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their house and made them to sorrow all their days. Let them not be for him whose hand is red with the blood of his fellowman, whose heart is black with the deepest dye of human guilt.

Gentlemen, this is a case of no usual interest. Excitement has died away, but it has left in the public mind much of anxiety and apprehension. Men wish to know whether justice is to be meted out in its appointed tribunals. They wish to know whether the law is to be triumphant-whether it is to be administered in such a manner as to afford, as it was designed to afford, protection to human life. They wish to know whether the violation of the law is to meet its reward or whether the criminal is to be allowed to gorge himself with blood and yet, through the instrumentality of a jury of his countrymen, go "unwhipped of justice." I ask no verdict at your hands unless it comes from a well-settled conviction of the prisoner's guilt. But if you are satisfied beyond a reasonable doubt-of that each one of you is to consider for himself on his own oath and conscience, for the case of State v. Ephriam has no application here-then I do ask it in the name of the law and of justice. I ask it in the name of all who have lives to be protected or interests to be advanced by the support and enforcement of the laws.

Gentlemen, it is said that a sense of duty performed or of duty neglected and disregarded follows us everywhere and always; that we can not escape from it without escaping from ourselves. Your action in this case, therefore, is important to yourselves.. The events of this trial and your own final verdict in the case will be with you in memory both here and hereafter as a source of gratification and joy or of misery and sorrow, according as you shall have performed your duty. I trust you will so perform it as to satisfy both your own consciences and the claims of public justice.


JUDGE BAILEY. You have been patiently engaged six days in the trial of this case. You have heard the evidence for the State and for the prisoner and the arguments of counsel,

and it now becomes my duty to call your attention to the points of law raised on both sides and to give you in charge the law bearing on the case and the application of it. There are two plain principles of law, with which you are probably familiar. The first is that where a homicide has been committed and nothing to the contrary appears, it is presumed to have been done with malice. The other is that he who is charged with the commission of crime is presumed to be innocent until the contrary appears. It may be proper to mention here that, though there be excitement out of doors and in the court room attending the trial of this cause, yet you and I are not to be affected by its influence and must try the prisoner at the bar as if we had never heard of the offense nor of his case before. If you have learned anything other than what you have learned upon the trial, the Court charges you that you must banish it from your minds. In this case, as in all others, you must be governed by the law and the testimony.

Murder, gentlemen of the jury, is the highest offense which one man can commit on the person of another. It is the taking away the life of a fellow being with malice aforethought, and it forfeits the life of the criminal. It is not pretended on either side that the crime charged to have been committed by the prisoner is less than murder. It must be murder or it can be nothing. You have been told that this is a case resting, not upon positive, but on circumstantial testimony. When that is the case, it is always necessary for the prosecuting officer to form a certain theory or hypothesis, and he must introduce testimony to prove that hypothesis to be true. Not that the facts can be proved by an eye-witness, but that circumstances must be shown from which the facts can be deduced.

I shall not, at this late hour, gentlemen of the jury, attempt to sum up the mass of the testimony. Twenty-five or thirty witnesses have been examined on the part of the State and two or three by the prisoner. You have heard the testimony fully commented on by both sides.

The State insists, gentlemen of the jury, that the supposi

tion or hypothesis made by the Solicitor in his opening argument has been sustained by the proofs. Are you satisfied of this? Does the proof correspond with and sustain the hypothesis? This is the grand inquiry to be left to your consider


As this is a case resting upon circumstantial testimony, it is but right that I should make some explanation of the terms "circumstantial" and "direct." When a thing is proved by the evidence of one who knew the fact deposed to, the evidence is said to be direct, because it bears directly upon the subject of inquiry. But when there is no direct proof of the subject in dispute, but so many circumstances pointing in that direction are connected together that we are forced to draw the conclusion that a given propositon is true, then the evidence is said to be circumstantial. In other words, if a witness be called who is faithworthy and he testifies that he saw a fact, his evidence is direct. If, however, he says that he did not see it, but details a series of circumstances leading to the formation of a certain hypothesis as to its truth so forcible as to exclude every other reasonable hypothesis, then this evidence is circumstantial. This is the difference between the two. In one respect, there is no difference, for both lead to the same conclusion. If circumstances produce convictions so as not to leave a reasonable doubt as to the truth of the hypothesis, then we are under the same obligation to believe it as if sworn to by an eye-witness.

