Haymarket Affair Digital Collection

Illinois vs. August Spies et al. trial transcript no. 1
Court discussion regarding the number of peremptory challenges to which each side was entitled, 1886 July 2, 3.

Volume D, 358-382, 25 p.
Court discussion.

Dispute between the Defense and the Prosecution as to the number of peremptory challenges allowed each side. The Defense contends that the Prosecution has only twenty peremptory challenges total while the Defense has twenty peremptory challenges per defendant. The Court ruled that the Prosecution was entitled to the same number of peremptory challenges as the Defense.

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Juror Berg challenged peremptorily by counsel for State.

Objected to by counsel for the defendants upon the ground that the State has exhausted twenty peremptory challenges, and the Statute does not give them more than they have used.

MR. BLACK: In order that the motion may be in proper shape we want to put into the record the objection. 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 jury divers jurors who were acceptable to and accepted by this accused,

We desire to make the same objection in behalf of each of the several accused parties at the bar and have it in the record, and we are now prepared to present the authorities in support of our position.

MR. SALOMON: By the common law the State had no peremptory challenge; this challenge therefore, being a penal statute, must be construed strictly, and when it refers to the

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accused it refers to the persons named in that indictment. This brief view which I have stated in upheld by all the courts which have decided on this question.

In the State Vs. Charles Earll, cited in the 24th Louisiana, the Court says: (Reading same.)

(Also reading 3rd Wisconsin, page 730; 1 B.J. & Le., page 28; 18th Florida, 951; 10th, Ohio,2132 and 25th La., 472.)

The statute says the State shall be entitled to the same as the accused. (Reading definition of the word "accused" from Webster's Dictionary.)

We have a decision by our Supreme Court, 83 Ill.--Smith vs. Chicago & Northwestern Railway Company.

THE COURT: This is a position which is contrary to the understood practice ever since anybody has practiced law at all in this State. If the statutes of these different States construed by those courts were substantially like our own, it would be rather presumptuous to set up the State in opposition to well considered and delivered opinions by Supreme Courts of other States; but is the language of our statute equivalent? Of course, it is not the same, but is it equivalent to the language of the statutes of any of the States? Every one of the statutes of the different States which you have cited state that in criminal prosecutions

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or the trial of indictments the State should be entitled to so many challenges. Here the statute first defines how many challenges the defendants may have and then instead of defining the number that the State may have simply says that 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 entitled to.

Now, who are the accused here? It is a noun collective when applied to different persons.

MR. BLACK: In the previous part of the section Your Honor will notice that there is a different number of challenges allowed for different offenses. Instead of going over it categorically again the statute briefly says, "The same number as is allowed to the accused" or "as the accused is entitled to." There is no getting away from the proposition that each one of these accused is entitled here to but twenty challenges; each is entitled to twenty challenges because of the language of the statute.

THE COURT: The common understanding of the bench and bar of the meaning of that statute for half a century is

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strong evidence of what it does mean.

In the Florida case they hold that the words of their statute--the prisoner shall have twenty and the State five--means simply that in a capital case the State has five challenges and nothing more. Reading the words which are applicable only to the question before us it is, "In capital cases the State shall have five peremptory challenges." Of course, that language admits of no latitude; there is no other meaning to it than what it says.

Now, in the Louisiana case, the statute declares that in all criminal prosecutions where in the defendant is allowed peremptory challenges the State shall also be allowed to challenge without cause any number not exceeding six. So that if you read only the words which are applicable to this question is reads: "In all criminal prosecutions the State shall be allowed to challenge without cause any number not exceeding six." Of course, there is no room for consideration there. In criminal prosecutions the State shall be allowed six challenges.

In the Tennessee cases the language of their statute is (by the act of 1875): "In the trial of criminal prosecutions the State is entitled to four peremptory challenges." Under the act of 1829 it provided that in the trial of all indictments the State and the defendants shall each be entitled

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to challenge peremptorily five; the language of the statute which they were construing was, "In the trial of criminal prosecutions the State is entitled to four peremptory challenges.

