“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 presented 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 inconsistencies will probably disappear. In any event, however, the gist and pith of all is that if advice and encouragement to murder 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. Unless the evidence, either direct or circumstantial, or both, proves the guilt of one or more of the defendants upon this principle so fully that there is no reasonable doubt of it, your duty to them requires you to 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 considered with the same care and scrutiny as if he alone were on trial. If a conspiracy, 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 any of the instructions which seem to assume the existence 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.”
The jury the next day reported to the court that they had agreed upon a verdict. The members were accordingly brought in, and the clerk of the court read the verdict as follows:
“We, the jury, find the defendants August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel and Louis Lingg guilty of murder in manner and form as charged in the indictment and fix the penalty at death. We find the defendant Oscar W. Neebe guilty of murder in manner and form as charged in the indictment, and fix the penalty at imprisonment in the penitentiary for fifteen years.”
This was a great surprise to the defendants, and their counsel at once entered a motion for a new trial. The hearing of the motion was postponed until the next term, and on the 1st of October arguments were submitted. The grounds upon which the motion was based were numerous. They first related to a refusal of some, and a modification of several other instructions at the hands of the court asked for by the defendants; a claim that jurors had been summoned by the officers with the avowed view to conviction; improper language by the State’s Attorney in his closing argument; erroneous rulings of the court in regard to the competency of jurors, and the refusal of separate trials for the defendants. Other grounds touched on a statement made by one of the members of the jury, Mr. Adams, prior to the trial, with reference to the Haymarket massacre, showing prejudice against the defendants, backed by an affidavit as to what he said; an affidavit of one Mr. Love, that he met Gilmer on the night of May 4, shortly after eight o’clock, and went to a saloon with him, where they and another person drank beer and talked until 9:20 o’clock, and also a further reason that the defendants had discovered some new evidence, to back which an affidavit was submitted from John Philip Deluse, dated August 24, 1886, concerning a mysterious individual who had called at his saloon, in Indianapolis, Ind., in May, 1886.
The argument of counsel on each side, on the points raised, consumed several days, and finally, on the 7th of October, 1886, Judge Gary, in an elaborate and exhaustive opinion, overruled the motion.
The defendants then entered a motion in arrest of judgment, and this was also overruled.