Examined by Mr. Foster. Peremptorily dismissed by Counsel for the Defense.

Defense counsel upon questioning Mr. Upham found him to have formed an opinion as to the defendants' guilt or innocence which he had communicated to others, and that he retained that opinion. Court discussions regarding the degree of professed bias required to challenge a juror for cause and the process of passing upon jurors. In "In the Supreme Court of Illinois. Brief and Argument for Plaintiffs in Error", the questioning of Mr. Upham is mentioned by the Plaintiffs (the Defense in the original case) as one in which Judge Gary's ruling was erroneous.

Mr. FOSTER: Q. You stated you were engaged in the manufacturing business?

A. Yes sir.

Q. What particular branch?

A. Leather.

Q. I believe you answered you had been reading the newspapers ever since the occurrence on the 4th of May down to the present time?

A. I think I have.

Q. You have also had conversations I presume with various persons on the subject?

A. With some.

Q. I will ask you the same question with regard to forming an opinion--- did you form an opinion from all the sources, from what you read and what you heard upon the question of the defendants' guilt or innocence or any of them?

A. I think I did in regard to some of them?

Q. Did you express the opinion which you then formed?

A. I couldn't say positively but I presume I did, I don't know that I did.

Q. When you heard these statements and read the accounts, did you believe them to be true?

A. In the main.

Q. Now when you expressed your opinions, did you express the belief that these statements were true?

A. I can't say what I expressed from memory, only what I would naturally express from what I believed.

Q. Your belief as I understand you was gathered from what you read and from what you heard?

A. Yes sir.

Q. You didn't doubt the statement?

A. I didn't doubt it.

Q. This view was touching the defendants' guilt or innocence or some of them?

A. Yes sir.

Q. You expressed that to others?

A. I probably did.

Q. Then you expressed the opinion as to the truth of what you had heard and what you had read, your belief of the truth?

A. Yes sir.

Q. It was upon the theory that what you had read and what you had heard was true?

A. Yes sir.

Q. You expressed your conclusion then based upon the belief of its truth?

A. Yes sir.

Q. And therefore expressed your belief that what you

heard was true?

A. Yes sir.

Mr. FOSTER: We challenge this juror for cause.

THE COURT: He has not said that he ever expressed any opinion as to the truth of the reports he read or heard. You have metaphysically got the answer that he expressed an opinion hased upon what he read and heard--- thst is in affect assuming the guilt or innocence of any one of these eight men here before me. The question is whether you have ever formed and expresed any opinion as to the guilt or innocence of any one of these eight men of the murder of Degan.

THE JUROR: I can't say what I have expressed. I can't say what I did express in words.

THE COURT: There is not any challenge under the law.

Mr. FOSTER: I will interrogate him a little further.

Q. You read these reports and heard these accounts, and you believed them?

A. Yes sir.

Q. That formed an opinion in your mind as to the defendants' guilt or innocence?

A. Yes sir.

Q. Believing those statements you expressed your conclusion

A. Yes sir.

Q. Now did you express the conclusion that the statements which you believed were true?

A. I don't know that I did.

Q. You believed them to be true at the time?

A.Yes sir.

Q. I will ask you if the opinion which you then formed,

if you have the opinion now, which you then formed, or not?

A. I have.

Q. With no circumstances to change it?

A. I have not read or learned of any circumstances that have changed it.

Q. I will ask you whether it would require sworn testimony to overcome the opinion which you now have before you would be unbiased and free to act upon the testimony.

THE COURT: That is the same question in effect--- his opinion as to his mental processes, under circumstances.

Mr. FOSTER: Q. I will ask him whether it would require testimony to unbias the opinion which you now have?

THE COURT: That is a question as to his opinion, as to the operation of his own mind. You have the fact that he did form and express an opinion, and the opinion which he then formed and expressed was his opinion, and he has it yet. Now, as to whether what would be the effect of certain processes--- that is immaterial.

Mr. BLACK: Is that immaterial, the determination whether or not the jurymen can, when he says he believes he can--- and that is a question your Honor has to pass upon. Suppose it would be a fact that he would answer, an intelligent man, that it would take sworn testimony to get him mind into equilibrium. You know he is not in position to try the case,

THE COURT: Unless you can get a juror wholly igmorant of

all the transactions---

Mr. BLACK: Let me state, here as a man, who has gone to the point of saying "I believe what I have read. I have talked the matter over. I have formed, and I have, I presume undoubtedly expressed my opinion--- It would take evidence now to cha ge it." Your Honor knows that is not the state of mind in which a juror ought to go into this panel, for the purpose of trying this question, and your Honor known that the mere statement that he believes he can try the case fairly and impartially, ought not to be permitted to qualify him to enter this panel. In a case of this character your Honor must believe that he can hear and try this case fairly and impartially without prejudice, and so as to be just between man and man.