The Ohio statute is that every prosecuting attorney and every defendant on the trial of an indictmont may challenge peremptorily two of the panel. So there the language of the statute was express, that the prosecution and each defendant there should be entitled to two challenges.

The language of the Wisconsin case is that on the trial of criminal cases the prosecuting officer shall be entitled to six challenges.

The language of our statute is that every person arraigned for a capital offence shall be entitled to a peremptory challenge of twenty jurors, and the attorney prosecuting on behalf of the people shall be entitled to a peremptory challenge of the same number of jurors that the accused is entitled to--" the same number that the accused." "Accused" may mean one or an hundred. It is a noun which may be singular or which may be a noun collective; it may embrace only one, or a larger number.

It seems to me that none of these cases which have been cited from other cases can be regarded as at all authorities

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upon the construction of our statute. The reason which they give might be an argument here if the language of the statute was doubtful. The language of none of the statutes which the courts were considering resembles the language of our statute. The understanding of the profession and of the bench has always been that whatever number of challenges the defendants the State had the same number. Now, a common understanding of what a statute means among all the profession is good evidence, in the absence of the decisions of the court of last resort, of what does mean.

MR. BLACK: Mr. Grinnell says that in the short space of time he has been in the office this point has been raised half a dozen times.

MR. GRINNELL: And overruled.

THE COURT: That attorneys make points is no evidence that they believe in them, because the constant practice of the bar is to make all sorts of points; but that every attorney without exception has submitted without question to the decision by the court that the state did have the same number of challenges that the defendant had and never brought the question before the Supreme Court in the multitude of cases where the question was in the record, is evidence that

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they did believe that the construction which the court gave in the first instance was the construction which the Supreme Court would give.

MR. BLACK: The cases of joint defendants where appeals have been prosecuted to the Supreme Court are very rare.

THE COURT: I can recall a great many cases tried by men who had the largest practice where there were two or more defendants and there was never any question on this point.

THE COURT: If there is one defendant on trial only then that defendant can excuse but twenty jurors who are satisfactory to the State, but if there are eight on trial they can excuse 160. Our statute is simply that the State shall have the same number of challenges that the accused is entitled to. The accused in this case are these fight men; they make up the party accused who are now on trial The statute says that the State shall have the same number as the accused.

MR. BLACK: Suppose seven of these defendants are acquitted and one is found guilty, hasn't that one man suffered the effect of 160 peremptory challenges on the part of the State against him?

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THE COURT: The question is, what does this statute mean which says that the state shall have the same number of challenges that the accused is entitled, to, and I think it means what it says.

Adjourned to 10 A.M.

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Saturday, 10 A. M., July 3, 1886.

THE COURT: Have you any additional authorities to those which you had last night in regard to this question of peremptory challenge?

MR. BLACK: We have it your Honor.

MR. SALOMON: I will first call your Honor's attention on this question to the case of Wiley vs. The City, cited in the 4th Blackford, page 458, Indiana. The decision is as follows: (Reads decision.) Now, Your Honor will observe that the word in the Statute here is: "and the accused." The difference is this--That in our statute it says the prosecuting attorney shall have the same number of challenges "as the accused." In this state it says "And accused."

THE COURT: Let me look at it. I do not understand it as you read it to have any sort of application to this case.

MR. GRINNELL: It says "Capital offence", in a capital case.


THE COURT: The statute provided in the practice act that each party shall have the right of peromptory challenge to three jurors, and then the statutes concerning crimes and punishments enacted, that in all prosecutions for any capital offence each party accused shall have twenty peremptory challenges. Well, of course the state is not the party accused. So

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that they had no statute that gave the State any challenges in criminal cases unless they applied to the general practice act which gave each party a challenge of three. Unless they applied that practice act to the criminal business the state had no challenges at all; and they held that by applying that to the criminal practice the state would have, or did have, three challenges.

MR. SALOMON: The state in that case claimed that they had the same number of challenges as each party.

THE COURT: But there was no statute.

