OYER AND TERMINER.

ALLEGANY COUNTY, (N. Y.)

FEB. 1824.

#### *The Peop*le v. *David*D. *How.*

Murder.*

Present—Hon. *Wm. B.*Rochester, Circuit Judge,

Hon. *John Griffin, Vial Tho*mas, *Sylvanus*Merriam, *C*lark *Crandall, and Thomas*Dole, Judges of Allegany Com. Pl.

Counsel for the people, *Samuel S.*Haight, *Daniel Cruger,*and *John C. Spencer,*Esqrs.

Counsel for the prisoner, *Fletcher M.*Haight, *Alvin Burr,*and *Felix*Tracy, Esqrs.

On Tuesday, February 3d, the prisoner was arraigned on an indictment for the murder of Othello Church, to which he pleaded *not guilty.*On being asked if he was ready for trial, he answered in the negative, as he had not sufficient counsel, and was unable to employ others. The court - informed him that if he had any choice in counsel he could then make his election: prisoner requested that Fletcher M. Haight and Felix Tracy. Esqrs, might be assigned him to assist Alvin Burr, Esq. who was employed, which was accordingly done. Prisoner *413was informed that the next morning his case would be called on.

Wednesday, *Feb.*4. Counsel for prisoner requested a few hours longer to send for witnesses,'which was granted, and the cause was "set down for 12 o’clock that day.

At the time appointed, the prisoner was brought into court, and after several challenges, the following jurors were sworn:

Daniel Scott, Isaac Smith, Amasa Hall, Peter Bacon, William Rose, Luke Maxon, George G. Paterson, Joseph Haynes, Ephraim Rowley, Joseph H. Root, Simon Williams, Horace Whitney.

Samuel S. Haight, Esq. opened the cause on the part of the people.

TESTIMONY ON THE PART OE THE PEOPLE.

*Abraham Aldrich*sworn.—The notes shown were executed by prisoner, Othello Church, (the deceased,) Luther Adams, and witness ; one for 475, and the other for 50 dollars, dated Dec. 23, 1822 ; they were given to raise money for prisoner.

*John*Ayres—Saw Othello Church last fall after wheat was harvested, which was raised by How, take possession of it and corn and exercise over it acts of ownership.

*Stephen.*Smith—Saw prisoner’s family : resides at the Dautrement farm. *Hoio*afterwards told witness that Church had all the property on the.Dautrement place—had full scope, and hoped he would be satisfied. This conversation was last fall after How was liberated from the goal limits. On second consideration, does not know but this conversation was before How was confined.

*Alexander*Dautrement.-—In September How told witness he was going to settle -with Mr. Church—he and Church had a conversation ; they appeared to be irritated, and could not agree on settlement. Some time after, perhaps November, witness asked How if he had settled with Mr. Church, and How replied that he expected it would be settled. The last time witness spoke with How, the latter said Church was damned foolish, and did not do as he wanted him to do. How did not appear to be irritated. A few days before Mr. Church was killed, How said he could not settle with Mr. Church. On one occasion How said that Mr. Church, Mr. *414Wilson, Col. Hull and Mr. Palmer had leagued together to ruin him, and he would have revenge out of some of them. This was a few days before Mr. Church's death. How reckoned that these four had combined to ruin him. This conversation took place in reference to Church’s having his property as security, and to his complaints against the others. He complained that Church was hauling away his grain.

*Cross*examined.—Says this conversation was at witness’s house: he mentioned the names of all those four persons. He said they had stripped him of his money and property; that he had the means of *revenging*himself, and if he could not one way he could in another. In the first or second conversation How said he had money, and could buy judgments against these persons.

*Mrs.*Dautrement.—About the middle of October How complained that the sheriffs and Mr. Church had stripped him of every thing—that they had got all his money, and now he was as bad off as ever. He mentioned Wilson, and Palmer, and Church, and Aldrich, whom he thought as bad as any. When he first came home in September, he said he had money and could buy judgments.

*Adeline*Dcmtreme7it—Does not recollect any thing but his abusing Mr. Hull very much—never heard him abuse Church.

