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TRIAL OF JOHN W. WEBSTER.
to them the said Jurors unknown, then and there, feloniously, wilfully,
and of his malice aforethought, did kill and murder:--against the peace
and dignity of the Commonwealth aforesaid, and contrary to the form
of the statute in such case made and provided.
A true bill. DANIEL RHODES,
Foreman of Grand Jury.
JOHN H. CLIFFORD,
Attorney-General.
On the same day, January 26th, under the direction of the, presid-
ing judge in the Municipal Court, (Chief Justice Wells,) the clerk of
the court, Thomas W. Phillips, Esq., caused a copy of an order of notice
to be served on .the prisoner, notifying him .that this indictment would
be certified, and transmitted to the Supreme Judicial Court, then in
session, for Suffolk county; and at the same time, the sheriff of the
county, Joseph Eveleth, Esq., who served the copy, also handed him
a certified copy of the indictment.*
This indictment was returned into the Supreme Judicial Court on
the 30th of the same January; and, on the 9th of February following, he
was arraigned in that court, before Mr. Justice Fletcher, and pleaded,
Not Guilty. He was thereupon informed by the Court, that counsel
would be assigned him, to assist him in his defence, either upon his
own nomination or upon that of the Court. Having stated that he had
already advised with the Hon. Pliny Merrick and Edward D. Sohier,
Esq., and requested that they might be confirmed by the Court, those
gentlemen were accordingly assigned as his counsel.
The Attorney-General and Mr. Sohier being present, inquiry was
made by His Honor, if either side had any wishes as to the time of
trial. Mr. Sohier replying, that his client had none, and the Attorn:ey-
General, that it was desirable to have it at as early a day as was prac-
ticable, the Court named the 19th of March as the time at which the
Full $ench would be in session for the purpose; and that day was
accordingly set down.
Tuesday, March 19th.
At nine o'clock, the Court, consisting of Chief Justice Shaw, and
Associate Justices, Wilde, Dewey, and Metcalf, came in, and took their
places upon the bench.
Hon. John H. Clifford, Attorney General, and George Bemis, Esq.,
appeared far .the Commonwealth; and Hon. Pliny Merrick, and Edward
D. Sohier, Esq., for the prisoner,
The prisoner having been placed at the bar, the clerk, George C.
Wilde, Esq., called over the list of traverse jurors summoned for the
term, sixty in number, all but four of whom were in attendance, and
answered to their names.
The Court then proceeded to hear the excuses of those who had
any to offer, and fifteen were excused on account of age, ill-health,
enrollment in the militia, etc.
As these preliminary proceedings were supposed to have involved an
error of procedure, which afterwards gave rise to an application for a writ
of error, they will be given hereafter more in detail, in connection with
that
application.
t By the Statutes of Massachusetts, a capital trial is required to be held
before three or more of the justices of the Supreme Judicial Court. Rev.
Stat. ch. 81, § 11, § 13. The preliminary arraignment may, however, take
place
before a single justice of that court. Rev. Stat, ch. 81, § 15. Prior to the
adoption of this latter provision, it was decided by the Court, that an ar-
raignment before a single justice vitiated the whole proceedings of a
capital
trial, and a prisoner, who had been so arraigned, was permitted a new trial
after conviction. Commonwealth v. Hardy. 2 Mass. Rep. 303.
In the present instance, all the members of the Court attended at the
trial, with the exception of Air. Justice Fletcher, who was otherwise
occupied
with official duties.
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