THE COURT: Of course a juror who will base his verdict entirely upon the evidence regardless of anything he has heard, who has to act only upon the testimony of witnesses as they may be presented here.

Mr. BLACK: But we are entitled to the selection of a jury and the full benefit of the legal presumption with which every person charged with crime comes to the bar, the legal presumption of his innocence. This juror admits that presumption has already been overcome in his mind, admits that he has formed and expressed adversely--- if this juror had gone to that point against these prisoners.

THE COURT: The legal presumption of innocence don't mean that the individual believes the man to be innocent.

Mr. BLACK: No, but that he shall not believe he is guilty when he is not in the mental condition to call upon the defendant to offer proof of his innocence.

THE COURT: The legal presumption of innocence hasn't anything to do with the state of the mind of the juror. The legal presumption of innocence is that no man shall be found guilty until his guilt is proved beyond all doubt. A juryman must be a man who can fairly and impartially weigh the evidence which has been presented, and base his verdict upon that evidence regardless of any prepossession which he may have had, regardless of anything which he may have heard before he came into the jury box, determine his action wholly upon what he hears.

Mr. BLACK: I don't know but what I am unfortunate in making myself understood. I am talking about the legal right of the parties accused. What kind of jury they are entitled to. Look at the language of the statute. It is that if he shall state that he believes he can fairly and impartially try--- now when he comes forward here and says he has a prejudice, are you going to get any impartiality there--- that is the question I want your Honor to decide. I don't understand that impartiality and prejudice very well run together.

THE COURT: Whether he can fairly and impartially try the case or not can not be found out by asking him what he thinks will be the operation of his mind hereafter.

Mr. BLACK: That was not what we were aiming at.

THE COURT: This discussion arose from the question whether the evidence to remove an impression that he has now on his mind--- first he says he has got an opinion--- then you ask him whether it would take evidence to remove and change that opinion--- that is a mere question as to the effect of causes.

Mr. BLACK: My claim is that that is a proper matter for the consideration of your Honor whether or not the discharge of the duty which rests upon you.

THE COURT: That may be, but you can't call upon a juror to swear what he thinks will be the effect of the operation of causes hereafter:

Mr. FOSTER: I didn't ask the witness in the progress of the trial--- provided the testimony is introduced so and so if his mind would then be in a condition such as suggested by your Honor's ruling some time ago.

THE COURT: Your present question is--- would it require evidence to remove the present impression upon your mind.

Mr. FOSTER: Yes, upon this theory-- your Honor will charge this jury or the jury that tries this case, that every presumption is in favor of the defendants' innocence, and before

conviction can be had, they must find that the defendants are guilty beyond all reasonable doubt. Now, the juror has answered up to this present time that he has an opinion, that he has made up his mind substantially upon the question of the defendants' innocence or guilt, or some of them--- will it not determine the condition of the juror's mind of he is permitted to answer the question--- would it require testimony to remove that. If he answers that it would, then I say instead of the defendants sitting here as innocent men to be proved guilty, they sit here as condemned men, and their innocence is to be established by that. It seems to me there is nothing clearer in the world as determining the character of the juror's bias, than simply the question-- would it require testimony to put you to where the statute says you must be before you can be unbiased.

THE COURT: You can save the point upon it. What is the present state of his mind the juror knows, what it will be at any time hereafter he can't know. What it will take to put it in any condition hereafter, he can't know.

Mr. FOSTER: We don't wish to seem captious, but the question which I asked the frst juror was objected to by the court, and excluded, and we desire to ask each juror, for

the purpose of the record in the case, saving the question.

Mr. INGHAM: He better repeat his question to each juror.

THE COURT: The record must be the dry narrative of what has happened.

The following question was read by the stenographer:

Q. Suppose it should appear in evidence that the meeting held at the hay-market square was a meeting called by socialists and anarchists, and was attended by them and others, and suppose that it should further appear that the bomb which is alleged to have produced the death of Mr. Degan was thrown by some one in sympathy with the socialists or anarchists. Now, I will ask you, provided it was not established beyond all reasonable doubt, that these defendants actually throw the bomb, or that they aided, participated in or advised the commission of that wrong, would the fact that they were socialists or communists have any influence upon your mind in determining their innocence?

Objected to; objection sustained; to which ruling of the court counsel for defendants then and there excepted.

Q. Have you any prejudice against the society known as socialists or anarchists?

A. I probably have a prejudice against their teaching, but not as individuals, because I am not acquainted with any of them.

