UNITED STATES v. WORKMAN et al., 28 F. Cas. 771

HALL, District Judge, then charged the jury. He said he would state the law to the jury, and it would be their province to apply the evidence. The act on which the indictment was founded was one which had been provided by the wisdom of a Washington and a Jefferson at the time when M. Genet was issuing commissions to privateers, raising armies and appointing, officers to commence an attack against a friendly nation. By this act it was declared highly criminal for any person or any body of individuals to prepare or set on foot a military expedition against any power at peace with the United States.

The means for an expedition might be prepared by enlisting men, or by inducing others to enlist them. In support of the prosecution, it was urged that men had been enlisted by the defendant.. Mr. Small stated that he took an oath of secrecy, and an oath, to forward the plan; and at the defendant’s desire it appeared he had engaged other persons. This seemed very like beginning or setting on foot an expedition. As to the testimony relative to providing means from the banks, he thought, and it was admitted on-all hands, that no stress whatever ought to be laid on it.

The witnesses did not appear to believe that what was said on this subject was serious. With respect to the Mexican association which the jury had heard so much applauded, he did not think its members ought to boast of it. He disapproved of all such societies. The government of our countiy was sufficiently strong, vigilant, and careful of the national security and honor. It was the duty of a good citizen to keep pace with, and not attempt to outstrip the government in its operations.

The jury then retired; after having been together three days, they were sent for, called over and asked if they had agreed on a verdict to which they answered in the negative. They added that there did not appear any probability or in the opinion of some of them, any possibility of their ever agreeing. THE COURT desired the traverser to say whether he would consent to discharge the jury. The traverser observed that he knew of no claim which the prosecution had on him for favors, and did not feel himself under any obligation to the prosecutors to give them any facilities in their proceedings.

Those who commenced the prosecution had done so •without his consent, ,and must proceed without it. He declined giving any consent for the discharge of the jury. The court discharged the jury. At a subsequent session of the court the traverser moved that his recognizance be discharged, as he could not be again put on his trial for the same offence. The attorney for the United States opposed the motion.

He cited several eases to show that, however the law might, be in' this respect in capital cases ,or where life or limb is jeopardized, all other cases, according to the latest doctrines on the subject, are to be governed by their own circumstances; and where it is necessary to justice, either to the state or to the accused that a new jury should be empannelled. the court could not refuse one.

The traverser replied that the only distinction between capital cases and those of other high offences, is that in the latter a new jury might be em-pannelled when a former one.had been discharged by the consent of the traverser or with a view to favor him; but that in capital cases even the prisoner’s consent could not authorize the discharge of the jury. He cited several cases in which a second jury had been empannelled, but in all of which the reason was given' that the former one had been discharged at the request or as an indulgence to the defendant; to let him in to plead to the jurisdiction or the like'.

THE COURT was of opinion that the general doctrine prohibiting the discharge of a jury in all cases was erroneous and obsolete. The doctrine is now confined to capital eases, and not without exceptions even there. In all other cases it is clear that the court may, when it is necessary to justice, discharge a jury. It was necessary to justice in this case; it is plain the first jury never could have agreed; they have been discharged; and it is now necessary that another be summoned. A venire de novo was ordered returnable on the second of March. The second trial of Mr. Kerr began Monday, Mar. 2.

The jury being sworn, Lieut. Small and Lieut. Murray testified substantially the same as on the first trial. Mons. Brognier De Clouet was next called. He said that Judge Workman had often spoken to him concerning the propriety of rendering Mexico an independent state. Mr. Workman seemed to consider a war with Spain as inevitable. In' that case he said the government of the United States would authorize an expedition to Mexico, and the army would aid in it. Some time subsequent to the late disturbances here, Mr. Workman told the witness that General Wilkinson had sworn his (Workman’

s) ruin; but that he had many friends, and he knew how to support himself and his friends too. Mr.

Workman told the witness that if an expedition to Mexico should take place, the witness might probably have a command in it For the defendant the evidence was, in general, similar to that given on the previous triaL Several gentlemen of the jury having expressed to the court their wish to be permitted to retire immediately, in order to consult on their verdict and declaring that as they had heard the former discussion their opinions could not be altered by the debates from the bar, the counsel on both sides agreed to submit the cause to the jury without argument.

The jury then retired and immediately brought in -their verdict. “Not guilty.” Friday, Mar. 6. Trial of Mr. Workman. The jury being called and sworn. Mr. Brown, opened the cause, and explained the nature of the charge against the traverser. In support of the prosecution, Lieuts. Small and Murray and Mr. Brognier De Clouet were examined, and gave, the same testimony as in the preceding trial. Mons. Garrieke, commandant of the Terre aux Boeufs settlement, was the next witness produced by the prosecutor. He deposed that some time in April last, he dined in company ■with Mr. Workman and Dr. Watkins at Mr.

Gurley’s, and that in the evening when they had returned, Mr. Workman asked the witness how he would like to have a military command, and spoke of an approaching Spanish war and an expedition to Mexico, and also asked if the witness could not get a number of the young men at Terre aux Boeufs to volunteer in such an expedition. The witness also stated that Mr. Workman desired him not to mention this conversation, which he promised not to do. The case on the part of the prosecution being closed, the traverser left it to the jury, without offering any testimony or argument in his defence.

The jury then retired, and immediately brought in their verdict, “Not guilty.”