The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1869-09-24
governmen mt shows, that he did turn, that he
had his back and not his face at the foot of the

teStomouy must he such as to exclude every
other suppOsition or hypothesis.
Ihe proofs not to be q mere preponderance
OF testimony, but 1t must be such as TO eXcu
every other reasonable hypothesis. Now adj
litt.hg every thing introduced by the govern
lneht giving full force to every word uttered
~ every witness on the part of the pro1ecu-
tion, add to 1t every Inference AMI nresumn-
ton that you have a right To- draw frnn that
testimony, and 1t is not Inconsistent with the
hypothesis that this man was eli her i, hia W
lent effort to throw Murphy down. or that bn
fell IN tue way Murphy says he did. from, Ii,
breaking his hold on him. II i, not mere by-
pothesis, nor mere supp sltio1. Ir is proved
t. you by sworn testimony which is not con
tradicted by any other witness
Here is a defense proved bv the sworn evil
dence, and Il Hypothesis Inconsistent with
guilt at least. A state OF facts proved and
sworn 10, Inconsistent with guilt and therefore
by that principe of law fatal - any Dretence
that jury can found verdict Of guilty upon
it.
Am correct in the statement ] made to
you that the government themselves upon
their own testimony, have proved This iact,
the material act 10 which L have called your
attention, III this connection, which is, thai the
deceased was still persistiJg IN tue attempt To
get back 70 No 10; that h. was resisting any
effort to take him away from The door he at
temod to break open
LIE anc ates what have already repeat
ed, that he effort ot Murray was to 90 alore
the corridor towards Commercial street and
thai the effort of Shea WAS To get round him
to prevent him from going that way aHd that
when Shea was III the attitude of striking
hun, Shea had his back and the man had bis
face toward Com mercial street, and Shea was
trying TO get him away from that end OF the
passage Way. Now he says that it was not
more than Two minutes after ne heard the
noise of the struggle, before he opened the
door aud that " hen he opened the door the
parties were clenched together, and that this
other man after they tussl d a little together
came back and knock ed the man down. And
you must bear in mind in this connection that
when they C me back, Shea was with his back
toward Commercial street, and that the de-
ceased was irving to get TO No. 10 and con-
tinued his efforts to get there and when he
broke away from Shea, he did not run toward
the passageway, but that he fled toward No.
10 escaped is the witness expression, but
there is no propriety in using that word to dis
cribe the action of the deceased. He had been
trying to break into No. 10 and Shea was try
ing to take him away from there. He had got
him between No. II aud Is along the corridor.
Now if he wanted to escape from Shea, there
was no way to escape in the cM de sue of the
blind passageway, that led to the end where
No. 10 aud 20 were. II he had tried to escape
he would have gone toward the Staircase
But Shea was trying to get him
toward the staircase and he was trying
to get away from him to continue his
attack upon that door and break into that room
and therefore, when his hold is released, he
starts again for No. 10. Then Shea tries to get
round him again to prevent his going there,
and TO use the words of Leblanc, "there was
tussle,'' and Shea got the man down and tried
to kick him, and then Murphy rushes upon the
scene of action. / recur again to this in order
to show you, that they prove by their own tes-
timony, that this man not only continued this
feloni0us assault here, but he made an assault
upon the person of Shea as he did afterwards
upon the person of Murphy, in his continued
effort to get back 10 this passage.
q Now gentlemen, you must be aware, that in
the consideration Of this case, thus far, have
looked at it just as if it was precisely Is tie tie
government claims it to be. But would like
to know what evidence they have introduced
in support of the hypothesis of this case as
stated in the opening of the learned County
Attorney. They claim that this man was right
fully in this hotel-rightfuly in this corridor
OF the hotel-that be was in search OF his vile
that he was committing no act of violence-and
that is the theory upon which the grand Jury
indicted him-that is the representation of this
case which has been made to the community.
