The Cleveland Daily Herald
Cleveland, April 18, 1859
The Rescue Case – A New Jury Ordered.
On reading the Court Journal this Monday morning, it appeared the entry of Friday’s proceedings was made in all the remaining rescue cases that the defendants surrendered themselves into custody, and thereupon the District Attorney asked that their recognizances be cancelled.
Mr. Backus, for the defence, then arose and said there was a misapprehension as to the facts; that the defendants did not surrender, but they all were ordered into custody by the District Attorney.
The Court said that such was not its understanding, and that the Journal entry is correct.
Judge Spalding, for the defence, agreed with Mr. Backus, and said that after the District Attorney ordered the defendants into custody, he (Judge S.) asked that their recognizances be cancelled.
District Attorney Belden then gave his recollection of the facts, as in accordance with the Journal entry.
Mr. Riddle, for the defence, then gave his recollection of the facts, as they transpired on Friday afternoon, involving all that too, place relative to the objections to the jury, &c.
The Court said that it understood the parties surrendered themselves into custody, but would let the entry stand for the present, and would take the matter into further consideration.
The point in dispute is as to the fact whether the defendants surrendered themselves into custody of the Marshal, or whether the district Attorney ordered them into custody.
The case against Langston was then called. – The Defendant Langston was then ordered to be brought from jail into Court. Messrs. Peck and Plumb also were permitted to be brought in as advisers for the counsel.
The Court stated that it seemed to be supposed that the court had decided that the struck jury, in the case of Bushnell, would be the jury, which should try the remaining cases. Such was not the fact. The regular jury of the term, summoned to try all the cases, would be called, and if there were objections they could be stated.
(It is understood that the jury that sat on the Bushnell case was summoned as the regular jury of the term.)
Thereupon the names of the jurors who served the Bushnell case were called, but two not answering to their names, Harvey Rice and David J. Garrett were called as talesmen to fill the panel.
The Court stated that owning to the incorrect reports of the testimony as published in the papers an order would be made that an official reporter be sworn to report the trial stenographically. Louis Frieser was thereupon sworn as a reporter for the convenience of the Court.
Judge Spalding (on being asked if the defendants had any objections to the jury) said he challenged the array – except the talisman, because it was the “Struck Jury” called for the trial of Bushnell, and have therefore, passed upon all the facts in the case except the one fact “Whether each of these defendants was present at the time offence was alleged to have been committed.
Another reason for challenging the array was is that it is a political jury, every man of whom belongs to one political party and selected for this very purpose of convicting these men.
Judge Bliss would treat this political charge as a personal imputation against the officers of the Court who selected the jury and against the men who constitute that jury – he would not treat it as a legal objection.
Judge Bliss, in answer to the first objection, claimed that the jury were as competent to pass on the same facts, together with what other proof might be offered, as if they had not set upon the bushel case. He argued it was not good ground either to challenge the array or even an individual juror.
Mr. Riddle, for defence, cited cases to show that the courts have invariable, in Northern Ohio, ordered a separate jury for every case involving the same facts.
The Court asked Mr. Riddle if there were five counterfeiters engaged in the same crime to be tried separately, what would be the practice as he understands it.
Mr. Riddle replied that they would have as he understood it, each a separate trial
The Court said it was very clearly of opinion that if the facts are the same it would be right and better to give the defendants a new jury.
The Court is of the opinion that if the indictment is the same in this case as in the other merely being a change of name of defendant, the same Jury should not try the case that tried Bushnell.
Mr. Backus asked the court itself to designate the Jurors who shall serve on the new Jury.
The Court declined so to do, leaving it to the Marshal to select as usual.
The Marshal asked for instructions. He wanted to know if in case he knew of a man who would not execute the law, whether he should put him on. The Court said he must select good and lawful men.
The Marshal summoned as Jurors the following men:
John M. Hughes, Andrew Cozad, Charles Winslow, Sturgis Lyne, Irvin K. Bishop, Chas. Howard.
The Marshal said he had asked half a dozen opposition men, those opposed to him in politics, to be present, but he did not see one of them in the room. The Marshal asked until 2 o’clock to make up his Jury.
The Court then took a recess until 2 o’clock.