Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-02-19

the principal fact, the subject matter Of
inquiry, and by virtue OF their necessary
connection with said central fact, throw
the convergsnt light upon the same, de-
VelOping upon Judicial inquiry, the act
and the actors
THEORY OF THE PROSECUTION.
The theory Of the prosecution has been
that these defendants conspirsd with
others to take the life Of John ". SchO-
6eld in the manner set forth in the In
dIetm6nt. II there was such q cOnsplr-
acy, then the acts, conduct and dsclara-
ttons OF each c0nspirator before the
hanging are admissible in evidence
against each and all of said parties, were
they on trial, as Illustrating a common
intent and purpose. Whether there was
such a conspiracy is q question Of fact
which you u gather from other facts
and circumstances in the case. A cOmbi-
nation or agreement between two Dr. more
persons 70 do an illegal act Is a conspiracy
from the very nature Of It's formation
seldom proven by positive, but almost
universally by cirCumstantial evidence.
Without this is shown the acts and de-
clarattOns Ofthe parties tending to crimt-
nate, unless in the presence Of others.
only affect those doing and making them.
But II, in your minds, t is established
that the wills Of those parties concerned
in affecting a common object, and that
object was the death of John ". SchO-
field, by the means and In the manner de-
scribsd in the Indictment, then, after the
existence Of said conspiracy, the acts,
conduct and declarations Of each, in pur-
suanc8 Of the common enterprise, would
be competent evidence against the others,
and this whether in or without their pres
ence.
TIE MATURE OF A. -NsPIRACY.
It has been said that a conspiracy has
the attribute Of Individuality, so far as
regards the prosecution Of a common de-
sign each, SO to speak, acting as the agent
and binding his COnfederates. You will
observe that the acts, conduct and decIar-
alton Of each conspiratOr before the COM
mon object is COnsummatsd, bud all the
others. but after the common purpose has
been et5c5et such is not the case, and
then each IS only responsible for his own
conduct, words and acts, when not in pres
ence of the others. Buff you think that
these defendants neither %conspired with
each other, nor with others, then what
each may have said or done will only tend
to eliminate himself, unless the other was
present and was implicated, directly or
Indirectly, by what t~ranspirsd.
A CONCLUSION TO BE REACHED FROM ALI
THE o IN Fl CAUSE.
Keeping in view the principles enunoi-
atsd by the Court, you viii see whether
the evidence, fixing upon the defendants
at the bar the murder OF John ". SchO-
field has been sustained, either by other
| witnesses, the attending circumstances
developed IN proof, or by the acts, de-
meauor and declaration of the alleged
cOuspiratCrs. You may, IL you choose,
lay aside the evidence OF the accOmDlicss.
aud see If, from the other proof in the
cause, the defendants have been sufficient
" identified as the guilty parties who
participated in taking the life of the
deceased, But you VIII look at all the
proof in the Gauss, and from this reach
your conclusion. If you find a conflict
OF testimony upon maberial points be-
tween the witnesses, it is your duty to
reconcile the statements if you can but
if this can not be done, you viii look at
the responsibility, intelligence, OppOrtu-
mites for observation, honesty, motives,
Influences, department and appearances
while being examined, and from these
| c"riJsriOns-aud It may be the additional
fact whether or not they were otherwise
sustained form your estimate Of the
credit to be given the different witnesses.
THE ALIBI SPECIALLY RELIED UPON.
AS TO one of the defendants, an abb has
been specially relied upon as a defense
When this is clearly established, it ts con-
/ elusive defense Of innocence, for it ia but
a recognition Of that maxim in physics
J LlAu hWb LgAlEa CALADG 0EtADE H4G aALAAb
/ space at the same TINA" But whenever
the defense, in your judgment, hiss been
uusuccessfully attempted, IL is a CirCum-
stance of pregnant significance against
! the defendant. Whether, in this case. an
alibi has been satisfactorily shown, YOU
are to determine from the character of the
witnesses dspOsiuE as TO this point, their
relations to the defendants as sllscJiug
the probabilities OF their statements, their
integrity Of purpose, the opportunities
and probabilities of their seeing, hearing,
knowing, remembering, and correctly re-
porting the facts within their knowledge,
rather than the mistaken -inferenCes o. the
minds or the suggestions Of their magma
tons. That Won may be enabled to reach
a correct conclusion on this most impOr
taut point, you may see If the testimony
Of witnesses is at variRnce or harmOuizss
with the well authenticated facts in the
case. The proof tending to show an alb
must outweigh all the proof in the case
tending TO show the defendant as present
at the commission of the Ofense, before It
can become a successful defense.
PRO AND CON.
Circumstances rsIsd upon as crimlna-
ting, are to be weighed not as isolated
facts, but in reference to each other, and
the entire proof in the cause should be
examined and compared, aud their credit
and significance estimated.
If parties are accused Of crime, and it is
proven thst they have fabricated evidence,
or attempted It's fabrication, it is a cir
cumstsuce indicating guilt,
WHAT TIE LAW REQUIRES.
The law requires that the guilt of the
accused shsu be shown in such a q
as to exclude any reasonable hypothesis
Of innocence. Not every possible, but,
the court repeats, every reasonable hypO-
thesis except that of guilt. That these
defendants participated in the hanging of
John W. SchOhsld should be shown to
your minds beyond the existence of a
reasonable dOuDt-nOt a possible, but a
reasonable dOubt-for there is nothing
depending On moral evidence but what is
susceptible of some possible doubt, The
doubt must be something more than mere
conjecture; a trifing, shsdOWy suspicion,
a vague apprehension. 1t should be a
real, substantial doubt; not arising out
side Of bat springing from the proOfin
the cause. You should feel that upon a
survey of the entire proof there is not
generated I'm your minds a belief in the
guilt of the defendants, to the exclusion
of this reasonable doubt.
THE CASE GIVEN TO TIKI JURY.
In one word, upOn a review Of the
whole proof, you ought to feel that the
doubt then entertained, if in character
and degree could be transferred to the inn
pOrUanb concern OF JIG 70 your mhb3rlhl
interests, it would not govern you in
your course of conduct, nor prevent you
from acting in reference to these per
sonal matters. A mere preponderancs
OF evidence should not warrant a con
viction, nor q mere possibility OF innO-
csnce an acquittaL If, in the sense
explained, You have a reasonable doubt
tina the defendants hung John W. SchO-
field, they should be acquitted; otherwise, |
convicted. If or both are f0undg gull
ty you will so designate by name and the
degree of the homicide. For murder in
the first degree the penalty is death. If
you think there are mitigating circum-
stances you viii return that fact with
your verdict.
Into your keeping is now intrUsted.the
liberty and life Of tho defendants.
After the delivery Of the charge the
court adjourned to nine o'clock. On as
sembling at that hour, an intimatiOn was
given that a verdict was not likely to be
arrived at, whereupOn the court adjourn
ed to nine o'clock on Monday morning.
THE MAN WITH II IRON JAW at New
Memphis Theater Monday night.
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