Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-09-15
barge. and Lincoln Smith, the colored mate,
as going to support the plea Of self-defense.

| TO his side according to the physicians story,
| and this would account for the course of the
ball on the theory tina. the man who was shot
was standing up at the time.
As for Lincoln smiths story it mattered not
whether the jury believed it or not He was
| summoned by the government. but Judge
tina. Lincoln Smith showed more
| seusibility and feeling than Robley
| Evans, Col. Bird and Gray. All heard
cries for help from the boat but this unlettered
and pity in that trying hour and attempted to
| put out in boat to the help OF the
! man who was making an cutlery of distress. He
! was compelled to desiss by the orders of Capt
Gray. Smith told Of a quarrel in the canoe be-
| fore he heard the sound of shots and
later. i'll the cabin of the barge, he told
| Gray that the man who shot had been struck
| by an oar. This was before he could have been
| approached by any outsider. He bad no pri-
waite vengeance TO wreak. There was no enemy
| OF Hams in Washington to fill his
pocket with blood money and yet that witness
| is TO be discredited and his story whstled down
| the wind by the able gentleman representing
| the commonwealth. because that unlettered
man had placed his mark upon paper at the
ooroner's inquest the contents OF which he
knew not OF.
In Judge Goodies opinion, which he would
repeat until the cows come home, Lincoln
Smith told the truth of the occurrence as he
! knew it. This story must leave more than u
i .
| to doubt was to acquit.
With such q story as that in evidence it was
| the duty OF the jury to bring in verdict Of
not guilty.
HAMS TESTIMONY NOT IMPEAcuEp.
When the defendant came upon the stand,
Judge Goode said, the able lawyer from Wash
inston had foeman worthy of his steel, but he
was afraid to subject him TO rigid
cross-examination such he inflicted
upon poor Lincoln Smith and the lawyers for
i atllt dtt,y1 nwStn
Thornton j. Hams was a competent witness,
unmpeached and uinmpeac lab Il, and it was the
duty Of the jury to try the case upon the
testimony as 1t was presented to them. The
| testimony of the defendant was before them and
| must be taken. IL they believed the story as the
defendant told it that must be the end of
the case, and there was no reason
why il should not be believed. The defendant
himself was in evidence before them as an hon.
est man, unimpeachable to truthtulness, and
the commonwealth had feared to attack his
story.
The defendant, animated by the God-given
spirit without which man is no better thar a
brute, acted simply in self-defcnse. The oar
| in the hands of an athlete like Hannegan was
| o more dangerous weapon than little
pistol in the hands of Hams. When the two
cartridges that the pistol contained were dis
charged it was absolutely useless as q weapon,
while wrong blow with the oar could be
corrected and blow after blow struck until
tuc leIl 5CIselcoS at Tue lect OI the IN
tagonist. Hams was the only witness to what
had actually occurred in the boat.
The commonwealth, Judge Goode said, would
have them disbelieve this story because Mr..
Robley Evans did not see the occurrences
that happened according to the defendant.
Evans was simply negative witness.
and one positive witness was worth a
dozen negative witnesses. Senator Voorhees,,
as counsel for the defense in the famous Black
case in Maryland, WAS himself authority that
negative testimony would not stand as against
testimony given as TO what actually had
happened, and Judge Goode quoted at length
from the speech made by Senator Voorhees, in
that trial in support Of what he claimed as to
| the right of sclf-defense.
"Oh, intend to quote all that myself" said
Then my client is safe," remarked Mr..
Goode.
"wen see abou. that" answered Mr.. voor-
hees.
1t was grim sort of repartee. but it drew
forth a slight ripple of half-hearted laughter
from the audience.
Mr.. Goode repudiated the doctrine that when
his client realized that his life was in danger
he should have sought safety in the
water and swan ashore, yelping like
was it law. The man does not stand and wait
the dart of a coied rattlesnake nor does the
hunter stand patiently waiting the spring of a
crOucEing tiger before he sends forth the swift
leaden death. 1t is the apprehension Of
danger and not the actual danger that justi-
fies defensive action. Thornton J. Hams ap-
peared before the jury and swore that he APP
pretended that his life was in danger and on
this ground the defendant was entitled to an ac-
quittal.
THE KILLING NOT PREMEDITArED.
Mr.. Goode said that the present killing could
not have been a premeditated one because it
was not determinedly fixed upon before the
act done. The provocation was the shifting
of the oar and the advancing step that
induced the defendar. to believe that his life
was in imminent danger. 1t was for the jury
to decide whether the defense had proved ex-
tenuating circumstances, and they had proved
that the pistol was in the possession Of
defendant for a perfectly lawful purpose; the
testimony, he said, had brought the defendant
in the letter and spirit within the instructions
granted upon the request OF the defense and
which called for an acquittal.
THE QUESTION FOR THE JURY.
The question for the jury IN this case, &C.
cording to the court, was not whether the TAX
ing of the life of the deceased could have been
avoided, but whether Hams had grounds
for believing it was necessary to resort
to extreme methods to preserve his own life or
to prevent himself from receiving serious
bodily injury. The law presumed the defend
ant to be innocent; Mr.. Lipscomb presumed him
to be guilty and had been paid to come down
here to obtain a conviction. whether the de-
PENDANT was guilty or not. He thanked God
that notwithstanding the impassioned appeals
of the avcnger, there was Il wise and honest
judge who said that the burden of proof lay
with the prosecution.
THE QUESTION OF JURISDICTION.
Judge Goode said that an essential feature Of
the indictment was that the killing took place
within limits Of Elizabeth City county. 1t
rested with the prosecution to prove that the
killing had taken place within these limits.
He denied that they had proved it and asked
Senator Voorhees, what position he intended to
take in the matter.
Senator Voorhees, replied that he did not in
tend to instruct the court on matter with
which it ought to be much more conversant
than himself. 1t question of law
that should be settled by the courts
A lawyer of the standing of Judge Gunter and
familiar with the neighborhood should be the
one to answer the question Of jurisdiction with
out any assistance from him.
Judge Goode argued the point Of jurisdic-
ton at some length, maintaining that the
shooting did not occur within the county, but in
Hampton Roads.
The indictment charged murder in the
county and they had entered plea to the in
dictment on the ground that the testimony of
the county surveyor had proved that the
shooting occurred outside the county. He left
to the Jury as a matter of fact to be decided
| under what instructions the court might see tit
to grant them.
The speaker paid most glowing tribute to
| the character and eloquence Of the Indiana