Year: 1859

z
over the bridge unmolestad. and that we
then might take him if we could; he had fought
Uncle Sam before, and was willing to do it again.
| Brown complained that his men had been shot down
Ike dogs, while bearing flag of truce; told him
that they must expect to be shot down like dogs if
they take up arms in that way Brown said he
knew what he had to undergo before he came there;
he had weighed the responsibility, and should not
shrink from it; he said he had full possession of the
town and could have massacrcd the inhabitants and
burnt the town to ashes had he thought proper, but
as he had not done so he thought he entitled TO
some terms Brown said he had shot no who
had not carried arms. ] told him that Mayor
Beckham had been killed, and that knew he was
altogether unarmed; he seemed sorry to hear of his
death, and said 81 fight only those who fight me;'


Witness then told the prisoner that he did not
think any compromise could be effected; Brown
said he kept the hostages for his safety; they
did not appear to fear any injury from him or his
men, but only from attacks from the outside. Every
man had gun, and four fiths of these were under
no command. The military had ceased firing for
the night, but men who were intoxicated were fir
ing their guns in the air, and others at the engine
house. Brown any of his men could not have
ventured outside of the door of the engine house
that night without being shot Saw Stevens in
the hotel, after he had been wounded, and shamed
some young men, who were endeavoring to shoot
him, as he laid in his bed apparently diving; told
them that if the man could stand on his feet with
pistol in his hand they would all jump out of the
window. Capt. Sims testimony, was of great
length, but little was elected, however.


On the conclusion of his testimony, Capt. Sim
desired TO state that he had returned here at the
summons of the prisoner, to testify in his behalf.
with rs great alacrity as he had come to testify
against him. lie had no sympathy for the acts of
the prisoner or his movement, on the contrary he
would be one of the first to bring him to punish
ment. But he regarded Capt. Brown as a brave
man, and being informed that he wanted him here
as witness, he had returned with pleasure. As a
Southern man he here to state the facts about
the case, so that Northern men would have no OPP
portunity OF saying that Southern men were
willing to appear witnesses in behalf one whose
principles they hOrred.


Israel Russell sworn-Wastr the bearer of flag of
truce from Browns party to the citizens Of the Fer
ry. His testimony was merely in corroboratOn of
| facts stated by previous witnesses.


Terrence Burns sworn-Was taken prisoner bv
Capt Cook and two others; of the ten hos
tages confined in the engine house. Brown had
hve or SIX OF his men there's did not give any reas-
on to us why plt there, except that it was
Tor his own salety he said he did not think anv at
tack would be made upon the engine house while
the hostages were there.


Here the defence closed their testimony. Some
OF the witnesses for the defence were cross-exam-
ined by the State.


COMMENCEMENT OF ARGUMENT.


Mr. Chiffon, for the prisoner, rose and submitted
| motion that the prosecution in this case be com.
PEELED to elect one of the counts in the indictment
and abandon the Others The indictment consists
OF four counts and is endorsed thus An indictment
Tor treason, advising and conspring with slaves
| and others to rebel, and for murder. The charge
for murder is laid in two of the counts-th third
and fourth. The charge of treason is in the first
and the second count, alleges a charge different
from that which is endorsed on the back of the
dlctment and which is upon record. The second
count IS under the following statute-"If free
person advise or conspre with slave to rebel, or
make an insurrection, he shall be punished with
death, whether such rebellion or insurrectiou be
made or not. Bat the second count in the indict-
ment Is that these parties who are charged by the
Indictment, conspired together, and with other
persons, TO induce certain slaves, the property
Mt lstnf Nj, i
lion and insurrection. There is broad distinction
between advising and conSpring with slaves to re-
BEL and advising and conspiring with others to in
duce slaves to rebel Whether he was to avail him
self OF this irregularitv by instructions from the
Court to the jury to disregard this second count
entirely, or whether it would be proper to wait
until the conclusion of the trial, and then move an
arrest of Judgment, he left to his honor to decide
He proceeded to argue the motion that the prose-
cution be compelled to elect count and aban
don another, quoting Archbold's Criminal Plead
lngs In support of his view. He further alluded to
the hardship which rested upon the prisoner TO meet
various and distinct charges in the same trial.
From the authority he read it would be seen that
in case OF treason, different descriptions of treason
could not be united in the Indictment. High
treason could not be associated with other treason
If an inferior grade of an offence of the same char
acter could not be included in separate counts still
less offences of different character Treason
in this country is high treason treason against the
State ot Virginia Is treason against her sovereign
tv We have no other description of treason be-
cause treason can only be committed against SOW
ercignty, whether that Of the United States or of
spyrrri ri State.


