The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1884-10-04

Mr.. Lunt said he did not wish at this point
to discuss the question OF Jurisdiction. He
would take that matter up later on.
Col. Josiah Merrill of Bowdoinham, 90
years of age, was next called. He testified
that he remembered when the old battery was
standing on Hunnewell's point.
Reuben Blake of Bowdoinhsm also testified
to passing Huunewell's Point in 1918 and see
ing the fort standing there.
N @. Reed, for the last forty years town
clerk of Phipsburg, testified to the existence
of a battery at Hunnewell's Point years ago,
and at the request of the District Attorney he
brought in the town records from 1860 to show
that no assessment Of taxes had ever been
made upon the land or properly.
Edward j. Millay, formerly county attorney
for Sagadahoc was next examined. He testi-
fed that Sergeant Kelly present in court is
the same man who was indicted by the State
court for the same crime for which he is now
on trial in the United States court The wit
ness produced plan of Fort Popham, and
pointed out to court and jury the opening
through which Smith orawled into the fort,
the spot where he was shot, the quarters of
Sergeant Kelley, &c.
Col. Charles e. Blunt, colonel of engineers,
having in charge the Notifications of the
coast OF Maine, testified that Dennis Kelly,
the defendant, was at Fort Popham, acting as
orderly sergeant in July, 1882, and had in
special charge the ordnance, and stores and
other material stored there, and in the absence
OF any regular keeper he was in charge of the
land and all other property of the government
at that place.
AS this completed all the evidence intended
to be introduced to show the ownership of the
land, Mr.. Lunt stated TO the court that before
introducing any further evidence he wished
Tor them to rule upon the question of jurisdc-
tion. This being matter Of law for the court
alone, the jury was excused until 3 p. m. Mr..
Lunt claimed that he had shown that the
United States had occupied the site on which
Fort Popham stands for nearly three-quarters
Of o century.
Mr.: Lunt presented resolution passed by
the Legislature Of this State in 1862, which
called upon the United States to provide suf1-
cient Notifications along the coast Of Maine;
read from the memorial volume of the Pop
ham celebration the remarks of Gov. Wash
Durne, In 1862, regarding the name of Fort
fopnam; cited passage in Williamsons His
tory OF Maine, published in 1882, regarding
the fort at Phipsburg, and also the legislative
act OF 1862, ceding to the United States the
land purchased by the government at Fort
Popham, that year, in which one of the bounds
OF the purchase is spoken of as land of the
United States Several other special acts
were also cited, but none that covered the
original purchase by the government in 1908.
The act of Congress, providing for the build
ing OF the present fort, mentioned no special
locality, except that the fort should be built
near the mouth of the Kennebec river. From
all OF these Mr.. Lunt argued that the consent
OF the State to the Jurisdiction Of the United
States in the cass of Fort Popham may fairly
and legally be inferred
Judge Gilbert followed Mr.. Liant and took
objection to the decision OF the Supreme Court
Of this State that it had no Jurisdiction in the
matter. The case had been carried to the Law
Court on plea Of abatement, the United
States having done nothing about it until
about the time OF trial, when the District
Attorney claimed the State Court had no
jurisdiction, and il the case was proceeded
with he would take possession of the respond
ent by writ OF habeas corpus. The sovereign
power OF State cannot be alienated except by
an act of the people, and there had been no
such act in this case.
The court taok the matter under advisement
and dismissed court till 3 O'Clock, when Judge
Colt announced that they had not bad time to
give consideration Of the matter such as they
desired, and so would proceed with the trial.
