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In reply to the same question, offered to the other prisoner, Mr. M'Call, on her behalf, produced the following affidavit.

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Oyer and Terminer,
Dec. 1831.

and Lino Amalia Espos y Mina, alias Celestine Armentarius, alias Amalia Gregoria Zarrier.

Lucretia Chapman, the defendant, being duly sworn according to law, deposes and says, that Benjamin Ash, who, she is informed, and verily believes, is at this time a resident of Flushing, in the state of New York; James Paul Foreman, who resides in the northern part of the state of New Jersey; J. Bishop, whose precise residence this deponent is not acquainted with, but believes to be in Vermont;

Cruiser, who resides in the state of New Jersey; J. H. Campbell, Esq., who is at present a member of the Legislature, and at Harrisburg; are all and every of them material witnesses for her in the trial of the above cause; and without whose testimony she cannot proceed to trial: this deponent further says, that every possible exertion has been used by her to obtain the attendance of those witnesses who were within the immediate reach of a subpœna; that she arrived at Doylestown on the 11th instant, after an exhausting ride of five hundred miles that her counsel, whom she had never conferred with, or had an opportunity of engaging, until the 10th instant, arrived here on the night of the twelfth-that notwithstanding immediate measures were taken, there were great difficulties in procuring an individual to collect testimony and subpoena witnesses; this, however, was at length accomplished, and subpoenas were issued to Philadelphia, and Andalusia, and put into the hands of an officer on the 13th instant but whether the officer may succeed in the service of all of them or not, must remain doubtful until their return, which cannot be expected before Saturday, the 18th instant. This defendant further states, that in respect to all the witnesses above referred to, as well out of, as in the state, she confidently expects to procure their attendance at the next Session of this Court.

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The affidavit having been read, Mr. M' Call said, it would not be necessary for him to trouble the Court with many remarks upon the present application for postponement. To urge an immediate trial under such circumstances as were detailed in the affidavit, would be in the highest degree unjust. The absence of a material witness was invariably held to be conclusive ground for the continuance of a cause, due exertion having been used to procure an attendance. If it were necessary to quote authority to this point, he would refer the Court to the case of the Chevalier D'Eon. The COURT said, it was not necessary.

The gentleman proceeded to notice the extraordinary excitement to which this case had given rise throughout the community; the eager attention of the dense crowd then present; the prejudice which was supposed to exist against his client;— he asserted wih great emphasis her innocence of the charge, and stated her only wish to be, to have an opportunity of removing the cloud of suspicions and surmises that had been raised against her.

Mr. Reed, for the Commonwealth, said, the officers of the prosecution were placed, by this application, in a position of painful embarrassment. They were ready to go to trial, but had no wish to press harshly or unkindly upon the prisoners. A great number of witnesses were in attendance on the part of the Commonwealth-many of whom were brought from a distance, at a great sacrifice of convenience on their part, and at a considerable expense to the County. Many of them were females, unaccustomed to travel in an inclement season, and several were professional gentlemen, whose time was valuable. Under these circumstances, with the risk of losing material witnesses, during so long an interval, the counsel for the Commonwealth could not consent to a postponement until the next Court, though they were disposed to accede to any arrangement that could be made for a Special Court to be held at some early day.

This proposition was accepted by the counsel for the defendants, and the Court named the 9th or the 30th of January, either of which might be agreed upon by the parties.

After an interchange of views by counsel, and it appearing that no arrangement could be settled upon, the case was continued to the next session, commencing on Monday, the thirteenth day of February next.

On Thursday, the Grand Jury being about to be discharged, the Court admonished them that they were forever bound by their oaths, not to reveal what had passed before them as Grand Jurors; and that as it regarded the present case, they should be particularly cautious not to convey any impressions to the minds of the people from evidence which had officially come to their knowledge; leaving their open act, in returning the Bill of Indictment, as the only one from which the public might draw any inference.

Monday, February, 13, 1832.

The February Sessions commenced this day; all the Judges present. Various matters occupied the attention of the Court until near five o'clock in the afternoon, when there being nothing further to delay the progress of the cause, and none of the counsel appearing in court, except Mr. Ross, for the Commonwealth, and Mr. M'Dowell, for the defendant, Mina,

Mr. M'Dowell rose and stated to the Court, that he had seen Mr. Brown, who, with the other gentlemen, had just arrived. Mr. Brown had requested him to say to the Court, that they had been delayed by the breaking down of their carriage, on the road to this place, and had been obliged to come a part of the way on foot; and that as soon as it was practicable for them to appear in court, they would do so. The gentleman having expressed his earnest desire that the cause might not be taken up until to-morrow morning, and Mr. Ross offering no objection, the Court adjourned until nine o'clock.

