 
 " Q. You don't know whether you could lay your opin- 
 "ion aside or not? A. If the evidence should show I 
 " was in error, I would. Q. The evidence would have 
 "to show you were in error before you would change 
 "your mind? A. Yes, sir. Q. In other words, it 
 " would take testimony to overcome your present opinion ? 
 " A. Yes, sir." Challenged for cause by defendants. 
 
 Upon examination by the state, this talesman said he 
 could determine the guilt or innocence of the defendants 
 upon the proof presented in court alone, and under the 
 instructions of the court. 
 
 The challenge for cause was overruled, defendants ex- 
 cepted, and challenged Mr. Pinkham peremptorily. 
 
 Leonard Gould (A., 97; Vol. E, 477 to 490) said 
 he had read about the Haymarket meeting, had discussed 
 it, and had formed a rather decided opinion on the ques- 
 tion of the guilt or innocence of the defendants, and still 
 entertained that opinion. He thought he could be per- 
 suaded, thought he could listen to the evidence, whatever 
 evidence was offered. Had a pretty decided prejudice 
 
354 
 
 against socialism, did not believe he could be governed 
 by the evidence alone, irrespective of all prejudices and 
 opinions, and all conclusions he then had. 
 
 Challenged for cause by defendants. 
 
 On examination by the state, he said: " I think I could 
 " weigh the evidence impartially, but then to put that 
 " thing just as it should be put, when you come to sepa- 
 " rate a man's idea and his prejudice, but take the two 
 " together, 1 really don't know that I could do the case 
 "justice. * * * If I was to sit on the case, I should 
 "just give my undivided attention to the evidence, and 
 " calculate to be governed by that." He thought he 
 Gould do that. 
 
 Further interrogated by counsel for defendants, he said 
 he had some bias and some prejudice in the matter. He 
 should do just the very best he could. As to whether he could 
 act upon the proof produced and the charge of the court 
 uninfluenced, unbiased and unswerved by any prejudice, 
 opinion or conclusion that he then had, Mr. Gould said: 
 '• That is a question that it is almost impossible for a 
 " man to answer." " Q. Do j^ou believe that you can 
 " return a verdict, under the evidence and proofs and 
 " the charge of the court, and that alone, uninfluenced 
 " by any opinion, prejudice or feeling that j-ou now 
 " have? A. I will leave out the last part of that question 
 '^ entirely." 
 
 The court ruled that the question was improper, on the 
 ground of ambiguity, because not stating whether it 
 meant that the juror would be uninfluenced, or the 
 verdict uninfluenced. To which ruling defendants ex- 
 cepted. We respectfully submit that this question, when 
 printed, does not seem to be as ambiguous as one seeing 
 from the other side might imagine. 
 
 Mr. Gould further said he believed what he had read 
 
355 
 
 and heard, and his opinion was formed from thai, and he 
 supposed it was true. 
 
 " Q. I want to ask you whether you believe you can 
 " listen to the testimony and other proofs that may be here 
 " introduced in court, and the charge of the judge, and 
 " render an absolutely impartial verdict in this case, not- 
 " withstanding your present opinion, bias, or any preju- 
 " dices that you may have? A. Well that is the same 
 " question over again. Q. Do you say that you can't 
 " answer it? A. Well, I answered it as far as I could 
 " answer it. * * * Q. You say you don't know 
 " that you can answer that either yes or no? A. No, I 
 " don't know that I can." 
 
 Challenge for cause renewed. 
 
 In answer to the question by the court whether he be- 
 lieved that he could fairly and impartially render a ver- 
 dict in accordance with the law and the evidence, he said: 
 " Well, in a general way, I think I could listen to the law 
 " and the evidence and form my verdict from that. * * 
 " Q. Now, do you believe that you can, that you have 
 '• sulBciently reflected upon it so as to examine your own 
 " state of mind, then say yes or no? A. It is a difficult 
 " question for me tp answer. Q. Well, make up your 
 " mind as to whether you believe you can fairly and im- 
 " partially render a verdict in accordance with the law and 
 " the evidence. Most men in business possibly have not 
 " gone through metaphysical investigations of this sort, so 
 " as to be prepared to answer off-hand, without some 
 " reflection? A. Judge, I don't believe that I can answer 
 " the question. Q. Can't you answer whether you believe 
 " you know? A. I should try. If I had to do it I 
 " should do the best I could. Q. The question is, 
 " whether you believe you can or not. I suppose Mr. 
 ^' Gould, that you know the law is that no man is to be 
 
3S6 
 
 *' convicted of any offense with which he is charged un- 
 " less the evidence proves that he is guilty beyond a rea- 
 " sonable doubt? A. That is true. Q. The evidence 
 " heard in this case in court? A. Yes. Q. Do you 
 " believe that you can render a verdict in accordance with 
 "that law? A. Well, I don't know that I could. Q. 
 " Do you believe that you can ; if you doti't kno-ui of any 
 " reason why you cannot, do you believe you can? 
 " A. I could not answer that question. * * * 
 " Q. Have you a belief, one way or the other, as to 
 « whether you can or cannot? A. If I were to sit on 
 " the case, I should get just as near to it as possible, but 
 " when it comes to laying aside all bias and ail preju- 
 " dice, and making it up in that wa}-, it is a prett\- tine 
 " point to them. Q. Not, whether j'ou are going to 
 " do it, but what do you believe you can — that is the 
 " only thing. You are not required to state what is 
 " going to happen next week, or the week after, but 
 " what do you believe about yourself, whether you can 
 "or cannot? A. I am just about where I was when I 
 " started." 
 
 The same question was asked again. Mr. Gould re- 
 plied: " Well, I believe I have got just as far as I can in 
 " reply to that question." * * * " Q. This question, 
 " naked and simple of itself, is, do j'ou believe that you 
 " can fairly and impartially render a verdict in the case 
 " in accordance with the law and the evidence? A. I 
 " believe I could." 
 
 Question by counsel for defendants: " Do you believe 
 " that you can do that uninfluenced by any impression, 
 " prejudice or opinion which you now have? A. You 
 " bring in that point that I object to, and I do not feel 
 " quite competent to answer." 
 
 Challenged for cause on all answers. Challenge over- 
 
357 
 
 ruled. Defendants excepted, and challenged Mr. Gould 
 peremptorily. 
 
 The examination of this juror shows particularly what 
 ran through all the examinations. After the juror had 
 stated that he had formed and expressed an opinion, or 
 that he could not try the case fairly and impartially with- 
 out being influenced by bias or prejudice, six or eight 
 times, he was taken in hand by the prosecution and by the 
 court, and coached and coaxed up to a point where he 
 would answer once that he thought he could. He was 
 then decided by the court to be a competent juror. 
 
 We respectfully submit this examination as an instance 
 of " coaching^'' and we most respectfully suggest that wc 
 iclieve the court itself was not representing the Goddess 
 of Justice, and was not blind, and was not holding the 
 -scales level, when he was doing this. 
 
 Another examination which admirably illustrates the 
 same process of questioning by the representatives of the 
 state and the court, and the Hne of ruling adopted by 
 Judge Gary, was that of James H. Walker (i A., 104; 
 Vol. F, 35 to 42). Mr. Walker said that he had 
 formed an opinion on the question of the guilt or inno- 
 cence of the defendants of the murder of Mr. Degan, 
 which opinion he still entertained, and had expressed to 
 others. Asked as to whether this opinion would influ- 
 •ence his verdict, he replied: "Well, I am willing to 
 " admit that my opinion -would handicap my judgment, 
 " possibl3^ I feel that I could be governed by the testi- 
 " mony." 
 
 Further on he was asked: 
 
 " Then your belief now is that you could listen to the 
 " testimony and any other proof that might be introduced, 
 " and the charge of the court, and decide upon that 
 " alone, uninfluenced, unprejudiced and unbiased by the 
 
358 
 
 "opinion that ydu now have? A. No, I don'' t say that, 
 " Q. That is what I asked you? A. I said / would be 
 " handicapped." He also stated that he was prejudiced 
 against socialists, anarchists and communists. 
 
 And then the following question was asked him 
 (p. 39; Vol. F.): 
 
 " Q. Now, considering all prejudice and all opinions- 
 " that you now have, is there anything which, if the testi- 
 " mony was equally balanced, would require you to- 
 " decide one way or the other, in accordance with your 
 "opinion or your prejudice? A. If the testimotiy zvas 
 " equally balanced, I should hold my present opinion, sir. 
 " Q. That is, you would throw your opinion upon the 
 " scale, which would give it a greater weight, your pres- 
 " ent opinion would turn the balance of the scale in favor 
 " of your present opinion? That is, assuming that your 
 " present opinion is that j'ou believe the defendants 
 " guilty — or some of them — now suppose, if the testimo- 
 " mony were equally balanced, your present opinion would 
 " warrant you in convicting them, you believe, assuming 
 " your present opinion is that they are guilty? A. / 
 " presume it zvould. Q. Well, you believe it would — 
 " that is your present beHef, is it? A TesP 
 
 Thereupon counsel for defense challenged Mr. Walker 
 for cause. 
 
 Upon examination of Mr. Grinnell, Mr. Walker an- 
 swered the so-called statutory questions satisfactorily, and 
 thereupon the court interrogated him as follows: 
 
 " The Court: Mr. Walker, I suppose you know that 
 " the law is that no man is to be convicted of any crime 
 " unless the evidence upon his trial, unless that evidence 
 " proves that he is guilty beyond a reasonable doubt? 
 " A. Yes, sir. Q. Now, this confusion about opinions 
 " and verdicts I want to clear up if I can. I suppose 
 
359 
 
 " that you know that no man is to be tried upon prior 
 " impression or prior opinion of the jurors that are called 
 « into the case? A. Yes, sir. Q. But only upon the 
 " evidence. That you are familiar with, of course. Now, 
 " do you believe that you can fairly and impartially ren- 
 " der a verdict without any regard to rumor and what 
 " you may have in your mind in the way of suspicion and 
 " impression, etc., but do you believe that you can fairlj^ 
 " and impartially render a verdict in accordance with the 
 " law and evidence in the case? A. I shall try to do it, 
 " sir." The Court, interrupting: " But do you believe that 
 " you can sit here and fairly and impartially make up 
 " your mind from the evidence whether that evidence 
 " proves that they are guilty beyond a reasonable doubt or 
 " not? A. I think I could, but I should feel that I was 
 " a little handicapped in my judgment, sir." The Court: 
 " Well., that is a siifficient qualification for a juror in the 
 " case. Of course, the more a man feels that he is handi- 
 " capped, the more he will be guarded against it." 
 
 Thereupon counsel for defendants excepted to the re- 
 mark of the court, stating that the court's position did 
 not correspond with observation or judgment, and ob- 
 jected to such remark being made as shown by the rec- 
 ord in the presence of a large number of talesmen wlio 
 were in attendance, awaiting examination. 
 
 The court overruled the challenge for cause, to which 
 the defendants excepted, and thereupon peremptorily chal- 
 lenged JMr. Walker. 
 
 We beg leave to state that not only is the remark given 
 above contrary to experience, but to all the authorities. 
 According to the remark of the court, the stronger the 
 opinion of the juror against the defendant, and the more 
 bias and prejudice he has, the better juryman he will 
 make, because, having this hostile opinion and this bias 
 
360 
 
 and prejudice, he will be conscious of it, and will isolate 
 it from himself, and that will leave his mind to act on the 
 evidence alone. The common experience is that a pre- 
 viously formed opinion or prejudice is like the sand-drift 
 that permeates and mixes with everything, or, like green 
 spectacles, that colors everything within the vision. The au- 
 thorities all agree the defendant is not bound to take such a 
 juryman,or,as Chief Justice Marshall says in the Burr case, 
 " thelaw will not trust him.^'' Judge Gary seems to think the 
 provision of the constitution is all wrong. This provision 
 should have been that the defendant should be entitled to a 
 juryman '■'■handicapped^'' by previous opinions and preju- 
 dices, and the more he is handicapped the better the jury- 
 man will be. 
 
 W. D. Allen (i A., 61; Vol. C, 125-130) stated 
 that he had heard and read about the Haymarket difficulty, 
 and from what he had so read and heard had formed an 
 opinion as to the guilt of some or all the defendants, which 
 opinion he still had, and which he had frequently expressed 
 to others. Then came these questions and answers: 
 
 " Q. I will ask you whether what you have formed 
 " from what you read and heard is a slight impression, or 
 " an opinion, or perhaps a conviction? A. It is a de- 
 " cided conviction. Q. You have made up your mind 
 " as to whether these men are guilty or innocent? A. 
 " Yes. Q. It would be difficult to change that convic- 
 " tion, or impossible, perhaps? A. Yes. Q. It would 
 " be impossible to change your conviction? A. It would 
 " be hard to change my conviction." (Page 126.) 
 
 Thereupon Mr. Allen was challenged for cause. 
 Whereupon Mr. Grinnell asked him if he could determine 
 the guilt or innocence of the defendants, regardless of his 
 opinion, and he stated he could; and thereupon the court 
 proceeded to interrogate him, asking whether he had any 
 
personal acquaintance with any of llie defendants, or had 
 ever seen them before, which he replied to in the nega- 
 tive. Then the following occurred: 
 
 " Q. Have you any feeling with regard to them ex- 
 " cept such as grows out of what you have read or heard 
 " in connection with the matter which was referred to as 
 " the Haymarket difficulty? A. No, sir. Q. If you 
 " should be impaneled here as a juror, do you believe that 
 " 3'ou would endeavor to get at the real truth by the evi- 
 " dence without regard to any former opinion that you 
 ^' have had, or any opinion that you have now, or any- 
 -" thing that you have read or heard? A. I should, yes. 
 •" Q. And in trying the case, you believe that you could 
 " fairly and impartially try it onl}- upon the evidence here 
 -" in court, with the instructions of the court? A. I do. 
 -" Q. I suppose you are familiar with the rule of law, 
 " that if there is no evidence which entirely satisfies the 
 -" jury beyond a reasonable doubt of the guilt of the person 
 ■" charged with the oflense, he must be acquited — you 
 " are familiar with that? A. Yes. Q. Do you believe 
 " that you will fairly and impartially apply that rule in 
 ■" this case, and unless the evidence which is here heard is 
 " of that character, that you can acquit these defendants? 
 •" A. Yes." The Court: " It don't make much differ- 
 -" ence what a man calls his own state of mind — whether 
 -" he calls it an impression, an opinion or a conviction. 
 -" The thing is the same — any bias or prejudice or state 
 -" of mind which will prevent him from trying the case 
 ■" upon the evidence." 
 
 Thereupon continued discussion between counsel and 
 court as to the attitude of Mr. Allen as disclosed by his 
 answers, at the end of which the court overruled the 
 -challenge for cause, to which defendants excepted, and 
 thereupon challenged Mr. Allen peremptorily. 
 
