Crime and Punishment in American History - Lawrence M. Friedman [327]
23 Hurtalo v. California, 110 U.S. 516 (1884). On the operation of the California system in the late nineteenth century, see Friedman and Percival, Roots of Justice, pp. 166—68.
24 Ala. Const. 1875, Art. 1, sec. 17.
25 For the nineteenth-century law, see Seymour D. Thompson, “Bail in Criminal Cases,” Criminal Law Magazine 6:1—49 (Jan. 1885); see also Friedman and Percival, Roots of Justice, pp. 161—66.
26 Friedman and Percival, Roots of Justice, pp. 164—65.
27 100 U.S. 303 (1879).
28 Peter O. Thacher, Observations on Some of the Methods Known in the Law of Massachusetts to Secure the Selection and Appointment of an Impartial Jury (1834), p. 9.
29 Rev. Stats. Fla., 1892, p. 407, chap. 16, sec. 1150. This statute applied both to civil and criminal juries.
30 In some states it was less; in Florida, six would do, except in capital cases. Rev. Stats. Fla. 1892, p. 886, sec. 2854.
31 Cal. Penal Code (1886), sec. 1070; Colo. Ann. Stats. 1891, chap. 73, sec. 2596.
32 Rev. Stats. Ohio, 1890, sec. 7278, pp. 1783—4.
33 Oakland Tribune, Feb. 18, 1875, p. 3; Friedman and Percival, Roots of Justice, p. 184.
34 On the Haymarket affair, see Paul Avrich, The Haymarket Tragedy (1984); on the selection of the jury, see pp. 264—65.
35 John D. Lawson, ed., American State Trials, Vol. 5 (1916), pp. 369, 409, 432, 475, 503.
36 Francis Wharton, A Treatise on the Law of Evidence in Criminal Issues (8th ed., 1880), p. 338, sec. 428.
37 Lester B. Orfield, Criminal Procedure from Arrest to Appeal (1947), p. 459. An act of Congress, passed in 1878, provided that the defendant “shall, at his own request, but not otherwise, be a competent witness.” And his failure to make the request “shall not create any presumption against him.” 20 Stat. 30, chap. 37 (act of March 16, 1878).
38 See Friedman and Percival, Roots of Justice, p. 185.
39 The quote, dating from 1897, is found in John M. Maguire, The Lance of Justice: A Semi-Centennial History of the Legal Aid Society, 1876—1926 (1928), pp. 261—62.
40 Friedman and Percival, Roots of Justice, p. 185.
41 This observation is based on my examination of Volume 10 of the Minutes Books of Leon County, Florida.
42 The charge is reprinted in Edmund Pearson, ed., Trial of Lizzie Borden (1937), pp. 377—92.
43 Lawson, American State Trials, Vol. 5, pp. 508, 509, 511.
44 “No judge, in any cause, civil or criminal, shall sum up or comment on the testimony, or charge the jury as to the weight of evidence; but it shall be lawful . . . to charge the jury upon . . . principles of law... Provided, That all instructions . . . shall be in writing.” Rev. Code. Miss. 1857, p. 504.
45 See, for example, Dixon v. Florida, 13 Fla. 636 (1871).
46 In California, by agreement of both parties, the judge could give instructions orally. On instructions in California, see Friedman and Percival, Roots of Justice, pp. 186—88; on the Butts case, ibid., p. 187.
47 In our times, to be sure, there has been a great deal of research on what juries do and how they do it. See, for example, Valerie P. Hans and Neil Vidmar, Judging the Jury (1986). No such research exists, of course, for the nineteenth-century jury.
48 35 Tenn. 302 (1855).
49 Joyce v. State, 66 Tenn. 273 (1874).
50 Glidewell v. State, 83 Tenn. 123 (1885).
51 Francis Wharton, A Treatise on the Law of Evidence in Criminal Issues (8th ed., 1880), pp. 1—2.
52 Mark Twain, Roughing It (1972; original ed. 1871), pp. 308—9.
53 See Robert M. Ireland, “The Nineteenth-Century Criminal Jury: Kentucky in the Context of the American Experience,” Kentucky Review 4:52 (Spring 1983).
54 Shaffner v. Commonwealth, 72 Pa. 60 (1872).
55 Carter v. State, 77 Tenn. 440 (1882).
56 Spier v. State, 89 Ga. 737 (1892).
57 A bailiff was to be available to the jurors at all times, though never in the actual jury room. Dig. Laws Texas, 1873, Articles 3070—74, pp. 527—28.
58 Gen. Stats. Conn., 1887, chap. 100, sec. 1629.
59 Wunder, Inferior Courts, p. 75.
60 Kenneth Lamott, Who Killed Mr. Crittenden? (1963), pp. 248—49.
61 Twain, Roughing It, p. 316.
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