Weekly American. [volume] (Washington, D.C.) 1858-1858, 1858-02-13

lawful, and the subsequent breach Of the peace
happening Unexpectedly without any previous in
tention. An ARRAY differs also from riot in this
that two persons only may be guilty oft. Where
as three persons at least necessary TO consti-
tute riot" M
Now, il this definition had been written for this
case it could not have fitted better A riot IL
where people come together to execute f,regone
intent condemned by the law. An ARRAY is where
people assemble together on lawful occasion,
and disturbance arises out Of sudden heat and
provocaton. Now, then, was this riot or an
affray? Gentlemen il Is principle Of the crimi-
nal law, that am afraid my worthy friend the
Prosecuting Attorney has altogether forgotten in
the zeal he manifesto to obtain conviction but
1t Is principle as old as the law ITSELF commend
ed to us by the highest authority, enforced In the
country from whence we sprang and from whose
institutions we derive our law, existing there at
this day unmpaired in all its force, and principle
which is existing here, and 10 part of the law that
Isl that 10 criminal the accused is entitled to
the benefit Of every rational doubt. The prose
cution can never ask conviction in criminal
case, till he makes clear the guilt Of the party ac-
cused, free from all reasonable doubt; and if the
result of the testimony on both sides, or on one
side, is to leave the scales of probability on bal
ance; TO excite doubt, or stop short of certain
proof, the conclusion from the testimony most a.
vorabe to the accused, is the conclusion that the
jury is bound to draw. Hero It is unquestioned
that there is abundant proof to show, that the
fight in the morning at these polls sprung from the
challenge Of the one Iristman, aud the production
Of knife or dirk by the other. The gage was
thrown down and taken up. The fight sprung
from that, the parties being at public place, a
the polls, voting, where It was lawful for them to
be- say, then, that no impartial mind can. look
at this evidence and not see that there is at least
probability that such was the origin Of the diff
Guilty. The censorious mind, biased by party
feelings party prejndices, party hatredfor it has
come to this, that men Of opposing parties now
hate each other lamentable as it is the evidence
of this has been too manifest in the testimony
drawn from your witnessbox during this trial.
say, man prejudiced by party or blinded by hate
and rancorous feeling, may shut the eyes to all
that appears one side of this case favorable to
the defence, and looking exclusively to the testi
mony on the other side, conclude that there is
proof Of riot and not Of an ARRAY. do not say
how an impartial and intelligent mind is necessa
rily to judge or determine whether the pi obabili
tbs prepondcrate on the one side or the other;
what say is and maint.in it confidently, that
every impartial and intelligent mind must see and
admit that there are probabilities en- both sides.
Now, my proposition is, that though 10 civil
cases juries may weigh probabilities, and decide
according as they preponderate, that is not al
lowed in criminal cases. there, certainty is le
quired. 1t will not do to hang man becacse he
is probably guilty Of murder, or to pnt man in
the penitentary because probably he is guilty of
stealing, nor to exhaust man's pecuniary SUBJ
stance by fine because he probably committed
riot; nor If there be probability thsDIhe COM
mitted an ARRAY can you convict him of riot.
You cannot act on probabilities in criminal case,
and It results from that benignant principle Of
the law to which / have already adverted, which
declares that it is better that ninety mine guilty
men should escape than that one innocent man
should suffer. 1t is that principle of law which
Commands juries who sit in criminal cases to
resolve every doubt, ! mean rational doubt;
arising on the testimony, in favor of the accused
lyon are political jury, and are trying this case
by party tests, it being proved that these defend
ants are Americans, or Natives, or Know
Nothngs, or whatever else you may call them,
you may find them gritty; but if you are jurors
with the intelligence which belongs to your office,
jurymen impartial, fair, and ju't, | submit it to
your honor, submit it to your justice, when you
bring your minds to the consideration Of the proof
regarding the morning affair, according TO the
principles j have explained to you, and which
cannot be controversial; whether, upon this evi.
dence, you can, upon your consciences, find any
OF these parties guilty Of riot, when, according
to all reasonable probabilities, it amounted to
nothing more than to an sfray.
Gentlemen of the Jury, shall proceed now TO
call your attention TO those parts of the case which
concern the disturbances which occurred after the
military were brought upon the ground.