362 
 
 Perhaps the attitude of Judge Gary with reference to 
 the scope to be allowed defendants in their examination of 
 proposed jurors cannot be better illustrated than by call- 
 ing attention to his action in reference to one particular 
 question which was formulated carefully and was asked 
 of a great number of the proposed jurors, but which 
 Judge Gary in every instance refused to allow the pro- 
 posed jurors to answer, although the representatives of the 
 state formally withdrew all objection to the question in 
 open cour". The question asked appears in i A., 39, 
 as follows: 
 
 " Suppose it should appear in evidence that the meet- 
 "ing held at the Haymarket square was a meeting called 
 " by socialists or anarchists, and was attended by them 
 " and others; suppose that it should further appear that 
 " the bomb which is alleged to have produced the death 
 " of Mr. Degan was thrown by some one in sympathy 
 "with the socialists or anarchists; now, I will ask you, 
 " provided it was not established beyond all reasonable 
 " doubt that these defendants actualh'^ threw the bomb, 
 " or that they aided, participated in or advised the com- 
 " mission of that wrong, would the fact that they were 
 " socialists or communists have any influence upon your 
 " mind in determining their innocence?" Mr. Grinnell, 
 the state's attorney, then said: " I zviU not object to that 
 " question." But the question was refused by the court, 
 not only in that instance, but in every other case where 
 it was propounded, to which defendants excepted in every 
 instance. 
 
 This course of action upon the part of Judge Gary 
 appears at page 148, Vol. A.; i A., 40. 
 
 Mr. Crowley was under examination, and stated that 
 he wonld not give the same effect to the testimony of an 
 anarchist upon the stand, or a communist, that he would 
 
363 
 
 to any other unimpeached testimony. He was challenged' 
 for cause, the challenge was overruled, to which defend- 
 ants excepted, and then asked the following question, by 
 defendants' counsel: 
 
 " Q. I will ask you whether your prejudice against 
 «' communists and anarchists is such, that if they should 
 " testify as witnesses you would not give to their evidence 
 " the weight which it was entitled to, had they not been 
 " anarchists or communists?" Mr. Grinnell stated: " We 
 " don't make any objection." But the court held the 
 question to be improper, and refused to allow it to be an- 
 swered. 
 
 Thereupon the defendants' counsel asked the following: 
 " You have answered that you are prejudiced against 
 " socialists, communists and anarchists. Now, upon the 
 " trial of this cause, if it should be established by compe- 
 " tent evidence that a meeting of socialists and anarch- 
 "ists, communists and others, was held at the Haymarket 
 " square, in this city, on May 4th, and that a bomb was 
 " maliciously thrown by some one in sympathy with such, 
 "meeting, and in sympathy with the principles advocated 
 "by socialists, communists and anarchists, and that by 
 "reason thereof Mathias J. Degan was killed; but if the 
 " evidence introduced upon the trial fails to show beyond a 
 " reasonable doubt that such bomb was thrown by these- 
 " defendants, or any one of them, and that they, nor any 
 "one of them, neither assisted, aided, abetted, advised or 
 "counseled the throwing of the bomb, would your preju- 
 " dice against socialists, communists and anarchists pre- 
 " vent you from rendering an impartial verdict and ac- 
 " quitting the defendants, or are you now so prejudiced 
 " against the classes to which I have referred that you 
 "cannot act impartialy and fairly as a juror in this case 
 "under the facts assumed in the question?" 
 
364 
 
 This question was refused by the court, to which the 
 defendants excepted, and then asked: 
 
 " Q. I will ask you whether, if the defendants should 
 *' testify as witnesses in their own behalf in this trial, 
 •'• and it should appear that they were communists, social- 
 ■" ists or anarchists, that you would give credence to their 
 " testimonj'? " 
 
 The question was objected to, and the objection sus- 
 tained, and defendants excepted, and then asked: 
 
 " Q. Would you consider their testimony, under these 
 •" circumstances, the same as the testimony of any other 
 " witness? " 
 
 Which question was objected to, and objection sustained, 
 and defendants excepted, and then asked: 
 
 " If the testimony was equally divided upon the trial of 
 "this case, would you find against the defendants or in 
 ■"favor of the defendants, because of their being commun- 
 •" ists, socialists or anarchists?" 
 
 Which question the court, on its own motion, refused, 
 to which defendants excepted. 
 
 Mr. Crowley was thereupon peremptorily challenged 
 by defendants. 
 
 James H. Cole was one of the jurors who tried the 
 case. He was asked the same questions as Mr. Crowley. 
 The rulings of the court were the same as in the case of 
 Crowley, and the exceptions the same, the court refusing 
 to allow any of said questions to be answered. In addi- 
 tion to this, it may be mentioned that Mr. Cole admitted 
 that he had a prejudice against socialists, communists and 
 anarchists, (i A., 41; Vol. A., 172 to 181.) 
 
 In Mr. Shedd's examination, heretofore referred to 
 (I A., 46; Vol. A., 396 to 398), defendants' counsel 
 examining, the following occurred: 
 
 '■ Q. Have you anj- prejudice against the class known 
 
365 
 
 "as socialists, communists or anarchists? A. I have; 
 " yes. 
 
 " Q. A decided prejudice against them? A. It is. 
 
 " Q. I will ask you whether that prejudice would 
 " prevent your rendering an impartial verdict in this case, 
 " provided it was conceded or proved that the defendants 
 " belonged to this class? A. It would; yes, sir." 
 
 The juror was thereupon challenged for cause. Chal- 
 lenge overruled, and e.xception. 
 
 The following discussion then occurred: 
 
 " The Court: I know, or the court judicially knows,. 
 " what are the objects of socialists, communists or an- 
 " archists. 
 
 " Mr. Foster: Beg your pardon, it presumes that the 
 " juror knows. 
 
 "The Court: You must presume that I know, be- 
 " cause it has been'decided that for a man to say that he 
 " was prejudiced against horse-thieves is no ground to 
 " impute to him any misconduct as a juror. Now, you 
 " must assume that I know either that anarchists, social- 
 " ists and communists are a worthy, a praiseworthy class 
 " of people, having worth}^ objects, or else I can't say 
 " that a prejudice against them is wrong. I don't know;"^ 
 
 Later on, in the examination of the same proposed 
 juror, this talesman stated, as we have before called at- 
 tention to, that the mere fact of the defendants being 
 communists would influence his opinion as a juror, and 
 that he would find a verdict of " guilty " upon less evi- 
 dence than if they were law-abiding citizens. 
 
 Thereupon the court asked this question: 
 
 " Well, that prejudice of yours, then, is based upon your 
 " understanding that they are not law-abiding citizens, is 
 " it? A. That is what it is." 
 
 T. H. DowD (i A., 50; Vol. B, 99-104), having 
 
366 
 
 stated that he was prejudiced against socialists, anarchists 
 and communists, was asked if such prejudice was so 
 strong that it would influence his verdict if selected as a 
 juror. The court on his own motion refused to allow the 
 question to be answered. To which defendants ex- 
 cepted. Then he was asked if his prejudice was such 
 that it would influence his verdict should it be estab- 
 lished or conceded during the trial that the defendants 
 were socialists, communists or anarchists; which question 
 the court refused to allow to be answered, and the de- 
 fendants excepted. And then he was asked whether, if 
 it should appear that the defendants were socialists, an- 
 archists or communists, it would require less evidence to 
 convict or more evidence to acquit than if such fact 
 should not appear. Which question the court also re- 
 fused to allow to be answered. To which defendants 
 excepted. 
 
 H. F. Chandler (i A.,62, Vol. C; 149 c/ sc§r.): Stated 
 that he had heard and read of the Haj'market trouble, 
 had formed an opinion as to the guilt or innocence of 
 the defendants, which he still entertained and had ex- 
 pressed before coming into court. That he believed 
 what he heard and read, but had not expressed an opin- 
 ion as to the truth of the accounts received. That his 
 ■opinion was decided and his mind pretty well made up. 
 He stated: " // will take evidence to satisfy we," and that 
 it might be hard to change his opinion; but he stated fur- 
 ther that he believed he could determine the question of 
 the guilt or innocence of the defendants solely upon the 
 evidence in court; admitted he had a strong prejudice 
 against anarchists and communists. He was asked: " Q. 
 ^' If it were proved or conceded on this trial that all the 
 -" defendants or some of them are socialists, anarchists or 
 " communists, do you think your prejudice would in any 
 
367 
 
 " way influence your verdict?" Which question the 
 court refused, and defendants excepted. 
 
 He stated that he was pointed out to the deputy sheriff 
 by his employer to be subpoenaed as a juror, and that he 
 had quite frequently expressed his opinion as to the guilt 
 •or innocence of the defendants. 
 
 Challenged for cause, he was examined by the court, to 
 whom he stated that he did not know the defendants, 
 bat tJiought he had some feeling against t/ievi, not only 
 based upon what he had read about the Haymarket trouble, 
 hit on matters which he had heard before that. That his 
 opinion was based alone on what he had heard and read, 
 and he believed he could try the case fairly upon the evi- 
 ■dence. That he had now an opinion upon the question 
 z.% to whether the defendants did the act which resulted 
 in the death of Degan. 
 
 Thereupon the court suggested, in effect: "It don't 
 " seem to me it makes any difference in the competency 
 " of a juror, whether he has simply formed an opinion, 
 " or expressed an opinion which he has formed. I don't 
 " see how it makes a particle of difference in his state of 
 " mind. Every man is in favor of justice and fair deal- 
 " ing as between other people, where his own interests 
 " are not affected; and, as I have said before, I think it 
 " is in the nature of any man when he wants to find out 
 " the truth of any transaction that he will, when the 
 " original sources are presented to him, follow them and 
 " not any hearsay that he has ever heard." 
 
 Thereupon the challenge for cause was overruled to 
 which defendants excepted, and challenged peremptorily. 
 
 H. L. Anderson (i A., 69; Vol. C, 517) stated that he 
 had heard and read about the Haymarket affair, and 
 formed an opinion as to the guilt or innocence of some of 
 the defendants; that he had frequently talked the matter 
 
368 
 
 over with other people, and expressed his opinion as to 
 the guilt or innocence of the defendants, which opinion he 
 still retained, and which was based not only upon what he 
 had read but what he heard; that he was sure he could 
 lay aside his prejudice and grant a fair trial upon the evi- 
 dence. That he was well acquainted with sorne of the po- 
 lice force who zuere present at the Haymarket, and they 
 had given him their views of the matter since that meetings 
 and told him what occurred there in connection with the 
 effort to disperse the crowd. That some of them were 
 injured by the explosion of the bomb, and that he knew 
 well one of the parties killed by the bomb. That he had 
 formed an nnqiialifisd opinion as to the guilt or innocence 
 of the defendants which he regarded as deep-seated, a firm 
 conviction that these defendants, or some or them, 
 WERE GUILTY. That US a result of the conversation that 
 he had zvilh the policemen present at the meeting, he 
 reached his opinion as to the guilt or innocence of some of 
 the defendants. 
 
 He was thereupon challenged for cause by the defend- 
 ants; challenge was overruled; defendants excepted and 
 challenged peremptorily. 
 
 T. E. Keefe (i a., 724; Vol. D, 42-61) stated that he 
 had heard of the Haymarket affair, and from what he 
 heard and read had formed an opinion as to the guilt or 
 innocence of the defendants of the murder of Degan, 
 which opinion he still had, and which was a firm opinion; 
 thought such opinion would not influence his verdicts 
 knew Officer Degan for several months before he was 
 killed, and knowing him, what he had heard and read 
 caused him to form a very strong opinion upon the ques- 
 tion of the guilt or innocence of these defendants or some 
 of them, which he had expressed to others; that he be- 
 lieved what he had heard and read, and expressed liis 
 
3^9 
 
 opinion on that belief; had staled to others that he beliei'cd 
 zvhat he had heard and read, and did, in fact, beliez'e the 
 accounts as -publislied and repeatedly so stated, and at the 
 same time told others his opinion. 
 
 Challenged for cause, he staled to Mr. Grinnell that 
 he got the opinion from what he read, which he expressed 
 to others, but that he did not say to anybody that he be- 
 lieved what he read — did believe it, but did not say so; 
 and that the opinion he had was as to who was respon- 
 sible. 
 
 Thereupon to the court he stated that he had never had 
 any discussion as to the truth of the reports he had 
 heard, but had expressed his opinion to others as to the 
 transaction and as to the parties. 
 
 Examined again by defendants' counsel] he stated that 
 he had expressed his opinion, which was based upon what 
 he had heard and read, which he believed, more on what 
 he had heard than what he had read, and he had repeated 
 what he had heard to others — tliat he had slated to others 
 that he believed zvliat he had heard, but did not state that 
 he believed what he had read — stated to others that he 
 believed what he had heard and gave them his opinion — 
 that there is no mistake about this; tliat he said to others 
 that he believed what he had heard. 
 
 The challenge for cause was here renewed, when to the 
 court he stated that he had heard the Haymarket trasac- 
 tion talked of, but never told anybody that he believed the 
 newspapers had got the story straight, nor that he be- 
 lieved that he himself had got it straight from any one 
 who talked with him. 
 
 Thereupon to defendants' counsel he further stated that 
 his opinion was formed from what he had heard largely, 
 and that in communicating that opinion to others he staled 
 that he believed what he had heard — that there ivas no mis- 
 
370 
 
 take about this; that he told them his opinion, which was 
 based upon what he had heard and read. 
 
 Thereupon the challenge for cause was again renewed, 
 when to Mr. Grinnell he stated that in discussing the 
 matter with others he had repeated what he had heard 
 and had expressed his opinion, but did not state that he 
 believed every word or any particular word that had been 
 told; and to the court he stated that he had never said 
 anything as to whether he thought those that he talked 
 with got the story straight. 
 
 Finally to defendant's counsel he again stated that he 
 had heard the stoiy from several parties whose narpes he 
 could not give, and had discussed the matter with a good 
 many; that he believed what he had heard, though he did 
 not say so; and thereupon he stated further that in talk- 
 ing- with others he told them that he did believe what he had 
 heard, but did not repeat the substance fully — that he ivas 
 sure that he did tell them that he believed what he had heard, 
 and this in conversation with different people. 
 
 Challenge for cause was thereupon overruled, to which 
 the defendant excepted, and challenged peremptorily. 
 
 The examination of M. D. Flavin (i A., 84; Vol. D, 
 411 to 418) brings out another point in the ruling of the 
 trial court as to the qualification of jurors not heretofore 
 suggested, namely, that even relationship of the proposed 
 Juror to one of the parties killed by the Hayniarket bomb, 
 coupled with admitted prejudice, would not, in the judg- 
 ment of the court, disqualify. It needs no citation of 
 authority to show the absolute error of this ruling. The 
 examination was in substance as follows: 
 
 He stated that he had heard and read about the Hay- 
 market affair and formed an opinion as to the guilt or in- 
 nocence of the defendants of the murder of Degan, which 
 opinion still stood pretty strong, which he still enter- 
 
371 
 
 tained and had expressed to others. That one of the 
 ■officers killed. Officer Flavin, zvas a relative, allhoiigh his 
 relationship u/as distant, and for this reason his feelins; zvas 
 perhaps different from what it would have been, and occa- 
 sioned a very strong' opinion as to the guilt or innocence of 
 the defendants, or some of them. That he stated in dis- 
 ■cii'^sing this matter with others that he believed what he had 
 heard and read, not so much what he had read as what he 
 had heard: That he believed he expressed the opinion 
 that what he had heard was a true narrative. He was 
 thereupon challenged for cause. 
 
 To Mr. Grinnell he stated that he read the accounts of 
 the Haymarket, but did not believe he had ever told any- 
 body that he believed the story that he had heard and 
 read was a true stor\'; did not express any opinion as to 
 the I ruth of the details; but stating he believed he could 
 give a fair and impartial verdict, challenge for cause was 
 overruled, to which defendants excepted and challenged 
 peremptorily. 
 
