“General Black at first thought that they could proceed with a jury of eleven, if the defendants would agree. The defendants were ready to agree, but took the view, and Judge Grosscup shared it with them that such a stipulation would be a fatal error. Finally, General Black came to this conclusion himself. Then the defense made a proposition itself. This was in effect that the present jury be discharged and a new one at once impaneled, consisting of the eleven of the present jurors and a twelfth man; that for the benefit of this twelfth man the evidence already taken might be read over. In support of this proposition Mr. Gregory read a lot of authorities, some of them interesting in themselves, aside from any aid they might be in the present case.
“The proposition was talked about informally between the Court and counsel, and the more they talked about it the more feasible it seemed. But before it was finally decided on Judge Grosscup wanted to sleep over it. So he adjourned court until 10 o’clock this morning.”
“‘In this case, your Honor,’ said Mr. Darrow, when the court resumed at the afternoon session, ‘we wish to make a motion in the event that the Court should decide that it is not competent to proceed with the eleven jurors, that the place of the sick juror should be filled and the case proceeded with after the evidence has been read over to the new juror, we think we have authorities on that point and we will present them to your Honor. The evidence could be read over and that would save the whole time that would be occupied in representing the case to the Court. If General Black admits this to be right, we would like to present these authorities to the Court.’
“‘When the court adjourned after the conference in your Honor’s chambers this morning,’ said General Black, ‘I made an investigation of the points involved and I found one authority upon the point which, it seems to me, settles the question. It is the case of Callan against Wilson, decided by Justice Harlan. In that decision the judge discusses the question as to the rights of trial by jury under similar circumstances to this case, touching particularly the right of trial in conspiracy cases, and holds that it is an inalienable right that there should be a trial by jury, which means a jury of twelve men. The authority is so conclusive that I must abandon my position.’”—_Chicago Times_, February 12, 1895.