Q. Have you a prejudice against them as a class---

Q. (Interrupting.) I don't care what you believe.

A. I want to understand what you mean by prejudice. Perhaps I don't understand what you mean by prejudice. I believe their influence is pernicious.

Q. The question is whether you have a bias or impression against the class known as socialists, communists or anarchists.

THE COURT: That is against a class of people, what he understand them to teach.

THE JUROR: I am prejudiced against their teachings.

Mr. FOSTER: Q. But not against the individuals?

A. Not against the individuals.

Q. I understand you then to say you have no prejudice or bias against the defendants or any one of them which would in any way influence your verdict against the defendants in this case?

A. No sir.

Q. You believe you could try the case, and render a verdict upon the evidence given in court and the instructions of his Honor the judge, and lay entirely to one side and out of the case all that you have heard, and all bias or opinions you may have formed upon the question, and all that you have said upon the question of the defendants' guilt or innocence?

A. I think I could render a verdict according to the evidence, and have the law stated to me.

Q. I believe you stated you were a manufacturer and employed some 35 men?

A. Yes sir.

Q. Have you any prejudice against labor organizations as they exist in the city of Chicago?

A. I think I have, somewhat.

Q. You have a general prejudice against all organizations of that character?

A. Yes sir.

Q. And men who get together in their societies to arrange for their wages, and make demands from their employers?

A. Yes.

Q. Now, I will ask you if you have a prejudice against men who teach, write and speak in favor of the organization of laboring men for their own protection?

A. I think I have.

Q. Is that a prejudice which would in any way bias your judgment in determining this case from the testimony?

A. No sir, I don't think it would.

Q. You have the happy faculty of laying aside outside matter, and being governed entirely by the testimony and the instructions of the court?

A. That is my opinion.

Q. My associate calls my attention to the fact that you said that you might not be able to distinguish in the application of the testimony as to those different defendants?

A. On account of being so many of them, that my memory would not contain it all, would not apply to each man.

Q. Do I understand you to mean by that that if there was evidence tending to establish a conspiracy on the part of one man, perhaps of throwing a missile on the part of the other, that you could not distinguish and determine which ones you should find guilty and which ones you should find not guilty?

A. I think I might get mixed a little on that, possibly--- I don't know that I would..

Mr. ZEISLER: I think there is good cause for challenge.

THE COURT: As I understand you on that subject-- there was a possibility in your mind, that your memory might fail as to which person particular parts of the evidence applied?

A. That is it exactly.

Q. That is in a long trial there would be a possibility in making some mistakes, in not remembering accurately what the testimony was clear through?

A. Applying to each one.

THE COURT: It is absolutely certain that before this trial is through every one will make two or three mistakes at least about evidence that has been given. And now that a juror is to be excluded because he is not infallible is no proper challenge.

Mr. ZEISLER: The fact that he admits himself that he could not distinguish the circumstances proven against different persons who are defendants in this case, proves that he has not that amount of intelligence which is required

to be a juror in this particular case.

THE COURT: It shows on the contrary that he has that amount of intelligence to see beforehand that he may make some mistakes.

Defendants' counsel then and there excepted to the ruling of the court.

Mr. FOSTER: We desire to challenge for cause Mr. Upham and Mr. Warner. We don't care to reiterate the statements that have been made before, further than to say, especially, this is to apply to Mr. Upham, that he cannot in the opinion of the court be a fair and unprejudiced juror. He has answered that he has read these newspaper reports; that he has had communications constantly with persons from that time to this; that he has formed an opinion; that that opinion is upon the question of the defendants' guilt or innocence; that he has heard nothing to remove it, and has it now. Under that state of facts, without launching out into a lengthy discussion, we believe that the circumstances shown by his testimony is such as to show his incompetency, to show that he cannot fairly and impartially try the case.

THE COURT:? I think in the nature of things, that the only possibly way to get an intelligent jury to try any case, is to get men who have read the papers, and in the nature of things, if they read the papers, they will have some impression in regard to what has happened; but impressions or opinions

as to what has happened, has nothing whatever to do with the verdict which a juror has to render here upon the testimony of the witnesses; and the constitution of the human mind is such with all reasonably intelligent men, that whatever they may have heard second hand in regard to any transaction, whenever they get that information themselves from direct sources of information, the constitution of the human mind is such that the former from second hand reports have no influence whatever upon their judgment as to what the real truth of the whole business is, but they do without any evidence make up their minds upon the authentic history which they get at first hand, and determine upon that what the truth is, and not take the reports which they have heard upon the transactions before as the foundation of their belief as to what the truth is. I will overrule the challenge.