 Rush Harrison (i A., 106-7; Vol. F, 56-65) stated 
 that he had been working for Edson Keith & Co., in their 
 silk department, for eleven years. Had read and heard 
 of the Haymarket meeting, and formed an opinion touch- 
 ing the guilt or innocence of the accused, or some of them, 
 of the murder, which he had expressed to others, and 
 there had been nothing to change it. The examination 
 given in the abstract then proceeds as follows: 
 
 " It would ha've considerable weight zvith me, if selected 
 " as a juror. // is pretty deeply rooted, the opinion is, and 
 " // zuould take a large preponderance of evidence to remove 
 " //. Think I could listen to the testimony and render a 
 ^' verdict upon that alone, uninfluenced by my present 
 " opinion. Am prejudiced against socialists, communists 
 " and anarchists. I still think it would take a preponder- 
 
372 
 
 <' ance of evidence to remove my present opinion. I should 
 " naturally take the law from the court and the evidence 
 " from the witnesses. / should give the dejendants the 
 " benefit of a reasonabte doubt, if the evidence zvere equally 
 " balanced, but to some extent 1 should be governed by my 
 " present opinion. My opinion is based more upon what 
 " I have read than what I have heard. '■It would require- 
 " the preponderance of evidence to remove the opinion I nozir 
 " possess. I feel like every other good citizen does feci, a 
 '■'■ Jeeling that these men are guilty; we don't know 
 " which. We have formed this opinion by general re- 
 " ports and the newspapers. Now, with that feeling, it 
 " would take sovte very positive evidence to make me think 
 " these men were not guilty if I should acquit them; that 
 " is what I mean.' I should act entirely upon the testi- 
 " mony. I would do so as near as the main evidence 
 " would permit me to do. Probably I should take the 
 " testimony alone. ' Q. But you say it would take posi- 
 " live evidence of their innocence before you could consent 
 " to return them not guilty? A. Tes. I should want 
 " some strong evidence. Q. Well, if that strong evidence 
 " of their innocence was not introduced, then you would 
 " want to convict them, of course? A. Certainly.'' 
 
 " Uon't know whether, if the testimony was evenly bal- 
 " lanced, my opinion would turn the scale, but I think it 
 " would. I think if the testimony was evenly balanced 
 " my present opinion would convict them." 
 (Challenged for cause by defendants.) 
 
 To Mr. Grinnell: " If I did not believe, beyond a rea- 
 " sonable doubt, these defendants, or some of them, were 
 " guilt}-, I would be willing to acquit them upon the proof 
 " presented in court. I would give the defendants the 
 " benefit of the doubt. 
 
 "If the testimony was equally balanced, I think my prcscut 
 
373 
 
 ■*' opinion would convict the defendants. I said so, and I 
 " still think so." 
 
 To the Court: " I understand that a defendant must 
 " be proved guilty by the evidence beyond a reasonable 
 " doubt or he is entitled to be acquitted. I should give 
 '• the benefit of the doubt to the prisoners, unless they 
 " were proved to be guilty by the evidence." 
 
 The challenge for cause by the defendants to Mr. Har- 
 rison was thereupon overruled, to which the defendants 
 -excepted, and challenged peremptorily. 
 
 We submit that if Mr. Harrison, as shown by this ex- 
 amination, was a fair and impartial juror within the con- 
 templation of our constitution and laws, then there is no 
 such thing as a prejudiced juror. Here was a man who 
 stated positively that he shared in the general belief that 
 the defendants, or some of them, were guilty; that this 
 -opinion of his v^^as deep-rooted, and that " it would take 
 "a lar^e -preponderance of the evidence to remove"; 
 *'■ that it would take some pretty positive evidence to make 
 " me think these men were not guilty, if /should acquit 
 " them." That if the testimony was evenly balanced the 
 opinion he entertained at the time would convict the de- 
 fendants. Even to the state's representative, upon 
 •cross-examination, he repeated that, if the testimony was 
 ■equally balanced, his present opinion would, in his judg- 
 ment, convict the defendants. While to the court, upon 
 further interrogation, stating that he recognized that it 
 -would be his duty to acquit, unless the evidence convicted 
 be3'ond a reasonable doubt, he would only say that he 
 would give the benefit of such doubt to the prisoners, 
 -" unless they were proved to be guilty by the evidence." 
 Not, observe, by a clear preponderance of the evidence, 
 but by such amount of evidence as he might deem neces- 
 .sary to satisfy the opinion that he then held. 
 
374 
 
 We repeat that this juror was an incompetent juror^ 
 and if Judge Gary's ruling upon his examination \v as- 
 correct, then we have studied the constitution and the law 
 to little purpose. 
 
 LeRoy Hannah (i A., n8; Vol.G, 165-171) stated 
 that he had heard and read of the Haymarket meeting;^, 
 that he had a prejudice against socialists, communists 
 and anarchists; that if he zvere a juror in this case his 
 verdict might be prejudiced by his present bias and opinion^ 
 and that he believed that he could not act upon the 
 proof presented in court alone, uninfluenced thereby. 
 
 He was thereupon challenged for cause by the defend- 
 ants. 
 
 To the state's attorney he said that he would try to 
 determine the question of the guilt or innocence of the 
 defendants, if taken as a juror, without reference to what 
 he had heard or read, and believed he could do so. To- 
 the court he stated that he had no personal acquaintance 
 with the defendants, and the only opinion he had was from 
 what he had read and heard. That he had talked zvith a 
 policeman who was present at the Haytnarket, but that the 
 names of the defendants were not mentioned, and that if 
 selected as a juror he thought he could be governed hy 
 the evidence alone. The challenge for cause was there- 
 upon overruled, and he was further examined by defend- 
 ant's counsel. 
 
 He stated tlial he had talked icitli a policeman icho 
 was present at the Haymarket, and zuho described the 
 occui'rcnce there, the throwing; of the bomb, etc., bnt did 
 not mention the names of the pai'ticidar persons pres- 
 ent; that lie had lieard the names oj Spies, Parsons 
 and Fielden, and zuhatever opinion he had tipon the 
 matter had reference to parties bearing those names; 
 and the prejudice which he had was against parties 
 
375 
 
 bearing these names, and the principles they advocated. 
 That it was so strong that it would probably influence 
 him in considering the testimony. That he was prej- 
 udiced against the principles which they advocated 
 and against theyn, and that he felt that this prejudice 
 might ififluence his verdict: and he said, " I don't know 
 " but we deceive ourselves sometimes, when we say we 
 " can do so and so. My prejudice might bias my ver- 
 " diet." 
 
 The challenge for cause, being thereupon renewed, was 
 fully argued, overruled, and exception; and the defendants 
 thereupon challenged peremptorily. 
 
 We think we may be justified here in citing one or two 
 illustrations, for the purpose of showing, by the questions 
 asked and the expressions made use of by Judge Gary, 
 the extent to which he went in this matter of the qualifi- 
 cation for jury service, despite the matters upon which we 
 relied as evidencing disquahfication; and also further 
 showing the attitude taken by the court in the course of 
 these jury examinations. 
 
 In the course of the examination of J. R. Adams (i A., 
 75; Vol. D, 84-89), after he had been challenged for 
 cause, this occurred: 
 
 The Court: " Q. Do you believe that after you 
 " have heard all the evidence that can be presented, or 
 " that shall be presented on either side — examination and 
 " cross-examination — that your conclusions then as to 
 " what is the truth will be at all affected by what people 
 " have said or written about it before you heard any tes- 
 " timony? Do you believe that yoUr conclusions as to 
 « what that evidence proved or failed to prove will be at 
 '' all aftected by what anybody had ever said or written 
 " about that matter before? A. I believe it would. 
 
 " The Court: It is incomprehensible to me." 
 
376 
 
 The challenfje was, of course, allowed on this answer, 
 but the remark was excepted to by defendants' counsel, 
 the remark being made in the presence of other jurors. 
 
 In connection with the examination of B. L. Ames 
 (i A., 95; Vol. E, 400-408), after he had been chal- 
 lenged for cause on his answers made to defendants' 
 counsel, the court took him in hand and proceeded to ex- 
 amine him. I'his appears: He stated to the court that 
 he did not believe^ evcrvthing considered, that he coidd sit 
 US (I juror, listen to the evidence, and from that alone make 
 up his mind as to the guilt or innocence of the defendants ; 
 that he did not know the defendants, but had frequently 
 been with the police, and didn't think he would listen to 
 the evidence presented, and make up his mind from that 
 alone as to whether it proved the defendants guilty be- 
 yond a reasonable doubt. Thereupon the following ex- 
 amination occurred: 
 
 "The Court: Q. Why not? What is to prevent 
 "your listening to the evidence and acting only upon that? 
 " Why can't you listen to the evidence and make up your 
 " mind on that? " 
 
 (Exception by defendants to said question.) 
 
 " A. I can, I suppose, make up ni}- mind, but I may 
 " be prejudiced just the same. Q. Can you make up 
 " your mind whether the evidence proves bej-ond a rea- 
 " sonable doubt whether they are guilty or does not 
 " prove it? A. Yes, I could come to a conclusion. Q. 
 " Cnn't 3-ou do that impartially? The question in this 
 " case for a juror is. not what he may think will be the 
 " effect upon his mind as to his private impressions, 
 " suspicions or notions, but what effect the state of his mind 
 " will have on his verdict. Will your verdict be influenced 
 " by anything other than the evidence in the case and the in- 
 " struction of the court? A. I am afraid it would, for 
 
377 
 
 ■" certain reasons. Q. You don't lielieve that you could 
 " fairly and impartially try the case and render a verdict 
 " on the law and evidence? A. I don't think I could." 
 
 This challenge also was allowed; but the questions of 
 the court, and the manner of their putting to the pro- 
 posed juror, illustrate the attitude of the court upon 
 these questions, and the manner in which proposed jurors 
 were led or urged to give answers that would, in the 
 view of the presidmg judge, establish their competency. 
 
 Still another illustration we select from the many 
 abounding in the record, as afforded in connection with 
 the examination of H. D. Bogardus (i A., 102-104). 
 For convenience we shall present this examination pre- 
 cisely as it stands in the abstract, as follows, to wit: 
 
 H. D. Bogardus (i A.), flour and fruit merchant, exam- 
 ined, stated: Have heard and read of the Hay market 
 meeting; and from what I have read and heard, have 
 formed an opinion as to the guilt or innocence of the de- 
 fendants of the crime now charged, which opinion I have 
 •exjiressed to others, and still entertain; it certainly v^'ould 
 influence my verdict if selected as a juror; I could not 
 act independent of the opinion; it would "require very 
 ■" strong proof to overcome my opinion. I would be in- 
 " fluenced by it, of course," and I would not render my 
 verdict upon the testimony alone, fairly and impartially. 
 (Challenged for cause.) 
 
 To Mr. Grinnell: I have talked with some police- 
 men about the Haymarket affair, but whether they were 
 there or not, I do not know. I have' heard no testimony 
 upon the matter. I would be influenced as a juror by my 
 ■prejudices and opinions against the defendants; " it would 
 ■" require very strong proof to overcome it." I don't be- 
 lieve I could give them a fair trial upon the proof, for it 
 \vouId require very strong proof to overcome my preju- 
 
378 
 
 dices; " 1 hardly think, that you could bring proof enough 
 " to change my opinion." If accepted on the jury, I 
 would try to do my duty according to the evidence, and 
 might do so; think I could do my duty, "but it would re- 
 » quire pretty strong evidence to overcome my prejudice."" 
 Would not convict without some evidence. If taken a& 
 a juror in this case, I think I could " determine the guilt 
 " or innocence of the defendants upon the proof produced 
 " alone, * * * but being prejudiced, it would take 
 " very strong evidence to overcome my prejudice." 
 
 To the Court: I know the law as to defendants not 
 being convicted except upon evidence on the trial, and I 
 think I might fairly and impartially determine whether the 
 evidence proved that they are guilty beyond a reasonable 
 doubt, " but it would require prett}' strong proof." I can 
 fairly and impartially render a verdict in this case in ac- 
 cordance with the law and the evidence, I think. 
 
 (Challenge for cause overruled, and ex'ception.) 
 
 To Defendants' Counsel: "I saj' it would require 
 "pretty strong testimon}' to overcome my opinion at 
 " the present time." Still I think I could act independent 
 of my opinion. I would start with an opinion, how- 
 ever, and " I think that the preponderance of proof 
 " would have to be against my opinion strong." I think 
 the defendants are responsible for what occurred at the 
 Haymarket meeting. The preponderance of evidence 
 would have to be in favor of the defendants' innocence 
 with me. 
 
 (Challenge for cause renewed.) 
 
 "The Court: The question is, what will the verdict 
 "be? The statute says that if a man saj's that he be- 
 " lieves that he can fairly and impartially render a verdict 
 "in accordance with the law and evidence, that then the 
 "formation of opinions from rumor or newspaper slate- 
 
379 
 
 " ment is not a ground of challenge; of course, leaving it 
 " to the judgment of the tryer, whether that belief of his 
 " is well founded or not. But I have expressed my opin- 
 " ion upon that part of the case here, so that it is not 
 "necessary to repeat it. Every fairly intelligent and 
 " honest man, when he comes to investigate the question 
 " originally for himself upon authentic sources of infor- 
 " mation, will, in fact, make his opinion from the authen- 
 " tic sources instead of the hearsays that he had before." 
 (Exception to the ruling of the court.) 
 
 Upon further examination of this talesman, he finally 
 stated to the court directly that he would find the .de- 
 fendants guilty unless the evidence was very strong and 
 clear, and that, if evenly balanced, his prejudice would 
 condemn them (page 26) ; and thereupon the juror was 
 finally discharged from the panel and the challenge for 
 cause allowed. 
 
 We could go on through the eight volumes of the 
 record containing the jury examination, and cite hundreds 
 of illustrations of these rulings, but we do not feel that we 
 would be justified in so far trespassing upon your Honors' 
 time and patience. We have selected the cases above 
 specially referred to simply as examples running alt 
 through the case, which illustrate the positions assumed 
 by Judge Gary, and which seem to us to demonstrate the 
 absolutely fatal error which pervaded his rulings, and 
 which vitiated the construction which he atter.}pted to- 
 give to the statute of March 12, 1S74: a construction 
 which, as above shown, disregarded the omission from 
 the statute of any suggestion indicating a design to re- 
 move the disqualification from a juror who had expressed 
 his opinion, and had committed himself to its advocacy, 
 disregarding wholly the long line of judical decisions, to 
 which there had never been any notable exception, prior 
 
38o 
 
 to the adoption of our constitution of 1870. Tliat while 
 the formation of an opinion or impression based upon 
 newspaper statements or rumor, and which was slight in 
 its character, does not necessarily disqualif}' a juror other- 
 wise apparenll}' candid, fair and impartial, yet the con- 
 fession of a fixed or decided opinion, or a decided convic- 
 tion, no matter upon what sources of information based, 
 was alwajj^s held to disqualif}-. The fixed belief in the 
 truth of the information is material, as bearing upon the 
 character of the opinion as to defendant's guilt or inno- 
 cence, and showing that the opinion is not hypothetical, 
 but deliberate, based on what is deemed credible informa- 
 tion, and therefore a disqualifying bias, prejudice or 
 opinion. 
 