*Elijah*Osgood.—How and witness have frequently conversed together ; in the last conversation, between the 10th and 15th October, How said that Church had then gotten his property, pretty much in his own hands, and that he had been trying to make arrangements so as to get his property into his own hands. He said Church was a difficult man to get along with ; though if he could got his property in his own hands, he could make - such arrangements as to pay Davenport, who held the demand against him in which Church was security.

*David*Crandall.—The week before Church’s death How said, that if it had not been for his family he would have used powder and ball among the seven devil tribe; this was when talking of certain mills that were burnt, belonging to Mr. Palmer. Mr. Church’s name, and no other person’s name, was mentioned.

*Moses*Thompson.—Throe or four weeks 'before-Church’s death, witness fell in company with How, who said some person was fetching grain from his place. How said he should be under the necessity of taking a musket to the damned rascals. This was in Angelica village. No names rrere mentioned.

*415
      *Amos*Freeman—Knows prisoner. On 23d December last How came to witness on the Bautrement farm, where witness had charge of Othello Church’s property. How came just after daylight, and invited him to a private interviewin the barn, when How took ont a bottle of whiskey and said, if you will be my friend, I will tell you what we will do with Aldrich and Church. Witness replied he did not care much for Aldrich, but he. would not do any thing to injure Othello Church. How said poh! come take a good drink, for I have come to take a serious talk with you —take a drink and I will tell you. He then took witness by. the hand and asked him if he could swear eternal secresy. Witness says he hesitated. How then asked him if he was a mason. Witness answered no. How said you know what I mean, you can keep a secret. Witness then promised How that he.would never divulge any thing he would tell him. Mr. How then took him by the hand and said, you swear. How then said that Aldrich and old Othello were two of the greatest rascals he knew. How then continued : How I mean to have my revenge. Had previously said that revenge could not be got by fair means. Oh then, says How, Freeman, it is worse than death. Spoke of Church's cattle, and eating the corn and pumpkins, and said he could not stand it: told witness to keep the keys of the farm. Now, Freeman, says he, I will put a stop to this, and if you will befriend me Í will put $250 or $300 in your way. Freeman said that he would not be willing to injure Church for half the property on the farm.

After taking another drink, How asked witness if he thought Church his friend, and doubted whether he knew how he talked about, him. How spoke of the crops and the debt that Church had to pay out of it. How estimated the debt at $500. Witness told-How that Church estimated it at $900.

He then said that Church was a cursed villain, the greatest enemy he had, and would go any length to injure him.

How complained of Church taking away onions and straw. How then began to appear irritated, and said, I am determined on revenge, and I will have it soon; and if you will be my friend you shall.have half the property. Witness asked him in what way he would go to work? How replied,

Freeman, if you will be my friend, we will soon have old Othello out of the way, and then there will be nobody to molest us.

Freeman then got up to go away ; How took him by the hand, and wanted him to stay. On going to the house, How *416said, if Freeman would hear to him, he would make a man of him; they then parted.

Previous to this, in conversation with How, How asked witness if he could keep a secret, .and witness replied that he could: same night How asked witness if he did not think Church meant to keep all his property. This was three or four weeks before last conversation, at Mr. Sherman’s, in the bar room alone—others in bed.

Cross-examined.—How asked witness if he had not kept an account of what was taken off tho form; and told him to keep the keys, and keep .an account of what was taken off after.

On coming out of the barn, after How found witness would not stay, How said ho had not said he would resort to unlawful means, have I ? Witness says he was then confused, and replied, *you have not said you would.*

*Elias*Hull.—At witness’ house shortly before 15th Oct. when Church came in possession, How said Church had agreed, provided he came into possession, to make him, How, his agent. Witness remarked, Church is too prudent a man to do so; and How replied, if he don’t, he shall not trouble me many days. Witness reproved him for his language, saying it looked like threatening life. How said, witness might think so—that he, How, did not value his life a straw without his property. Witness said you won’t kill him. How replied, you may think so, but by God, if he don’t do as he has.agreed, 1 will kill him.

