and honest investigation of all the facts you find the defendant guilty and find that his offense deserves a greater punishment than a fine of $100, then you must impose a fine not to exceed $500 in any event. But if you are content with a $100 fine, then you may simply find the defendant guilty and leave the pun- ishment to the court."
Gen. Stewart—Of course, that is a minor matter, but I had it in mind that it would be the duty of the jury to fix whatever fine was imposed.
The Court—As I understand the holding, the court can impose a minimum fine always under the statute, that is our practice in whisky cases, the least fine in a transporting case is $100.
Gen. Stewart—Yes. We have more of that kind than any other in the criminal court.
Mr. Darrow—That is encouraging.
The Court—How is that?
Gen. Stewart—I was telling Mr. Darrow we have more whiskey cases than any other in the criminal court.
Mr. Darrow—I have not even seen a cause for a case since I got down here.
The Court—There is no reason why the jury should not fix the minimum if you prefer. The practice, however, is for the court to impose the minimum.
Gen. Stewart—I am not quite clear on that.
Mr. Darrow—We will not take an exception, either way you want it, - because we want the case passed on by the higher court, if you want the jury to fix the fine.
The Court—General, the minimum fine in a transporting case is $100.
Gen. Stewart—Yes.
The Court—Our practice in Tennessee is for the court to impose the fine in a transporting case as like this, the maximum fine of $500. The practice is if the jury thinks it should be greater than the minimum.
Gen. Stewart—I had in mind the general statute on that.
The Court—The general statute is $50.
The Court—If you want us to stipulate—
The jury might fix the fine, they will not be irregular. They will not make any question about that.
Mr. Darrow—No.
Gen. Stewart—I do not think that there is anything that can be said to the jury than what Mr. Darrow said. Of course, the case in its present attitude is that it will be thrashed out by the appellate court, that is what the defense wants, and the state wants. What Mr. Darrow wanted to say to you was that he wanted you to find his client guilty, but did not want to be in the position of pleading guilty, because it would destroy his rights in the appellate court.
The Court—We could not undertake to take the verdict and make up the record before noon, could we?
Gen. Stewart—How is that?
The Court—I say we could not undertake to take the verdict and make up the record before noon, could we?
Gen. Stewart—I take it it will only be a matter of a few moments.
Mr. Hays—Yes, and if your honor will only wait, we ought to be able to get through with the whole matter.
Gen. Stewart—The formal motion, as I suggest, is to just let the counsel treat them as in.
The Court—Mr. Officer, go with the jury and get them a place for deliberation.
Jury Out Nine Minutes.
(The jury thereupon retired for deliberation.)
(The jury returned to the courtroom at 11:23 a. m.)
Officer Rice—Everybody be seated please.
Court—Get your book, Mr. Clerk, so as to poll the jury. Get your seats, gentlemen, and let the jury have their seats. You gentlemen will have to move out a little, so I can see the jury. You may call the jury, Mr. Clerk.
(The clerk calls the roll of the jury.)