But there are certain rules which ought to govern us in drawing conclusions resting on circumstantial evidence. There are four rules to which the Court requires you to pay special attention: First, the circumstances must be fully established. Second, all the facts must be consistent with the hypothesis. Third, the circumstances must be of a conclusive nature and tendency. Fourth, they must, to a moral certainty, exclude every other hypothesis but the one proposed. Not that they must exclude every other possible hypothesis, as contended by the gentleman who last addressed you on behalf of the prisoner, but the circumstances must be of such a conclusive nature that you can not form any other reasonable one. If

the prisoner can show a reasonable hypothesis, consistent with the facts and his innocence, then there is no necessity to detain you further. But if you are satisfied by the testimony in the cause that the deceased was murdered by the prisoner, the Court charges you that it is your duty to find him guilty of the crime of murder; and it is totally immaterial whether he was prompted by malice or revenge. The prisoner's complaint of wrong can neither excuse nor palliate the crime. For, if the deceased was going along the road and the prisoner got ahead of him and shot him, it is totally immaterial what had occurred between the parties at the prisoner's house. He is guilty of murder unless the contrary can be shown by the prisoner. If, when you retire and weigh the circumstances, you should have no reasonable doubt of the prisoner's guilt, you ought not to hesitate to perform your duty. There are rights belonging to the State in which you live, as well as to the prisoner, and you ought not to hesitate, if satisfied of his guilt, to convict him.

But the defendant says on his arraignment that he is not guilty. And if his guilt has not been made out here, he is not guilty. For that which does not appear does not exist.

In the first place, it is insisted in behalf of the prisoner that if all the testimony adduced on the part of the State be true, you can not convict him, for, according to the testimony, a part of the hypothesis could not have been accomplished. That at all events, it is not probable that the prisoner could have gone through the woods with a gun, murdered his victim, disposed of his body and returned within the time deposed to. And that of two periods of time spoken of, if one be favorable and the other unfavorable to the prisoner, the Court must charge you which period to select, and that you are in law bound to adopt as true that time which makes for the prisoner, and not that which makes against him. That if you consider the time as deposed to and be governed by this rule, it is utterly impossible, or at most highly improbable, that the prisoner could in this time have gone from home, committed the act and returned. Now, gentlemen of the jury, it is true that if you should be called to

decide between two fixed periods of time, one of which is important, then the rule must be to adopt not only the most charitable, but the most reasonable construction. If the question of time is nicely suspended in a balance so that the jury can not tell to which side the weight of evidence preponderates, then they must adopt that period which is most favorable to the prisoner, and not that which is against him. But if the jury should be satisfied as to the time, this rule will not apply. Secondly, that if the jury should be satisfied that the prisoner could have done the deed within the time deposed to and returned to his house at a half hour by sun, then the defendant says the prosecution must fail, because it is propped up and sustained by the witness Carawan Sawyer, who is called the main witness, and who is unworthy of belief. That, although, in part of his testimony, he had told the truth, he is not to be credited if in other parts of his testimony he has told falsehoods and told them here on the stand. The prisoner's counsel claims that they have a right to have the testimony of this witness set aside by a stubborn rule of law that if the witness is false in one particular, he is false in all; that this is the rule, and the jury has no right to discriminate between what is true and what is false. It is insisted here that the witness has committed perjury on the stand. If this be so, gentlemen of the jury, you must discard the whole of his testimony from your minds.

Another principle of law has been raised by the prisoner's counsel and is not denied on the other side. It is that "circumstantial testimony must not be inferior to that derived from the testimony of one creditable witness."

You will not convict, gentlemen of the jury, on the testimony of a single tainted witness. If the matter goes only to his discredit, to his bad character, if his statements out of doors differ from his statements on the stand, the jury will consider the testimony and give it that weight which it deserves. But, if on the stand in questions pertinent to the issue, he should deny a particular thing or sav that he did not remember when he did remember and the denial is corrupt, then

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