Tuesday, February 14th.

The Court convened pursuant to adjournment, and at half-past nine o'clock, the prisoners were placed at the bar.

Mr. M'Dowell. I address the Court, as one of the counsel for Mina. The application which I am about to make, is, however, a mutual one; and can be more properly made now, than at any other time. It is, that the prisoners be tried separately. Our reasons for this application are not idle. We believe, on the part of both, that they cannot with safety or justice, be tried together. It will be necessary, in their defence, for them to attack each other; and the evidence will, to a certain extent, be separate.

There will be a difference in the rights of the respective prisoners in regard to the challenges. We contend that we have the right, on the part of Mina, to all of our challenges out of the panel. The application for separate trials is a matter for the discretion of the Court; but the challenges are matter of right. A juror, who would be acceptable to one defendant, might be challenged by the other; and in this way, injustice would be done, if both were to be tried together.

To show the right to a severance, the gentleman cited 1st Chitty's Crim. Law, 436. 4th Comyn's Dig. 660. 4th Amer. Dig. 174. 4th Comyn's Dig. 701. 1st Peters' Rep. 118. 7th Smith's Laws, 731, Appendix. Trial of Mail Robbers at Philadelphia, C. C. U. S. (The gentleman read the application of Mr. Biddle on the part of Porter, in that case.

So far as it regards the convenience and the wishes of counsel for the defendants (said Mr. M'D. in conclusion,) there is no motive for delay; but after very mature deliberation, and from the nature of the evidence to be brought forward against the prisoners, we do think it necessary to make this application. We are aware of the inconvenience that it will give the Court.

Judge Fox. We shall not take the convenience of the Court into consideration. Mr. M'Dowell said, he supposed so, and concluded his observations to the point under argument.

Mr. Ross. The individuals who represent the Commonwealth in the cause now before the Court, are willing to extend to the prisoners every benefit to which they

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are properly entitled. But the present application we are compelled to deny and resist.

Whatever may be the law in England on this subject, we contend that no such right has been recognised by the courts of this country; and we further contend, that according to the decisions not only of our own State, but of the Courts of the United States, it is not even discretionary with your honours to say whether the defendants shall be tried separately or not. The mode and manner of trial is to be determined by the Counsel for the Commonwealth; and if, in their opinion, the ends of public justice will be defeated by a severance, they have the right of insisting upon a joint trial. In England, Mr. Ross contended, that a separate trial could not be claimed; and referred to 3d T. R. 101, for the opinion of Justice Buller; but the Court would not permit this authority to be read. He also cited 2 Hale, P. C. 173, where it is laid down that two capital offences may be joined in the same indictment, and tried by the same jury. He contended that under such circumstances the defences must necessarily be different, and that the right of peremptory challenges must be equally affected, as if two joint defendants were put upon trial together; for, the prisoner might wish to have one juror on the trial of one of the capital cases, whom he would wish to challenge on the other. The same principle, he further said, was recognised by the Supreme Court of this State in 5th Serg. & R. 59, where it was held that two offences for conspiracy might be joined in the same indictment, and tried by the same jury. In the case referred to, the defence was different, and the same objection respecting the right of peremptory challenge existed, as has been raised in the case now under consideration; still the offences were permitted to be joined and tried by the same jury. The question has however been settled by the case of U. S. vs. Marchand et al., 12 Wheaton's Rep. in which Justice Story delivers the opinion of the Court. In reviewing the law and the cases on this subject, he says, that this right of challenge is not a right to select, but merely the right to reject jurors; and the Supreme Court refused to allow the separate trial. The case of Wilson, the mail robber, was the last case in which this point was raised, and goes farther than any case heretofore decided. Judge Baldwin expressly said, that he would not allow the defendants to sever in their trial, even if they should be compelled to attack each other, in case the District Attorney would say, that the ends of public justice would be defeated by such severance. The D. A. did nor resist the motion made by the defendants' counsel, and a separate trial took place. Mr. R. contended that this case was decisive of the question; and that it invested the Prosecuting Attorney with the sole power of determining the form and manner of trial. He also argued that it overruled the case of U. S. vs. Sharp, 1 Peters 118, even admitting that the case in Peters was an authority in point; although he denied that it was any authority to show that the defendants could claim separate trials. It does not appear from the report of the case, that any objection was made to the motion for a separate trial, or that any argument took place; and the Court, as a matter of course, permitted the severance. So also in the case of Com. vs. Eliza Anderson et al. The Attorney General acceded to the motion for a separate trial without argument; and therefore that case was no authority. He referred to the other cases cited by the counsel for the prisoners, and contended that they did not sustain the gentlemen in the position which they had taken; and concluded by saying, that in this case they were willing to allow to each of the defendants their right of challenge, but that if a joint trial were not permitted, the ends of public justice would be defeated.