 It was under such rulings, announced at the outset of 
 the trial, as appears from the examinations transcribed in 
 volume I of the abstract, that the defendants were com- 
 pelled to select the jurors. Under such rulings the de- 
 fendants proceeded to secure a jury as best they could. 
 It was our dut\-, in view of the responsibilities devolving 
 upon us in the defense of eight lives, to select the least 
 objectionable, out of those presented for examination, 
 whom we could obtain under the rulings fixed by the 
 court, and to which we were compelled to submit. 
 
 IV. THE TWELVE WHO TRIED THE CASE. 
 
 As a matter of fact the record discloses concerning the 
 twelve jurors zuho tried the case, the following: 
 
 Juror Cole. We have already referred to this jury- 
 man's examination above, in connection with which was 
 disclosed his prejudice against socialists, anarchists and 
 communists as a class, and the refusal of the court to 
 
38i 
 
 allow us to interrogate him as to whether that prejudice 
 would influence his verdict, or the weight he would give 
 to the testimony of the defendants if they should be 
 sworn, and to their witnesses, in his determination of the 
 cause. 
 
 Mr. James H. Brayton, one of the twelve, said that 
 he had formed an opinion as to the nature and character 
 of the crime perpetrated at the Haymarket, and, based 
 upon his reading, as to the guilt or innocence of the de- 
 fendants of that crime. He also stated that he had as a 
 result of his investigations a prejudice against socialists, 
 anarchists and communists (i A., io8; Vol. F, 134, 135, 
 139); but he also stated that he believed that he could 
 render a fair and impartial verdict, and was accepted 
 notwithstanding his bias or prejudice. 
 
 John B. Greiner, one of the twelve, said that he had 
 heard and read of the Haymarket meeting, and from his 
 reading had formed an opinion as to the guilt of the de- 
 fendants, or some of them. The following further oc- 
 curred in his examination (i A., 121; Vol. G, 356): 
 
 " The distinction is this, whether or not your opinion 
 " is that an offense was committed at the Haymarket 
 " merely, or whether it is that the defendants are con- 
 " nected with the offense that was so committed? A. 
 " Well, it is evident that the defendants are connected 
 " with it from their being here, as far as that is con- 
 " cerned. 
 
 " Q. You regard that as being evidence? A. Well, 
 " — well, I don't know exactly; I would expect of course 
 " that it connected them, or they would not be here. 
 
 " Q. Well, that would infer that somebody thought so, 
 " anyhow, or else the whole thing would be a very foolish 
 " proceeding. So then the opinion that you have has 
 " reference to the guilt or innocence of some of these men, 
 
382 
 
 •" or all of them? Now, is that opinion one, Mr. Greiner, 
 ^' which would influence your verdict if you should be 
 " selected as a juror to try the case, do you believe? A. 
 ^' I certainly think it would affect it to some extent. I 
 " don't see how it could be otherwise." 
 
 Mr. Greiner, however, stated that he believed he could 
 render fairly and impartially a verdict upon the law and 
 the evidence in the case, and was accepted. 
 
 Chas. a. Ludwig, one of the twelve, admitted a prej- 
 udice against socialists, communists and anarchists, but 
 inasmuch as his answers to other questions were com- 
 paratively unobjectionable he was accepted, (i A., 83: 
 Vol. D, 352, 362,392.) 
 
 Alanson H. Reed, one of the twelve, stated that he 
 had an opinion concerning the commission of the offense 
 at the Haymarket, and from newspaper reports had an 
 •opinion concerning the guilt or innocence of the defend- 
 ants, or some of them, and that he had a prejudice de- 
 rived from his reading against socialists and communists. 
 Further on he stated that the opinion which he formed, 
 •touching the guilt or innocence of the defendants, was 
 •both from what he read in the paper and what he heard, 
 but principally from the newspaper reports. His answers 
 upon other questions, however, in the main, were satis- 
 factory, and he was accepted. (Vol. G, 253 et seq.) 
 
 C. B. Todd, one of the jurors, stated that he had heard 
 and read about the Haymarket aflair, and from all sources 
 of information, he had an opinion upon the question of 
 the guilt or innocence of the defendants of the crime of 
 murder, which opinion he had expressed to others in the 
 course of discussions upon the matter, (i A., 55; 
 Vol. B, 279-300.) 
 
 Aside from these matters, however, his answers were 
 .substantially unobjectionable, and he was accepted. 
 
383 
 
 G. W. Adams, one of the twelve jurors, upon his di- 
 rect examination by Mr. Grinnell, admitted that he had 
 read and heard about the Haymarket affair, and had 
 formed an opinion as to the character of the crime there 
 committed, but denied. that he had formed any opinion as 
 to wliether or not the defendants were guilty, (i A., 124; 
 Vol. H, 33.) But upon cross-examination by defendants, 
 he admitted that he had formed an opinion that some of 
 the defendants were interested in that crime, which 
 opinion he still entertained. (Vol. H, 29, 40.) He stated, 
 however, that he did not think the opinion was a 
 strong one, and that he believed that he could fairly and 
 impartially render a verdict in the case, and laj' aside all 
 prejudice, bias and opinion in reaching his verdict. He 
 was thereupon accepted. 
 
 Andrew Hamilton (i A., 79; Vol. D, 259 ci se^.)s\.aled, 
 in substance, that he had said that somebody ought to be 
 made an example of in connection with this affair, and 
 that if it should be proved that the defendants were the 
 men whose names he saw in the papers, connected with 
 the affair, then he thought they should be made examples 
 of. Otherwise his answers were satisfactor}', and he was 
 sworn.. 
 
 H. T. Sanford, who was the last juror examined (r A., 
 139; Vol. H, 293 c( sec/.), slated that he had an opinion 
 from what he had read and heard as to the guilt or in- 
 nocence of the eight defendants of the throwing of the 
 bomb. He also said that he had a decided prejudice 
 .against socialists, communists and anarchists. He was 
 thereupon challenged for cause by the defendants, despite 
 his statement that he believed that he could fairly and 
 impartially render a verdict in the case. He was there- 
 upon interrogated by the state, when the following oc- 
 curred: 
 
384 
 
 " Q. Have you ever said to any one whether or not 
 " you believed the statement of facts in the newspapers 
 " to be true? A. I had never expressed it exactly in 
 " that wa}-, but still I have no reason to think they were 
 " false. 
 
 " Q. The question is not what your opinion of that 
 " was. The question simply is — it is a question made 
 " necessary by our statute, perhaps? A. Well, I don't 
 " recall whether 1 have or not." 
 
 Thereupon the challenge for cause was overruled, 
 and defendants excepted. 
 
 Prior to the examination of this juror, as the record 
 discloses, the defendants had exhausted all their peremp- 
 tory challenges, and, their challenge for cause being over- 
 ruled, they stopped and refused to accept Mr. Sanford as 
 a juror. (Vol. H, 301.) 
 
 Subsequently Mr. Sanford was accepted by the state, 
 and was sworn as a juror. 
 
 The nine jurors last above named, together with Mr. 
 Frank Osborne, Mr. Samuel G. Randall and Theodore 
 Denker, constituted the panel by which the defendants 
 were tried. 
 
 As to Mr. Adams and Mr. Denker, we would like to 
 offer a few remarks in particular. 
 
 Upon the motion for a new trial there was filed by the 
 defendants, in support of their motion, the affidavit of 
 Michael Cull, who stated that shortly after the Haymarket 
 aflair he had a conversation with said Adams, at which a 
 number of other persons were present, in reference thereto, 
 in which said Cull stated: "That the police had no right 
 " to interfere with the meeting; that if they, the police, 
 " had let the meeting alone they would have gone home 
 " in a little while," to which said Adams replied that the 
 police ought to have shot them all down; that they, mean- 
 
385 
 
 ing the defendants, had no rights in this country, and that 
 " it I was on the jury I would hang ail the damned bug- 
 " gars." That Adams evinced a good deal of bitter 
 feeling against the defendants. It is true that an affidavit 
 of Mr. Adams was filed in behalf of the state, which de- 
 nied the statements of Cull's affidavit. But the fact stands 
 with reference to Mr. Adams that after first stating, on 
 his voi}- dire, that he had formed no opinion as to the 
 guilt or innocence of the defendants touching the Ha}-- 
 market affair, he subsequently, on cross-examination, ad- 
 mitted that he had formed such an opinion, thus directly 
 contradicting himself; while Cull's affidavit, if believed, 
 shows the expression of a strong feeling, and a strong 
 adverse opinion upon his part. 
 
 The case of Theodore Denker, one of the twelve 
 who tried the case, presents special features, to which we 
 wish to call attention. He was examined on the fourth 
 day of the proceedings (Vol. B, 125 et seq). He ad- 
 mitted that he had heard of the Haymarket affair, and 
 that he had expressed an opinion as to the guilt or inno- 
 cence of the defendants of the murder charged, which he 
 still entertained. That he believed what he had read 
 and heard upon the subiect, and that he thought that the 
 opinion was such as would prevent him from rendering 
 an impartial verdict. He was thereupon challenged for 
 cause. 
 
 Mr. Grinnell then asked him if he believed he could 
 determine the guilt or innocence of the defendants upon 
 the proof presented in court, without reference to his 
 prejudice or opinion, and regardless of what he had 
 heard, and he stated that he believed he could. There- 
 upon the court asked this question: 
 
 " Do you believe that you can fairly and impartially 
 " try the case, and render an impartial verdict, upon the 
 
386 
 
 " evidence as it may be presented here, and the instruc- 
 " tions of the court?" 
 
 To which he replied: "Yes; I think I could." There- 
 upon the court overruled the challenge for cause, and de- 
 fendants excepted. Thereupon he was re-examined by 
 defendants, and again admitted that he had formed an 
 opinion as to the guilt or innocence of the defendants, 
 which he had expressed frequently and without hesita- 
 tion. He persisted, however, in stating that he believed 
 that he could lay aside his prejudice or opinion and try 
 the case fairly, and was finally accepted. 
 
 In support of the motion for a new trial, the defendants 
 introduced the affidavits of Thomas J. Morgan and of 
 Thomas S. Morgan, who both testified unequivocally that 
 on the morning of the 6th of May, Denker stated to 
 them, and in their hearing, referring to Spies, Fielden, 
 Schwab and Fischer particularly, who had been arrested 
 on the 5th of May for alleged complicity with the Hay- 
 market affair, and referring particularlj' to Spies: " He 
 " and the whole damned crowd ought to be hung." 
 This remark of Denker's was made with much feeling 
 and emphasis (Vol. O, 56.) It is true that the affida- 
 vit of Mr. Denker himself to contradict these statements 
 of Thomas J. and Thomas S. Morgan was permitted to 
 be read (Vol. O, 100), in which he denied that he 
 made the remark sworn to by the Morgans, although he 
 again admitted that he had an opinion, and had expressed 
 that opinion. 
 
 That the court erred i n overruling our motion for a 
 new trial, even if that motion had been based alone on the 
 ground of the showing that the juror Denker was not 
 an impartial and competent juror, admits, we respectfully 
 submit, of no doubt, in the light of well-considered 
 authority. Let it be remembered that the juror ad- 
 
387 
 
 initted, upon his voir dire, that he was prejudiced, 
 liad an opinion, which he had expressed frequently to 
 others, and did not think that he could fairly try the 
 case. Challenged for cause on these answers, he was 
 coached into a retraction thereof, and into the state- 
 ment that he believed he could fairly and impartially try 
 the case; and thereupon the challenge was overruled, etc. 
 Upon the motion for a new trial two affidavits were pro- 
 duced showing that Denker had, several days after the 
 4th of May, stated, referring to Spies and other of the 
 defendants then under arrest, that " he and the whole 
 *' damned crowd ought to be hung." These affidavits 
 are altogether unimpeached, and the only effort to meet 
 them is the unsupported affidavit of Denker. The new 
 trial should have been granted on this ground, if for no 
 other reason. 
 
 Closely parallel to the case made against Mr. Denker 
 on these affidavits was the case against the juror Finley, on 
 account of whose prejudice alone there was a reversal in 
 Venimni v. Harwood, i Gil., 659, a case that arose under 
 1he constitution of 1818. In support of a motion for a new 
 trial in that case, one Wilson swore to statements made by 
 Finley before being taken as a juror, to the effect that the 
 plaintiff ought to recover heavy damages; and one Craw- 
 ford swore that he heard Finley, after the trial, say to 
 Wilson that he, Finley, had told him how the case would 
 go, etc. Finley's affidavit was read, in which he swore 
 that while he had talked with Wilson and Crawford since 
 the trial, he had never, as he believed, made any such 
 declarations as they stated; and that prior to the trial he 
 had never in fact formed or expressed anj^ opinion about 
 the case, and that he had acted impartially as a juror: a 
 much stronger affidavit than Denker's, as will be observed. 
 Yet our Supreme court unhesitatingly reversed the judg- 
 
;SS 
 
 ment on this sole ground, citing and approving the lan- 
 guage used in Smith v. Eaines^ 3 Scam., 76, and Gardner 
 V. The People,' id., 83. 
 
 In Brakefieldv. The State, i Sneed, 215, the Supreme 
 court of Tennessee used the following language: 
 
 " It is said that William Perry, one of the jurors, had 
 " prejudged the case, and was therefore incompetent. To 
 " support this fact, two afSdavits were produced on the 
 " motion for a new trial; first, Oscar states that as he came 
 " to court with Perry, the morning he was taken on the 
 "jury, he asked him if he was not afraid to go to town. 
 " Perry replied: ' No; I have formed my opinion as to the 
 " last case therein; as to Brakefield, I believe he ought 
 " to be hung'; and Edwards states that he was in com- 
 " pany with Perry on his way to the court, who inquired 
 " of him if he was not a witness in this case. Affiant 
 " replied that he was a witness for the stale. Perry then 
 " said, alluding to the prisoner, ' Damn him, he ought to 
 " be hung.' The prisoner states in his affidavit that he 
 " had no knowledge of these facts when Perry was taken 
 " on the jury. 
 
 "It is well settled that loose impressions and conversa- 
 " tions of a juror, founded upon rumor, will not, if disclosed 
 " by him or others to the court, have the effect to set him 
 " aside as incompetent. 
 
 " But was Perry's remark a mere loose impression 
 "founded upon rumor? We think not. His statement is 
 "in the strongest terms of opinion, conviction and preju- 
 "dice; he pronounced the prisoner as guilt}-, and guilty of 
 " the highest grade of murder. He stands clearly convicted 
 " of having prejudged the case. His examination upon his 
 " voir dire before the court does not appear. His counter- 
 " affidavit is produced to explain the matter, but /'/ is a sct- 
 " tied rule that the affidavit 0/ an offending Juror cannot l,e 
 
389 
 
 " relied icpoii to exculpate himself and prejudice the 
 '■•prisoner.'''' Hynes v. The State, 8 Humph., 602; Lilster 
 V. The State, ir Humph., 170. 
 
 " We are to presume that his statement before the 
 *' court made him apparently competent as a juror; after 
 " the trial he is accused upon the evidence of the wit- 
 " nesses as having prejudged the case. The juror stands 
 *' criminated before the court, and in such case his own 
 *' affidavit cannot be credited or relied on when it involves 
 "the rights of the accused. Other affidavits of jurors 
 " were made to the etiect that Perry, the juror, was favor- 
 " able to the prisoner on the trial. This fact we regard 
 ^' as not competent to the issue, which is, was the juror 
 "competent? Not what his conduct was after he was 
 " taken on the jur}'. If he was put to the prisoner as a 
 "competent juror, when he was in fact incompetent, the 
 " rights of the prisoner were violated, and it is a legal 
 *' presumption that he was injured. * * * A verdict 
 " thus tainted cannot be permitted to stand. The pris- 
 " oner was entitled to an impartial jury." 
 
