The age-herald., 1901-05-26


 or with this party, that they paid for the room for the time mentioned in advance but disappeared from 1t that afternoon or early evening and never came back. So, too, the evidence of the witness Clay ton, watchman at the Standard OH com pany's place, that he saw the detenuants at the Standard oil Companys o1lce OH the outside of the fence on the Suhuay or Monday afternoon before the mufuel that party of seven or eight men came there between and 10 o'clock that night and that two of said party were Of about the size and general appearance or the defendants The further testimony that these men took pistol from the witness was competent in connection with other testimony that this pistol was Iouhu III the room where Duncan was arresleu ae Chattanooga and was then claimed py Duncan as his pistol, that 1t was oo- calibre pistol, but carried ball olneriiis from the 3S-calibre ball of smith ~ Wesson pistol, that on the night or the killing Miller had a SS-calibre Smltn Wesson. that one of the officers was snot with A bullet of that calibre such as IS used in Smith & Wesson pistols' anu that the other was shot with puliet of that calibre differing from the Sinltn & Wesson bullet in being heavier, hke the bullets used in the pistol taken rom Clayton and recovered from Duncah' Similarly it was competent for Clayton to testify that one of the men at the Standard Oil Company's place wore light overcoat, like the coat which other evidence showed was worn by one or the persons who did the shooting ana which he took off and laid down on the street in his flight And there being eV- idence that in the pockets of this coat was found 6 bottle which contalheu fluid resembling nitro-glycerine Tn ap- pearance. that the bottle was not full and that the fluid found in the bottle was a very powerful explosive, testlmo- ny tending to show that the Standaru Oil Companys safe was blown open with a fluid explosive by the party or men of which there was yet other eVioehce that defendants were members, was properly admitted on the question ol identity. And upon the same consioera tions, the further testimony Of WoHoro that a. pocket book containing certain papers which was also found in a pocket of that oyercoat had been left by him In the Standard oil Company's safe ana had been taken therefrom on that night by said party of men. was property re- ceiyed. And so of any other testimony as to what occurred that night at the Standard oil Company's office tending to identify these defendants as having been at that place on the night or ana two or three hours before the shooting
 There was, however, some testimony received as to occurrences at the Stand ard Oil Company's place which nave no tendency to show that the defendants' or either of them, were there on the oc- casion in question, and which therefore throws no light upon their identity Wlth the men who killed Adams and kirkley' For instance: The States counsei re- ferring to what occurred at that piace on the occasion when Claytons pistol was taken, the safe blown open and Woffords pocket book was removed therefrom and carried away, asked Clay ton this question: Well, was anything done to you the night of the 2lth or March?" And he replied: well was knocked in the head and shot in the foot" And this question and answer Now, MT. Clayton, just tell all apout it, all that happened that night Wen' I have told all that happened that night. I was assaulted and knocked in the head and my pistol taken away and the Keys and I was put in room-the closet locked up" And this question to same witness: "If anything was said about killing you, tell the jury what 1t was
 To which he replied: T can't say what was said. I noticed one of the men waived his hand and said something and
 
 witness Wofford was asked: Was there any money missing from the safer Re ply: "Yes sir" He was asked: How much money was taken from the safe, MT. Wofford?" And to this he replied: Three hundred and thirty odd dollars Clayton also testified. as we have seen, that having "knocked him in the head and shot him in the foot they took hls pistol away from him" This testimony of Clayton and Wafford went to prove four separate feonies against the de- fendants as constituting in part the gang who were at the Standard oil Com pany's place that night; an assault on, with intent to murder Clayton, the rob bery of the pistol from Clayton, bur glary in breaking into, and grand lar ceny in taking the money from the safe. The taking of the pistol was, as we have seen, competent on the question of iden- tity But the admission of the testimony of Clayton and Wafford as to the as sault upon Clayton, the burglary and the larceny of the money, must find justifi- cation upon other ground. if 1t was ad- missble, since it has no bearing upon identity We think there Is such other ground upon which its competency may be rested It had a tendency to show a conspiracy between the defendants to kill both Adams and Kirkley, such pre- concert of action on their parts to the deaths of both the officers as makes each of the prisoners responsible for the death of each of the officers, though only Mill Ter shot Adams and Duncan shot Kirk ley. It has this legitimate operation in the case through it's tendency to show a motive common to both Miller and Dun