Caleb M. Sevill OF Medford was called and
testified to being in Phipsburg on the 10Th of
July, 1882. Knew Francis A. Smith, and on the
morning of that day about eight o'clock was
in his company. Smith mentioned the rock by
the fort and We went into the fort through
the sixth port hole from the corner nearest Ser
gent Kelley's house; went towards his house In
an alley way; been in fort about two minutes
when we heard gate open and saw q man run
ming toward the place whore we entered; after
he got there he put his hand IN his pocket and
told us to clear out OF there; 1 was about
twelve feet from the casemate and Smith was
about two feet to my left; as Kelley entered
the casemate he told us again to clear out and
fired at us; after he fred Smith put his hands
down to his leg and said, "Ohi see what you
have done." went ont the second casemats
and gave the alarm when saw Sergeant Kelley
put bis hand in his pocket he was up near where
we entered; could see him plainly; after going
to house went back again and saw Smith in
front OF Kelley's house; did not see wound;
had two handkerchiefs in my pocket which 1
tied around his leg and twisted up with a
stick.
Cross Exanaination-W When came back to
Kelley's house Mr.. Haley and Mr.. Parsons
were there; have testified to this matter five
times before, first time at Bath, day or two
after occurrence, second time at coroner's in
quest, next before grand jury at Bath, next
before U. s. grand jury here some time in the
spring and again before U. s. grand jury here
this term of Court. Kelley ordered us to 60
out twice before his pistol went off and once
just before he fired; had nothing in his hand
when first saw him; did not notice anything
in his hand whom he took 1t out of his pocket,
or when he raised his hand; neither nor
Smith made any answer or motion to go when
he ordered us out; as he raised his land he
said "cleartout Of here; these were the first
words he spoke; as he entered our casemate he
brought his right hand down on to his left hand
as though taking aim, and again said
''clear out OF here" did not see any pistol
In his hand but heard the report; did not see
anything else in his hand; made no effort to
dodge behind the pier of the csssmats have
stated the facts of this matter to Mr.. Millay,
county attorney, to you (Mr. Gilberi) in my
previous examination; talked with Mr.. killay
before the grand jury, and stated the facts to
him in Mr.. Lunt's Office; have talked with
him at the Preble House since came here
this time; have never testified differently to
my knowledge; did not testify differently be-
fore Judge Tallman at Bath or before tt Q
coroner's jury; don't remember that after the
coroner's inquest Mr.. Millay said it was possi-
BILE Mr.. Kelley might have changed his pistol
from one hand to the other and assented to
It. Kelley commanded us to go out twice only;
first thought he was taking lam after he fired;
when went into the fort think / could have
been seen from the Eureka House; am sure
we went into the sixth casemate, having since
rode around the fort and observed the place.
DR.. e. M. Fuller OF Bath testified to having
been in practice nearly twelve years; was
called to attend Mr.. Smith in consultation
with DR.. Ferguson, and reached there about
twenty minutes of eleven O'Clock; Smith was
on the veranda Of Mr. Haley's house with
several persons around and DR.. Ferguson
STOPPING over him when arrived; the Doctor
gave me hurried history OF the case; re-
moved the stick aud handkerchiefs. and
found the wound in the anterior portion Of
the left thigh; also found a small incsion
around the thigh little lower down. sug-
gested we dress the wonnd and try and revive
the patient, and we made some lints of oakum
end introduced them into the wound, also
made some compresses and applied them in
front and behind and placed the proper band
ages about the wound; suggested we remove
him to place where we could have some arti-
fetal heat; saw he was very low, and as
thought he was about to die 1 thought it was
best to get some statement from him. I
opened his eye and shook him little, and
asked him who he was, and he said: "Oh
dear, have got to talk? I'm almost gone"
We removed him into the room back OF the
verands, and he was afterwards taken back to
the hotel. On Sunday following he had not
improved much and did not begin to have any
pulse till Monday, when slight pulse showed
ITSELF had expected secondary hemorrhsge
would come on. On the fourth day we dressed
the wound and found it in a very healthy con-
dition. He had no hemorrhage or loss of
blood from the time his wound was dressed till
about an hour before he died; last saw him
alive on Saturday before he died Sunday; was
in very favorable condition then; he died OF
secondary hemorrhsge caused by the wound.
The wound when first made was about one
third of an inch in diameter, and about five
inches in depth; the descent of the bullet
from the place of entrance was about q
inches. After Smith died had an examine
tion of the wound with DIR. Mitchell of Bruns-
sAkw .nAI M. n.