The Portland daily press., 1869-09-25

even II his purpose was not felOniOus, his I'm
lawful conduct authorized Shea and Murphy
to believe it to be SO, which idea the govern
ment also offers for the same reasons that they
deny the former theory. 1 instruct you that II
The unlawful conduct of Murray was such a.
70 warrant reasonable belief in the mind u
shea that he really intended to ravisn or 1 hn
any person in No. 10, and Shea did ac1uany On
lieve it, Shea would be justified in ACUTE ~ II
such belief. 1 further instruct you rtin@
Shea found Murray in the dct OF a..o ait soma
felony, to ravish or rob, or 10 conh iI 5000
other atrocious crime or h hseye. he would be
excused in taking Murray's life, if necessary to
prevent the felony. . , =,
what understand to DC nrs s"u aesaf S Oh the
cause consider it particularly important in
this case. for do not understand that il is
contended that Shea or Murphy did then take
his life On the contrary, it is said by the de-
fence that Shea did not avail himself of what
they claim to have been his legal right, viz. to
take Murray's life, but contented himself with
running him from the door and preventing his
return until the arrival of Murphy.
AT this point commences the prisoners al
legged connection with the affair. The evidence
IMaLroIucea by the Government to connect
murphy with the death of Murray is circum-
slantiai only; that is, no government witness
s NV mat he sdic Murphy throw him down
the stars, or even that Murphy was in contact
with Nun at the time of his fall. And it is
RUE OF law that it is essential in circnmstan-
s sal evidence that all the facts should be con-
sistent with the hypothesis, that the clrcum-
Stances should be of a conclusive nature and
tendency, should to a moral certainty exclude
every hypothesis but the one proposed TO pc
FOUND, and be absolutely Incompatible with
the Innocence of the accused and incapable OF
EXPLANATION ON any other reasonable hypothe-
sis than that of his guilt Such evidence is al
ways insufficient where, assuming all to be
proved which the evidence tends to prove, some
other hypothesis may be true. That it is the
uuty OF the jury to CONSIDER whether the con-
nection between the circumstances proved and
the crime charged is necessary one, or only
casual and contingent, or whether they ,aeces-
sdrily involve his guilt, or ,only probably
So For where they establish merely some
finite probability in favor of one hypothesis
rather than another, such evidence cannot
amount to proof of guilt, however great that
probability may be. And the mere union of a
limited number of independent circumstances,
each of which is of an imperfect and inconclu-
sive nature, cannot afford just ground of con-
v:ction, their concurrence producing a result
of an indefinite and inconclusive nature, how
ever the degree of probability may be increased
by their union for right decision of the i'm
pOrtant question whether the prisoner is to be
believed in his statement that the fall of Murray
down that stairway was accidental SO far as
Murphy was concerned.
eminent and the prisoner at the bar touching
this question? Did Murray fall down stairs
by his own act, or accidentally. or in any way
for which the prisoner is not responsible, or
did Murphy, contrary to his distinct denial on
oath, throw him down? This was transac-
ton in which three men are said by the Gov
eminent to have participated. You have heard
an account from one of them only. The lips of
Murray are closed in the silence of death, but
where is Shea? Must not Shea have known
k..xr- 81 tho 20 H.
corroborated or contradicted the prisoner?
Could he not have shed some light on this i'm
portant question? But he is not produced
either by the Government or by the prisoner.
1 know of no rule of law to prevent the Gov
eminent or the prisoner from calling him to
the stand, although being indicted Jointly with
Murphy for the murder of Murray. Shea
might have declined to testify so far as his tes-
timony might criminate himself
do not design to intimate that the learned
attornies for the State and county have not
done their duty, but give you rule of law
applicable to all capital cases. For it, Under
all the circumstances of the case, they had
produced the best evidence and thus complied
with the rule, they are not in fault Shea has
not been called either by the State or by the
prisoner, who acquits Shea of all participation
in the crime charged. We get no light from
Shea. Ii, as the prisoner swears, Shea was moi
seen by him at the head of the stairs, wter e
was he? If he took no part in the removal OF
Murray from the corridor, what was he doing?