COURT. Be good enough, Mr. Ross, to put your objection to this application in writing.

The following was drawn up, and filed: "The counsel for the Commonwealth say, that in their opinion, if separate trials be conceded by the Court to the defendants in this case, the ends of public justice will be defeated." (Signed by counsel.)

At the suggestion of the Court, the following affidavit and opinion of counsel on the opposite side, were drawn and filed:

"Commonwealth

vs.

Lucretia Chapman, &c.

"The defendants above named being respectively sworn do say, that to the best of their knowledge and belief, the defence of one of the said defendants will conflict and essentially interfere with the defence and rights of the other; and that they cannot, with that safety which they consider themselves justly entitled to enjoy, proceed

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jointly to the trial of the said cause." Clerk.)

(Signed by the defts. and sworn to before the

"The counsel for the defendants apply to the Court for a separate trial on the ground that, in the opinion of the counsel, on mature deliberation, the defence of one of the defendants will interfere, or prove incompatible with that of the other; and on the further ground of the preceding affidavit." (Signed by counsel.)

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Mr. Reed. In addition to the views taken by my colleague, I will submit to the consideration of the Court one or two suggestions, which I think ought to affect the decision of this question. All the authorities cited on the part of the prisoners, except two, relate to the legality of a severance in a joint indictment when all parties acquiesce in it. The words used throughout, are- separate trials may be granted." This is incontestable. But this does not at all affect the question whether in certain cases there is, or is not, a necessity for severance. The only authorities cited to sustain the right of the prisoners, are 1st Chitty, and the case of U. S. vs. Sharp, in 1st Peters' Rep.; one an English elementary authority, the other an American adjudication. Neither of them sustain the position. The sole reason given by Chitty, is the delay which would result, if the panel should be exhausted by several cha!lenges; not the real or imaginary benefit anticipated by the prisoners in this case; and still less, the danger of a conflicting defence. I will refer to the only authority at hand, of those to whom Chitty refers, as sustaining his position, Foster's Crown Law, 106, where it is stated that in the case of Swan and Jeffries, indicted for petit treason and murder, the Judges agreed among themselves, apparently without argument, that as the prisoners were entitled to a different number of challenges, they were entitled to separate trials. No English authority sustains the position on the ground of conflicting defence; the only one which does recognise the right, does so on the ground of the challenges, which is met conclusively by the case of the U. S. vs. Marchand, in 12 Wheaton, where the decision is explicit, that the right of challenge being merely a right to reject, cannot be affected in a joint trial. The Ameri-` can authority is, if possible, entitled to still less consideration. It stands not only alone, but without any inherent strength to sustain it. In the report itself, it is mentioned as an incidental matter, rather of acquiescence than of contest, and does not appear to have received the deliberate attention of the Court. The syllabus, where the doctrine is more strongly stated than in the text, has accidentally crept into several elementary works, probably in most instances without examination on the part of the compilers. In the case of the U. S. vs. Marchand, the whole subject, came before the Court, and there the right of the prisoners to a severance was expressly denied, but the power of granting separate trials was said to be in the discretion of the Court. In the case of the mail robbers, the same question was presented, the same application was made as in this case, and for the same reasons. There the counsel expressly disclaimed making it a matter of right, but making it as a suggestion to the discretion of the Court, urged it on the ground of the conflicting defence, and the necessity there would exist for one prisoner to attack the other. The Court said, that if the Dist. Attorney should say, that the ends of public justice would be defeated by a severance, they would refuse it: otherwise, they were disposed to grant it. The Dist. Attorney making no answer to the suggestion, it was granted. I will proceed now to inquire, whether there is any thing in this case, or in the merits of this application to render it peculiar. One of the reasons assigned by the prisoner's counsel is, the difficulty of challenging. That is met by the case of U. S. vs. Sharp, 12 Wheaton. The other is, the necessity which one prisoner may be under of criminating the other. This is met by the decision in the Circuit Court, in the case of the Mail Robbers. In that case, the Court thought its discretion ought to be controlled by the views of the counsel for the United States. The counsel for the prosecution in this case ask the same privilege. They have filed a paper in which they have explicitly stated their belief that if this severance be allowed, the ends of public justice will be defeated. Stronger language could not be used. They have' done in this case, what, in the case of the mail robbers, the Court said would have compelled them to try the prisoners jointly. Cognisant as they are, of the merits of their case, they had elected their mode of trial, and have expressed their conviction, that any other mode will defeat the ends of justice. The criminal act laid in this indictment is the result of concert and combination between the prisoners. The offence here was actually, though not technically, a conspiracy and in this case, if it should be shown that there was concert and combination to effect the murder of Mr.

