Richmond daily Whig. [volume] (Richmond, Va.) 1842-1861, 1859-11-02

'SAN e@N 0NNu mNu
IRON there; witness was hailed and went in, he met Dan
gerhsid and other there; Captain Brown said to witness
he wanted to be allowed to 20 over the bridge unmoles,.
ed, and then We might take him IL We could. he had
iought oncie San, before, and was willing to DO Il
again Brown complained that his men had been shot
down like dogs while bearing a flag Of truce; told
him that they must expect to be shot down like dogs. II
they TOOK up arms In that way, Brown said he knew
What ne had To undergo before he came there; he had
weighed the responsibility, and should not shrink from
y: no said he bad full possession of the town, and could
have massacred all the Inhabitants had he thought pro-
per 10 40 so, but as he had not, he considered himself
entitled to some terms. Brown said he had shot no one
who had not carried arms. Itold him that Mayor Beck
man had been killed, and that l knew he was altogether
unarmed; he seemed sorry to hear of his death, and said.
u hight only those who fight me" Witness then told
the prisoner he did not think any compromise could be
erected. Brown said he kept the hostages for his own
safety; they did not appear to fear any injury from him
or his men, but only from attacks from the outside; eve
ry man had a gun, and four-ifths were under no COM
mand; the military had ceased firing, but men who were
intoxicated were firing their guns in the air, and others
at the engine house; Brown or any of his men could not
have venturcd outside the door of the engine-house that
night without being shot; saw Stephens in the hotel after
he had been wounded, and shamcd some young men who
were endeavoring to shoot him as he lay in his bed, APP
parently dying; told them that Il the man could stand on
his feet with a pistol in his hand, they would all jump
out OF the window. Capt Sims testimony was at great
length, but little new was elected.
On the conclusion OF his testimony Captain Simms sta
ted that he had returned here at the summons OF the pn-
soner, TO testify in his behalf with as great alacrity as he
had come to testify against him. lie had no sympathy
~ HtNbutls " hN On Nnt
contrary, ne would be one of the first TO bring him to
punishment. But he regarded Captain Brown as a brave
man, and, being informed that he wanted him here as a
witness, he had returned with pleasure. As a Southern
man he came to state the facts about the case, so that
Northern men would have no opportunity of saying that
Southern men were unwilling to appear rs witnesses In
behalf OF one whose principles thew ahhor.
Israel Russell sworn-Was the bearer of a dag Of truce
from Browns party TO the citizens of the Ferry. lis ties.
umony was merely in confederation of the facts stated
by the previous witness.
Terence Burns swOrn-was taken prisoucrb y Captain
Cook and two Others was one OF the two hostages CON
fined IN the engine house Brown had FIVE or six of his
men there; did not give any reason to us why we were
put there, except that il was for his own safety he said
he did not think any attack would bc made upon the en-
gine house while the hostages were there.
Here the defence closed their testimony. None of the
Witnesses were crosse xamined for the State.
Mr.. Chiffon, for the prisoner. rose and admitted a mo-
ton That the prosecution in this case be compelled 10
elect on the one indictment aud abandon the Others
The indictment consists of four counts. and Is endorsed
thus =" An Indictment for treason and advising and
consplrtng with slaves and others to rebel" and for the
chargeo OF treason as in the fret, aud the second count nj.
leGes a charge different from that which i endorsed m
the back OF the indictment and which is upon record
The second count Is under the following statute :-"If ,
Tree person advise or eOnspire with a slave to rebel or
make an insurreetion. be shall be punished with death,
whether such rebellion or inSurrection be made or NOT
But the second count of the indictment Is that these mar.
ties who are charged by the indictment conspired togrth-
er with other persons TO induce certain slaves the pro.
perty Of MeSsrs. Alstadt and Washington TO make rebel.
non and insurrecuon. There is a broad distinction be-
tween advising and conspiring with slaves 10 rebel and
e%onsPiring with Others to induce slaves to rebel. Wheth.
er he was 10 avail himself of their irregularty nv IN.
struction from Court TO the jury to disregard this second
count entirely, or whether il would be proper 10 wait
until the conclusion of the trial, and then move an arrest
OF judgment he left his Honor to decide. lie prop.,ed-
ca argue the motion that the prosecution he com
peeled TO elect one count and abandon the Others opo,ip,
Archlbalds criminal pleading in support of his view
lie further alluded TO the hardship which rcsts nm, ,ho
prisoner TO meet various and distinct charges in The same
trial From the authority he read il would be seen tb.t
IN a case oil treason, different descriptions of treason
could not be united 10 the same indictment-hich trca-,n
could not be associated with other treason. If an infe-
nor grade of the same character could not be inclpisd
IN separate counts still less can offences of higher rr.Se
Treason IN this coantry Is high treason. Treason against
the state OF Virginia l. treason against her soyereiruty
We have no other description Of treason. because :re,-
sSh can On'{ De committed against sovereignty, whether
that OF the United States CT Of a sovereign State.
