In 1906, out of 85 cases transferred, 79 were dismissed, and of the remaining six, 5 defendants were acquitted and 1 was discharged. In 1907 there were 98 transferred and all were dismissed by the grand jury.
The significance of these figures becomes evident when it is realized that the defendants whose cases are thus transferred are those who are the actual holders of licenses. They can afford to pay for the services of counsel, and their conviction is of vastly more importance to the community than that of their hirelings who actually sell the liquor over the bar. The barkeeper who violates the law and is caught, comes to trial in the Special Sessions, either pleads guilty or is convicted, and receives a fine which his employer promptly pays. The owner of the saloon thereupon discharges the defendant from his service and secures another barkeeper. This process can be continued indefinitely. But when the owner himself is caught and convicted, he is either driven out of business or has got to operate under another name. These are the men who apply for and are apparently able to secure transfers of their cases to the General Sessions, although any judge granting such motions is, or, at least, should be, aware of what the practical result of his action will be. The transfer of a liquor-tax case upon the order of the judge sitting in Part I of the General Sessions is practically tantamount to a dismissal of it.
[38] Whatever the actual origin of the number twelve for this purpose there certainly lingered in olden times a feeling that it had a sacred or foreordained character, and in Duncomb's Trials per pais, the following illuminating explanation is to be found:
"And first as to their number twelve: and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve to try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve. Therefore not only matters of fact were tried by twelve, but of ancient times twelve judges were to try matters in law, in the Exchequer Chamber, and there are twelve counsellors of state for matters of state; and he that wageth his law must have eleven others with him who believe he says true. And the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)
[39] Cf. "Criminal Law and Its Administration," by Robert Earl, 2 Columbia Law Rev. 144.
[40] Many cases result in mis-trials owing to the sickness or death of a single juror. In persecutions which it can be foreseen will be long the swearing of an extra juror would obviate this difficulty. Cf. "Newspapers and the Jury," Clarence B. Smith, 17 Greenbag 223.
THE WITNESS