On the 14th Oot. in another conversation, referring to his former remarks about Church, he said, witness might think he was in jest, hut that he was nut. in jest, for he was in earnest; and repeated his previous threat.

Cross-examined.—Thinks Van Wickle came with How the night of first conversation. How was then anxious that the possession should be transferred from Hall to Church: it was transferred on 15th Oct.: How wished Hull to sell to Church. How was fearful Hull would evade the arrangement which he alleged he had.

Thinks How took witness one side in last conversation, and said, there has been hard feelings between How and witness. Church was there the time of last conversation.

*Bradley*Shermati.—Saw prisoner at his father’s house the evening before Church was killed. How came about 7, and staid until about 9. He ordered Ms horse fed: he was fed with a peek of oats. Don’t know that he ate them ; discovered no oats in the manger next morning—other horses might have been fed there; don’t know that any horse was fed under the shed.

*417
      *Alexander*Dautrement.—Saw prisoner at his house a little he-fore 8, the evening before Church was killed; was then a little after 9, observed How stoop down to pick up a. tumbler—he had a great coat on, - As he stooped down, something raised up his coat—believed the coat was bound round his body. When How paid him, raised up his coat with his right hand to his pocket, keeping his left arm and hand to his side, which had something of a bulge under his coat; didn’t see him get down,

*Hiram, Newton.*Saw How at Dautrement’s, the evening spoken of by Dautrement; saw him stoop down and saw the back side of his coat stick out on the left side ; thinks a stick three or four feet would present a similar appearance. His coat was buttoned up close-; he was there at 10—was gone when witness went to bed.

*William*Lato'rence.—Saw How at Dautrement’s on the eve-* ning : did not see him stoop ; 'saw the bulge in his coat, which looked as if there was something under it like tea ; saw How set down sideways on a chair, his left leg on the chair.

*George*Miles.—Between 9 and 10 saw How at Dautrement’s ; his conduct was rather unusual; he was cordial for the first time; there having been some previous coolness. How appeared to be agitated, changed his subject, talked about his wife, whici} was singular—in general talks a good deal.

*Mrs. Amy*Steenrood.—The night Church was killed witness was up as late as 12 or 1 o’clock, a man of prisoner’s bigness passed witness about'1 1-2 mile this side of Church’s; he was on horseback—the horse appeared to bo dark and so did his clothes; about half an hour after a man passed back riding very fiast. She supposed the man to be going after the doctor.

*Hugh*Higgins—Besides about 7 miles from here, and 3 miles this side of Church’s—heard a horse go by, coming east, between 1 and 2; a person was on the horse ; he went into two and a half miles from McCoy’s.

*Jabez*Higgins—describes his residence between How’s and McCoy’s rising half a mile from McCoy’s, and is at the intersection of the roads—heard something which was going pretty fast, which he then thought was a sleigh, appeared going towards How’s, was afterwards waked up by sleighs with bells, not to the extent of an hour after.

*Russell*Harrison—Partner with Hugh Higgins in Saw mill —heard a horse going to the west about 12—got up and saw it with a man on it.

*418
      *Mrs.*Church.—Between the hours of 1 and 2 A. M. 30th Deo. last, Mr. Church was asleep—somebody rapped at the door of Mr. Church, and said he had a letter for him. Church desired him to come in—he asked Church if he would come to the door—Church said he would—he did so—when witness heard the report of a gun. Church fell, exclaiming “ Oh God,” and groaning, instantly died.

*Mrs. Church*had’nt seen How for a-year, though r-ke knew him. The person appeared very polite, saying I have a letter for you. She does not undertake to say whose voice it was— she did not at the time think of prisoner.—Ball passed through Mr. Church, and struck in the joist—house gabel end to the road—kitchen back. Mr. Church slept in the kitchen—no ceiling over head. Ball was taken from 6th or 8th joist.