MR. SALOMON: But the Court says, in construing the wording of the Statute as to who should have the challenges, and the manner in which they should be exercised said "An accused"; did not say "the accused." But "an accused" shall have that many; plainly showing that it was to be applied to each individual if there were more than one.

THE COURT: Oh, undoubtedly, if the question had been before them--well, I don't know what they did mean. But the question which they had before them was whether the State--how many peremptory challenges the State had.


THE COURT: The general acts concerning crimes and punishments gave the State none; but the general practice act gave each party three; then they held that the State was entitled under the general practice act to three.

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MR. SALOMON: Well, the hearing that this decision has upon the point in question here is that the language of the statute is construed to refer to a single individual--that is, while our statute refers to the accused the distinction is plainly made that where a single individual is to be designated, or more than one, it refers to an accused.

THE COURT: Oh, well, whether that judge ever had any idea in his mind whether each party had twenty or not don't appear from this case. At any rate, no such question was before it.

MR. SALOMON: Well, it is also laid down in Thomson & Merely on Juries, Page 152, where it says: "In the case of persons jointly indicted," and so forth. (Reads, closing with the words "of the indictment of a single person".)

THE COURT: Well, I suppose he cites as authority for that the cases which you have brought here%

MR. SALOMON: Yes, he cites these.

THE COURT: Well, he don't add anything to the force of these cases by citing them.

MR. SALOMON: Now, we have a New Hampshire case here which also construes that provision of the statute. It is the case of the State against Reed and Goodwin, 47th New Hampshire Reports, page 466. (Reads from case cited.) Now, the word respondent as used here is synonomous or equivalent to the

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words "the accused" as used in our statute, and the construction placed upon it by the New Hampshire court it seems to be is a direct authority on the construction that that word should receive from your Honor in our State.

THE COURT: Well, if it is an authority at all, it is against you. Because it says that it is the collective body--that is meant by the word respondent.

MR. BLACK: Yes, but that has no application to the feature of our Statute which says "every person" shall be entitled, etc.

THE COURT: No, but if Mr. Salomon's argument that the word "respondent" is equivalent to the word "the accused" and that this is any authority as to what that means then it means as he reads it here. (Reads from the case cited.) Now, if the respondent and the accused are equivalent and mean collectively all that are on that side of the fence, then the State here has as many as that collective body has of peremptory challenges.

MR. SALOMON: Yes, but in our statute that is just exactly what we claim, your Honor.

THE COURT: Well, the fact is, that this Statute has no more application to the construction of our statute that any other case that could be read out of the same book; it hasn't any thing to do with it.

MR. SALOMON: It is a case as showing the construction to

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be placed upon that word "respondent".

THE COURT: Well, if it means collectively the whose body that are on the defense, and then if the state is to have just as many challenges as that collective body, that is what the state asks--the way the statute reads that the State shall have the same number of peremptory challenges, as the accused.

MR. ZEISLER: As the accused, but our statute says "Every person charged with crime" shall have that number of challenges.

MR. SALOMON: Now, as showing the sense in which the word "the accused" is to be understood and the purpose of using that word as designated by our legislature we might refer to the other sections of the statute where it speaks of persons and of the accused, and in every section almost it speaks not of the accused, but when it refers to individuals it says "The person,"

THE COURT: In looking up in the dictionary, the edition that I have the word "accused" have no place in the English language except as a perfect participle of the verb "to accuse"; but yet in fact it is often used as an adjective, and in fact it, is used also as a substantive. In this instance it is used as a substantive--the accused. It may be an elliptical phrase, but for the use of the sentence in full But then, as it is used there, it is used as a substantive.

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Now, the only question is,--who is the accused.

MR. SALOMON: Section 474 of Starr and Curtis, statute, Division 12.)Reads said section, and also section 475.) Plainly showing that the Legislature intended when speaking of the accused, the collective body.

THE COURT: That is precisely what the State wants The collective body means the accused.

MR. ZEISLER: Mr. Salomon means the indictment.