If there had not been in the minds of this peo-
pie, these erroneous ideas, which have not
shadow of foundation, in fact, the Grand Jury
would have perfectly well understood that this
man lost his life as he did lose it, in an attempt
to commit felony, and that this prisoner was
as free from any malice or murderous intent as
he has proved himself to be upon this trial and
you or are today The Grand Jury got the
idea that this was the case of a very worthy and
temperate man, and the government undertook
to introduce witnesses (among whom was Peter
Welch) to prove his sobriety. He gave him a
glass OF gin aud poured on top OF it glass of
ale. He was going to make him o sober man
who drinks twelve times a day. He was in
search of a wife, whom he supposed was Sc
GREETED 10 that hotel, and in that search this
peaceable man was killed. All the evidence
you have that he ever had a wife, is from this
fellow Peter WEIGH. I'd
know there is an inference which the gov
eminent wants you to draw-that this man
might have thrown Murray down stairs-but
L know, and you know, that there is no such
thing proved here. No man saw him, no mau
says he saw him, and if YOU find that Murphy
With malice in his heart, threw Murray down
that staircase, when he swears positively he
did not do it, and when there is not circum
stance in his conduct that shows any such pur-
pose, you have got to hDd it in direct contradlc-
ZION OF the testimony on the stand.
Now, gentlemen, have one word TO say t.
you IN This connection. with refere nee to what
may be SAID Oh the part of the government in
relation to the offence of manslauehier. There
i no question OF manslaughter here; either
Murphy killed him when he had no right 10
kill him-took him aud threw him down tairs
when he was, as the government SAYS, where
be had right to be, thus mmiltiug murde.
or else, what he cid he had a right to do, and
1t was iustfieble homicide. There is no queS
lou OF manslaughter III the Case. Iflhe Grand
July VI tuc r. OeCtubius dJLOEuty udu utclHtu
this a case of man slaughter, the indictment
would have been so framed; but, eentl me u,
hey knew il was either murder or justlfiaule
homicide. The grand jury did their duty in
hndlng it 10 he form in which they did, anu
You cannot do yours W. bout you pursue tb+
same issue that he prosecuting officer dill III
his case, and find him guilty of murder or say
he Is not. II YOU fluid any il ten mediate
point you are trifiiug with your duty, with
tie cause of Justice and this mans lie and
| M nd on inta li,ta io
tind something that the grand jury could moi
hnd, that the prosecuting officer could not fiud,
uor any body else in this case, and it is triflin
with the cause OF justice, with your respousi-
hliltieS and your duties, and with this mans
Life and liberty, If you meet il upon any other
basis than that upon which the government
have placed before you. ...
Murphy went up there TO protect female in
noceuce, and to protect those persons from the
violence or murder which they supposed was
about to be inf cted upon them, and instead OF
killing him as maintain he had a right to do,
what did he in tact do? What does The testi-
mony show? Why, that he went there and
tried to demonstrate with him, that he dragged
him along the passage Murray all the time re-
sistIng) to deliver hun up to an officer of the
law. When in such a resistance death ensues,
there Is no case of manslaughter, but the case
of man who has simply performed his duty.
1t is homicide Sc d.fenenddo
Even if there was no justification for this
act, the government have not proved to you
that any murder was committed by this man.
In the first place they have not absolutely
proved that any murder has been committed at
ALL There is no proof here that this mans
skull was broken at the time no fell down
stairs. do not say there is no evidence tend
| ing to show it. l do not say there is not evil
dence from which you might not be satisfied
| in civil suit that there was the preponderance
| of proof, but do say that they have not proved
as they are bound to do, that his skull was bro
ken at that time beyond any reasonable doubt.
| His skull was only 1-24 of an inch thick; il
| might have been broken the Doctors say by
| the blow from a mans fist. Ii such was the
| fact, could it not, and may it not have been
broken by kick from Shea. If so then there
is an end of this case. But gentlemen, before
| yon find this man guilty of the crime with
which he is charged, it must first be proved to
you and proved beyond a reasonable doubt.
Are you satisfied beyond a reasonable doubt?
Have the government proved to you to the ex-
clusiou of any other reasonable hypothesis
that that mans skull was broken at the time
he came down those stairs? The medical tes-
timony on that point is merely a matter OF
opinion. They say they think it was done at
the time for the reason that there was no alb
rasor of the skin. / do not know why the
bottom Of a mans foot would make any differ
ence in the appearance of the skin, than it
would have if the head was thrown upon the
floor. Suppose Shea, when Murray was on
the floor in the corridor, had simply pressed
on his head with his foot, would not that have
broken his thin skull much more easily than
the blow from mans fist? Why s-ntlemen
that skull might have been injured in a hun
dred ways, and all reasonable hypothesis, and
are you ready to say upon your oaths that his
skull was broken In that fall down stairs. apt
in no otherway? The physician tells you that i
is not inconeeiyable and not impossible that h