*Doctor*Dana—was neighbour to Church—went over on being called, past 1 o’clock, and went in and saw Church’s body-examined it and found he was dead—ball went in about an inch below the the left breast, and came out from 3 to 4 inches lower than it went in ; his shirt was burnt—the wound had the appearance of a ball wound—there was a ball found in a pine joist about 12 feet from the door—saw Luther Adams take out the ball.

*Orange*Church.—Was there-10 or 15 minutes after his father was killed ; he saw Luther Adams take a ball out of the joist ■—saw no appearance of a ball in any other part of the room. Adams handed the ball to one man, who handed it to witness— don’t think another ball could have been substituted—satisfied it was the same ball.

*Stephen*Smith—Laid awake at one, and heard the noise of a gun—heard a female voice from Church’s—went to Church, and there found Doctor‘Dana. Witness pursued in a single sleigh ■—James Bead and others rode in another sleigh with bells—■ went directly to How’s house—went to the door, rapped: Mr. How bid him *come*in, on first rap at once. How said, what’s the matter? Witness replied, Mr. Church is murdered—he is shot: —the woman replied, it can’t be from here ; for we havn’t had a gun in the house for 6 months. How replied to the woman— yes, there is—there’s Wilson’s gun. By this time, 8 or 10 had got into the house. Mrs. How said, what are you looking after?

Saw nothing uncommon in prisoner’s clothes. How granted to know what he was going to do with them—laid them down, then went with Mr. Heath to the barn, found 3 horses ; first was dry, and blanketted: the next was very wet •—had the appearance of natural sweat, with smoke rising *419from the breast. The horse was eating hay—a dark colored beast—didn’t observe the horse breathe uncommonly hard—did not discover any particular print of saddle or harness.

*James*Read—Went to How's house that night—on getting there, went to the stable—found 3 horses—the middle was sweaty.

Returned to Mr. How’s about 9 o’clock—saw a short rifle lying on the table—rifle came within the width of two fingers from his toe to his vest: examined it, and pulled up a horse hair under a piece of the mounting—end of' ram rod seemed some wrapped with cotton, wool, or lint. The gun appeared to be loaded—about 1-4 the priming appeared to be wet, as if it had been reloaded without wiping. Gun was found in a bed-room.

Cross-examined.—Saw the ball which Orange Church had. He compared balls found with the rifle with it—a wheat corn would balance them—found some balls on the table, lying with the rifle :—they were rather too small for the rifle, which was a cut one. Many rifles carry balls of thé same size.

*Josiah*Utter—Was present at How’s on the night—concurs with Smith as to appearance of the horse—couldn’t determine whether there was the appearance of a saddle—the horse was wet and smoked—next to the horse’s withers the hair was rough —print of saddle would disappear in winter sooner than in summer—the hair is not then so long—-there was a saddle in the house—judged from appearance that the horse had" not been recently rubbed.

*Romanzo*Brooks—Was at Church’s not long after his death —found, a patch and a-tow wad close to Church, as he lay on the floor, betwixt him and the door, laid them down, and then could not find them—the patch he supposed to be linen—he called it home-made tow cloth—he examined it by candlelight—the patch was nigh square ; about an inch.

*James Read*again.—The next day after he first saw the rifle the patches were square; he found patches in the box of the rifle—they were white and clean—his impression is they were about an inch—were cotton cloth—of this can’t be positive.

*Aaron*Brown.—Two nights before Church's death saw the rifle at McCoy’s—when How went off, he took up the gun from the side of the garden fence and went off with it—it was a short rifle—had been cut off—was called the Wilson rifle—.thinks 4 feet long. He took the gun up about 2 rods from the *420north door. How asked witness what the gun was worth. Mr. How said he came round on the hill, and.perhaps might find a deer and get a shot at it—was not at McCoy’s when How came there.

*XO-eorge*Doty.—Saw the prisoner once in September, at Chapman’s tavern ; said he had been pretty hard run by five or six— mentioned no names—said it was a long lane that had no turn.

TESTIMONY EOB. THE PRISONER..