 While it may be that under our practice the affidavit of 
 Denker in contradiction of the affidavits of T. J and T. 
 S. Morgan may be entitled to be read and considered, 
 yet, as said by the Supreme Court of Tennessee, " the 
 ^' affidavit of an offending juror cannot be relied on to ex- 
 " culpate himself. * * * The juror stands crimi- 
 " nated before the court, and in such case his own affidavit 
 " cannot be credited or relied on, -when it involves the rights 
 " of the accused.'''' With reference to his affidavit, we 
 beg to submit the following further criticism. There is 
 no statement in Denker's affidavit that he never used to 
 any person the language attributed to him, to wit: " He 
 and the whole damned crowd ought to be hung"; the 
 denial is specific, namely, that he never made that state- 
 
39° 
 
 ment to the particular affiants; while he admits, in sub- 
 stance, that he did have an opinion adverse to the prison- 
 ers, an opinion as to their guilt, which he had freely 
 expressed. Was he a competent and proper juror to be 
 put to these prisoners? And is a "verdict thus tainted," 
 one that should be sustained in the due administration of 
 justice? 
 
 As bearing upon the contradictory answers given by 
 Mr. Denker, and as showing that he ought to have been 
 excluded from the panel by the court upon our challenge 
 for cause, we cite again the case of Wright v. Common- 
 wealth, 32 Gratlan, 941. There, as in the case at bar, 
 the juror first stated "he had made up and expressed an 
 "opinion in the case; that the opinion so made up and 
 "expressed was still upon his mind; that he did not think 
 "he could do the prisoner justice"; but in answer to the 
 questions of the court whether, should the evidence be 
 different from what he had heard, his opinion would be 
 changed, he stated that it would, and that he could come 
 to the trial with an unbiased and unprejudiced mind, and 
 give the accused a fair trial, and thereupon the trial court 
 overruled the challenge. The case is exactly parallel 
 in these regards with the action of Judge Gary as to juror 
 Denker. The Supreme court of Virginia held that this 
 action was error, for which the case was reversed, and 
 laid down the law, in favor em vitce, as follows: 
 
 II * * * If the juror has made up and expressed a 
 " decided opinion as to the guilt or innocence of the 
 "accused, he is incompetent; and it does not matter 
 " whether the opinion be founded on conversations with a 
 " witness or on mere hearsay or rumor; it is sufficient that 
 " the opinion is decided, and has been expressed. When, 
 "however, the opinion is founded on common rumor, the 
 " presumption is that it is merely hypothetical, and it 
 
391 
 
 •will be so considered in the absence of proof to the con- 
 ' trary. But whether the opinion be hypothetical or de- 
 ' cided, whether founded on rumor or on evidence heard 
 ' at the trial, the juror must be free from prejudice against 
 ' the accused. He must be able to give him a fair and an 
 'impartial trial. Upon this point nothing should be left. 
 ' to inference or doubt. All the tests applied by the 
 ' court, all the inquiries made into the state of the juror's 
 ' mind, are merely to ascertain whether he comes to the 
 'trial free from partiality and prejudice. If there be a 
 ' reasonable doubt whether the juror possesses these 
 ' qualities, the doubt is sufficient to insure his exclusion. 
 ' For, as has been well said, it is not only important that 
 'justice should be impartially administered, but that it 
 ' should flow through channels as free from suspicion as 
 ' possible." 
 
 V. THE CONDUCT OF THE. SPECIAL BAILIFF. 
 
 We deem it proper also to call attention to the fact that 
 we were subjected to most outrageous misconduct on the 
 part of a special baliff, who had in charge the summon- 
 ing of the talesmen. 
 
 In support of our motion for a new trial we filed an 
 application for leave to examine as a witness in open 
 court Otis Favor, and to use his examination upon the 
 motion. We filed, beside the formal affidavit of defend- 
 ants, the affidavit of E. A. Stevens, who stated that Fa- 
 vor was an intimate acquaintance of the special bailifT, 
 Ryce, and that affiant had learned from Favor that while 
 said Ryce was serving the venires in the present case he 
 stated to said Favor, and to others in Favor's presence, 
 in substance, this: " I am managing this case and I know 
 
392 
 
 " what I am about. Those fellows will hang, as certain 
 " as death. I am summoning as iurors such men as they 
 " will be compelled to challenge peremptorily, and when 
 " they have exhausted their peremptory challenges, they 
 " will have to take such a jury as is satisfactory to the 
 " state." (i A., 25; Vol. O, 51.) 
 
 Judge Gary refused to order the examination of Mr. 
 Favor upon this application, to which the defendants ex- 
 cepted. Nevertheless, we are convinced that the bailiff 
 did make these declarations, and did act upon the line of 
 policy therein indicated. We submit that the court erred 
 in not allowing the examination of Mr. Favor, and that 
 it was an abuse of judicial power to refuse such exami- 
 nation, it appearing from the affidavits filed that Favor 
 refused to make an affidavit in the case to be used in sup- 
 port of the motion for a new trial, but expressed a readi- 
 ness to appear and testify, if required. 
 
 The refusal of Judge Gary to order Mr. [Favor's ex- 
 amination, as appears from the record, was based prima- 
 rily on a denial by him of his -power to so do. We submit 
 that the court was wrong in this position. This is not 
 and cannot be the law. Had we been permitted to show, 
 and had we established by proofs in support of our mo- 
 tion for a new trial, this villainy practiced against the rights 
 and lives of the defendants, there can be no question that 
 we would, on this ground alone, have been entitled to a 
 new trial. 
 
 But the power of the court to order the examination 
 admits of no doubt. The case was still in court awaiting 
 final disposition — and the court was possessed of plenary 
 power to require the appearance and testimony of wit- 
 nesses so far as requisite to the due administration of 
 justice. The power of the court to require witnesses to 
 appe.ir and testify, even after judgment, is distinctly 
 
393 
 
 recognized in such cases as when one is examined as to 
 his testimony on a trial, in order to settle a point for a bill 
 of exceptions. People v. Jameson, 40 111., 93. And the 
 granting of such a motion as was here made is recognized 
 as proper practice in those jurisdictions (as in England 
 and Pennsylvania), where, upon a motion for new trial, a 
 rule to show cause is entered. Under such a rule deposi- 
 tions may be taken on notice, or under a special rule wit- 
 nesses may be examined in open court. (Troubat & 
 Holz's,Pr., §§1,459 and 1,472, pages 852 and 853.) 
 Under our practice a motion is filed, supported by affi- 
 <iavits. But justice forbids that one should be denied an 
 opportunity to support his motion because of the refusal 
 of a party to give an affidavit, to compel which there is 
 no statutor}' provision; and in such case requires an order 
 that he should be examined. To refuse such order on 
 the application and showing made in this case was so 
 flagrantly unjust as to be palpably erroneous. 
 
 VI. MISCONDUCT OF JURY. 
 
 There is one point, as to the conduct of the jury upon 
 this trial, which, alike upon reason and authority, we deem 
 it proper to present to this court upon consideration of 
 this record. It appears from one of the affidavits filed in 
 support of the motion for a new trial (i A., 29; O, 84), 
 and it is not in any manner contradicted, that after the 
 jury were sworn to try the issues, before any testimony 
 was offered, the presiding judge proposed to counsel that 
 the jury should be furnished from day to day with a 
 short-hand writer's transcript of the testimony taken upon 
 the previous day. This proposition defendants, by their 
 counsel, declined to accede to. 
 
394 
 
 It appears, however, that from day to day, during the 
 progress of the trial, various of the jurors took, notes,, 
 short-hand or otherwise, of portions of the testimony as it 
 was being oftt;red, which they carried with them from the 
 jury box from day to day. We believe this conduct was- 
 erroneous, and that it should not have been allowed. The 
 objections to it are obvious. Instead of the jurors pre- 
 serving, as far as possible, a clear mind, listening, as far 
 as possible, with impartial attention to all of the testi- 
 mony, and giving equal consideration to it all, their atten- 
 tention, those of them who were engaged in taking notes,, 
 would from time to time be drawn off from what was 
 currently passing, by their own e.xercise in taking down the 
 notes of the testimony; while, still further, in a subsequent 
 consideration of the testimony, that which they had thus 
 noted was likely to be given undue weight and promi- 
 nence in their deliberations. Such conduct upon the part 
 of a jury has been e.vpressly held to be error for which a 
 reversal should be ordered. 
 
 Thompson and Merriam on Jury, Sec. 390. 
 
 Cheek v. State, 35 Indiana, 492. 
 
 Palmer v. Stale, 29 Arkansas, 249. 
 
 If this be the law, then here also was ground on which 
 a new trial should have been granted, and the refusal to 
 grant a new trial under the circumstances was error for 
 which there should be a reversal. 
 
 VII. AS TO THE NUMBER OF PEREMPTORY CH.\L- 
 LENGES ALLOWED THE STATE. 
 
 The next point to which we desire to call attention, 
 arising in connection with the selection of the jury, is this: 
 When the state had, by its representative, peremptorily 
 
395 
 
 challenged twenty proposed jurors, it happened that there 
 was tendered to the state as a juror acceptable to the de- 
 fendants, August Berg, who was thereupon peremptorily 
 challenged by the state. Whereupon the defendants in- 
 terposed respectively the following objection (i A., 83; 
 Vol. D, 367): 
 
 " August Spies, the accused, objects to any further 
 " peremptory challenge by the attorney prosecuting on 
 « behalf of the people, because the said attorney has 
 " already been admitted to, and has exercised against this 
 " accused, twenty peremptory challenges, being the full 
 " number of peremptory challenges allowed to this 
 " accused under the statute; and in the exercise of such 
 " challenges has excluded from the jur}' divers jurors 
 " who were acceptable to, and accepted by, this accused." 
 
 The same objection was interposed in behalf of each of 
 the accused at that juncture. The objection being over- 
 ruled, the peremptory challenge was allowed; and there- 
 after in the progress of the trial more than thirty addi- 
 tional peremptory challenges were exercised by the 
 attorney prosecuting on behalf of the people, and making 
 the total number of peremptor}' challenges exercised by 
 said attorney between fifty and sixty. In each and every 
 instance of such peremptory challenge by the state, after 
 the first twenty, the same objection was interposed in be- 
 half of each of the several defendants, and in each and 
 every instance each and ever}' of the defendants excepted 
 to the ruling of the court allowing such additional per- 
 emptory challenges. 
 
 The disposition of this objection involved a discussion 
 as to the proper construction of the provision of our stat" 
 ute with reference to peremptory challenges. 
 
 The argument on that point appears somewhat fully 
 in Vol. D, pp. 368 to 391. 
 
396 
 
 The positions taken in support of the objection may be 
 summarized as follows: That while the statute provides 
 that " every -person arraigned for any crime punishable 
 •" with death or imprisonment in the penitentiary for life 
 •" shall be admitted to a peremptorj^ challenge of twenty 
 *' jurors," etc., " the attorney prosecuting on behalf of 
 " the people shall be admitted to a peremptory challenge 
 " of the same number of jurors that the accused is en- 
 " titled to." In contemplation of law, the defendants 
 in a criminal action, no matter how many of them 
 there may be, constitute but one party, and the trial 
 is a trial, in each instance, between the people on one side 
 and one defendant or accused upon^ the other, whose rights 
 are to be guarded. That the state cannot multiply its chal- 
 lenges by increasing the number of parties defendant, any 
 more than it can abridge the right of each person defending 
 to his separate number of challenges by joining such per- 
 son with others. That any other construction of the statute 
 would enable the attorney' prosecuting on behalf of the 
 people to multiply his challenges indefinitely, by joining 
 as defendants persons against whom he might know 
 that he had no evidence. In the case at bar, under the 
 construction contended for by the state's attorney, the 
 state might have exercised i6o peremptory challenges, 
 and then, before offering a particle of proof, might have 
 dismissed as to every defendant except one, and pro- 
 ceeded against him. That in such case the state would 
 have exercised i6o challenges peremptorily as against 
 the defendant tried, to the manifest perversion of the pro- 
 vision of the statute. That if the state elects to try the 
 defendants jointlj', and, as in the case at bar, opposes a 
 separate trial, the state must take that position, subject to 
 the possible disadvantage of the defendants jointly exer- 
 cising more peremptory challenges than the state is in 
 
397 
 
 such case entitled to. The language of the statute in 
 reference to the peremptory challenges by the attorney 
 prosecuting in behalf of the people, is explained by re- 
 ferring to the fact that in the previous parts of the section 
 the number of peremptory challenges allowed to every 
 person arraigned is stated with reference to different 
 crimes; and then comes the general provision that the at- 
 torney for the people " shall be admitted to a peremptory 
 " challenge of the same number of jurors that the accv.sed 
 " is entitled to " ; the language of the statute being in 
 the singular, and not to be enlarged. In support of our 
 construction of this statute, and of our objection to the ex- 
 ercise of these additional peremptory challenges, we beg 
 to call the attention of the court, without citing at length, 
 to the following authorities: 
 
 The question considered arises upon a construction of 
 section 432 of the Criminal Code, Kurd's Rev. Stat. 
 
 1885. 
 
 Schaefcr v. The Slate, 3 Wis., 730. 
 
 Wiggins V. The State, i Lea (Tenn.), 738. 
 Mayhon v. Tlie State, 10 Ohio, 232. 
 State V. Earle, 24 La. Ann., 38. 
 State V. Gay, 25 La. Ann., 472. 
 Savage v. The State, 18 Fla., 925. 
 
 Wylie V. The State, 4 Blackf. (Ind.), 458. 
 
 State V. Bced, 47 N. H„ 466. 
 
 VIII. THE MANNER OF EMPANELING THE JURY. 
 
 Sec. 21 of Starr and Curtis' Annotated Statutes, Vol. 
 2, Chap. 78, provides: 
 
 " Upon the empaneling of any jury in any civil cause 
 " now pending, or to be hereafter commenced in any court 
 
398 
 
 " in this stale, it shall be. the duty of the court, upon 
 " request of either party to the suit, or upon its 
 " own motion, to order its (the) full number of twelve 
 " jurors into the jury box, before either party shall 
 *' be required to examine any of said jurors touching 
 " their qualifications to trj' any such causes: Provided, 
 " that the jury shall be passed upon and accepted in 
 " panels of four by the parties, commencing with the 
 ■" plaintiff." 
 
 Sec. 23 of the same act provides: 
 
 " The provisions of this act shall apply to proceedings 
 " in both civil and criminal cases." 
 
 In the present case a panel of four jurors were, after 
 being passed upon and accepted by the state, tendered to 
 the defense by the state. They were then examined, and 
 three of them, for instance, were excused for cause, and 
 one oeremptorily. That left the box vacant. The de- 
 fense then asked the court that another panel of four be 
 first passed upon and accepted and tendered them by the 
 state, but the court ruled, against the objection and excep- 
 tion of the defendants, that the defendants must pass upon 
 and tender the next panel of four jurorsto the state. (See 
 I A., 39; Vol. A., 71, 72.) 
 
