Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1881-05-13

confessed felon- He held back the truth
when he was on the witness stand Strike
out Fassett and there is no case at all against
the respon dent. Did he on the stand tell
the truth, the whole truth. and nothing but
the truth?
Mr.. Ballard then reviewed the testimony.
These men had no Legitimate business at
Lavigne's. They sang some songs and Nc
Cullough knocked Barrett over the stove
That was oil they did. The Merciers went
in and stayed five or ten minutes. They
were quiet and peaceable and had no words
with the Mccullough gang. They went in
The second time and then passed out. They
again returned and said something about
sending the others home and then accord
ing to the States witnesses a fist came
through the door. Is this credible Did
Mercier. with no provocation and entirely
peaceable up TO this time, strike the first
blow, or did Mccullough, the man whom
Sheriff Drew testified was, when in liquor.
quarrelsome and ugly and would hit head
wherever he saw it ? The crowd rushed out
of the store-six to three What became of
the Merciers Not one of the States wit
nesses saw the younger one He fed be-
cause he was assaulted. Nash, with his hat
and coat off, rushed up to the elder Mercier.
The latter said ''you are not going to strike
mt, Dut he ulu StTlke HIN
twice The third Frencbman, yiens, was
assaulted by Mccullough and ran away.
The respondent was left alone. Was he GO
ing to murder that crowd or was he going to
save his life by flight? A reckless, danger
Gus man, with hat and coat OIL, followed by
Fassett. chased him down the hill. Flight
is self-defence. 1t shows cowardice or a dis
inclination to take the pursuer's life. Mer-
cier was heavier man than Mccullough and
wore an overcoat at the time. In chase
Mccullough must have gained upon him.
Fassett, the only eyewitness of the alleged
clinch at the foot of the hill, is a worthless
fellow and disgrace to the city Shall HIS
testimony be believed? Every one Of the
States witnesses has been convicted over
and over again of infamous crimes. The
case against the defendant rests upon their
word. Nothing can be predicated against
MERCER simply because at some previous
time he owned knife. Mr.. Ballard then
went on to argue that if Mercier did stab
Mccullough as alleged by Fassett at the foot
of the hill he was perfectly justified in so do
ing and made an eloquent appeal for his
clent-a man with a wife and child and an
aged mother dependant upon him.
STATES ATTORNEY BINGHAM
closed the arguments. He maintained that
the position taken by the defence had never
before been assumed by an attorney in this
State. The question is whether there is sucf.
O reasonable probability that this respondent
would be indicted by the grand Jury that
this court shall commit him This court is
simply court Of Inquiry, and the court is
to exercise sound discretion in the matter.
Tue question of Mercier's guilt is not 10 be
passed upon at this time This court is not,
US maintained by the defeuoe, acting sub
stantially in the place Of the grand jury. 1t
does not inquire into the guilt of respond
ent as much as does the grand jury.
Not particle OF evidence has teen pre-
sented in Mercier's defence. All the claims
counsel have made in his behalf have no solid
foundation. Mr.. bingham then briefly re-
viewed the salient points in the case as de
veloped in the testimony and claimed that
the State had made out sufficient case
against Mercier to justify the court in com
hitting him for trial by the county court.
THE DECISION OF THE COURT
Judge Haselton then announced his deci.-
| ion, as follows 1t appears that on Monday
| morning Mccullough died Of stab in the
abdomen received the Saturday night before
The first inquiry is as to who struck the.
blow. After all parties left the saloon and
after the fight at the door the respondent ran
over the hill, pursued by some members of
the party. There is, think, no reasonable
doubt that Mercier was the man who ran
down the hill, chased by Mccullough, and
others, throwing stones. Fassett was only IA
short distance behind Mccullough think
it is an undoubted fact that Mccullough was
stabbed somewhere down the hill and the
circumstances We're so strongly against Mer-
cier as to justify holding him for trial. The
| nd u.lQ nf ba afahh
factorily fixed. 1t seems that Mercier has
stated that he did not do the stabbing and
that he had no knife. II that is true, Mer-
cier is right in saying so and in maintaining
it. Still the circumstances are against him.