You have heard the evidence of the Govern
ment witnesses and that of the prisoner touch
iug Shea's position and conduct after Murphy
took hold of Murray. Are they or not in con
tradictOn? Can they or not be reconciled
What was the truth about the transaction al
that staircase? Is it true, as the prisoner has
testified, and as his counsel have argued with
great force, with great clearness and with great
elequence, that Murray fell down that stair
case or WAS he thrown down from the ton n {
the staircase as the Government SO ably ar
CUES? You must, 1 think, have felt the force
of the closing argument for the defence that
that passage way, turning from the corridor
around the stair rail was only two feet and
seven-tenths, and would not admit the passage
of three men together; that it would hardly
admit the passage of two men; and if there.
were two men there, one must have been.
pushed before or dragged after the other Do
the circumstances admit of the theory of the
Government, that this man was dragged by
both these defendants around that turn to the
head of the stairs? or does the testimony
indicate what has not, l believe, been
suggested, that II he was thrown down he
must have been thrown over the railing at the
end OF the corridor? No man testifies how he
was thrown The prisoner swears positively
that he was not thrown, and therefore, gentle
men, If you believe the prisoners testimony,
you cannot find that he was thrown at ALL
You can reach the question of the manner of
his testimony aid falling back on circumstan-.
tial evidence; the circumstances of the flight,
the position in which he was seen falling, the
position of the men who testify of this, who
saw the transaction, full or part of it, and the
other circumstances relating to this part of
the case. Do these circumstances satisfy you
that he was thrown down by Murphy? You
have seen all these witnesses on the stand,
have had an opportunity to observe their ap-
pearance, the degree of their intelligence and
apparent fairness, the presence or absence of
bias in favor of or against the prisoner, and to
Judge of the reasonableness of these state
ments. How far do they corrobOrate or con-
tradict each other. OF all this, as well as to
what their testimony actually was, you are the
exclusive judges.
the comparatively recent change in our law by
virtue of which he is allowed to testify. My
own opinion is perhaps OF no consequence in
this case, and yet / will take the liberty to
remark l never saw sufficient reason for
the ancient rule, and advocated its abrogation,
and still believe the present law to be just and
wise in principle and humane, and beautiful
In its operation You will determine what if
any allowance to make for the momentous
sense of personal interest under which it is
suggested that he has testified.
Where man is conscious of innocence, and
is unconscious of any act tending to cow let
him, it is not perceived why fear of conviction
an honest mind from the line of exact truth
In other words do not see why the testimony
of a man of courage and innocence need be
biased by the fact that he is on trial now for
his life. But if party knows he is guilty, or
is conscious of acts which if known, have a
tendency to find him so the case may be differ
ernt. Although am not prepared to say that
there have not been men, and there are not
men, whom the fear of death itself could not
swerve from truth a single hairs breadth,
though men have gone to the Stake rather
than recant single opinion, yet you will
judge whether ordinary men are not liable to
greater or less bias when under such circum-
stances.
But how far this prisoner has been thus BIZ
ased or whether he has been biased at all by
the position in which he stands you are the
sole judges, and it is not my purpose in what
have said to intimate any opinion of my own
on this point; but if did, still the response
bility would remain yours, and yours alone, on
this and all other matters of fact. As have
said, if you believe the prisoners testimony, he
is entitled to an acquittal. So if you are left
in reasonable doubt of his voluntary participa-
ton in the fatal fall of Murray, the govern
ment fails.
You will Judge whether he can be mistaken
or deceived in his recollection on a point SO
vitality Important. 1t You have no reasonable
doubt of the killing of Murray by the volunta-
~ act of Murphy in throwing him down stairs,
either alone or with the aid of Shea, what is
the preponderance of evidence in excuse OF
extenuation of the act? Possibly you may
disbelieve his story about Murray's fall, and
yet credit his statement that Murray assaulted
him at the head of the stairs endangering his
life by sudden attempt to throw him down
the stairway, or at least giving him reasonable
ground for that apprehension; if so, he is en-
titled to an acquntal. But ii you disbelieve
worthy OF YOUR attention: ''Fdlsus in uno, fal-
Sus in omnibus" which means that he who has