MR. SALOMON: What I refer to as the accused is one person. In other words the indictment is the accusation and the state accuses, and the defendants of course the accused. The state is but one party on one side. As I say, that is illustrated in Section 475 where it says: "shall issue process of capias for the apprehension of each person indicted, directed to the sheriff, coroner or any constable," etc. In section 481 it says that "every person charged with treason, murder, or other felonious crime, shall be furnished previous to his arraignment with a copy of the indictment"; not the accused, but every person. The accused are these eight men. So the Legislature did not design to give one indictment to the eight, but to give to each person indicted a copy of the indictment. So Section 482: "Every person charged with crime shall be allowed counsel"; not the accused, but every person shall be allowed counsel; plainly indicating that the intention of the Legislature was, to give

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the word "accused" the meaning in which it is generally understood--- that the accused means one party; but each person is a part of the accused. That is, a number of persons can make up the accused; but the accused itself is but one person and one party to the cause. Again Section 483: "Upon the arraignment of a prisoner," not upon the arraignment of the accused, but of the prisoner, "it shall be sufficient without complying with any particular form, to declare orally by himself or his counsel that he is not guilty;" not upon the arraignment of the accused," again showing the clear intent of the Legislature by the sense in which the word "accused" was to be used. And then again, they say in this chapter, "Every person arraigned for any crime shall be entitled to challenges," etc. "The attorney prosecuting on behalf of the State shall be entitled to the same peremptory challenges that the accused is entitled to." That is, to the indictment--in other words, as the nature of the indictment may mean. The State on one part are accusing, and the eight defendants are accused. Now, as clearly showing that to be as I state to your Honor, the State, by the common law of this State had no peremptory challenges, and this statute confers on them a right which tyey did not have before, and the statute must then be construed with reference to the cndition existing previous to its enactment. Now I read from Prophet

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on Jury Trials, Section 164. (Reads.)

THE COURT--- Then I suppose he cites the same cases that you do?

MR. BLACK--- He does.

MR. SALOMAN: Now we have these expressions by Prophet and we have this late book on Juries by Merriam and Thompson both of them cited there, and then we have this later decision in decided since both of these books have been published all of these cases, plainly stating what the law was, and how these statutes are to be construed. In addition to that we have our own statutes and the different sections of it, all showing that when our Legislature, when they refer to that thing, they refer to the same thing as if they had referred to the indictment. If the Legislature had intended to give the prosecution twenty challenges for each, was not that and would not that be a most radical change in the law? Would that have been left open to any inference or any argument or any doubt? Would they not have plainly said that the prosecuting attorney on behalf of the people shall be admitted to a preliminary challenge of the same number of jurors as an accused? Or would they not have said "As the person or persons accused?" But a word to plainly indicate to the Court that the law was to be changed so that the State should have a far greater advantage than it ever had by the common law. Now, the use of this word "the accused",

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the manner in which it is used through these different sections, the manner in which it is used here, the previous condition of the law, these authorities, all tend to establish that the State is limited to twenty challenges and no more.

MR. ZEISLER: I have an old decision, if your Honor please bearing on the question. But I understand your Honor to have admitted yesterday and still admit that the language of the statute is rather doubtful, which says the prosecuting attorney on behalf of the People shall be admitted to the same number of challenges as the accused is entitled to!

THE COURT:- I don't know where you got that impression.

MR ZEISLER:- Your Honor said yesterday--I heard it plainly-- that this language of the statute is doubtful.-- It is doubtful whether the accused is single or plural.

THE COURT:- I don't know. I don't recollect myself having said that.

MR. ZEISLER:- Well, I recollect that your Honor said it You may believe me that you used that expression, that the language of the statute is doubtful; it is doubtful whether the accused is plural or singular.

MR GRINNELL:- You have no objections to the Court correcting himself, have you?

MR. ZEISLER:- Very well.

THE COURT:- As I understand, these shorthand writers are

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writing down everything that is said. I don't suppose you will find any such remark as that in anything that you have recorded?