Defendants' counsel then and there excepted to the ruling of the court.

Mr. FOSTER: We will exercise the peremptory challenge as to Mr. Chandler, Mr. Warner and Mr Upham.

There is a question of practice we desire to present to the court, that is whether the State must submit to us four jurors or whether we must first submit to the People, four jurors accepted by the defendants.

Mr. BLACK: We have passed upon the four tendered by the State, and not accepted any of them. We have asked no one

else any questions except a mere preliminary question.

THE COURT: The effect of the decision is that each object-or shall have the right to pass upon every juror. The practice has always been--- though usually I don't know that I ever knew it before to occur that the whole four were challenged--- that if the panel of four are broken by challenges, on the side of the defendants, he must examine the other jurors and fill their places and tender back four to the state, tender back the new ones with the jurors that have been accepted. Now here you have challenged the whole four, three peremptorily, one for cause, so that none of the original four now remain to be tendered back.

Mr. GRINNELL: The practice has been in this court, since I have had anything to do with it, and Mr. Ingham informs me that was so before my coming here,--- we pass upon this jury in fours and in twelves. The State tenders to the other side the four or the twelve, which ever may be--- whichever way is adopted. They examine those jurors. It has frequently occurred that the entire four have been excused. In fact I don't know of any case, any important case, but what they have exhausted the entire four first selected, or any subsequent four. They then are tendered back to us, the four that they conclude to take. That works no one an injury. Whereas if the other rule obtained, we then allow these gentlemen to experiment continuously through the entire panel upon

our adoption or rejection of the men that finally come back to us without examining them at all; and the necessary result would be that the State might be compelled to exhaust all its challenges peremptorily before it got to the last man, at which time they have exhausted no challenges at all' and they might tender us back, allowing us or compelling us to go on with the examination, men that we are obliged to take. It would work an injustice. It could not work otherwise. Here are four men in the chair. They have selected them substantially to this extent, that they say they they don't want the four we gave them. We want to know, do they want the four they have given us. If they say "We take the four", I will examine them.

Mr. BLACK: We don't give you back any.

Mr. GRINNELL: The 80th simply decides that either of the parties can have twelve in the chairs.

Mr. GRINNELL: I believe it is admitted without discussing the statute that the same rule applies except where in the statute has made an exception, but the same rule applies in civil as in criminal cases in selecting the jurors. The statute says under the head of jurors, in regard to civil cases, "Upon the impanelling of any juror in any civil case now pending or to be hereafter commenced in any court in this State, it shall be the duty of the court, upon request of either of the parties to the suit, or upon its own motion, to use its full number of twelve jurors in the jury box before the other party shall be required to examine any of said jurors, touching their qualifications to try the cause, provided that the

jury will be passed upon in panels of four, by the parties commencing with the plaintiff. Now the statute makes the civil proceeding and the criminal alike. We have passed upon the four. We have passed upon these four in their turn as the statute clearly implies.

Mr. BLACK: My Brother Grinnell knows perfectly well that the uniform practice would have been for the State to have singled out four more.

THE COURT: Suppose you had accepted three of them.

Mr. BLACK: We have rejected four of them. We don't tender him back four. We simply say you have tendered us four jurors, and the whole are exceused, one for cause and the other three peremptorily, which we may do. We are standing precisely in the same condition as far as our rights are concerned, as we would have been if we had accepted all four. Let the State tender us four more jurors. Then if we accept those four the State can tender us four more. When the question arises that we accept a part of the four, that we break the panel of four, then we will undertakel under the practice to full it. We haven't broken that panel, we have discharged the whole of it.

THE COURT: Does it make any difference whether you accept one, two, three or four?

Mr. BLACK: I think it does, because if I had accepted a part of the panel, then having accepted a part, it devolves upon me to go ahead and fill that up. They then proceed to examine the men whom I have accepted for the purpose

of finding the four. When a new four starts the State takes the initiatory.

Mr. GRINNELL: That is illogical.

Mr. BLACK: It is a fact.

THE COURT: I have never known the question to arise.

Mr. BLACK: You have never known this particular question.

THE COURT: If you had accepted one and rejected three, then you must have accepted three others in the place of those three, and tendered them back to the State before the State could be required to take them. If you had accepted one of the four and rejected three of them, then you could have been required to accept three in the place of those you rejected, and tender them back before the State would be called upon to do anything.

Mr. BLACK: That is simply because we have accepted a part of the State's work, and have proceeded to build upon it, in which event we are required to complete the structure, to wit, to get the four and tender them back to the State: and when we reject them all, what is there for us to pass upon.

THE COURT: The statute is that the jury shall be passed upon and accepted in panels of four by the parties, commencing with the plaintiff.