*Emily*Recljteld—Was at home the afternoon before Church Was killed. How used the gun to shoot at quails—-she heard the gun dischargad—shot one. House stands hack from the road—has two outside doors; one goes into kitchen, and one into another room. The gun was sometimes carried into another room, which had no outside door; she slept in a middle room, through which you would have to go to *get*in there; she heard nobody go through her room that night. How slept in the kitchen. Gun was at How’s.

Cross-examined.—Two or three weeks before Church’s death, igun was carried out to the gate two or three times, once by Wilson, and another time by David and prisoner. The last she saw of the gun was standing up after the quails were shot at, whilst they were loading it. Did not see the gun next morning, until Mr. Bead-came there. She was not in that room that night.

*David*How,jun.—Brought the horse out for his father when he started—saw no gun about hini—gun was usually kept round in a back room not occupied by the family. Witness was not in that room that night—gun was called Wilson’s gun. . Wilson sometimes took the gun out to the gate :■—Wilson, he and father brought back the gun from the gate four or five days before. Horse blanket was thrown on the gun in the sleigh.

*CroSs-exa/mined.—His*father left home at one hour after dark *'—it*was *so*dark he could’nt see his father far, though he saw him get on the horse. His father once took the gun out to the gate—bay mare, with white face—had other horses—BememberS the coming of the p,arty in the morning. Witness and Wilson got up about daylight. Witness first saw the gun second coming. Prisoner wore the same coat he now has on.

There was but one window, about six feet from *the*table Where gun lay—window about 4 feet from the ground.

The same horse which his father rode was sweaty in t'ho *421morning—he stood between two other horses. Wilson had frequently taken the horse out to the gate with him.

*Stephen*Smith.—How came to the village of Angelica willingly with witness, and his party before prisoner was arrested.

*Joshua*Hicks.—Knows Amos Freeman ; 4 weeks ago this witness conversed with him at McCoy’s.

Mr. McCoy and witness asked Freeman if he had not reported that How had made overtures, offering him half the property : he said he had not. He went on to state that he had a conversation with How—that he surmised from it, that How meant to injure Mr. Church, though Mr. How made no threats, and that the witness had put Church on his guard.

*John*McIntosh.—Knows Amos Freeman : three or four weeks ago Freeman was at witness’s house. Questioned thus :—It has been reported that Mr. How offered you a premium to take Church’s life. Freeman said it was no such a thing ; he denied wholly that How had put such a question to him ; and such a proposal would be unpleasant to him, for he was above it.

Witness reminded him that he had testified so; he replied, it was a lie ; that he never had sworn to such a thing.

*Angus*McIntosh—Was present part of the time: same conversation—heard questions put to Freeman, and heard Freeman answer saying it was a falsehood; and appeared to be disturbed and affronted: being told he had sworn to it, he said 'it was a lie.

*Francis*Delong—Knows Freeman; in the town of Allen, his general reputation for truth and veracity is bad. He has been sworn there several times—they are not on good terms. About four years ago W. had hostilities against him, but has not any at present—dont recollect ever threatening him.

Witness was party in two of the suits in Allen—Freeman’s .'testimony was against witness’s interest.

*James Wilson*(resides in Alien)—Knows Freeman—his general reputation is, that he is a man not to be depended upon when under oath.

Never heard the neighbours speak of his character for veracity except in reference to the trials in Allen, but on that account would not attach much credit to them in any case.

*Chester Foach*(of Allen)—Numan’s reputation in Allen for truth and veracity is bad; some of the neighbours had reference to the trials—some not—but the greater part not, when speaking ■of his reputation.

*422
      *Robert Barr*(of Allen)—Freeman was not thought by those wbo heard those trials, to be a man of truth and veracity, in his testimony at those trials. Mr. Delong, Mr. Wilson, Mr. Scotts, Mr. B. Bride, and others have spoken of them.

*Jeremiah Fuller*(of Allen) Knows Freeman—majority of the people in witness’s neighbourhood think his character for truth and veracity bad—they mentioned the trials, and did not speak of his veracity, in any other respect.

*Josiah Whitman, of*Allen.—Knows Freeman—majority of people heard speak about him, call his character bad—they have spoken in reference to those trials.