 The record discloses that the same point was made in 
 every instance by the defendants in the course of the em- 
 paneling of the jury where the four tendered b)' the state 
 were exhausted, either for cause or peremptorily, with the 
 same ruling on the part of the court, and in ever}' instance 
 the defendants excepted. 
 
 The court slated, upon disposing of the said motion, as 
 follows (A., 71): " There has never been an instance in 
 " this court of the slate being called upon to tender tiie 
 " defendants a second panel before the defendants ten- 
 " dered them back four." 
 
399 
 
 As to the law on this point, we be^jj to cite Braizer v. 
 The State, 34 Ala., 387, and the court there says: 
 
 " Where the statute provides a mode of empaneling a 
 ■" jury, no other mode can be followed." 
 
 In Filzfatrick v. City of Jol/'et, 87 111., 58, the court 
 (page 62), in delivering its opinion, decides this verj- 
 point and says: " But the defendant in error held the 
 ^' affirmative, and was, very properly, in the first instance, 
 " required to pass on the jury first, and this should have 
 " been required as often as new jurymen were placed in 
 " the box to take the place of others who had been ex- 
 " cused, leaving the plaintiff in error an opportunity to 
 " object as often as new jurors were presented, so long as 
 " their rights of peremptory challenge were not ex- 
 ^' hausted." 
 
 CC. IMPROPER REMARKS BY THE COURT. 
 
 We respectfully submit that, in addition to the matters 
 hereinbefore considered, plaintiffs in error were aggrieved 
 by the repeated improper remarks made by the court 
 during the progress of the empaneling of the jury and 
 upon the hearing of this case, remarks which were full 
 of hostile suggestion, and, as we view it, could not but 
 have had a tendency to prejudice the minds of the jurors 
 against the plaintiffs in error. We do not propose to 
 prolong our argument by attempting to present to this 
 court all of the remarks made by the presiding judge in 
 the progress of the trial, which are, in our opinion, justl}' 
 subject to this criticism; but we will proceed to call atten- 
 tion to some illustrations. 
 
 Upon the examination of Mr. Shedd, a proposed juror 
 (i A., 36; Vol. A, 397), after Mr. Shedd had admitted his 
 
400 
 
 prejudice against the plaintiffs in error, growing out of 
 what he had heard and read, and also that he had a de- 
 cided prejudice against the class known as socialists, com- 
 munists or anarchists, which he believed would prevent 
 him from rendering an impartial verdict if it should ap- 
 pear that the defendants' belonged to that class, this oc- 
 curred: 
 
 " The Court: I know, or the court judicially, what 
 " are the objects of communists, socialists and anarchists. 
 " * * * You must presume that I know, be- 
 " cause it has been decided that for a man to say that he 
 " is prejudiced against horse-thieves is no ground for im- 
 " puting to him any misconduct as a juror. Now, you 
 " must assume that I know either that anarchists, social- 
 " ists and communists are a worthy, a praiseworthy class 
 " of people, having worthy objects, or else I cannot say 
 " that a prejudice against them is wrong." 
 
 Can it be argued that this remark was not in its nature 
 highly prejudicial to the plaintiffs in error upon the 
 hypothesis of their being socialists, communists or an- 
 archists? Here was a suggestion by the court to the 
 jury that he knew, judicially (of course he did not, but he 
 so staled), what were the objects of socialists, anarchists 
 and communists; and then, by way of illustrating his 
 position, he mentioned prejudice against the class of horse- 
 thieves; the only occasion of such reference being that 
 thereby the court suggested an analogy between the 
 classes. In other words, the expression of the court was 
 e.\-actly equivalent to saying: " I know the purposes of 
 " socialists, anarchists and communists — that they are as 
 " pernicious and unjustifiable as the vocation of horse- 
 " thieves; and therefore Mr. Shedd's prejudice against 
 " this class, even though he admits that it is such that he 
 " could not render a fair verdict where one of them is in- 
 
40I 
 
 " volved, is not a disqualifying prejudice." In other 
 words, the court in effect ruled that if a man was a social- 
 ist, anarchist or communist, he was known to the court 
 judicially to be of such evil purposes and so bad a char- 
 acter that he was not entitled to an unprejudiced jury, 
 but was well enough off if he had a jury even of men 
 prejudiced against the class to which he belonged, and 
 that such prejudice was not a disqualification. 
 
 No other view of the effect of these remarks can be 
 entertained reasonably in the light of his closing words, 
 when the judge said: " You must assume that I know 
 " that anarchists, socialists and communists are a worthy, 
 " a praiseworthy class of people, having worthy objects, 
 •' or else I cannot say that a prejudice against them is 
 ' wrong." To so state, after saj'ing that he did know 
 their objects, and then to overrule a challenge on the 
 ground of the admitted prejudice, was exactly equivalent 
 to saying that, knowing their objects, and that they were 
 not a worthy class of people, a prejudice against them 
 was not wrong. The constitution piovides for an un- 
 prejudiced jury, without .regard to the character of the 
 class to which the accused may be supposed to belong. 
 
 In connection with the examination of the very next 
 proposed juror, J. K. Misch, after Mr. Misch had ad- 
 mitted a like prejudice to that admitted by Mr. Shedd, 
 and had stated that he thought it would require more 
 testimony if the plaintiffs in error belonged to this class of 
 people to find them not guilty than though they did not 
 belong to this class, and that therefore he did not think 
 that he could make a fair juror, the court asked the 
 question: " Is your prejudice upon this subject based upon 
 " the idea that you suppose this class are in favor of 
 " overturning society by force "? To this remark an ob- 
 jection was at once interposed. That it was improper for 
 
402 
 
 the court to ask a question of this kind we think admits 
 of no argument, particularly following his former re- 
 marks, above quoted. It does not make any difference 
 upon what the talesman's prejudice was based, if it was 
 a prejudice that the talesman was conscious of and which, 
 in the opinion of the talesman, disqualified him to sit in 
 judgment in the case by destroying his impartiality. It 
 was not for the court to investigate as to the foundation 
 of the talesman's prejudice, and particularly not for the 
 court, in the process of such investigation, to suggest the 
 idea that the plaintiffs in error were in favor of overturn- 
 ing society by force. Both of these talesmen were chal- 
 lenged peremptorily, Mr. Shedd after the challenge for 
 cause had been overruled. 
 
 In the course of the examination of James H. Walker 
 (i A., 105; Vol. F, 41), after the talesman had admitted 
 that he had an opinion which would handicap his judg- 
 ment, the court said, in the presence of talesmen who 
 were awaiting examination: " Well, that is a sufficient 
 " qualification for a juror in the case. Of course, the 
 " more a man feels he is handicapped, the more he will 
 " be guarded against it." 
 
 This remark of the court is followed in the record by 
 an exception thus expressed: 
 
 " Mr. Black: We e.xcept to that remark by the court. 
 '• We do not think it is in accordance with observation 
 •' and judgment and experience. We think it is an im- 
 " proper remark to make in the presence of the jurors, 
 " and would like to have the record show that the seals 
 " are full and talesmen present at the time the remark is 
 *' made." 
 
 That a man leans against his previous opinion, as here 
 assumed by the court, is, of course, an utterly mistaken 
 assumption. If the position here announced by Judge 
 
403 
 
 Gary be correct, then the more prejudiced the jury 
 against the accused — providing only that the jury were 
 men of sufficient intelhgence to recognize the prejudice, 
 
 and men of sufficient honesty to wish to act fairly the 
 
 more suitable they would be as jurors, and the more fully 
 they would meet the constitutional requirement of an im- 
 partial jury. Can any suggestion be more absurd? But 
 the special objection to the making of the remark at the 
 time and the place was, that it would have a natural ten- 
 dency to mislead the talesmen awaiting examination. It 
 was, in effect, a statement to them that, no matter what 
 their recognized prejudice in the case, yet that prejudice 
 • would not in fact disqualify them from acting as fair and 
 impartial jurors; and it was, therefore, a direct incentive 
 to them to answer to the question whether they believed 
 they could fairly and impartially try the case and render 
 a verdict, that they did so believe, without reference to 
 the prejudice that they recognized as existing in them 
 selves. The remark was clearly improper and highly 
 prejudicial. 
 
 The remarks made by the court in connection with the 
 ruling, during the examination of Mr. Waller, we have 
 already presented fully. 
 
 A little later, Theodore Fricke was called as a witness 
 for the prosecution. In the course of his examiuation 
 Most's book was presented to him, and he thereupon said 
 that he had seen Most's book in the Arbeiter Zeitung 
 library, and also had seen it sold by Hirschberger at so- 
 cialistic picnics and mass-meetings, at some of which 
 meetings Spies, Parsons, Fielden, Neebe, Schwab and 
 perhaps Fischer had sometimes been present. Counsel 
 in behalf of the plaintiffs in error objected to this entire 
 line of inquiry, because it was not shown that any of the 
 defendants knew of or participated in the selling, or had 
 
404 
 
 anything to do with it, or that they saw the selling. 
 Thereupon, in ruling upon this objection, the following oc- 
 curred (A., 41, 42; Vol. I, 477) : 
 
 " The Court: If men are teaching the public how to 
 " commit murder, it is admissible to prove it, if it can be 
 " proved by items. 
 
 " Mr. Black. Well, does your Honor know what 
 " this teaches? 
 
 " The Court: I don't know what the contents of the 
 "book are; I asked what the book was and I was told 
 " that it was Herr Most's Science of Revolutionary 
 " Warfare, and taught the preparing of deadly weapons 
 " and missiles, and that was accepted by the other side. 
 
 " Mr. Black: Does that justify your Honor in the 
 " construction that it teaches how to commit murder, or 
 " stating that in the presence of the jury? " 
 
 Defendants thereupon e.xcepted to the language of the 
 court, whereupon the court said: 
 
 " I inquired what sort of book it was, and it was stated 
 " by the other side what sort of book it was, and 3-ou said 
 '« nothing about it; so that in ruling upon the question 
 " whether it may be shown where it was to be found, 
 " where it had been seen, I must take the character of 
 " the book in consideration in determining whether it is 
 " admissible. Whether it is of that character or not, we 
 " will see when it is translated, I suppose. I suppose the 
 " book is not in the English language." 
 
 Could any language be more improper than this of the 
 court in passing upon this objection? The language of 
 the court was tantamouut to saying — inasmuch as these 
 plaintiffs in error are teaching the public how to commit 
 murder, this book is admissible to help prove that fact. 
 In other words, the language of the court started on the 
 hypothesis that this was being done. " If," says the courtr 
 
405 
 
 -" men are teaching the people how to commit murder, it 
 ■" is admissible to prove it if it can be proved by items." 
 And yet, the court was compelled to admit, a httle 
 further on, that he did not know the contents of the 
 proposed book, but assumed that it was characterized by • 
 teachings to commit murder, and, therefore, ruled that 
 ■evidence as to when and where it was disposed of should 
 be permitted to go to the jury, upon the assumption that 
 -when the translation should afterwards be introduced, it 
 might have a tendency to establish this hypothesis, sug- 
 gested by the court, first of all in the rulings in connection 
 with Waller's testimony, and here repeated in the most 
 radical form. There was no possible excuse for the sug- 
 gestion by the court, at that juncture, that Most's book, not 
 then as yet before the jury, riot then as yet translated, did in 
 fact teach how to commit niurder; or making in the pres- 
 ence of the jury the suggestion that was made. The un- 
 avoidable application which would be made by the jurors 
 -of the remark was to the plaintiffs in error, as the parties 
 supposed by the court to be engaged in " teaching the 
 " people how to commit murder." 
 
 So, later in the case, when the translations of Most's 
 book and of the International Workingpeople's Associa- 
 tion were offered in evidence (A., 72; Vol. J, 192 et 
 sc(j.), the court, in allowing the introduction of the docu- 
 ments, used the following language: 
 
 " I have no doubt but what it is competent. The cir- 
 " cumstances may be significant or not, depending 
 ^' upon the surroundings; whether it is significant 
 " or not it is for the jury to determine from the 
 " surroundings which come before them. Whether 
 " the defendants, or any of them, were intending 
 " to have a mob kill people, and were teaching them how 
 ^' to kill people, is a question which this jury is to find out 
 
4o6 
 
 " from the evidence. ^And these two translations are ad- 
 " missible upon the investigation of that question." 
 
 Was that question fairiy under investigation b}- this 
 jury? Suppose that the defendants, or some of them, were 
 " intending to have a mob kill people, and were teaching 
 " them how to kill people," what had that to do legitimately 
 with the issue before the jury, which was simply whether 
 or not the plaintiffs in error killed Mathias J. Degan, or 
 advised, assisted, [encouraged or abetted that homicide? 
 The suggestion was an improper suggestion to be made. 
 It was an intimation to the jury at an improper time, from 
 an improper source.^in an improper manner, that, in the 
 view of the court, it was a question for the determination 
 of the jury, whether the defendants were intending lo 
 have a mob kill people, and were teaching them how to 
 kill people. 
 
 So, in connection with the ruling upon the motion 
 made in Neebe's behalf, there were highl}- improper sug- 
 gestions and remarks made by the court, in our judgment, 
 upon which, however, we have sufficiently commented, 
 and to which we now simply refer. 
 
 Finally, under this head, we call attention to the re- 
 marks of the court occurring in connection with the ex- 
 amination of Johann Grueneberg, a witness called to the 
 stand by the plaintiffs in error (A., 257, 258; Vol. M, 
 259, 260.) Mr. Grueneberg had been examined in refer- 
 ence to the occurrences attending the printing of the cir- 
 cular calling the Haymarket meeting, and the ordering 
 out of the line, " Workingmen, arm yourselves and ap- 
 pear in full force!" by Mr. Fischer; the printing of the 
 residue of the circular thereafter without that line, and 
 the distribution thereof. This was all. In the course of 
 cross-examination the representatives of the state were 
 allowed to depart entirely from the direct examination. 
 
407 
 
 and to inquire as to the witness' whereabouts, etc., on 
 the da3'S previous to the day of the printing of this circu- 
 lar. The question was asked him as to whether he was 
 at home on Sunday morning, May 2d. To this question 
 an objection was interposed, on the ground that it was not 
 proper cross-examination; whereupon the court ruled in 
 the following language: 
 
 " You have put this witness on the stand for the pur- 
 " pose of showing a thing was taken out of a particular 
 " circular; whether he has told that thing as it occurred 
 " depends to some degree upon what his associations^ 
 " feelings, inclinations, biases are in reference to the 
 " whole business." 
 
 Thereupon counsel for plaintiffs, in unfeigned astonish- 
 ment, responded, " Whether he has told the truth in re- 
 " gard to that depends upon his biases and inclinations?" 
 
 The Court: " Whether it is to be believed — I don't 
 " mean whether he has told tiie truth." 
 
 Exception to the ruling and the language of the court 
 was interposed on behalf of plaintiffs in error. 
 
