908 Slide – American State Trials 1918 Volume X Leo Frank Document

868 X. AMERICAN STATE TRIALS.

tained in the publication, in which case, the statute on which
the traverser is indicted excuses him. If all the twenty seta
of words, stated in the indictment as charges against the
traverser, shall not be proved against him; or if he can prove
that any of them are true, the jury will acquit him of such of
them as shall not be established against him, and also of such
of them as he can prove to be true; and they will find him
guilty of the residue.

These inquiries, on behalf of the government of the United
States, and on the part of the traverser, are proper for, and
within the jurisdiction and the terms of the oath of the petit
jury, who have been sworn “‘that they will well and traly
try the issue joined between the United States and the trav-
erser at the bar, and a true verdict give according to their
evidence.” The issue joined, therefore, is, whether the
traverser is guilty of the several offenses charged in the in-
dietment; and to this issue no evidence is admissible (on the
part of the government, or of the traverser) but what ie
pertinent or applicable to it. The petit jury, to discharge
their duty, must first inquire, whether the traverser com-
mitted all or any of the facts alleged in the indictment to
have been done by him, some time before the indictment, If
they find that he did commit all or eny of the said facta,
their next inquiry is, whether the doing such facts have been
made criminal and punishable by the statute of the United
States, on which the traverser is indicted. For this purpose,
they must peruse the statute, and carefully examine whether
the facts charged and proved are within the provisions of it.
Tf the words that create the offense are plain and intelligible,
they must then determine whether the offense proved is of the
species of criminality charged in the indictment; but if the
words are ambiguous or doubtful, all construction should be
rejected. The statute, on which the traverser is indicted, en-
acts ‘that the jury who shall try the eanse shall have a right
to determine the law and the fact, under the direetion of the
court, as in other cases.”” By thia provision, I understand
that a right is given to the jury to determine what the law