Mr. *Wicks,*again.—Horses will sometimes perspire profusely from some disorder; this is when they appear to be in pain— prespiration will appear sometimes to relieve pain, and will also give rise to smoke, the same as other sweat.

*William*Geiger.—Is acquainted with horses considerably, has seen perspiration produced by pain—belly-ache most apt to produce it—horses will continue wet after pain subsides—the perspiration will be chiefly in the flank and before the shoulders ; they will smoke—has seen horses eat while in pain—they will eat after pain has subsided—sweat will then become stiff, and cease to smoke though the horse continues wet.

*Henry*Tracy.—Was in Burr’s office, at the time of assignment—there was a dispute. Hull said he did’nt care what people said about him, if he could only sleep at night.

*Bradley*Sherman—Was in the bar room and kitchen and set down—did not observe any thing unusual about him, either in coat or otherwise.

Mr. Ayres.—Was called to testify about hauling grain to Ohurch.

*William*Burns.—Was at Dautrement’s—saw How—he and How were sitting together—observed nothing unusual about him.

*Thomas*Matheivs.—Assisted in hauling grain from the Red-field farm for Mr: Palmer—dont know that Mr. Church had any there.

TESTIMONY ON THE PART OP THE PEOPLE.

*Jonathan*Post.—Conversed with Freeman a few days after jury of inquest—told him he bad heard that he said Mr. How had made proposals to him to kill Mr. Church ; he denied that How had made such a proposal—that How’s proposal was, not to kill or murder Church, but only to put him out of the way— *423thinks what he stated here under oath was very remarkably the same that he told witness, except did not observe him testify. about the injunction of secresy—there were several sentences of his testimony which witness did not understand..

Freeman has lived in Angelica, on the river, not far from Alien, for the last year, about seven miles from Scott’s—has never heard, in the town of.Angelica, a word against his character for truth and veracity, but has heard the unfavorable reports from peoplé in Allen—never until of late heard any person speak, either for against him—his character in Allen is bad, growing out of those trials.

Mrs. *Ann*Church.—Freeman lived two years at her house— left there a year last fall—was a stranger when he came there— heard from Freeman, himself, that he was censured for his testimony in Allen—has heard his character for truth and veracity impeached, in reference to those trials—she cannot speak of his general character, except that her impressions were in his favour.

*John T.*Hyde.—Has known Freeman about three or four years—never heard his character for truth and veracity impeached until to day—Freeman came in a stranger. •

. Has known prisoner seven or eight years—don’t know of his hunting—may have hunted frequently for aught witness knows ■—lives about two miles from How’s—never saw him have a gun in his hands. Freeman on the next day after he was sworn, said he was going to write down what How had said to him.

Col. King.—Knew Freeman about two years—never heard but little said of his reputation for truth and veracity—never heard it impeached, until to day—witness resides in Friendship six or seven miles from Freeman’s.

*Moses Van*Campen.—Has no particular acquaintance with Freeman—has known him some years—never heard any thing for or against‘him.

Hoot. Dana.—Has never heard his character for veracity impeached until Mr. Church’s death—his character for truth and veracity was never, in his presence, the topic of conversation, until since that event.

*Stephen Smith, of*Friendship.—has known Freeman two or three years—his character for truth and veracity has been good, •is admr. of Church’s estate, has heard as many as four speak of him, two in Friendship and two in Freeman’s neighborhood.

*Augustus*Dautrement.—Has known Freeman two or three years—has never heard his character, as a man of truth im*424peached. Witness resides in Schenectady, left here about *a¡*year ago.

*Andrews A.*Norton, *of*Angelica.—Has known Freeman about three years—never heard his character for truth impeached—don’t know that he ever heard his character for truth a top-, ic of conversation previous to this affair.

Mr. Taylor.—Has had some experience with horses—-owned a great many—belly-ache generally causes bloating.

!C§= Gives his opinion of causes and location of perspiration, and of the effects of medicine.

