Wichita eagle. [volume] (Wichita, Kan.) 1883-1888, 1885-01-23

sne married Bailey, followed her til! her sep
aration in Dakota and said he wouldn't deny
that she got the $4,000. He traced her then
until we find her, to use a cant phrase, broke
and pawning her jewelry in New
which il was not denied she did do. He fol-
lowed her up to prove the proposition that
she had not dollar invested in the sheep.
He followed her to Bothemly's ranch. He
called attention to Viewers testimony with
reference to the number of sheep Bcthomly
owned and said that he was in position to
be familiar with his business He followed
her 10 Waukesha, Wis, and referred to the
marriage with Reese, showed the marriage
certificate to the jury End MAIN
tanned that it was legal marriage
and that the defendant according to her own
testimony was guilty Of -bigamy and might
be convicted of that crime. Her and Reese
might treat il lightly but if shs didn't think
it amounted to anything, why did she write
feom the Jail at Topeka to Reese to write
letter to Newton TO say they had not been
married to help her ont of this case. He
referred TO the loving letters from her and
Reese and said that if Reese had been
the man in Bothamly's place it
would be seen that his letters
contained as strong and endearing terms as
that from Nellie to Mrs. Austin. There had
been smooth work done fixing the defense
in this case. Our theory is that defendan.
killed Bothamly. The able and eloquent at
torney for the government went on to estab-
fish this proposition, and his argument APP
peared almost unanswerable. He went over
all the receptions practiced by defendant.
Her and Bethamly coming to Wichita and
representing themselves in the deed to be
man and wife, not brother and sister, The
deed made back again from Sara A. Laws to
Bertha Bothemly, changing the date Of the
deed etc. In the silence of your minds in
the jury room inquire what made her add to
her other crimes that of forgery. Accord
ing to the testimony of the defense she
owned all Bothemly had in the world as
soon US this deed was recorded, ali she had
to do to get possession was to get rid of
him. He followed her to the scene
of the tragedy and drew quite
contrasting picture of Bothemly's condi-
ton to that drawn by Mr.. Ady, and drew
his conclusions from fair propositions in a
logical manner. Gave his view of her
actions during the burial, etc. Col. Halo
' l., - =
ments which consumed an hour and twenty
minutes. and closed with an able and CON-
prehensive summing up of all :he PROPOSE
| tons.
The following is Judge Fosters charge to
the jury:
GENTLEMEN OF THE JURY:-The defend
ant Nellie c. Bailey, stands charged with
the high crime of murder. 1t is averred that
on or about the Stb day of October, 1888,
within the Indian Territory, attached to this
judicial district, she did feloniousy, wilfrlly
and OF her malice aforethough. with u pistol
loaded with power and leaden ball, shoot
and mortally wound Clement Bothamley,
in and upon the head, of which mortal
wound said Clement Bothamely instantly
died. 4 murder is defined by the common
law as an unlawful killing of person with
malice aforethought, and malice afore-
| thought. means that the act has been at
tended with such circumstances as are ordi-
nary indications and evidence of wicked,
depraved and malignant spirit, regardless
| of the social duties and obligations and de-
| liberately bent on mischief, and
in general any formed and pre-
meditated design of doing mischief may
be called malice afore thought. Malice may
be either express or implied by law. Ex-
press malice is where one person kills an
other with deliberate mind and premedi-
tated design, such design being evidenced
BY extrinsic circumstances, such as lying in
wait, antecedent menaces. former concocted
schemes to do the party bodily harm and to
commit the offence. Malice may be implied
from any deliberate, cruel act committed
by one person against another although it
be sudden and unaccompanied by the ex-
trinsic evidences usually attending express
malice. 1t matters not, however, whether
the act is done with malice express or i'm
piled, so the malice exists, and the question
whether the act is done with malice must be
determined from the manner and crcum-
stances under which it was done. Every
rational person is presumed TO intend the
ordinary natural consequences of his own
acts, and hence, If a person wilfully and de-
liberstely shoots and wound another with a
ieaden bullet, from which wound the person
dies, the law presumes the intent to kill, and
if the act is done under circumstances as
eyince formed and premeditated design to
commit the act, the law presumes and i'm
plies it was done with malice aforethought.
In this case in order to find the defendant
guilty, il must appear and be shown from
he daran k.Nn n..hl do. l..
that the accused gave the deceased, Botham-
ley, the gun-shot wound charged in the in
dictment; that she gave the wound with
malice aforethought, and that the deceased
of the wound came TO his death. appre-
bend from the evidence in this case the first
proposition. Did the accused give the de-
ceased the gun-shot wound il the most diff
ficult, and the one which will demand your
most serious and careful consideration, for
should you find she did give the wound, that
she fred the shot, which the evidence shows
passed into and through the head of the de-
ceased, apprehend that you would find but
little difficulty in deciding the question OF
malice and the cause of the death.
You are called upon to reach verdict in
this case upon circumstantlal evidence alone.
No human being, SO far as the evidence
shows, except Clement Bothamley and de-
fendant, Nellie Z. Bailey. were present or
witnessed the shooting. Il WAS done in the
dead hour of night within the vehicle used
BY these parties on their journey and out up
on the open prairie in the Indian country
and far from any habitation. 1t is very fire.
quently the case that crimes il proven at all
must be proven by circulnstantial evidence, |
and circumstantial evidence may be, and Of |
ten is, as satisfactory and convincing as d. |
rect proof. Witnesses may be mistaken, or
,1ay forget or swear falsely TO occurrences |
coming under their observation, but a cir |
cumstance when established by evidence is a |
fixed fact, more or less important as it tends |
in greater or less degree to point out the |
truth. But in order to warrant a conviction /
on circumstautial evidence each fact neces-
sary TO the conclusion sought to be estab-
lished must be proved by competent evil |
dence; all the facts must be consistent with ,
with each other, and with the main facts
sought TO be proved, and the circumstances
taken together must be of n conclusive ma
ture, and leading Il whole TO a satisfactory
and inevitable conclusion, and produce in
effect reasonable and moral conviction,
that the accused and no other person, com
mitted the offence charged.
II you have reasonable doubt as to the
guilt Of the defendant you have to acquit. A
there may be doubts that are unreasonable.
1t may be defined in this way: After you
have given due consideration and weight to
all the evidence produced and the facts and
proven, if there is IN your
minds want of an abiding conviction of
the defendants guilt you must acquit. If
the killing of Clement Botbamley was a
murder, there is evidence tending to show
that it was a most cruel and well-nigh fiend-
sh act, and If the defendant committed the
act neither her sex or condition can shield
her from the penalty of an outraged law.
The law has clothed this woman with the
of innocence, and before you
can find her guilty that presumption must
be dispelled by the evidence.
In this case the theory and charge of tie
government is that Nellie Bailey gave the
atal shot which took the life of Clement
Bothamly; that she did the deed deliberately
md with reconciliation, and that she had
motive in doing it, the motive of gain;
purpose of possessing herself of the real and
personal property of the deceased. The
heory of the defense is that the fatal shot
was fired by the hand of the deceased, either
or involuntarily; either by &C.
,ident or design. These two theories should
eceive your most painstaking and careful