:

Chapman, the acts and declarations of one, may be given in evidence against the other. But even if there should be disclosures which may be evidence against one, but not against the other, the Court has the power, which is constantly exercised, of saying to the Jury, this is evidence against the one, and not evidence against the other. That power is well ascertained and recognised. In short, this application is resisted on the part of the Commonwealth, on the ground, that the mode of conducting the prosecution, whether by joint or several trial, is within the control of the prosecuting officers;--a right belonging to the Commonwealth which interferes with no constitutional right of the prisoners. The following authorities show the opinion of judges as to the superior elegibility of a joint trial. Foster, 365—7 Serg. & Rawle. Mr. Rush. The Court have intimated that their convenience or inconvenience is not to be regarded in the cause now before them; neither should that of the counsel be taken into account. With these views the counsel have seen fit, at the very threshold of this cause, to interpose matters of very serious importance of the last right to the defendants. They ask for a separate trial, for a reason now of record. What does this application mean? It is alleged, that these defendants will conflict in their defence. Does not that mean a great deal? May it please your Honours, it is a matter of the last importance. It is, that one shall accuse the other; that the other shall turn round upon his accuser; and thus, in effect, each defendant shall be twice prosecuted! It will be the duty of the counsel for the defendants to attack each other with all their zeal-all their ingenuity-all their fervour; and so, I repeat it, each of the accused will be twice prosecuted. If this application be refused; if the defendants are sincere-if their counsel are sincere-will they not be in a most straitened situation? Will they have that which the law contemplates—a fair trial? May it please the Court-it is their purpose to make war upon each other! Such is the plain English of this application. Try them together, then, and will it not be a monstrous spectacle? a monstrous hardship? In addition to the preparation and industry already manifested from the Commonwealth's counsel, they will then have to encounter each other. "The house divided against itself must fall."

It is not necessary for me to go over the authorities already cited. The counsel have not shown the right to assume that discretion for which they contend. This is the burden of their objection to the application. I protest against this doctrine. The discretionary power is in the Court. In the case of the mail robbers the judges consented to the application; and the third ground taken by counsel was considered strong and important. The gentlemen lay a stress upon the argument that different offences and different offenders may be joined in the same indictment. Admit this, (and no one presumes to deny it) does it follow that they must be tried jointly?

The situation in which these defendants stand toward each other, is one of an extraordinary character. They strive, in effect, to cut each other's throats! But, say the gentlemen for the prosecution, "we can't help that-nay, it is the very thing for us!" Shall human lives thus be lightly sported with? Lives that can never be given again, if taken in this cause? And this is to come within the discretion of the Attorney General! Sir, the powers of the Attorney General are well laid down and defined; they cannot be transcended. Let him show his right, based upon the incontrovertible law of the land;—until that is done, we protest against it; we desire, first and last, that it may not be granted.

Suppose your honours should direct that the defendants be tried together. A juror might be called, whom one defendant would challenge, and the other would desire to retain. But, gentlemen tell us, our rights are confined to rejection—they do not extend to selection. Do not these terms amount to the same thing? Do we not, by rejecting twenty men, virtually select from the remainder of the panel? Is not the distinction, therefore, ideal?

The gentleman proceeded to comment upon the cases cited from Peters' Rep.Chitty's Crim. Law-and the case of Eliza Anderson et al., before alluded to; and concluded by pressing upon the attention of the Court, the exceeding importance of the application, and the high responsibility thrown upon them in being called upon to decide between conflicting opinions of counsel and authorities in law.

At a few minutes before twelve o'clock, the Court intimated a desire to have a conference previously to deciding, and adjourned until 2 o'clock, P. M.

Afternoon.

The court convened at 2 o'clock, pursuant to adjournment. The Court room was so completely blocked up by the dense mass of spectators, as entirely to preclude any

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