 If this same language had been used by counsel instead 
 of by the presiding judge, we would feel warranted in 
 saying it was a deliberate and unjustifiable effort to dis- 
 credit before the jury an unimpeached witness, testifying 
 in reference to a particular fact as to which there was no 
 attempt to contradict him then or at any time in the prog- 
 gress of the case. It will not be pretended that there is a 
 particle of evidence in this record showing or tending to 
 show that Mr. Grueneberg's testimony as to the taking 
 out of that line in the circular, and as to all the matters 
 connected with it, was not absolutely true. No contra- 
 diction of his testimony was in the record up to the time 
 of his testifying and of the court making this ruling, no 
 impeachment had been suggested or attempted. There 
 
was nothing in the record to raise the slightest question, 
 at that juncture, but that the witness was telling the 
 exact truth. What justification could there be, then, for 
 the court to suggest to the jury the question whether the 
 witness was telling the truth as to the matter testified of, 
 and that that question was one to be determined at least 
 measurably by showing the bias, prejudice or associations 
 ■of the witness? 
 
 We respectfull}- submit that there can be no excuse 
 whatever for these various utterances of the presiding 
 judge to which we have had to call attention, and other 
 like utterances, and that they were altogether improper, 
 highly prejudical to the rights and interests of the plain- 
 tiffs in error, and therefore materially erroneous. 
 
 In support of our position upon this point, and that 
 such improper remarks afford ground for reversal, we 
 cite the following authorities: 
 
 Andrews v. Ketcham, 77 111., 377. 
 State V. Harkin, 7 Nev., 382. 
 Hair V. Little, 28 Ala., 236. 
 
 «). THE IMPROPRIETIES OF THE CLOSIXli .VRGUMENT OF 
 THE STATE'S ATTORNEY. 
 
 One point made in support of the motion for a new 
 rial was, that " the closing argument of the state's at- 
 torney was improper in its statement of substantive mat- 
 ' ters not in evidence, in its appeals to the prejudices and 
 ■ passions of the jury, in its misstatement of the issues, 
 ' and in its abusiveness to the defendants, all having a nat- 
 ural tendency to mislead the jury and to prevent a fair 
 and impartial verdict." (\'ol. O, p. 44.) 
 In support of this point under the motion for anew 
 
409 
 
 trial, an affidavit was filed setting forth various extracts 
 taken from the short-hand report of the closing argument 
 of Mr. Grinnell, which extracts appear in r A., 29 cl seq; 
 
 0, 86 cl scij., 87 to 94, inclusive, (i A., 29-33.) 
 
 1. The Objectionable Remarks of the State's 
 
 Attorney. 
 
 From this affidavit it appears the defendants were called 
 by Mr. Grinnell "loathsome murderers;" also "these 
 " wretches here;" also " assassins," and a second time on 
 the same page the}^ are spoken of as " a lot of wretches." 
 Then shortl}' followed these words: "There is one step 
 " from Republicanism to anarchy. Let us never take 
 " that step. Gentlemen, the great responsibility that is 
 " devolved upon you in this case is greater than any jury 
 " in the history of the world ever undertook. This is no 
 ^' slight or mean duty that you are called upon to per- 
 " form. You are to say whether that step shall be 
 " taken." 
 
 The state's attorney further claimed that the jury 
 were really trying the defendants " for the murder of 
 " seven officers as well as for the injury to these sixt}' 
 " others," and also urged upon the jury, as a reason wh)- 
 they should find the defendants guilty, that if they were 
 acquitted that was the end of the case, and there was no 
 appeal by the State of Illinois, and then used this lan- 
 guage: " If, however, in the trial of this case, you should 
 " find that the defendants are guilty, from the proof in 
 " this case and under the instruction of the court, you 
 " then, in rendering your verdict, do what the gentlemen 
 " upon the other side, from the numerous exceptions the}' 
 " have taken, expect you to do, find the defendants guilty, 
 " thev can appeal. If they do not like your verdict they 
 
" can ask this court to set it aside, or the Supreme court 
 " to review your judgment." 
 
 On page 89, the state's attorney, against the objection 
 and in the face of the contradiction interposed at the time 
 by defendant's counsel, stated to the jury, in commending 
 the argument of his associate, Mr. Ingham, as follows: 
 '' As one of the counsel said to me in the hall, his argu- 
 " ment was unanswerable, and therefore they would not 
 " undertake it." 
 
 On the same page it appears that the state's attorney 
 used the following language: " Prejudice? Men, organ- 
 " ized assassins, can preach murder in our city for 
 " years, you deliberately under your oaths hear the proof, 
 " and then say 3-ou have no prejudice." Thereupon 
 counsel for defense excepted to the language of the state's 
 attorney and protested against the continued reference to 
 the defendants, whose guilt was the question of consider- 
 ation, as assassins. The court simply replied: "Save 
 your e xceptions." 
 
 From the same page it appears that Mr. Grinnell fur- 
 ther said: " We stand here, gentlemen, as I told you 
 " yesterday, already, with the verdict in our favor — I 
 " mean in favor of the prosecution as to the conduct of 
 " this case." Counsel for defendants thereupon arose, 
 took an exception to the statement of the state's attorne}-, 
 and denounced the same as outrageous. To which the 
 court responded, " Save the point upon it." 
 
 On page 90 Mr. Grinnell stated as follows: " Gilmer 
 "told us the story on the 5th or the 6th or the 7th — I 
 " will not be sure about the date ; and he told us all the time 
 " the same." Thereupon counsel for defendants excepted 
 to the statement that Gilmer had at all times told the same 
 story. After some discussion with the court on that 
 point, the state's attorney stated substantially as follows 
 
(page 91) : " When we had Spies under arrest, I confess 
 " to you then, and after it was developed that a conspiracy 
 " existed — I confess this weakness — that I did not sup- 
 " pose that a man living in our community would enter 
 " into a conspiracy so hellish and damnable as the proof 
 " showed and our investigations subsequently showed he 
 "had entered into, and therefore, notwithstanding Gil- 
 " mer's statement to us so frequently, he was not shown 
 " and not identified." And thereupon, in reference to his 
 opening statement as to the bomb-thrower, Mr. Grinnell 
 stated as follows: " I said in that opening that we 
 " would show to you who threw that bomb; I said 
 " in that opening that we would show that the man 
 " left the wagon, lighted the match and threw the 
 " bomb. 
 
 " That was not absolutely correct. I should have said 
 " that the man that came from the wagon, as the proof 
 " shows, and as we knew came from the wagon, was in 
 " that group, assisted, and that the bomb was thrown by 
 " the man whom we would show to you. My associates 
 " found fault with me in the office immediately afterwards 
 " for not more clearly defining it." To this statement 
 exception was taken. 
 
 Could there be a greater abuse of the privileges of 
 counsel than this? A part of our attack on Gilmer's 
 evidence was that to Graham he said he saw the man- 
 light the fuse and throw the bomb — a statement totally at 
 variance with his evidence. Mr. Grinnell in his opening 
 had, as he here admitted, stated in efiect that the evidence 
 would show the one man who left the wagon, lighted the 
 fuse and threw the bomb; a direct confirmation of Graham 
 and impeachment of Gilmer. Was it allowable to the 
 state's attorney to attempt in his closing argument to take 
 back his opening statement, declare what occurred be- 
 
tween himself and his associates and attempt bj' his asser- 
 tions to fortify his witness? 
 
 Later, Mr. Grinnell stated to the jur}- as follows (page 
 92): " Don't try, gentlemen, to shirk the issues. Law 
 '• is on trial. Anarchy is on trial. The defendants are 
 '• on triaiybr /reason and murder." And thereupon Mr. 
 Grinnell proceeded to argue the question of the crime of 
 treason, and the penalty of treason as death without any 
 modified punishment, using, with other, the following 
 language: " Under the laws of this state, if an individual 
 " is guilty of treason, the punishment is death. There 
 " is no mitigation, no palliation, no chance for the jury to 
 " hedge on the oflense. For that ofTense 5'ou cannot say 
 " that this man shall have a few years in the penitentiary, 
 " and that one a few more, and that one shall suffer the 
 " extreme penalty of death. No, it is death. And 
 " treason, gentlemen, can only be committed by a citizen. 
 ■" None of these defendants, exxept Parsons and Neebe, 
 " are citizens. * * * if they had been citizens, you 
 " (counsel for defendants) would have proved it. Or else 
 " there was more design in it than that. You failed to 
 " prove it, because thinking there might be some possible 
 " chance or technicality in the upper court. * * * 
 " The penalty for treason is death, and it is death, in 
 " treason, whether the individual committing the treason 
 " kills a man or not." With more language of the same 
 character. 
 
 Farther on in his argument (page 93) he stated as 
 follows: "But not content, these revolutionists, these 
 " traitors,these men who have committed treason — I thank 
 " again the gentleman for the word — these men who have 
 " committed treason are not content with confining their 
 " power and influence to the small limits of Cook county, 
 " but Spies goes to Grand Rapids, and there gives utter- 
 
41.3 
 
 " ance to these same treasonable sentences," etc. And, 
 again: " Courageous men ! Herr Most gives the plan," 
 etc. 
 
 Farther on he called the defendants and others associ- 
 ated with them, "infamous scoundrels," " wretches who 
 " have attempted to betray the law." Thereupon, Mr. 
 Grinnell stated as follows: " Weekly, since the 4th of 
 " May, have bombs been found scattered in the north 
 " and west and south-west parts of the city, and they 
 " will continue to be found." To which statement de- 
 fendants excepted, as being unsupported by evidence. 
 
 Nearing the close of this argument (page 94) he said: 
 " If I had the power I would like to take you all over to 
 " the Haymarket that night, and with you with tears in 
 " your eyes see the dead and mingle with the wounded 
 " and dying, see law violated, and then I could, if I had 
 " the power, paint you a picture that would stetl your 
 " hearts against the defendants^ And then referring to 
 the testimony of the officer who swore that Fielden shot 
 him in the knee, he said: " For the purpose of correcting 
 " myself, I had the officer come to my office and examined 
 " the wound, and I found that the bullet went in there 
 " (indicating) and came out above, going around up 
 " opposite the knee-cap, and was not from behind." 
 Thereupon there was an exception to the statement on 
 the ground that Mr. Grinnell had no right to say that he 
 had seen the wound again, and thereupon Mr. Grinnell 
 repeated his statement, indicating the alleged course of 
 the wound. To all of which defendants excepted. 
 
 It will be observed from these statements that, as 
 stated in the point under the motion for a new trial, the 
 closing argument of Mr. Grinnell had in it repeated state- 
 ments of substantive matter not in evidence, appeals to 
 the prejudices of the jury, distinct misstatements of the 
 
414 
 
 issues; and was exceedingly abusive in its expressions 
 towards the defendants. 
 
 In other words, in a case where the defendants were 
 on trial charged with murder, and where the counsel for 
 defendants had been prohibited by the court from exam- 
 ining the jurors as to the extent to which their admitted 
 prejudices against anarchists, socialists, etc., might influ- 
 ence them, the counsel for the state called the defendants 
 "loathsome" "murderers," "organized" "assassins," 
 <' wretches," " scoundrels " and " anarchists " — claimed to 
 the jury that the law was on trial; that anarchy was on 
 trial — claimed the defendants were being tried, not only 
 for the murder of seven men, instead of the one covered 
 by the indictment, but also for the wounding of sixty 
 others; made positive statements of matters dehors the 
 record tending to prejudice the defendants, and appealed 
 to the jury to convict the defendants on the ground that 
 their acquittal was the end of the case, no appeal being 
 allowed to the state, but that upon conviction they could 
 appeal; and urged a conviction as the duty of the jur}-, in 
 order to save our institutions from overthrow. 
 
 We repeat what we have said before herein, that in 
 this case and under this argument and appeal of the 
 state's attorney, the defendants were convicted, not be- 
 cause they were proved guilty of the murder of Mathias 
 J. Degan, but because they were anarchists; and that was 
 the issue which the attorney for the people distinctl}' 
 stated to the jury was before them. 
 
 Such improprieties on the part of the counsel for the 
 state, particularly in a closing argument, have always been 
 held in themselves to entitle the defendants to a new, in 
 order that they may have a fair, trial. This court has had 
 occasion recently severely to reprobate the license of 
 counsel for the state in prosecutions. 
 
2. Decisions relating to the impropriety of 
 REMARKS of Counsel. 
 
 In I^ox V. The People, 95 111., 70-79, this court used 
 the following language by Mr. Chief Justice Walker: 
 ^' It is complained that the state's attorney was unfair in 
 " his closing argument to the jury; that he assumed facts 
 "that were not proved, and urged them for a conviction. 
 " It is the duty of the Circuit court in such cases to stop 
 -"counsel; to effectually' prevent such unfairness when 
 ■" attempted. Its duty is in all cases, and emphatically so 
 " when life or liberty is involved, to prevent such unfair 
 "conduct on the part of counsel. It cannot be sanctioned 
 " to permit the people's attorney to thus treat the accused, 
 " who is restrained of his liberty, and is helpless unless 
 " protected by the court. Nor is it the duty of the state's 
 " attorney to urge an unwarranted conviction, or resort to 
 " unfair means to procure one, when he believes there is 
 " no guilt. The prisoner should in all cases be treated 
 " with fairness, and it is the duty of the court to see that 
 " this right is not infringed. 
 
 " Complaints of this character are beginning to be 
 " brought before us, and what is here said refers more to 
 " the rule of practice that should obtain in all cases than 
 " with reference to this case. But in this case we are of 
 "opinion that a portion of the argument on the part of 
 " the people was not fully warranted by the evidence. It 
 " may be that the objectionable portions are not of such a 
 " character as would alone justify a reversal. But when 
 " the unfairness is gross it would be our duty in all doubt- 
 " ful cases to reverse alone for that reason." The judg- 
 ment in this case was reversed. 
 
 See also Hennies v. Vogle, 87 111., 242. 
 
 In Ferguson v. The Stale, 49 Ind., 43, objection was 
 
4i6 
 
 made to the expressions of the state's attorney in the 
 closing argument, and in reference thereto the court used 
 the following language: 
 
 " The bill of exceptions shows the following facts, 
 "which were also assigned as a cause for a new trial: 
 " ' On and during the progress of argument of counsel, 
 " counsel for state commented upon the frequent occur- 
 " rence of murder in the community, and the formation 
 " of vigilance committees and mobs, and that the same 
 " was caused by the laxity of the administration of laws, 
 "stating to the jury that they should make an example 
 " of the defendant. And the defendant, by his counsel, 
 " asked the court to restrain the counsel, and objected to 
 " said comments, because there was no evidence of such 
 "matters before the jury; but the court overruled said 
 " motion, and remarked in the hearing and the presence 
 " of the jury that such matters were proper to be com- 
 " mented upon, to which defendants at the same time 
 " excepted, and still except.' 
 
 " The comments and argument of counsel and remarks 
 " of the court during a trial may be within the discretion 
 " of the judge presiding, but it is a judicial discretion, 
 " and if improperly used to the injury of either party, 
 " it may and ought to be revised and controlled by this 
 " court. If it was proper to present these things to 
 " and comment upon them before the jur}', it was proper 
 " for the jury to consider them in making up their ver- 
 " diet. These things were outside of the record and the 
 " evidence, and were calculated to prejudice the rights 
 " of the defendant. It was tantamount to saying to the 
 "jury, ' Murders have been committed, vigilance commit- 
 " tees formed and mobs assembled in this county, and you 
 " may take these matters into consideration in making 
 " your verdict; and as you have got a chance now, you 
 
+17 
 
 "may make an example of the defendant! The jury 
 " may have come to a different conclusion from what they 
 " would if the court had quietly rebuked the counsel, and 
 " told him to keep his argument within the facts and evi- 
 " dence in the case. The action of the court was error, 
 « for which, if for no other cause, the judgment must be 
 " reversed." 
 