Mr.. Harding could not see the force OF the objection
made by the learned counsel on the other side. In regard
10 separate offences being charged, these we're but differ
et parts of the same transaction. Treason ogains, ,bo
government Is properly made the subject Of one of the
counts. But we also have a count for murder for Il can
hardly be supposed that treason can exist without being
followed or accompanied BY murder. Murder rose ow1
OIL TINS treason, and was the natural result of this bloody
conspiracy. Yet, after all the evidence has been giveyy,
on all these points, the objection Ia made that we must
eonhne ourselves 10 a single one of them. he hnnaS
that no such motion would be granted.
Mr.. Hunter followed on the same side. He replied 10
the argument of Mr.. Chiffon, saying that the discretion of
the court compelling the prosecution to elect one count
in the indictments only exercised where great embarrass.
ment would otherwise result TO the prisoner. Az appIed
to this particular case, it involved this point. that NOT.
withstanding the transaction, az has been disclosed nv the
evidence, be one transaction, 4 continued closely con
neOted series Of acts, which, according TO our appreben-
sion OF the law OF the land, involves the three great of.
fences OF treason, conspiring with and advising slaves IN
make instruction, and the preparation Of murder
Whether 10 a case Of this character, il il right and pron-
q icr the court TO put the prosecution unun their cleo,
ton as 70 one OF he th.se, ana haF as from. investigation
involved in one grand fact. notwithstanding the multi.
pleity oil duties deyolvlng upon the prosecutor aud a-sis-
tant prosecutors, vet we have found time to be Guarded
aud careful in regard to the mode of framing tic indict.
ment IL IS my work, and ! propose to defend it as right
aud proper. lie then proceeded to quote Chitty'. Grim.
iual Lav aud h0binsans practice to prove that the dis.
erection Of the court there spoken of in reference 20 the
iurtherlnce Of the great object in yies-the attainment
OF justice, where the prisoner j. not embarrassed in tn,t.
ing his defence, this discretion Is not TO be exercised by
tue court, and no case can be shown where it has been
thus exercised where the whole ground ri the Indictment
referred 10 Jus and the same ,raasactirn. This very case
in point would show the absurdity Of the pripriDl. m Il
were as broad "a commended for by his learned friend. A.
20 the other point OF obiection, IL va too refined and AMI.
tie for his poor intellect.
Mr.. Chiffon rcsponded-In o6der to ascertain what +,
party iS tried for, we must 60 to the finding of the Grand
jury. II the Grand Jury return an indictment cbarpinp
the party with murder, finding a true bill for that and he
should DC indicted for mandaughter or any other oGeue,
the court ~ouii not have juiisdiction 10 Try him on thai
count ln the Indictment, and the whole question turns
on the construction Of the section Of the statute which
has been read, viz whether or not advising or c%ouspirinp
with slaves 10 rebel, isa separate and distinct offence from
c%Onspiring with other persons TO induce il,
The Court said that the difference might perhaps h,
taken advantage Of 20 move an arrest Of judgment: buI
the jury hndbccn char yed aud had been sworn TO try III,
prisoners en- the Indictment a. drawn. The trial nu1t q.
on, and counsel could Afterwards move an aTre.t OF Iujg
ment Asto thc other objection, the Court made this an
sWert The very fact that the IN nee can be- charged in diff
ferent counts. varying the language and circumstances. i
based upon the idea that distinct offences may be charge,
in the same indictment. The prisoners are TO be tried OF
the various counts n IL they were various transactions
There Is no legal objection against charging various crime
in the same Indictment The practice has been 20 nut
party upon election where the prisoner would be embar
rasaed IN bis defence; but that is not the law. In thi
case these OhcuCes charged are all part Of the sam.
Transaction, aud no case j. made out for the court to IN
teriere and put the parties upon an election.
W. Chiffon Fad he would reserve the motion a. a bl
ss for an arrest Of judgment.
W.. GHswOld remarked that the position Of III N
. present counsel Of the prisoner was ono Of very grea
b embarrussment. They had no disposition to Interior
With thc coarse af practice, hui L was the desire Of III
r defendant that the case should be argued. lie sur
= poeed That counsel could obtain sufficient knowledge q
the evidence previously taken by reading notes Of IT,
v But 10 was now nearly dark. n IL was to be argued
nI, ho supposed the argument for the commonwealth
, would probably occupy the attention Of The Court unit
She usual time for adjournment, unless Il was the inter
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