Year: 1867

lan requires his detention or deliverance.
Knowing the infrmity of human Judgment,
from which | certainly am not excepted,
/ stand here now to declare, after fourteen
hours Of close interview with this man, and
as expect to be judged before that tribunal
before which we must all appear when the
great trump shall sound, if there is any
truth in my heart, 1 declare before Al
mighty God that, according to all principles
Of law and Justice, believe my client
stands before you innocent. Whether right
or wrong, this statement springs from an
honest heart, and / invoke the wrath of
God this minute if what say do not be-
lieve.


stand not here for the idle purpose Of
undertaking what the law does not re-
quire-to prove his innocence. Circum-
stances must be singrlafiy combined to do
this, but his guilt must first be proved
beyond a shadow Of doubt. 1t is to this
single inquiry, " Is be guilty ~ that in
vite your attention and | ask your Honor
to look at the principles Of evidence by
which this trial should be conducted, re-
membering, however, that common sense
must ever be the final arbiter in all diff
culties.


1t is with feelings Of mingled sadness and
pleasure that have undertaken this task,
when ] remember that from 1851 to 1865
my client was engaged in the protection Of
that sex one Of whom he is now charged
with m,wdertng. When / remember that
in the regiment of the gallant Chambers
he was the bearer Of the banner, and that
as long as that banner waved he fought to
protect the innocence, beauty, and lowell
less Of the land, while thousands fell in
death around him, | stand with an abb
ding confidence that with such a charac-
ter my client cannot fail TO be acquitted.
know you will have the independence,
fearless Of a prcjudged public opinion, to
release him.


He then referred to the case Of Mar
shall, who was first condemned for &C
quitting Burr, but was afterward rewarded
for that Just act by the plaudits of ma
ton. This he cited as an example for the
court. If, said he, you acquit this man,
you will live to see the time when the
whole city and country will applaud the
Judgment displayed and the justice of the
act.


After this spirited introduction, the
gentleman proceeded to cite the princi-
pies of evidence upon which all could
agree. Probability, he said, should not be
considered proof: but the evidence must
exclude all reasonable doubt. For this he
had the best authority. It is true that a
magistrate may, in consideration Of the
merits of the case, fail to require the same
positive proof demanded by jury, but at
the same time, as common sense is the
arbiter, there must be a reasonable prOba-
blity Of guilt Of the accused. Is there
here such probability? need not add that
every man must be considered innocent
until his guilt is fully established.


Mr.. Phillips is charged with numbering
his wife some time during the month of
February. We are not to prove his innO
cencc, but to show that evidence does not
exist to substantatc the charge. There is
not one iot or title Of such evidence. We
must discriminate between suspicion and
proof.


Mr. Young here interrupted, quoting
Starkic Oh Evidence to prove that where
the conduct Of the accused is suspicious,
be should be required to explain those
things which are to his prejudice.


Mr.. Johnson, rcSumiug, cited Wills. TO
prove that moral certainty is necessary to
conviction, and the more llagrant the
crime the more clearly should it be made
out. The man is not tried for marrying
without the consent or knowledge Of his
parents, for suppreSsing the truth nor tell
ing lie, nor for any attendant misbcha-
yior, but for kiNi0g his rife. When that
wife SO mystcriously disappeared | ho-
ncstly believe that his heart was rs deeply
stirred with emotion as any heart could be.
You say, let the prisoner produce his wife.
Is he responsible for her production |
Join with the prosecution, and ask where is
Shel If the prisoner knew this minute, he
wouldn't be required to show. lie is
charged with her murder, and the
Commonwealth must show where she is.
If he is guilty, he ought not only to be
hung but to be tied TO tie stake and burnt
to death. (Ilerc Mr.. Johnson advanced
and placed one hand upon the prisoner,
who did not swcrve beneath the touch and
scathing tones Of the speaker.) | say
here, as | stand with my hand upon his
head and gazing in his eye, that if he is
guilty Of this mOnstrOuS crime, he deserves
to be hung and to receive every torture Of
which the human mind can conceive.


Upon whom does the law devolve the
duty of producing this woman but upon
the Commonwealth which charges him
with her murder! He has certainly given
A reasonable account of himself from the
18th Of February to this very moment.
Not Of every minute, but Of almost every
hour. When was this murder committed
The date OF the act they cannot give.


The counsel then reviewed the testi-
mony, proving an abb from the 18th to the
25th, and argued therefrom that Phillips
could not have committed the deed. We
have accounted for him, said he, as well
as human ingenuity can, without dwelling
upon every moment, which neither law
nor reason demand. What more is re-
Uuired! We need not have done even
what we have gone out of our way to do,
for the principle of law is well established
that the prosecution must establish the
guilt of the accused. But this whole
thing is based on the suppoSition that he
must account for his wife. There is not
scintilla of evidence to prove the murder,
and l am not here to apologize for the
improprieties of the prisoner. These /
will admit. In this argument | have sup
pressed nothing, but have told the whole
story and expressed my honest cOnyic-
tions. Now, in the name OF justice, de-
mand that a man who has been prosecuted
SO much shall be Immediately released.
In his innocence l firmly believe, so help
me God


Mr.. Young reioined in most able reply
to Mr.. JohnSon's eloquent speech, and
urpad with renewed force the arguments
advanced in his first remarks. He claimed
that if ocular demonstration was always
required, few crimes would be traced, and