animadverted against the Tobacco Trust and its alleged conspirators; even going so far as to cartoon them in cells and in prison uniform as if already convicted. Naturally Choate and his legal comrades asked every challenged juror if he had read such criti cisms or seen such pictures and what effect such reading or inspection had produced up on their minds as to a pre-prejudice. Curi ously enough, a statute of the State prac tically makes every challenged juror a trier of his own competency; for if he swears (and it is of course only legal conclusion at best) that he can enter the jury box without any reading, or hearing, or pictorially viewing comments on the merits of the case produc ing any effect upon his own fairness when serving upon the jury and render impartial verdict irrespective of the reading, hearing and seeing, then in such case the judge ap pears to be obliged to accept him although the latter may discretionally differ from the juror's estimation of his own impartiality. But the counsel whose challenge is thereby defeated may take his exception to the rul ing and so thereafter also invoke appellate discretion. It has become a saying among members of the New York criminal bar that " Favor able jury getting is a three-quarters factor toward disagreement; or an acquittal of a client." But there are means outside of the court room, or beyond the challenged juror's con science for testing the idiosyncracies or fair ness or intelligence of jurors. It is among the traditions of the New York bar that those experienced lawyers in criminal procedures, Emmet, Riker, Graham, Brady, Whiting, Hall, Clinton, Fullerton, Beach and Howe, never defended an accused without obtaining preliminarily a copy of the jury panel and next dispatching confidential scouts to inquire with policy and tact among the neighbors of the jurymen on the drawn panel as to their habits, antecedents, idiosyn cracies, and even modes of thought and re
ligious tendencies, so as to be able to form opinions as to the best petit selections in be half of their clientural interests; and in ad dition to their physiognomical and phreno logical estimation of the personality of the juror when he is seen in court. The late Charles O'Conor, who won a verdict for his client, the wife of Edwin Forrest the actor, in the latter's pleas for divorce and against her recriminating pleading, was known to have adopted this plan of polling, as it were, the jury panel in advance. In New York the summoning of talesmen haphazard by a sheriff long ago ceased to be legal. The late Charles W. Brooke, who procured the acquit tal of his client, Mrs. Fleming, when charged with the horrible crime of matricide by poisoning, was known to have adopted in that case similar preliminary espionage. He even went to the precautionary extent of ascertaining who were the family physicians of the various jurors and from them learning the proclivities of the patients. What more perplexing to a counsel in some religious controversy than to have an in fidel on his jury; or a woman-hating juror when he is managing a suit in breach of promise for a feminine client; or a railway stockholder or director when suing for dam ages by a collision; or a pugilist when try ing to convict an accused of an assault and battery. It may be well therefore for every lawyer at nisiprius to bear in mind the threefourth maxim above quoted. John T. Hoffman, who was long recorder of New York before he became its mayor and Governor, may be quoted as having said in his many years of experience as a judge in criminal trials he found that more vic tories were won by tact and management be fore juries than by learning. And in an essay Lord Bacon long ago outlined the same idea. From the report of the Tobacco Trust trial it appears that a usage exists in New York of employing detectives to shadow the jurors pending hearing of testimony if the proceed
