Page:Federal Reporter, 1st Series, Volume 5.djvu/298

 286 FEDEBAIi BEFOBTEB. �other proof of the marriage, wherefore the meagerness of that offered should not be accounted against the defendant on this motion. Perhaps this rule of the state courts is not binding on us hcre to govern our discretion in granting new trials. Railroad Go. v. Horst, 93 U. S. 291. But that is immaterial, for I am satisfied with it as the sound rule on the subject, whatever other courts may hold. For the same reason that it would be usurping the functions of the jury, and a prao- tical deniai of the defendant's right of trial by jury of ail the facts entering as an element into her defence of marital co- ercion, I cannot now, I thlnk, on this motion for a new trial, put her to the proof, by her own affidavit or otherwise, of the fact of marriage as a condition precedent to the grant of her motion. This might save the cost of another trial, and con- firm my own suspicions of the falsity of her defence ; but, after ail, these suspicions are based on her refusai to plead in abatement her marriage, and she might well decline to be coerced by the court into filing a special plea, if she had a legal right to make the defence under the general issue. I am too strongly impressed with the necessity of preserving the right of trial by jury to assume its duties, even in a case like this, where I feel almost certain the defence ia a false one. �Notwith standing, then, the unfavorable character of the defence, and an almost certain conviction that the alleged marriage is a false pretence, I feel constrained, by the con- siderations I have mentioned, to grant a new trial, and it is Bo ordered. �Note. The defendant, on a second trial, waa convicted, failing to prove marriage ; but because on this trial it appeared that she was weak- minded, having beenat one time, many years ago, conflned in an asylum, and under the evil influence of Dr. Quilfeldt, she was, by the jury and the court, recommended to the president for his pardon. ����