he had ever made any such statement as that mentioned by Mr. Harrison and Mr. Winston; also that he did believe Neebe guilty; that Mr. Harrison suggested the dismissal of the case as to Neebe; and further, that he would not have been surprised if Mr. Harrison had made a similar suggestion as to others, and then he says: "I said to Mr.Harrison at that time, substantially, that I was afraid that the jury might not think the testimony presented in the case sufficient to convict Neebe, but that it was in their province to pass upon it."
Now, if the statement of Messrs. Harrison and Winston is true, then Grinnell should not have allowed Neebe to be sent to the penitentiary, and even if we assume that both Mr. Harrison and Mr. Winston are mistaken, and that Mr. Grinnell simply used the language he now says he used, then the case must have seemed very weak to him. If, with a jury prejudiced to start with, a judge pressing for conviction, and amid the almost irresistible fury with which the trial was conducted, he still was afraid the jury might not think the testimony in the case was sufficient to convict Neebe, then the testimony must have seemed very weak to him, no matter what he may now protest about it.
When the motion to dismiss the case as to Neebe was made, defendants' counsel asked that the jury might be permitted to retire while the motion was being argued, but the court refused to permit this, and kept the jury present where it could hear all that the court had to say; then when the argument on the motion was begun by defendants' counsel, the court did not wait to hear from the attorneys for the State, but at once proceeded to argue the points itself with the attorneys for the defendants, so that while the attorneys for the State made no argument on the motion, twenty-five pages of the record are filled with the colloquy or sparring that took place between the court and the counsel for the defendants, the court in the presence of the jury making insinuations as to what inference might be drawn by the jury from the fact that Neebe owned a little stock in a paper called the Arbeiter-Zeitung and had been seen there, although he took no part in the management until after the Haymarket troubles, it appearing that the Arbeiter-Zeitung had published some very seditious articles, with which, however, Neebe had nothing to do. Finally one of the counsel for the defendants said: "I expected that the representatives of the State might say something, but as your honor saves them that trouble, you will excuse me if I reply briefly to the suggestions you have made." Some other remarks were made by the court, seriously affecting the whole case and prejudicial to the defendants, and then referring to Neebe, the court said:
"Whether he had anything to do with the dissemination of advice to commit murder is, I think, a debatable question which the jury ought to pass on." Finally the motion was overruled. Now, with all the eagerness shown by the court to convict Neebe, it must have regarded the evidence against him as very weak, otherwise it would not have made this admission, for if it was a debatable question whether the evidence tended to show guilt, then that evidence must have been far from being conclusive upon the question as to whether he was actually guilty; this being so, the verdict should not have been allowed to stand, because the law requires that a man shall be proven