Mr. ZEISLER: That means that four shall be passed upon and accepted by the plaintiff.

Mr. GRINNELL: Captain Black and admits that if he could excuse three and accept one that he then would have to pass upon the other three---that is correct.

Mr. BLACK: I have got to complete the work in that case. But I have not accepted any.

Mr. GRINNELL: You have got to give me back four men, if you accept any one of them.

Mr. BLACK: Because we have broken your panel.

Mr. GRINNELL: Now you admit that is so--- then you take it in your turn, first the plaintiff and then the defense passing upon those four. Now if it is true at all, if there is any reason in the rule, it must be a general rule, a universal one--- if you should excuse any one, if his rule is right, his logic, his premises right, then he can hand over to us that one, and say we can pass upon him, because he has let that one go. He admits that is right. He has to give us back four, and refuses three. Where does the reasoning apply when you say because you excuse the entire four, that we have to go over it again.

Mr. BLACK: I have stated to the court my views.

Mr. GRINNELL: I don't see the diference between excusing two and excusing four.

THE COURT: If this were a new thing, without any former practice to affect our mind, no traditions upon it, no authority --- if the jury syatem were a new thing

organized under this statute, and we read its provision--- "Provided that the jury shall be passed upon in panels of four by the parties, commencing with the plaintiff," why the natural construction would be, that first the plaintiff must furnish four, then if the defendents don't take them he must tender four back, in which case they tender four new ones.

Mr. BLACK: This is not our case. We are not trying to get a jury. The State is calling us in court.

THE COURT: But it is a very important question. If it devolves upon you now, to tender back four to them, and dont do it, then if they proceed to examine four, or at least these first four, you will be precluded from making any objection to either of these first four hereafter. If the rule is for you to examine and tender back four now, and you refrain from doing it, then you will be precluded from any examination of them hereafter.

Mr. BLACK: We do not think that is the right thing, if your Honor please.

THE COURT It depends upon whether you are bound now to tender them.

Mr. BLACK: That is the point precisely.

Mr. GRINNELL: The statute says that the provisions of this act shall apply to proceedings in both civil and criminal cases.

Mr. BLACK: No question about that.

Mr. GRINNELL: That the jury shall be passed upon and accepted

in panels of four by the parties, commencing with the plaintiff. I have accepted one four--- where is your four?

Mr. ZEISLER: What that means is that both parties must pass upon and accept a panel of four, but first the plaintiff has got to pass upon it and accept it--- afterwards the defendant. That is exactly what that means. It can't be construed otherwise, without doing violence to the language.

THE COURT: The plaintiff has passed upon and accepted one panel of four, and now the statute says they shall be passed upon in panels of four commencing with the plaintiff.

Mr. ZEISLER: The State shall tender us four, and then afterwards we accept or reject them.

THE COURT: The only reason for the practice that has obtained hitherto is that when the defendant objects to a portion of the panel of four, that is, if you refuse any number of jurors which the State says first they are willing to accept, then you shall offer back to the State an equal number which you accept before the State shall be called upon to do anything else. The State having tendered you four jurors, if you don't want them, the you must tender back to the State an equal number, before the State can be required to do anything else. Whatever number you reject, that number you must tender back. The reason applies as much to four as it does to three or one.

Mr. BLACK: Is that your Honors ruling?

THE COURT: Yes sir, I have no doubt that is the proper rule.

Mr. BLACK: Then we will except.

Mr. BLACK: Your Honor refused to extend the time of preparation on the ground that the jury would occupy a long time, during which we could carry on our preparations. Now we do not want to be deprived of the time of preparation. In other words, we don't want, after having been in the preparation of this case for ten days, while the State had four or five weeks, we don't want to have our daily preparation cut off.

Mr. SALOMON: I think it is a very important questions and I don't think the court ought to rule upon it without---

THE COURT: Nobody ever heard of the State being required to pass upon a second panel before the defense accepted one. There has never been an instance before known.

Mr. SALOMON: If that is the law, the defendants ought to have the benefit of a hearing.

Mr. BLACK: I think that the State's Attorney will agree that if, without asking a single question we had excused the four, the State would be compelled to tender us another four.

Mr. GRINNELL: You misunderstood me.

Mr. BLACK: Are there any jurors in this panel that the

State has passed upon and presented to the defense?

THE COURT: We know how that is.

Mr. GRINNELL: It is passed on in fours.

THE COURT: The defense must give back four in lieu of the four which the States tendered, and which the defense rejected.

Mr. BLACK: We understand that to be the decision of the court, but we don't understand that to be the language of the statute, and therefore we except.