 In State v. Smith, 75 N. C, 306, the judgment was 
 reversed for misconduct of the state's attorney, consisting 
 in the following expressions: 
 
 " The defendant was such a scoundrel that he was 
 " compelled to move his trial from Jones county to a 
 " county where he was not known. * * * The bold, 
 « brazen-faced rascal had the impudence to write me a 
 " note yesterday, begging me not to prosecute him, and 
 " threatening me if I did, that he would get the legisla- 
 " ture to impeach me." Commenting upon these expres- 
 sions, after stating the impropriety of their utterance, the 
 court proceed as follows: 
 
 " These charges and invectives were not only allowed 
 " to go to the iury, but were unexplained and uncor- 
 " rected by his Honor in his charge to the jury. In 
 " Dennis v. Haywood, 63 N. C. Rep., 53, the course here 
 " pursued by the solicitor is strongly reprobated. ' Sup- 
 " pose,' said the court, ' a defendant is to be tried for his 
 " life, and to escape unreasonable prejudices in one 
 " county, he removes his trial to another. The fact that 
 " he does so may be used to excite the prejudice that 
 " he is endeavoring to escape justice; thus he would 
 <■' escape the prejudices of one community to find them 
 " intensified in another. Would the court allow the fact 
 " to be given in evidence or commented upon by counsel? 
 " Certainly not.' 
 
 » So in Jcnliim v. The N. C. Ore-Dressiny; Co., 65 
 
" N. C, 563, it is said, ' Where the counsel clearly abuses 
 " his privilege to the manifest prejudice of the opposite 
 " party, it is the duty of the judge to stop him then and 
 " there. If he fails to do so, and the impropriety is gross, 
 " it is good ground for a new trial.' 
 
 "And in The State v. Williams, 65 N. C, 505, a new 
 " trial was granted in a case where language less harsh 
 " and violent was allowed by the court, and it was there 
 " said that it was the duty of the court to intervene for 
 " the protection of witnesses and parties, especiall}^ in 
 " criminal cases where the state is prosecuting one of its 
 " citizens. The defendant was arraigned at the bar of 
 " the court, mute and helpless, without raising an un- 
 " seemly controversy with the solicitor. The court is 
 " constituted a shield against all vituperation and abuse, 
 " and more especially where it is predicated upon alleged 
 " facts not in evidence or admissible in evidence. " 
 
 In the light of this language, as well as of the language 
 of our own Supreme court in the 95th 111., above cited, 
 where it is said: " It is the duty of the Circuit court to 
 " stop counsel and effectually prevent such unfairness 
 " when attempted. The duty is in all cases, and em- 
 " phatically so when life or liberty is involved, to prevent 
 " unfair conduct on the part of counsel. It cannot be sanc- 
 " tioned to permit the people's attorney to thus treat the 
 " accused, who is restrained of his liberty and is helpless 
 " unless protected by the court. * * * When the 
 " unfairness is gross, it would be our duty in all doubtful 
 " cases to reverse alone for that reason " — in the light of 
 these e.xpressions, we again call attention to the fact dis- 
 closed in this record, that not only was the representa- 
 tive of the state in the case at bar permitted to proceed 
 with grossly vituperative expressions concerning the de- 
 fendants, calling them loathsome murderers, organized as- 
 
419 
 
 sassins, scoundrels and wretches, and referring to matters 
 not in evidence; and, above all, appealing to the patriotic 
 prejudices of the jury, by claiming that the defendants 
 had been guilty of treason, for which the penalty was 
 death, without reference to the commission of the crime 
 of murder, and asserting that the defendants were not 
 citizens of this country, save possibly one or two 
 of them (although there was no evidence in the 
 record whatever to sustain that assertion — the state's 
 attorney arguing that they were not citizens, because 
 had they been we would have proved their citizen- 
 ship, unless we designedly omitted such proof to es- 
 cape proceedings against them as traitors), not only 
 did the court permit the state's attorney to indulge in all 
 these gross and abusive improprieties in his closing argu- 
 ment, but upon objection and exception being made to 
 parts of this conduct, the court distinctly refused to inter- 
 fere, saying to the defendants' counsel that they could 
 " save the point," and allowing the state's attorney to pro- 
 ceed unchecked and unrestrained. We respectfully sub- 
 mit that a more disgraceful exhibition of the outrageous 
 and unwarranted abuse of the privilege of counsel has 
 never blotted the administration of justice in our country. 
 In further support of our position, we also cite the case 
 of Earlly. The People^ 99 111., 123. And also, without 
 stopping to quote from the many cases in which this wise, 
 humane and just rule of conduct has been enforced by 
 the courts, we cite the following authorities, with the 
 single observation that they go to the full length of the 
 cases above quoted from, and that there is no respectable 
 exception to the rule thus established: 
 
 See Brown v. Swincford, 42 Wis.. 282, 
 
 292-294. 
 Tucher v. Hennecher, 41 N. H., 317-322. 
 
420 
 
 Hilliard v. Beatiie, 59 N. H., 465. 
 Berry v. State, 10 Ga., 522. 
 Mitchum v. 6'/a/<', 11 Ga., 61S. 
 Cohel V. Co^e/, 79 N. C, 587. 
 W'/'/Z/V V. McNeil, 57 Tex., 465. 
 5^ff/e V. Turnbtill, 86 Mo., 113. 
 Henry v. Sioux City, S. C. Iowa, Dec. 9, 
 1886: 30 N. W. R-., 630. 
 
 EE. ERROR IX REFlSIXfci TO ARREST JUDGMEXT. 
 
 We deem it proper, also, to submit to the consideration 
 of the court the point that there was an error in the court 
 below in overruling our motion in arrest of judgment 
 upon the ground that the verdict of the jury, in view of 
 the indictment, was uncertain. 
 
 Here was an indictment containing sixty-nine counts, 
 as before suggested; one series of these counts charged 
 the defendants with jointly committing the murder (a) by 
 throwing a bomb, (b) by a revolver, (c)by an unknown 
 weapon. Then followed ten series of counts of six each, 
 charging the plaintiffs in error as being guilty as accesso- 
 ries to the murder, (a) by the throwing of a bomb by 
 one of their number, (b) by the firing of a revolver by 
 one of their number, and (c) b}' the use of an unknown 
 weapon by one of their number; and in addition to this, 
 there were six counts, charging the defendants as being 
 accessory to the murder by an unknown part}-, (a) by 
 throwing a bomb, (b) by the use of a revolver, and (c) 
 by the use of an unknown weapon. Each series of counts 
 charging accessoryship involved three counts, charging 
 that the parties, being present, aided, abetted and assisted 
 the act; and three others that, not being present, they 
 
had aided, advised, encouraged or abetted the throwing of 
 the bomb. 
 
 The verdict of the jury found the defendants " guilty of 
 " murder in manner and form as charged in the indict- 
 " ment." What does this mean? Does it mean that the 
 fury found the defendants guilty as accessories to the 
 throwing of the bomb by Rudolph Schnaubelt? If that 
 was the finding of the jury and the basis of their verdict, 
 we were entitled to have that appear in the record, to 
 know just what case we were required to meet under this 
 writ of error. Does it mean that the jury found the 
 plaintiffs in error guilty of themselves committing the of- 
 fense? If so, we were entitled to know that fact, to be 
 prepared in this court to consider that issue. Does it 
 mean that the jury found the plaintiffs in error guilt}' as 
 accessories to the throwing of the bomb by an unknown 
 party, and not by Schnaubelt? If so, we were entitled to 
 have that fact appear, that in a presentation of this cause 
 to this court we might be disembarrased of the false is- 
 sue, and might be required to meet alone the finding of 
 the jury, whatever that was. 
 
 The indictment charged the commission of the murder 
 in different ways, absolutely irreconcilable with one an- 
 other. If the plaintiffs in error were guilty of committing 
 the murder, in manner and form as charged in one count, 
 then they were not guilty of the murder in manner and 
 form as charged in another count. In fact, no one mur- 
 der, in the nature of things, could be committed in man- 
 ner and form as charged in this indictment, because this 
 indictment charges murder under different and absolutely 
 antagonistic methods, alike as to the party doing the act 
 and the instrument used in the commission of the offense. 
 To find, therefore, that the defendants were guilty of 
 murder in manner and form as charged in the indictment 
 
was finding entirely too much. The plaintiffs in error 
 were entitled to, have the verdict applied to the particular 
 count or counts in the indictment which the jury found 
 to be supported by the evidence, and to have these 
 counts singled out b}' the verdict, there being no 
 nolle -pros, by the state as to any of the counts in the 
 indictment. 
 
 We beg the court, by way of testing the soundness of 
 this contention of ours, to select the count in this indict- 
 ment which is sustained beyond a reasonable doubt by the 
 evidence introduced. It cannot be done! 
 
 And here we may call attention, properlv, we think, to 
 another error in the charge of the court in reference to 
 the form of the verdict. Such instructions should have 
 directed the jury to designate the count or counts in the 
 indictment under which, if at all, they found the plaintiffs 
 in error guilty. 
 
 Conclusion. 
 
 We confidently submit that material errors obtain in this 
 record as to each and every one of the plaintiffs ifi error ; 
 and as to each and every one of the plaintiffs in error there 
 is an absolute failure to make out a case justifying a con- 
 viction by legitimate evidence under the rules of law 
 established by the authorities above considered. 
 
 We are not unmindful, however, that the suggestion may 
 be made that while the error may be obvious as to certain 
 of the plaintiffs in error, or while there may be an utter 
 and entire failure to make out a case by legal evidence as 
 to certain of the plaintiffs in error, that the case may stand 
 differently in the judgment of some, either upon the evi- 
 dence or as to the errors assigned, as to one or more of 
 
423 
 
 the plaintirts in error; and an affirmance of the judgment 
 may be urged as to some of them, coupled with a sub- 
 stantial admission that as to others there must be a 
 reversal. 
 
 We are led to suppose that a course of this kind may 
 be suggested because we find, on inspecting the record, 
 that there was in this case entered up as against each 
 plaintifilMn error a several judgment. As to this matter of 
 severing in the judgment, we beg to call attention to the 
 fact that in our view no weight should be given to this 
 act of the clerk in the making up of his record, forasmuch 
 as it appears that the proceedings from the first to the last 
 were in fact one proceeding so far as the state was con- 
 cerned. As we have before suggested, our eflort to 
 secure a separate trial for certain of the plaintiffs in error 
 was opposed by the state, and our application to that end 
 denied by the court. The indictment is one indictment 
 against all of the plaintiffs in error, charging them as being 
 jointly accessories to the above murder. The proceed- 
 ings from first to last were a unit. The verdict is one 
 verdict, not finding the plaintiffs in error severally guiltjs 
 save only as to Mr. Neebe, as to whom a different pun- 
 ishment was assigned; but finding the seven plaintiffs in 
 error other than Neebe guilty and fixing their penalty in 
 one sentence. The motion for a new trial was interposed 
 in behalf of them all; and all of the proceedings had 
 thereunder were as in the case of a single defendant. 
 Aside from these considerations, however, the law is well 
 settled that in an action of this character, where parties 
 are tried jointly as conspirators, and judgment has gone 
 against them, error as to one reverses as to all. 
 
 In support of this position we call attention to the fol- 
 lowing among other authorities. The rule is stated by 
 
424 • 
 
 by Mr. Wharton in his work upon criminal pleadings and 
 practice, section 305, as follows: 
 
 " From the peculiar character of the pleading in con- 
 " spirac}', a new trial as to one defendant is a new trial 
 " as to all," citing in support of the text Rex v. Gompcrtz, 
 9th Queen's Bench, 824; Wharton Cr. Law, 9th Ed., Sec. 
 1,395; (^o»i. V. McGowan, 2 Parsons, 341. 
 
 In Com. V. McGowan, 2 Parsons, 365, the law is thus 
 declared on this point: 
 
 "But it has been said that although the court shall be 
 " satisfied the rejection of this evidence might have in- 
 " fluenced the verdict as to McGowan, still it does not 
 " apply to Pratt and Pence. If the fallacy of such a po- 
 " sition has not already been shown, I will refer to one 
 " case already cited in this opinion, which in my view 
 " settles the question. It is the case of the J^/ccn v. 
 " Gomfertz, 6 Penn., L. J., 377, where it is held, in con- 
 " spiracy, a new trial cannot be granted as to one without 
 " embracing all. I quote the remark of Lord Ch. J- 
 " Dexman. 'I should add, we think that there is no 
 " ground to disturb the verdict, so far as it affects the de- 
 " fendant, Gompertz; but where two or more persons have 
 " been convicted of a conspiracy, it is not possible to 
 " grant a new trial as to one conspirator and not as to 
 " the others. Such, in my opinion, is unquestionably the 
 " law. A different doctrine would subvert the whole 
 " principle upon which the law of conspiracy is based. 
 " On trials for this oHense, all connected with the trans- 
 " action are considered as one. The acts of one may be 
 '• viewed as the acts of each of the others. It is the 
 " union of mind, the concert of action, which creates the 
 " offense. * * * if^ then, it should be admitted there 
 " was ground foa setting aside the verdict as to one, how 
 
425 
 
 " can the court know the bearing which the evidence of his 
 " acts, or connection in the affair, might have had in pro- 
 " ducing the conviction of the others, when, perhaps, if 
 " such an individual and his transactions were thrown out 
 " of view, a jury might not have acquitted those on whom 
 " the reasons for a new trial do not operate so favor- 
 " ably.' " . 
 
 The same rule is announced in 3d Russell on Crimes 
 pth Ed., star page 176. This rule has been recog- 
 nized and acted upon by this court, so far as we know, 
 without any exception whatever. These authorities are 
 controlling; for in the case at bar, the state's sole basis of 
 conviction, as evidenced by its instructions, was the al- 
 leged conspiracy, which, therefore, had to be found by 
 the jury as the ground-work of their verdict, the conspir- 
 acy merged in the felony charged, but a finding of con- 
 spiracy being a condition precedent to the verdict in this 
 case and involved therein, under the theor}' on which the 
 cause was tried. 
 
 We know of no exception to this rule as to all parties 
 joining in the writ of error. 
 
 We have, perhaps, dwelt upon this case at what may 
 seem unreasonable length. The importance of the issues 
 involved, the vast bulk of the record, the variety and 
 moment of the principles necessarily considered, and the 
 number of the parties whose lives and liberty are at 
 stake, must plead excuse if we have offended in this par- 
 ticular; and we are sure will secure for us lenient judg- 
 ment at the hands of this court. 
 
 We repeat that upon a review of the entire evidence 
 in the case, and under the rules of law, establisheci b}' the 
 authorities which we have above presented and considered, 
 first, that there was no legal evidence in this case to 
 
426 
 
 justify the conviction of any one of the plaintiffs in error; 
 second, that each and all of the plaintiffs in error have 
 been, 'in the language of our statute, "aggrieved by 
 " manifest and material error appearing of record," against 
 which they are entitled to be relieved under this writ of 
 error and pursuant to law. 
 
 Respectfully submitted. 
 
 W. P. Black, 
 Salomon Sc Zeisler, 
 
 Atlys. for Plffs. in Error. 
 
 Note. In further support of our views, we beg to 
 refer the court to the Brief and Argument filed herein by 
 Hon. Leonard Swett, of counsel with us in this cause.