Sacramento daily record-union., 1890-04-13
How an Innocent Man Was Convicted of
Assault-He Believed Him
self Guilty.

Being somewhat inclined to the corn.
bative, answered: THERE'S room enough
for sober man TO pass" His response
was blow with his fist, which he instantly
followed By attempting to seize me by the
throat.
This proceeding on his pegt was a mis-
take. l was something of an athlete in
that epoch, and in an affair of the rough
and tumble" style was not altogether out
of my element. In about fiseen seconds
after hostilities opened, we, the belliger-
ents, were in the middle of the street, sc-
cording to SUBSEQUENT report of'-nany spec
tators, my adversary fiat on his back and
beating the devils tattoo on his head The
interesting performance and large and en-
thuslastic audience drew the attention of q
deputy marshal OF police, who put both
eombatants under arrest and set oat with
Two prisoners, forming his right and LETT
wings, in the direction of Recorder Mac.
Crews Court, in the next square When
we came to the mouth of an alley! NV as
saiisnt broke away from the officer and fled
through the alley with astonishing veloc.
Hy. The guardian of public order, acting
upon the principle that prisoner
in hand is worth more to police
mans reputation than is one that is van
lshing in the dim distance and in erring
from appearances that was the aggressor,
let the fellow go and marched me inte the
august presence of offended justice. IF l
had been in his place, ! believe l would
have done as he did.
The officer made the charge, but the wit
ness who, according to appearances, cpaht
to have come forward in the character of
prosecutor, had run away. This was cir
eumstance in corroboratioN of my state
ment that | had been assaulted by the party
whom | battered. Being personally known
to the Judge, he accepted my story and 81
lowed me to depart.
The Marshal, bright young man named
AVehAe, from Laporte, Ind, discovered
that the name of my assailant was Smith.
The next morning he came to my place OF
business and said: I'VE have got the fell
low who attacked you, and all your men
that saw the affair will appear in the Court:
room at 10 o'clock to give testimony"
On the trial, the Marshal, my associate
in business, our bookkeeper and myself
were witnesses, and everyone of US iden-
tilted the prisoner as the person who COM
mitted the assault. There was no doubt
about it. For myself, could l mistake the
adversary l had fought with? recognized
my own handiwork in its effects about the
mans head and the marks it had left on
his face; | was sure of my own handwrit-
ing, as 1t were.
Recorder MacGrew asked the prisoner,
who had no attorney, if he had any defense
to make. l expected to see some of his
companions, who saw at least the beginning
of the afiray, come forward as witnesses on
his behalf; but none appeared. The pris-
oner stood up and said: MY name is
Lee, and not Smith. l cannoa distinctly
remember how this fight began; l only
know that our crowd had been drinking
pretty freely, and l guess we were nearly
full. / hope your Honor wilt let me off
easy, and l promise to keep out of such
rows,in future"
The Court sentenced Smith, or Lee, to
pay q tine of $25 and to be confined in the
prison brig-our jail-fve days.
About six months afterward, stranger
came into my storehouse and said TO me-
How are you, MIR. Brainard - l in
formed him that / was in my usual state
of physical vigor. my name is Smith" ~
he went on saying, "apd l have come to
apologize for making an assault on you
some time ago, in front of your place. l
had been with some friends taking in a
cargo of solids and liquids, and am sorry
[ made fool of myself"
That's all right, Mr.. Smith, " said II
believe l settled the account or the spot,
and the Court also gave you pretty strong
Dose"
He looked surprised THE Coart?" he
said, inguiringly. why, ran away from
the Marshal when he was taking as to the
Court. l got my hair and whiskeTs cut off,
and left town the same evening on boat
up the river. Since then | have been living
at ColNsa, and yesterday was my FIRST ap-
pearance in Sacramento after that some.
what hurried departure"
1t was now my turn to be astonisAed. |
Cross-eXamined him on the matter of the
combat, and became convinced that he was
my adversary in that affair, and that he
was not the man whom the positive testi-
mony of myself and three other eye-wit-
nesses of the battle had convicted and
caused to be punished. | put myself at
once to discover the solution of this mys.
| terry. l found the man Lee, Smith dupli-
| cate, employed in lumber-yard, and
learned that he had been one of the par
| Elephants in free for alp battle IN a
grogshop the night following my asair with
| Smith but, having been Supplied with
| liquor, had only a confused recollection OF
drunken brawl in which he had received
severe punishment from some person un.
known. 1t was that affair for which be
supposed he was being tried in the Record
er's Court, and he was not only amazed
but somewhat indignant upon learning
| that in reality he had been punished foI
| another mans offense, committed in
| another place, at another time. lrefunded
| to him the $25 which felt that had been
the cause of taking from him unjustly
| and pointed out to him the far more seri
Gus peril in which his drunken spree
might have placed him. Had the case o.
Smith been robbery or murder. the situa
tion of Lee would have been sor him very
grave. The positive testimony of four in
telligent and sober young men to hi:
| identity with the real offender might have
outweighed in the deliberations Of Jury
that of his obfuscated companions.
| This occurrence admonished me to re
gard with great distrust the testimony O
witnesses that swesa positively to thu
identity of persons they have seen only
once, and that perhaps, weeks or month!