• *Amos*Thatcher.—Conversed with How, two or three weeks before Church's death—How said he was inclined to leave his bail and go home, and take his gun, and put a ball through the first man that entered on his premises—he had been conversing respecting people drawing grain from his Redfield farm, viz.-Ah drich, Mathews, Higgins never knew that Church had any thing to do with the Redfield place.

Judge Merriman.-—In fore part of November, How talked’ of' Church being in possession of the Dautrement farm—Judge was about buying some tubs of How—went down, found Church there, eating breakfast—How asked him to go to the corn house and see the tubs—Church agreed to deliver up the tubs—going back, How in talking about property, said he eould’nt stand it; if Church was on the place, he must have it arranged in some way to have him off—had as Heve have the devil there, as to have Church there. How was trying to get Judge Merriman to sign a note to Davenport, so that he, How, might get possession of the property.

TESTIMONY FOIL PRISONER.

*William*Byrns.—Was at Dautrement’s the night previous to the murder: witness and prisoner were sitting on a bench at a table conversing together—they took a glass of grog ; prisoner sociable, and saw nothing uncommon in him ; witness staid all night—prisoner went away about ten—had a great coat on.

*Thomas*Mathews—Assisted in hauling the grain from the Redfield place, where prisoner resided, for Palmer; does not know that deceased had any thing to do with it.

TESTIMONY FOR THE PEOPLE.

*Wilson*Redfield, sworn—the day before Church was shot, after shooting quail, How and witness reloaded the rifle, with a patch from the box; saw the gun next morning as it lay in the room and was loaded, load was afterwards taken out, viz. Wednesday at Cuba, a very heavy charge; witness observed it¡ *425there was no patch in the gun when the load was taken *out;*there was no tow cloth about the gun—a horse blanket was previously over the gun. Speaks of the condition of the horses. The black horse was sick; does not know that the mare was sick. There was tow between the powder and the ball. The load which witness and How put in, in the afternoon, was square, and of leather.

*Daniel*Tabar—saw the charge extracted at Cuba; no patch ; about a double charge.

*Alexander*Dautrement—has seen the experiment with a rifle; appearance corresponded with what he .observed about How as to sticking up behind, and partly as to bunch upon breast.

*Cross*examined—gives his explanation as observed a little testy ; also the experiment of sitting on the chair.

*Hiram*Newton-—saw experiment to-day, resembled How’s appearance in projecting béhind, that night.

*William*Lawrence—also saw experiment, protuberan cebefore was about the same as what he observed in How ; a man sat down as How did, and nothing to be seen except the protuberance.

*James*Read—the man who tried experiment, with the same rifle—done at the request of sheriff Wilson.

*Doct.*Dana—Mr. Spencer recommended the experiment last night, which was renewed by sheriff Wilson to day ; corresponded with witness’s idea.

*Amos*Seabody—was at Bautrement’s 15 minutes ; saw How and Burns; thought Burns was tipsy ; observed nothing under How’s coat; saw How in a chair.

*Simeon*Heath.—When How came over in the morning, he said the mare he rode had been sick the, day before he started from home; the cause he said was, he had been feeding his horses with corn; he said he had some trouble coming over, in consequence of mare’s sickness, and much trouble going home; said she laid down.

*Stephen*Smith—the last witness. How said to his stepson, you know the horse was sick, the latter replied *yes,*but the mare was not mentioned. How said the mare was sick going over to Angelica, and was sick going home ; she laid down several times ; ascribed it to corn, another time to potatoes, saying he had no grain.

This report was copied from the minute book of Judge Rochester, and may therefore be considered as correct. Ijj acknowledge, with pride, the civility of his honor the judge, and S. S. Haight, Esq. The case is one of great importance, as depending entirely upon circumstantial testimony, and furnishes another instance, (if another is necessary,) of the strong character of this kind of proof.

