Anarchy and Anarchists / A History of the Red Terror and the Social Revolution in America and Europe; Communism, Socialism, and Nihilism in Doctrine and in Deed; The Chicago Haymarket Conspiracy and the Detection and Trial of the Conspirators

by Michael J. Schaack

“The instruction given by the court of its own motion, and which has already been referred to, is also claimed to be erroneous. So far as it speaks of murder and advice to commit murder in general terms, it is sufficiently limited and qualified when read in connection with all the other instructions, to which it specifically calls attention. It does not supersede and stand as a substitute for the other instructions, given for both sides. It does not so purport upon its face. On the contrary, the jury are directed to ‘carefully scrutinize’ such other instructions, and are told that their apparent inconsistencies will disappear under such scrutiny. In the last sentence they are requested to disregard any unguarded expressions that may have crept into the instructions, ‘which seem to assume the existence of any facts,’ and look only to the evidence, etc. Why caution the jury to disregard certain expressions of a particular kind in the other instructions, if the latter were to be entirely superseded? We do not think that the instruction given by the trial judge sua motu is obnoxious to the objections urged against it.

“Defendants also object to the instruction as to the form of the verdict as being erroneous. It is claimed that the jury were obliged, under this instruction, to find the defendants either guilty or not guilty of murder, whereas the jury were entitled to find that the offense was a lower grade of homicide than murder, if the evidence so warranted. This position is fully answered by our decisions in the cases of Dunn vs. The People, 109 Ill. 646, and Dacey vs. The People, 116 id. 555. If counsel desired to have the jury differently instructed as to the form of the verdict, they should have prepared an instruction, indicating such form as they deemed to be correct, and should have asked the trial court to give it. They did not do so, and are in no position to complain here.

“The court, at the request of the defendants, did give the jury an instruction defining manslaughter in the words of the statute and specifying the punishment therefor as fixed by the statute. The court also gave the jury the following instruction: ‘The jury are instructed that under an indictment for murder a party accused may be found guilty of manslaughter; and in this case, if from a full and careful consideration of all the evidence before you, you believe beyond a reasonable doubt that the defendants or any of them are guilty of manslaughter, you may so find by your verdict.’

“The next error assigned has reference to the impaneling of the jury. The counsel for plaintiffs in error have made an able and elaborate argument for the purpose of showing that the jury which tried this case was not an impartial jury in the sense in which the word ‘impartial’ is used in our Constitution. We do not deem a consideration of all the points presented as necessary to a determination of the case, and shall only notice those that seem to us to be material.

“Nine hundred and eighty-one men were called into the jury-box and sworn to answer questions. Each one of the eight defendants was entitled to a peremptory challenge of twenty jurors, making the whole number of peremptory challenges allowed to the defense one hundred and sixty. The State was entitled to the same number. Seven hundred and fifty-seven were excused upon challenge for cause. One hundred and sixty were challenged peremptorily by the defense and fifty-two by the State.

“Of the twelve jurors who tried the case, eleven were accepted by the defendants. They challenged one of these, whose name was Denker, for cause, but, after the court overruled the challenge, they proceeded to further question him and finally accepted him, although one hundred and forty-two of their peremptory challenges were at that time unused. They accepted the ten others, including the juror Adams, without objection. When Adams, the eleventh juror, was taken, they had forty-three peremptory challenges which they had not yet used.

“Therefore, as to eleven of the jurymen, the defendants are estopped from complaining. They virtually agreed to be tried by them, because they accepted them, when, by the exercise of their unused peremptory challenges, they could have compelled every one of them to stand aside.

“Counsel for the defense complain that the trial court overruled their challenges for cause of twenty-six talesmen, to whose examinations they specifically call our attention. As they afterwards peremptorily challenged the talesmen so referred to, no one of them sat upon the jury. Every one of these twenty-six men had been peremptorily challenged before the eleventh juror was taken.

“After the eleventh juror was accepted, the forty-three peremptory challenges which then remained to the defendants were all used by them before the twelfth juror was taken.

“After the defendants had examined the twelfth juror, whose name was Sandford, they challenged him for cause. Their challenge was overruled and they excepted.