The artifice would no doubt effectually overthrow the assertion of good
faith. No such question, however, is made here. The decision of which I
complain concedes that the defendant voted in good faith, in the most
implicit belief that she had a right to vote, and condemns her on the
strength of the legal fiction, conceded to be in fact a mere fiction,
that she knew the contrary.
But if the facts admitted of a doubt of the defendant's good faith, that
was a question for the jury, and it was clear error for the court to
assume the decision of it.
Again. The denial of the right to poll the jury was most clearly an
error. Under the provisions of the constitution which have been cited,
the defendant could only be convicted on the verdict of a jury. The case
of Cancemi shows that such jury must consist of twelve men; and it will
not be claimed that anything less than the unanimous voice of the jury
can be received as their verdict. How then could the defendant be
lawfully deprived of the right to ask every juror if the verdict had his
assent? I believe this is a right which was never before denied to a
party against whom a verdict was rendered in any case, either civil or
criminal. The following cases show, and many others might be cited to
the same effect, that the right to poll the jury is an absolute right in
all cases, civil and criminal.
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