Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1892-03-31


end striking where the transom was. 1t
is to be seen there now. Sergeant Mari
was recalled. While he insisted that
the two joists upon which the stove
rested are intact, yet he conceded the
fact that the stove did fall through. He
heard no joist fall at the time the in
definite object came flying through the
transom.
AS the witness left the stand Mr..
HILLS asked whether the city solicitor
intended to ask that the defendant be
held for the grand jury.
THE PLEA Fon THE DEFENCE.
In addressing the court Mr.. Hilles
said that there is no question but that
O'Toole was present at the fire and that
he was one of the first there. This
with the fact that he was seen by Ser
geant Marr coming out of the room in
which he had perfect right to be con-
stitutes the sole basis for the charge of
incendiarism against the defendant.
There is no proof whatever to show
that this fire was the result of premedi-
tated human action. Is it the theory of
the State that this young man remained
in that glowing furnace-lile room until
Sergeant Mari appeared at the door?
l do not ordinarily approve of the
habit OF tritely quoting holy writ, but if
the contention Of my learned friend be
considered then all | have to say is that
the Bible is mot in it," and the story of
Shadrack, Meshack and Abednego in the
Babylonian furnace is not circun-
stance to Martin O'Toole's experience in
that red-hot library room.
Now, what was he there for? Why,
he was looking after Martin Mealeys
picture. Was not that his first word to
the police officers. Next, he was hold
ing the foot of the ladder in order to
reach the room from the street. All
that fully explains why he was where
he had every right as member of the
Shields Library Association to be. Also
/ merely suggest the solution that when
Sergeants Marr and Ingram were at the
foot of the third floor, he, having fol-
lowed them upstairs passed ON into the
library room on the second floor. Is
not that only fairly probable?
Now, in regard to the flying hub and
lamp. Both chief witnesses in this con-
nection tell you that it might have been
the falling transom. Mr. Kane showed
you the end of the rafter which now
lies against the transom explaining the
breaking of the glass. The moment the
| glass was broken there was a rush of
flame and smoke from the aperture
which demonstrated the fury of the
| fire within.
Now, where did the fire originate. If
while 0"Toole was in the room the State
cannot follow up that theory by show
ing he was there. All testimony goes to
show that the fire was first in the third
floor. The testimony of these skilled
architects, contractors and builders, all
implicitly unanimous upon the point is
to me of overwhelming value. Look at
Mr.. Chandler's statement as to its i'm
possibility-that alone is sufficient for
me.
Look at the total value of the direct
testimony of the uninjured flooring, the
uninjured carpet above it, the plaster
from the ceiling over that, this last coy
cred with the debris, and then over all
and last, come the embers and faggots,
| They fell last on the floor.
| consider these facts as absolutely
demonstrative Of any contention in the
case. 1t has not yet been proved that
the place was set on fire BY human
action at all. How, then, can it be
shown that O'Toole did it9
Counsel closed by asking for dis
missal of the charge.
City Solicitor Curtis said he was en-.
tirely willing to leave the matter with
his honor without further argument
However, this vaunted testimony of the
builders is merely opinion. Now the
State has produced no theories. Its
testimony stands uncontradicted. Wher
the rear of the building was first seer
the flames were coming from the secono
floor.
The fire had one of two origins
either in the third story, or, if in the
second it was of incendiary origin
O"Toole must have been in the building
before Sergeant Marr got there The
State has no theory but ii persists in The
value of the facts produced in evidence
In making his decision Judge Bal
said that the defendant was discovered
under very suspicious circumstances I'M
mediately the officers arrived.
The court then carefully reviewed th'
evidence where the two police sergeant
passed up the stairway. The question
as to how long the defendant could re
main in the burning room without bein.
suifocated was one that impressed hi
honor. The testimony of Sergeant Mar
indicated necessarily intensely heatet
condition of the place. Flames burs
out OF the transom across the passag
way Immediately that the transom wa
broken. The court agreed perfectly witt
the city solicitor in his argument as Il
, the liability of the defendant should tn
/ \ g Gao lxr. q
| But the builders and architects al
testify as one man as to the impos
sibility Of the fire originating in tn
second story.
r Here the court referred to recen
experience in his own office, the stor
| of which at the time was public I
| everyone, of fire igniting on secon
floor and working its way downward:
} The first information of its existenc
t came from the appearance of smok
0 issuing from the windows and doorwa
of the office below.
} But, the court continued, there is
duty to perform as soon as it is apparer
{ there is not sufficient testimony to main
! tain the charge.
The presumption in this case is thG
I the work is not that of an incendiary
i but through some cause unknown. N
motive has been shown against thi
inan. There is an entire absence of i
t In my opinion the fire originated i
I the third story.
4 Judge Ball closed in some earne'
! words to the defendant stating that it wa
S indeed very fortunate for him that tn
professional man had made such cleal
: distinct and direct statements.
e 81 am bound, therefore," the coui
. added ito tako into consideration a
4 of these matters. The prisoner is dis