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The Green Bag

the inestimable right of trial by jury at all? If the court can substitute a verdict which the jury has not found, or find one where they have found none at all, then why have a jury? Why not let the court find the entire verdict without the intervention of a jury? . . In Walker v. State, p. 618, of the same report containing the Woolridge case, the verdict was "wee the jurors finde the defendant gilty and of mrder in the first degree and assess his confinement in the penetentery for life." "We" and "find" are both encumbered with a superfluous "e," "guilty" and "murder" are both guiltless of the "u" and the penitentiary has lost both of its "i's." Surely such deformities must invalidate the verdict. But no! None of them is even seriously considered except the omission of the "u" from "murder," and the verdict is held to be good upon the ground that the word as contained in the verdict is idem sonans with the word as properly spelled. The conclu sion is a sensible one, but the reason ing is absurd, for a syllable without a vowel is unknown to the English lan guage. In 1886 "guity" was again held to vitiate the verdict, while in 1892 an additional "t", although the "1" was ... It is to be particularly noted that still wanting, was held to make a good here we have no case of misspelling a word; verdict. In 1896 a verdict of "gilly" the word used is "fist," as well known to the was sustained, and it had been held so English language as any other word in daily early as 1886 that a failure to cross the common use. It is further to be noted that this word "fist" is not pronounced, and "t" in "guilty" might be overlooked. The decisions of the court are as cannot by any contortion of pronunciation eccentric as the orthography of the be made to sound like the word "first"; and consequently the doctrine of idem sonans is jury. Why should the omission of one not applicable and must be eliminated from letter confer the boon of a new trial, the discussion. . . . Have the jury found the defendant guilty when the omission of another letter just of murder in the first degree? To enable us as essential to correct form will not do to so hold, we must strike from the verdict a so? Such discrimination in favor of the word which they have plainly spelled—a word "1" and the "r," holding them essential, in everyday use in our language—and sub and against the "t" and the "u," hold stitute in its place another and entirely differ ing them to be non-essential, has appar ent word which we only infer they must have intended instead of the one they have used. ently no better warrant than the order Can we do this? If so,. . . then why have of precedence in the alphabet.

there being different degrees of this offense, and these degrees being numeri cally designated, and it being the function of the jury to find the defendant guilty or innocent, and if guilty to deter mine whether in the first or second degree, the case would not seem to be a difficult one. The first man called in from the street would have said the jury inadvertently omitted the letter "r" from the word "first." And so the sec ond and every other man called in from the street would have said. Among all those conclusively presumed to know the law there would have been no differ ence of opinion. And the judges of the court, in their capacity as individuals, in which capacity they, too, are pre sumed to know the law, had no doubt that it was simply a case of misspelling. But as judges, and having regard to the sanctity of trial by jury, it was other wise, and in six or seven pages of legal learning they solemnly conclude that the jury had found the defendant guilty of murder in the "fist" degree, which was a degree not known to the law, and so the verdict was set aside. The pith of their reasoning, if there be pith in such reasoning, is : —