The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1869-09-21


T Tnas Tu d. Ioothaker Brunswick.
Enos true, Jr. North Yarmouth.
B Tqkey; Portland.
Hipridge U. ward ....................W indham
The following persons during the call excused
from serving, viz:-Fdward R. wingate, Standish;
Augustus e. Brown, Portland Albion bennett,
Bridgton; Levi W. Atwood, Portland; William C.
Beckett, Portland; Andrew j. Chase, Portland;
Thomas s. Jack Freeport; Emery Jones, Freeport;
Isaac F. Quinby, Westbrook; Edward Small, Port
land; William Spear, Cape Elizabeth.
The names upon cards were then recalled and YER
flied.
Frye-May it Please the Court: The prisoners be-
ing in the presence of the Court, move, your
Honor that the Clerk proceed to empanel j1ry for
the trial of the two prisoners.
ShepLey-May it please the Court: Your Honor
will remember when these prisoners we're set to the
bar and pleaded, the Court Inquired of me, as coun
sell it the prisoners would require separate trials.
In answer to that inquiry I stated to your Honor
that was rot prepared to answer being counsel for
both prisoners till had conferred with my associate
counsel. Immediately conferred with my associate
counsel different counsel for each prisoner) and i'm
mediately answered your Honor, that my associates
were of opinion that there cause for and that
should respectfully ask for separate trials, in which
opinion concurred that the rights OF both prison.
County Attorney said in reply to that notion that
he had no objection far he was concerned that
he would Immediately communicate with the Attor-
ney General, and if the Attorney General had any
such object he woud notice. Never hav
ing received any such information, we supposed that
the case of Murphy set down in accordance with
that arrangement to be separately tried, and l.
therefore, respectfully oppose the motion Of the At
torney General that the two prisoners be now set to
the bar for trial, and 1 respectfully move, your
Honor, for separate trial of these defendants I
can say to your Honor conseentiousy, that do be-
leve these prisoners entitled to separate trial.
upon grounds, which, If they were refused and put
to the bar to be Jointly tried, would be- in my opn
ion. ample and sufficient grounds for a new trial
In case they were found guilty. One Of these de-
fendants has been examined as witness before the
coroners inquest the other has not. do not know,
caunot tell what may be made Of the evidence
thus obtained. do not know whether that man,
being himself charged with crime, was cautioned az
the law requires him to have been, and whether the
proper statements were made to him before he thus
testified. do not know what foundation was laid
or may be laid for admitting or excluding the testi-
mony of that one OF these prisoners in this case But
do know that necessarily from such state of facts
intricate and complicated questions arise, which
the most complicated and most intricate of which
are those in reference to the admissibility and the
effect OF the confessions or oral statements of a
party. How those facts may affect of these par
ties do not know; but your Honor will see neces-
sarily from the introduction of that testimony into
this case it may in its application affect the rights
the other party If these parties are tried Jointly 1t
will make delicate and difficult task for the prose-
cutting officer for the prisoners counsel and for thu
Court to steer clear upon these questions affecting
the rights of one party. that they may not so afee
the rights of another as to make this trial OF nc
effect This is only of the reasons. In this ca sc
it will not be claimed that the rights and the liab
ties of these parties not distinct and diverse from
each other The cause justice the rights OF thest
parties in trial involving their lives, require 81
clearly that they should be tried separately, that
do not deem it necessary to add any further remarks
Webb-Your Honor will allow me to reeur for q
moment to what took place on the arragnment Of thi
prisoner. wish to say that the understanding re-
ceved touching this notice to be given to the defend
ants counsel, referred exclusively to the time when
the Attorney General could attend the trial. At
that time, when suggestions were made of separate
trials, expressed my own personal indifference, but
carefully preserved and protected the rights of the
Attorney General to be heard upon the matter. !
to confer with the Attorney General and to no.
THY the counsel but by my understanding that relat-
ed exclusively to the time. did not suppose that
notice my part that the Attorney General did ex
pect joint trial could settle that question for any
body, but that it was matter he was to be pergona
ly heard upon by your Honor. addressed letter
to the Attorney General and asked his reply simply
as to the matter of time and upon receiving that
ply There being alluson in my letter to the sub
iect of joint or separate traD had information
to communicate upon that subject to the counsel fo
the prisoners. did not inform the Attorney Gen
eral until his arrival on Saturday that any suel
question was under consideration. 1t not neces
sary that / should reply to the remarks of counse
with regard to the effect of this proceeding l will
however, say, and feel called upon to say, that til
respondent who appeared before the coroner's jur
was fully and thoroughly cautioned, and was advlse
that he himself stood under accusation; he was re
lieved from the responsibility of the OATH he wa
urged not to make statements; he was very desrou
to do so. Let there be no misunderstanding. VINE
he first appeared before the coroners jury the cat
was administered, but before a question was aske
him, before he said anything, there was. some DELHI
Grafton between the members Of the jury and myse
there present. in my official capacity, in which it wa
concluded not to be proper thing to put him unde
oath; that he was told he would not be examined
him, anu ne was advised as to all his hazards Ono
he withdrew from the immediate presence of tb
jury, and was afterwards admitted unon h;o ou,n re
quest. Thus much feel bound to say to acouit Al
persons who had anything TODD with this nntor,r
nate affair of any suspicion OF having placed 9th.
OF these defendants in any unfavorabe position. A
to the merits of the particular question under Al
CUSTOM do not propose to offer any considerable,
with regard to it.
Frye-Cne word In reply TO the motion made
my brother Shepey. In the trial Of these capt
causes it has not been my practice to interfere in
way with what seems to be the rights of prison
but to give him SO far as 1 could, and feeling it
duty to do so, a fair impartial, full and compl,
trial under the laws of the country. When
question was presented to me, whether these m
should be tried separately, did not then, do 1
now, and 1 would not interpose my own person
convenience, the convenience Of the Court or the
pense to the county, or any Of these ordinary gu
tions, ordinary in c. mparison to the under tri
But it seems to me that the little time occupied
the matter under investigation Gt was all over ii
moment) the witnesses are witnesses to the condl
OF both prisoners; it seems to me that they are NJ
essariy and inseparably connected in all the in
dents of the trial. And, therefore, the time being
short, the witnesses 50 few, the circumstances
plain, it seems to me there can be no reason Civ
why these men should have separate trial.
Again, may it please your Honor eau see ano