The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1877-03-02

persons named by Kelly as being 10 the
conspiracy and murder fled the same time
you will consider whether this fact should
be taken IA CONFEDERATION of Kelly. 81 also
may be the fact if found to be so that Tuily
went to Wilkes Barre changing his uame.
IT, however, he changed his name on nc.
count of some other otitnse il ought not To
affect him here. You will ais, bear in mind
the proven and known fact that IN the min-
ing region, miners and other are often going
from one point to another in connection
with their business Upon this question Of
confederation, as well as upon the direct
charge the testimony of Louis s. Parr, if
believed, has an important bearing in the
case of ii ster. He tesllfes that he over
heard a conversation between DInohue and
Hester, while in cell together, in which
Dpnohue said, That was Il bad business,
killing of R-a;" that Hester replied it
was 50, and =" il had to dp il over again,
would MT do it, but never mind, plenty ui
witnesses can be got to swear we were not
there" For the purpose of affecting the
credit OF tli, witun~, It "a .hiwu by the tes-
timony OF Sheriff M,larl that tn, orders to-
the police we're not ~ p-rntt ID Inpiu. IN
Hest H. be to ether, and ny VI y Wood.
ward tnut after III ester waS put in jail in
January 1869, h, had charge of the idii
he (Wooivard) was ab.rn', ami DJnohue
testified that he was not IN Ilcster's cell, anl
that no such conversation was had. Fac
testimony of Mr., Ikees, the then district
attorney. il evidence only for the purpose of
showing that PARIS statement is not fajri-
cation of recent date, and not that the state
ment of Parr Is true. That is question for
the jury to determine.
The defense of alibi is set up for Patrick
Hester 1t is claimed that the testimony of
the witnesses rs to his whereabouts on the
evening and night of October Is, establish
that he was not at the saloon OF Donohue in
Ashland, when and where the conspiracy to
rob and murder Mr.. Rea was concocted, rs
testified by Kelly. The defense Of aibi is
| to be closely examined whenever it Ia set up
1t should cover the whole of the time of the
transaction, so As to renier it impossible that
the prisoner could have been at the scene,
and when it is employed to destroy the force
of a fact alleged or proved by the prosecu-
ton, it should cover the point of time with
clearness when the alleged fact occurred.
Evidence in support of au alibi ought to
be- examined with a rigid scrutiny invol-
| wing, rs it does, an inquiry into time in re.
gard to which mistakes may be honestly
made and perjury may be committed al
most with impunity. But when it is sstab-
lished by unsupported testimony it Is the
| best negative defense that can be offered. II
is then really positive evidence, which in
the nature of things implies negative, and
| in many cases is the only evidence which an
innocent man can offer. But if this defense
is false, when defendant fails to establish
it by reliable testimony, his attempt, al
though not conclusive, is strong evidence
against him. The difficulty in fixing time
by the memory OF witnesses whose attention
is not called to the subject until some time
afterward is known to every one. Actual
facts which have occurred may be mistook
or be Intentionally SO transposed as to have
been apparently concurrent with the hap
pening of some other event. 1t is your pro-
vince rs we'll as duty to examine the evil
dence on this subject with care
Kelly says that Hester missed the train
to Mahanoy Plane and came on in the after
noon of the 10th of October to Ashland. 10
disprove this fact the testimony of John
Donohue is introduced to prove that Hester
was at the Pane that afternoon. L. is also
shown that en- that afternoon, afier banking
hours, Hester deposited draft in the bank
at Ashland. Ii is claimed that after he came
to Ashland he could not have been at Don
ohue's saloon on the evening of the 10th oil
October as testified by Kelly. On that sub.
ject you have the testimony of Patrick Fa.
hey, Luke Richardson, John Britt, Dennis
Mclaughlin, Peter Luby, and Thomas Cas-
ey. which it is claimed establishes that he
was not at the saloon, but at other places du,
ring the evening and night. The testimo
ny is not to prove an alib as to the time o
the murder, but it is in fact an alib as t
the alleged, conspiracy. Does it prove t.
you by reliable testimony that Hester coult
L.,,,n hon ~, IL, =. L..
the conspiracy as stated by Kelly, aud tina
Hester did not stay with the party a: the sa
loon that night? Before so concluding you
should be sure that the fact was 30.
If it proves to your satisfaction that Kel
lys testimony is false as to the conspiracy a
Donohue's saloon, if the alibi is made out
then the testimony of Kelly as to that con
, spiracy is etftctually destroyed You viii
carefully examine the evidence on thi
point. These principles or rules on the sub
ject of alibi are applicable in several instan
ces in this case. 1t il alleged that Heste
. could not have been at Ashland in the after
noon o: the 10th of October, because he wa
) at Mahanoy Plane; that he could not hav
f ben at Donohue's saloon, because on tn
| evening and night of the 10th he was at 9th
Q er places; that he could not have been see
. by Kelly, McHugh, Tully, Smith and Lai
l ferty on the morning of the 18th of Novem
, Der, the day after the arrest of Donohue, be
J., cause he had started for the west on tn
!, night CT the 10th, and as to McHugh an
= Tully an alibi is set up that they were q
a Michael Graham's during the morning q
i. the 18th, and therefore could not have bee
r upon the mountain at the murder of Res
9 Examine this evidence as to these matter
4 with care. If you find the facts to be as u
e legged, they make strongly tor the defend
ants, but if false, the fact of asserting thei
: as true is a circumstance against the defend
Y ant setting them up.
C The credbilty of witnesses is for you
:. decide for yourselves. You, aud not tn
/. court have to deal with facts. When test
e mony is contradictory it should be recor
}, cied if possible. If not susceptible of r,
u Cancellation it must be weighed by some di
}. cretion and determined as one or the 9th,
d prepOnderates. If after all the mind il ba
n anced it is reasonable that il be determine
n against the party alleging the fact. In d
g. Gliding upon the facts the circumstances
u the case the probable or improbable natu
u of the facts detailed the character OF Il
l. witnesses, must be all taken into consider
tion, after being duly weighed, to carry col
y viction to the mind of the jury before tn,
T. give it effect by their verdict. If the tes,
~ InOny OF witness does not carry bell
st home To the mind OF the jury in view of a
W the circumstances OF the case in due cons
N Grafton they should reject it. On the co
h; trary it. in view ofthe whole case, they
ID believe the testimony they may receive az
ia act upon it although it may be co tradi
{, ted by other testimony. When the cha
ie acter of a witness for truth is impeached al
ID shown TO be bad, the jury should exami
r. | carefully his testimony aud if he be not ca
er roborated they shonld act upon it with &C
ls ton.
IN In regard to the corroboration of Kelly
o to Tally and McHugh you have the e,
s. dence of their connection or companionsh
ne before the murder of Mr.. Rea; of their b
u ing together on the morning after Donoh
fe was arrested rs testified by Morris Morr
It. on You have the testimony of Mrs. Earn
u | worth ns IN thesa tIree nar.nna hurriad