MR. VAN VOORHIS: But "knowingly," your Honor, implies knowing that it is a vote for representative in Congress.

THE COURT: That comes within the decision of the question of law. I don't see that there is anything to go to the jury.

MR. VAN VOORHIS: I cannot take your Honor's view of the case, but of course must submit to it. We ask to go to the jury upon this whole case, and claim that in this case, as in all criminal cases, the right of trial by jury is made inviolate by the const.i.tution--that the Court has no power to take it from the jury.

THE COURT: I am going to submit it to the jury.

_Gentlemen of the Jury_:

This case is now before you upon the evidence as it stands, and I shall leave the case with you to decide--

MR. VAN VOORHIS: I claim the right to address the jury.

THE COURT: I don't think there is anything upon which you can legitimately address the jury.

Gentlemen, the defendants are charged with knowingly, willfully and wrongfully receiving the votes of the ladies whose names are mentioned, in November last, in the City of Rochester. They are charged in the same indictment with willfully and improperly registering those ladies. I decided in the case this morning, which many of you heard, probably, that under the law as it stands the ladies who offered their votes had no right to vote whatever. I repeat that decision, and I charge you that they had no right to offer their votes. They having no right to offer their votes, the inspectors of election ought not to receive them. The additional question exists in this case whether the fact that they acted as inspectors will relieve them from the charge in this case. You have heard the views which I have given upon that. I think they are administrative officers. I charge you that they are administrative and ministerial officers in this respect, that they are not judicial officers whose action protects them, and that therefore they are liable in this case. But, instead of doing as I did in the case this morning--directing a verdict--I submit the case to you with these instructions, and you can decide it here, or you may go out.

MR. VAN VOORHIS: I ask your Honor to instruct the jury that if they find these inspectors acted honestly, in accordance with their best judgment, they should be acquitted.

THE COURT: I have expressly ruled to the contrary of that, gentlemen; that that makes no difference.

MR. VAN VOORHIS: And that in this country--under the laws of this country--

THE COURT: That is enough--you need not argue it, Mr. Van Voorhis.

MR. VAN VOORHIS: Then I ask your Honor to charge the jury that they must find the fact that these inspectors received the votes of these persons knowingly, and that such votes were votes for some person for member of Congress, there being in the case no evidence that any man was voted for, for member of Congress, and there being no evidence except that secret ballots were received; that the jury have a right to find for the defendants, if they choose.

THE COURT: I charge the jury that there is sufficient evidence to sustain the indictment, upon this point.

MR. VAN VOORHIS: I ask your Honor also to charge the jury that there is sufficient evidence to sustain a verdict of not guilty.

THE COURT: I cannot charge that.

MR. VAN VOORHIS: Then why should it go to the jury?

THE COURT: As a matter of form.

MR. VAN VOORHIS: If the jury should find a verdict of not guilty, could your Honor set it aside?

THE COURT: I will debate that with you when the occasion arises.

Gentlemen, you may deliberate here, or retire, as you choose.

The jury retired for consultation, and the Court took a recess until 7 P.M.

The Court re-convened at 7 o'clock, when the clerk called the jury, and asked them if they had agreed upon their verdict.

The foreman replied in the negative, whereupon the Court said:

THE COURT: Is there anything upon which I can give you any advice, gentlemen, or any information?

A JUROR: We stand 11 for conviction, and 1 opposed.

THE COURT: If that gentleman desires to ask any questions in respect to the questions of law, or the facts in the case, I will give him any information he desires. (No response from the jury.) It is quite proper, if any gentleman has any doubt about anything, either as to the law or the facts, that he should state it to the Court. Counsel are both present, and I can give such information as is correct.

A JUROR: I don't wish to ask any questions.

THE COURT: Then you may retire again, gentlemen. The Court will adjourn until to-morrow morning.

The jury retired, and after an absence of about ten minutes returned into court.

The clerk called the names of the jury and then said:

THE CLERK: Gentlemen, have you agreed upon your verdict?

THE FOREMAN: We have.

THE CLERK: How say you, do you find the prisoners at the bar guilty of the offense whereof they stand indicted, or not guilty?

THE FOREMAN: Guilty.

THE CLERK: Hearken to your verdict as it stands recorded by the Court.

You say you find the prisoners at the bar guilty of the offense whereof they stand indicted, and so say you all.

MR. VAN VOORHIS: I ask that the jury be polled.

The clerk polled the jury, each juror answering in the affirmative to the question, "Is this your verdict?"

On the next day, June 19, 1873, the counsel for the defendants, Mr. John Van Voorhis, made a motion to the Court, for a new trial in behalf of Beverly W. Jones, Edwin T. Marsh and William B. Hall. The argument was oral and is not given, but the following are the grounds of the motion:

1. The indictment contains no sufficient statement of any crime under the Acts of Congress, upon which it is framed.

2. The Court has no jurisdiction of the subject matter of the offense.

3. It was an error, for which a new trial should be granted, to refuse the defendants the fundamental right to address the jury, through their counsel. This is a right guaranteed by the United States Const.i.tution.

(_See Article VI. of the amendments to the U.S. Const.i.tution. 1 Graham & Waterman on New Trials, pages 682, 683 and 684._)

4. The defendants were substantially deprived of the right of jury trial. The instructions of the Court to the jury were imperative. They were equivalent to a direction to find a verdict of guilty. It was said by the Court in the hearing of the jury, that the case was submitted to the jury "as a matter of form." The jury was not at liberty to exercise its own judgment upon the evidence, and without committing a gross discourtesy to the Court, could render no verdict except that of guilty.

5. Admitting that the defendants acted without malice, or any corrupt motive, and in accordance with their best judgments, and in perfect good faith, it was error to charge that that was no defense.

6. The defendants are admitted to have acted in accordance with their duty as defined by the laws of New York (_1 R.S., Edmond's Ed., pp.

126-127, sections 13, 14, 15, 16, 17, 18 and 19_) as construed by the Court of Appeals. (_People vs. Pease, 27 N.Y. 45._)

They are administrative officers and bound to regard only the evidence which the Statute prescribes. They are not clothed with the power, to reject the vote of a person who has furnished the evidence, which the law requires, of right to vote, on what they or either of them might know, as to the truth or falsity of such evidences. They have no discretion, and must perform their duty, as it is defined by the laws of New York and the decisions of her Courts.

7. The defendant, William B. Hall, has been tried and convicted in his absence from the Court. This is an error fatal to the conviction in his case.

The Court denied the motion.