Mir. Harding could not see the force of the obiec-
ton made by the learned counsel on the other side
In regard to the separate offences being charged
these were but different parts of one transaction.
Treason against the Government is properly made
the subject OF one of the counts, but we also have
count o murder, for it can hardly be supposed that
treason can exist without being followed or accom-
panied by murder. Murder arose out Of this trea-
md tbn nj oE
Spiracy. Yet now, after all the evidence has been
given on all these points the objection is made that
we must contine ourselves to single of them.
lie hoped that no such motion would be granted.


Mr.. Hunter followed on the same side. He re-
piled to the argument OF Mr.. Chiffon, saving that
the discretion of the Court in compelling the prose-
cution to elect one count in tho indictment is only
| exercised where great embarrassment would other
wise result to the prisoner. As applied to this par
tcular case, it involved this point, that notwith-
standing the transaction, has been disclosed in
the evidence, be one transaction, confirmed,
closely connected series OF acts which according
our apprehension of the law of the land involve the
three great offences, Of treason, couSpiring with
and advising slaves to make insurrection, ami the
preparation of murder ct in case of this char
acter, it it is not only right, but proper for the
Court to put theprosecutiOn upon their election, as
to one of the three and bar from the investipa-
ton ot the two others entirely, although they re-
late to facts involved in grand fact, notwith-
standing the multiplicity of duties devolved upon the
prosecutor and assistant prosecutor, vet we have
found time to be guarded and careful in
regard to the mode of framing the indictment. 1t
Is my work, and propose to defend it right and
proper. He then proceeded to quote Chittv's
Criminal Law and Robinson's Practice to prove
that the discretion of the Court there spoken of is
only to be exercised in reference to the urtherance
of the great object in view, the attainment of JUS
tce. Where the prisoner is not embarrassed in
making his defence, this discretion is not to be ex-
ercised by the Court and case can be shown
where it has been thus exercised, where the whole
| Of nd iptm m o,J 4b
same transaction. This very in point would
show the absurdity Of the principle if it were as
broad as contended for by his learned friend. As
for the other peint of objection it was too refined
and subtle for his poor intellect.


Mr.. Chiffon responded In order to ascertain
what party is tried for, must 90 to the finding
of the Grand Jury. If the Grand Jury return an
indictment charging the party with murder find
ing true bill for that, and he should be indicted
for manslaughter and any other offtnce the Court
would not have jurisdiction to try him on that
Court in the indictment, and the whole question
turns the construction of the section of the statute
which has been read namely, whether or not ad-
visng conspiring with slaves to rebel is sepa-
rateand distinct offence from conspirng with other
persons to induce slaves to rebel


The Court said that this difference might perhaDs
be taken advantage of to move an arrest of iudr-
ment, but the jury had been charged and had been
sworn to try the prisoner on the indictment as
drawn The trial must go on. and counsel could
afterwards move an arrest Of judgment. As to the
other objection, the Court made this answer: The
very fact that one offence can be charged in differ
ent courts, varying the language and circumstan-
ces is based the idea that distinct offences NAV
be charged in the same indictment. Prisoners are
to be tried in the various courts if they were va
rious transactions. There is no legal objection
against charging various crimes in the same in
dictment. The practice has been to put a party
upon election where the prisoner would be embar-
rassed in his defence: but that is not the law In
this these offences charged arc all part of the
same transaction, and case is made out for the
Court to interfere and put the parties upon a cleo
ton.


Mr. Chiffon said he would reserve the motion as
basis for motion in arrest of Judgment.


Mr. GriswOld remarked that the position of all
the present counsel of the prisoner was one of very
great embarrassment. They had no disposition to
interfere with the of practice but it was the
desire of the defendant that this case should be ar
gued. He supposed that counsel could obtain sufIi-
cent knowledge of the evidence previously taken
by reading the notes of it. But it was now nearly
dark. He supposed, il it was to be argued at all
the argument for the Commonwealth would proba-
bly, occupy the attention of the Court until the
usual hour of adjournment, unless it was the inten
ton TO continue late evening session. From what
had heretofore ranspred he felt a delicacv in max
ing any request of the Court but knowing that
the now ended, except for mere argument
he did not know it would be asking too much for
the Court to adjourn after the opening argument on
behalf of the prosecution.


Mr.. Hunter would cheerfullv bear testimony IN
the unexceptiOnabe manner in which the counsel
who had Just taken his seat had conducted the ey-
animation OF witnesses to-day 1t would afford
him great pleasure, in all ordinary raseS to