MR. ZEISLER:- I don't know as they have written everything that your Honor said yesterday. But I heard it. At any rate, whether your Honor said so or not, the language is doubtful; there is no doubt about the fact that the language is doubtful. Now, if it is doubtful, if we have to construe the question, in what manner is it to be construed? I claim it ought to be construed for the benefit of the prisoner. Your Honor will probably remember the language Blackstone uses in speaking of the right of peremptory challenges. I have here a part of it in a decision in a Kansas report where it is cited. (Reads citation referred to.) Your Honor will remember that, by the 33rd Edward the First, the king had taken away his right to peremptory challenges, and every prisoner individually was granted the privilege to a peremptory challenge of thirty-five. We find this right to a peremptory challenge of thirty-five to each prisoner in a great many of the old statutes of the different states of the Union. Afterwards this right was abbreviated to some extent in some states, to twenty-four, in others to twenty, and the prosecuting attorney by and by received the right to a peremptory challenge, in some states four, in capital cases, in others

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five, until finally the prosecuting attorney received in some states the same bumber of peremptory challenges as the accused. The intention of the legislature clearly was to give this prosecuting attorney the number of peremptory challenges that the one accused had, because the Legislature did not contemplate that eight or ten persons would be combined in one indictment. Now, if it is doubtful what the proper construction ought to be, it might perhaps be proper to consult the statutes of other states in which the language does not admit of any doubt. What rights have other states given a prisoner who is put to defend his life? I went to the law library this morning and picked out at random the statutes of some of the older states of the Union, from the respective sections of which probably our legislature has taken the model for the statutes. I give for instance, the public statutes of Massachusetts, revised in 1882. Section 6 of Chapter 214. (Reads said section.)

THE COURT--Yes, but how can we find out what our statute means by reading what the legislatures of other states have enacted?

MR. ZEISLER --If you would have this statute of our State standing alone and would be asked to construe it, you might say that the language of the statute may be construed in two different ways. To find out what the intention of our legislature was, we ought to look upon the statutes of other

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States. Our legislature has not formed that law without a model. They have looked to other states.

THE COURT--Well, if you can find anything which this resembles, if you can find any statute from which this is a copy, then you might say that that is a model of our statute. But when the language is totally dissimilar, quite unlike, then you cannot say that the statute of another State was the model of ours.

MR. ZEISLER--We claim that the language is quite similar in effect. It is a little differently expressed, but it means the same thing. Let us see what other States say on the subject.

THE COURT--Oh, I know that probably you will find that from the legislatures of other States, it may be found that the number of peremptory challenges which the State has in many cases is much less than the number of challenges, which an individual defendant has, and that where several defendants are on trial at once--the State are not allowed to multiply the number of challenges by multiplying the number of defendants. But that does not affect the question of what our statute means.

MR. ZEISLER--Of course it does not directly affect it, but it may aid us in finding the real sense and the meaning of the words. Now, I will refer back to what I read from Blackstone, which says it is a provisions filled with that

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tenderness and humanity to prisoners.

THE COURT--What a sarcasm that is!

MR. ZEISLER--Where is that tend rness and humanity for these eight prisoners at the bar, put upon the defense of their lives, in those words, to put a construction upon them that is not favorable to them?

THE COURT--But what a sarcasm that language of Blackstone is, when you consider that at the time he wrote it, that a defendant on trial for his life in a court in England had no counsel, could not compel the attendance of witnesses, was required to stand up during the whole trial, had no means of reviewing the action of the Court that tried him, could not bring his case before any higher court, the court which did try him could not grant a new trial, if the jury unjustly convicted him, and then for him to talk about "tenderness and humanity"!--if you go back to the time of Blackstone.

MR. ZEISLER--Well, it is the Supreme Court that has taken us to Blackstone. He does not refer to the time when these laws were in force.

THE COURT--Certainly, when Blackstone wrote they were.

MR. ZEISLER--He speaks of the tenderness of the law, in giving the prisoner thirty-five challenges, and taking away the right from the king to exercise any preliminary challenge, he cannot have meant that in any sarcastic sense.