Here the testimony closed, and the case was summed up by Fletcher M. Haight and Felix Tracey, Esqrs. for the prisoner, and John G. Spencer, one of the counsel for *426the people. After an able and impartial charge by Judge j^chester, jury retired about two o’clock on Tursday night, and returned before six on Friday morning with a verdict of guiltv. He was sentenced to be hanged on the *o j*... 19th of March, which sentence was carried into execution. After the sentence, and before the execution, he confessed the murder, as appears by Messrs. Cruger & Wells’ report of his case. He tells the story in the following words:

> “I shall now describe the Murder of Othello Church. Yes, in a cool, deliberate manner *I murdered him!!*Called him from his sweet slumbers, and from the bosom of his wife—never more to return to her fond embrace—to sink him in the grave. Yes, his own floor I bathed with his warm blood, and his soul I hurried oif to another world. I heard the new-made widow’s groans, and the wretched orphan’s cries, which pierced my flinty heart. May God forgive me, and wash the crimson stain from my afilicted soul.

> “ I was aggravated 'to this crime • by injuries, personal abuses, and insults: -but they are no excuse for me. . I had some time calculated on his destruction, and one day, a few weeks before his death, he went to Angelica, and I expected him to .return in the evening. I loaded a guu and way-laid the road between his house and mine, in the woods west of M’Coy’s tavern. Here I tarried until late at night, awaiting his return; but he did not come. I first took my stand behind a root, and then, for my better accommodation, behind a large pine tree, and had he come, I surely should have shot him. While I here stood I had some reflections; the sweet evening breeze gently pressed the lofty forest, and the tall pines could bend beneath the power of Heaven—but my obdurate heart remained unmoved.

> *427“ The next day I went to Angelica, and there I saw Mr. Church, and I felt very glad he had escaped. After re-fleeting on the subject, and getting no satisfaction, I fixed my eye on him again, and I could not spare him. Accordingly, in December I watched the state of the snow, that I might not be tracked, and on the 29th I thought the thing was ripe. In the afternoon I loaded a rifle, and placed it in a bed-room where no person slept, and where I could reach it from the window if occasion should require. I then rode to Angelica, four miles east; Mr. Church lived about 6 *miles*west of my house ; I put my horse up at Mr. Sherman’s tavern, and fed it. I was about the village until after 10 o’clock at night. At Mr. Dautrement’s I drank considerable brandy, and calculated to take as much as I could, and do business regular. I then rode home, stopped at the bars opposite my house, and dismounted, and had serious reflections on the course I was pursuing. After a considerable pause I resolved to go, for I never allowed myself to give back in any undertaking. I then went to the bed-room window, and took out the gun; no one of my family knew it, and rode .a smart trot to Church’s. I hitched my beast near Mr. Spear’s shop—took out my knife and rubbed my flint, that it might not miss fire. I took the mitten from off my right hand, and put it in my pocket. I was careful not to drop any thing whereby I might be detected. I then stepped to his kitchen door, which opened near the head of his bed, and stood 5 or 6 minutes on' his door stone. All creation seemed' locked in slumber, and one dread silence reigned through all the works of God.

> “ Now my bold heart even trembled at the thought of an act so desperate, and every vibration of my soul seemed shrinking beneath the horrors of the scene.

> *428111 rapped at his door, and shuddered at the very noise I made ; and was on the very point of retiring, when his wife, I think, awoke him, and' he exclaimed “ *Who is there 7*I .endeavored to alter my voice, and answered, *“ I have a letter for you /'*he then said, “ *walk in."*I answered, “ *have the goodness to open the door and take it.”*He arose, and as he opened the door, as soon as I saw the appearance of his white shirt, I shot at venture. I took no sight, and had the gun by my side. ■ I think the muzzle was not more than 3 or 4 feet from him. I then heard him exclaim, “ *Oh! my God, my God!!"*I heard no more of him. . I then returned to my beast, and every step was marked with care, lest I should fall or lose something, as it was slippery. The shocking cries and shrieks of the family broke the midnight silence, and rent the air with horror, which I heard a considerable distance. I then rode with great speed home. I dismounted and loaded my gun in haste, ánd set it into the window whence I had taken it; then I put out my beast, went to bed and went asleep. Before day the neighbours of Mr. Church called on me, and informed me he was murdered in his own house.”