1t appears that he had been accustomed to
carry knife. The respondents theory
therefore requires explanation. The proba-
bility that he had the knife that evening is
very strong. The circumstances indicate
strongly that Mercier did the stabbing, and
his theory is not sufficiently sustained.
We now come to the inquiry with what
intent Mercier did the stabbing. Ii he did
it in self defence the law excuses him; if he
did it in the fury and heat of blood the law
would call it manslaughter if with malice,
murder in the second degree with full
premeditated malice, murder in the first de-
| gree. How did the difficulty at Lavigne's
arise 2 Most of the direct iesfmnny ra,nA.
from what must be called bad sources. 1
am only to judge of witness from his sp-
pearance and conduct on the stand and testi-
mony adduced as to his character. The
source of the testimony makes it difficult
and embarI asslng to sift out the truth. The
party of McCullough's friends had spent
the evening at Lavigne's store, and
the first inquiry is as TO their
degree of sobriety. Lavigne, it appears, sold
beer; and it is extraordinary, as held by the
defence, that he should wish this party to re-
main, simply for the pleasure of their COM
pany. Mccullough, it must be admitted,
who was an inoffensive man when sober, was
under the influence of liquor and was in a
belligcrent mood. The Merciers went into
the store and called for beer, and if they did
not before know what kind of place it was
they ascertained then. They went back q
second time and then or shortly after, q fight
took place at the door The difference be-
tween the testimony of Nash and that Of the
rest of the party can not be misunderstood
ing. The latter say there was heavy knock
at the door, the door was opened, and "A blow
was struck in But Nash says that as the
Merciers were going out they made an Of
fensive remark and the Mccullough
party rushed upon them 1t would not
be Just 10 say that the Merciers were
the assaulting party. 4 fight occurred
at the door, AMI 'ha is all unGer the testi-
mony that eau said ON that subject. Ii
appears that some remark was made which
ordinarily would not provoke any trouble but
which under the present circumstances led
to an assault. The fight at the door must
have come to an end very quickly. The
States witnesses all agree, | Relieve, that
after this some one came back towards
their party and that he came to Mccullough,
threw a stone at him, and then ran down the
hill, Mccullough pursuing. Sullivan did
not identify this man as Mercier but Fas-
sett claims to have done SO. The course
which Fassett says he took corresponds
with that which Mercier says he took. The
probability is very strong that the identifica-
ton is complete. 1t can not be regarded as
fully decided whether or not the flight down
the hill was a part of the original ARRAY.
or whether it took place later. Grant
ing that the race down the hill was
between Mercier and Mccullough and that
Mercier turned and stabbed his pursuer.
what was his motive Was the stabbing muir
der or an act of self defence. When Mer-
cier turned upon Mccullough he must have
followed out line Of thought This would
be malicious fOrethought, legally, and the
stabbng would be murder. On the other
hand it might have been that reasonable
forethought which man may justly exer-
else in the defence of his life. Mercier says
that he did not inflict the blow and had no
knife. 1t does not follow that because man
denies killing n man, when he did do it, the
fact initiates against him. 1t may, however,
indicate that lie committed the act from I'M
jus,tiable motives In Mercier's present
attitude he must be treated "a having deliv-
cred the blow. lie prohi:,i, had II knife
that night and his denial II it would
tend Ia show that he did not
use it from what he considered justifahle
motives. do not think | can he asked to
say that Mercicr did outrun Mccullough and
did not iuflict the blow, and that his denial
Of possession Of the knife would not indicate
unjustifiable motives.
Furthermore it appearsihat afterthe atfray
Mercier returned, threw II stone at McCul'
Tough and ran. This, if true, would give a
darker tinge to Mercier's conduct and char
| actor II rrnull Indicate a considerable do