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THE COURT--Yes, the king had what was more. The king had the right to say that all the jurors should be accepted by the defense before the king should say a word about any of them, and he had a right to say which ones the defendant should determine whether he would accept or not first. That is, suppose there were seventy-five men the king could say to the seventy-four "You stand aside until he passed upon the seventy-fifth; I will not pass upon any of the seventy-five, and I will not determine which ones shall come first until the defendants has made his choice of twelve of them. So that it was a great deal worse than a peremptory challenge.

MR. ZEISLER--Doesn't our law say that the guilt of the defendant must be proved beyond all reasonable doubt, and that every doubt must be construed in favor of the defendant? Why should not that apply to this statute if the language is doubtful?

THE COURT--Those apply to facts, not the law.

MR. ZEISLER--This language of the statute is doubtful, and if it is doubtful, it ought to be construed for the benefit of the prisoner.

THE COURT--I will allow--

MR. ZEISLER--I have one more point to make, if your Honor will look at the language of our statute.

THE COURT--I suppose there is no present means of access to the statute of 1827 or 1833, but we have statutes as far

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back as 1845 in court. Now, in the first place, this question, as I understand, thus far now, has already been passed upon several times in this court. That alone should be a sufficient guide to me here if there is no decision by the Supreme Court affecting the question. In addition to the fact that it has been passed upon several times, in this court, is the fact of the universal understanding of the bench and bar in this State during the whole period that this State has been in existence.

MR. ZEISLER--Your Honor has once said that because we have made mistakes before we are not compelled to make the mistakes again. That is what your Honor said once during the course of this trial.


MR. ZEISLER--And if the whole bench and bar of Illinois were not aware of the proper construction of this statute, as we contend it ought to be, that is no reason for your Honor to overrule our motion.

THE COURT--Then in addition to that, the first imprestion of anybody reading the statute--it requires a process of refined reasoning in order to find any other reasonng in order to find any other meaning--the first, obvious, plain, manifest, intent to the mind of everybody who comes to the question as a new question would be in accordance with what

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has been the universal understanding here. (Reads statute on the subject of peremptory challenges.) Now, the word accused could mean one person, or several persons, depends upon the state of circumstances to which it is applied. In this case, the circumstances to which it applies are that there are eight defendants standing their trial, and therefore they are the accused. Now, the statute says that the State shall have the same number of peremptory challenge as the accused.

MR. ZEISLER--Will your Honor notice the difference in the language. This section commences by saying "Every persons convicted of crime," &c. Now, it does not, in the third part of the section say "Every defendant"; it says "The defendant", showing that the legislature did not contemplate more than one defendant here.

THE COURT--Save the point upon it Mr. Zeisler, It is quite useless to consume any more time.

MR. ZEISLER--Does your Honor rule that the State has more than twenty?

THE COURT--The State has the same number of chalenges as all of the defendants.

MR. ZEISLER--So your Honor will rule that the State of Illinois is more cruel to prisoners than any other State in the Union. We take an exception to the ruling%

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MR. BLACK--If the Court please, the accused, August Spies excepts to the allowance of the peremptory challenge of the State against him upon the ground that already the State has exercised twenty peremptory challenges against him, being the full number allowed to him by the law. The accused, Michael Schwab excepts to the allowance of the twenty-one peremptory challenges against him on the ground that the State has already against him peremptorily challenged from the jury twenty, being the full number of peremptory challenges allowed to him. The accused, Oscar Nebbe excepts,

THE COURT --Put it in the bill of Exceptions just the same. What is the use of taking up time; each one of them save exceptions upon that ground.

MR. BLACK--The accused, Oscar Neebe, excepts to the ruling on the same ground stated. The accused A.R.Parsons, Samuel Fielden, Louis Linng, Gustave Fischer and George Engel, each severally except to the ruling of the Court for the reasons assigned.

THE COURT--Stand aside, Mr. Berg.

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