Year: 1859




all the evidence that could fairly throw light upon
the questions to be submitted to the jury, fa its
was the jury who were to be the judges of the fact
in this case.


Mr.. Ould.-We look upon this evidence as being
extremely important in sense, it NAV be said
to be cumulative, and in another not. 1t relates
to point of time in reference to which no evidence
has yet been given, and very important period of
time, being that occurring immediately or almost
Immediately, after the alleged homicide.


The United States have done everything in their
power to secure the attendance of these witnesses;
and they are In no sense in default. We are as
anxious to save time and get through this case, as
the defence are. The United States have put them
selves in position to ask this matter of Justice
from the Court, and not a mere matter of favor.


Mr.. Chton.-After the long discussions that have
taken place on the various questions presented and
the numerous citations of authorities that have been
made IN the hearing of the jury, embracing the de-
cisions and law in previous cases bearing analogy
to this, and which we conceive to be the whole law
OF the case, it was our purpose when we had closed
the testimony to make proposition to the
counsel for the prosecution to submit this case to
the jury. We had hoped it would be acceded
to- We had hoped that we would be met upon this
proposition both in consideration for the Jury and
the imprisonment they have already undergone,
and IN consideration for the interest ofall connected
with the trial. and therefore the purpose were to
continue this case merely with the design of ad-
ding cumulative evidence upon the part of the pros
ecution and it was the desire of the jury to hear
any further testimony we would submit to a con-
tinuance until tomorrow for the purpose of procur-
ing that testimony; but we think if this proposition
Is not acceded to, and we are to have a discussion
upon legal questions before the Court, on PRAYERS
for rnstructionspraye first preferred by the coun-
sci for the prosecuton-which as amatter ofcourse,
must be met, we apprehend we do not know the
iact) by counter prayers upon the side of the de-
fence prefer that there should be no discussion
upon these prayers until the evidence is entirely
closed; and therefore we cannot meet the propo-
siton OF the gentlemen unless they accede to the
nrnn Inn mall Nao
proposition to go with the discussion of the
questions of law until the evidence is fully closed:
and would add that in this express the feelings
and desire of the prisoner himself at the bar |
have taken little part in this case hitherto
and do not feel any desire to take the part that
has been assigned to me in the argument of this
case before the jury, if | can avoid it. Indeed so
full discussions OF all the questions involved have
already taken place, that doubt whether further
discussion either side will operate to change the
opinions which the jury may have formed upon this
case We are willing to submit it to them, upon
our part


By Mr. Oud-When this case shall have been
concluded-when the Jaw properly applying to thi.
case shall have been determined by your Honor
in answer to such instructions as NAV be p.ayed
upon the part of the prosecution and defence the
United States will be entirely willing to meet the
offer that has been made to submit the matter to
the jury; and it will be matter of great gratica-
tion on the part of the United States-we will ac-
cede to it most cheerfully. The United States,





regard to various subjects which have been brought
into controversy, not only questions of law but of
fact that the entire law in this case shall be settled
by your Honor in instructions to the jury; and we
consider that the case will be properly terminated
then, and only that point 1t has not vet reached
that stage; but when it does, >, assure the gentlemen
that they cannot make any offer which will be
more acceptable to the United States than the one
which has just been made.


Mr.. Chilton.-We reserve what we have to saw
upon that proposition until the prosecution an
nounce to us that they have concluded their case
whether that conclusion be in the form of evidence
or in the form of instructions. What we shall do
in answer to that proposition, will announce
when that period arrives. We have only to saw
that when have arrived at that point in the case
If we hear nothing from the opposite side, or from
the Court or from the jury, we shall not trouble the
Court or the counsel on the other side with any
further remark, but shall let the case go to the
jury without argument. But do not deem it
consistent with our duty to this defence, to take up
the legal argument until the prosecution announces
to us that they have closed their evidence and that
all matters of fact upon which they rely are before
the Court and jury.


The Court said that inasmuch as the offer to pro-
ceed with the discussion of instructions previous to
the examination of the two witnesses who had been
summoned and expected here tomorrow
morning, had been distinctly declined by the de-
fence, the only question was whether or not the
Court would in its discretion suspend the case until
tomorrow morning, waiting for these absent wit
nesses. The defence seemed to make no objection
to this course but on the contrary said they desired
a full examination. He thought, therefore under
the circumstances of the case, the United States
having served a subpoena and issued an attachment
which has not yet been returned, that the dscre-
ton OF the Court would be properly exercised in
postponing the case until tomorrow morning.
Still there ought to be limit to this thing; and
some time or other should be fixed when it should be
understood that if the witnesses did not appear the
Court could wait no longer for them.


Mr.. Ould assented to this.


An arrangement was then made by which the
counsel on each side agreed to furnish copies of the
testimonies for which they should ask, to the other
side, this afternoon for examination; this it was
thought, would much facilitate the progress of the
case. Whereupon, the Court adjourned
The following are the instructions which the pros
ecution ask may be given by the Court:
II the jury believe, from the whole evidence in
this cause, that the prisoner the dav named in
the indictment, and in the county of Washington
aforesaid, killed the said Philip Barton Kew, by
discharging at against and into the body of him,
the said Philip Barton Key, pistol, or pistols,
loaded with gunpowder and ball, thereby giving
him mortal wound or wounds, and that such kill
ing was the wfu and intentional act of the prison
er-and was induced by the belief that the said de-
ceased had seduced his, the prisoners, wife, and on
some day or days, or for any period, definite or in.
definite, prior to the day of such killing had adul
ferrous intercourse with the said wfe-and that the
prisoner was not provoked to such killing by any
assault or offer of violence then and there made by
the deceased upon or against him, then such wilful
anu lnlenllOnal kllllnH, II 1Ound DY the
all the facts and circumstances given in evidence is
murder. But such killing cannot be found to have
been wfu and intentional, in the sense of this in
struction, if it shall have been proven to the salts
faction OF the jury, upon the whole evidence afore-
said, that the prisoner was in fact insane at the
time of such killing.


1t is supposed that the trial will come to an end
on Monday or perhaps Saturday evening, in
case the summing up is dispensed with both
sides. Should the case however be argued before
the jury, conclusion will not be reached before
Wednesday or Thursday. Court jury, counsel
and reporters heartily sick of the case but of
course no interest will be sacrificed to accomplish
speedy termination. The prosecution have vet
some witnesses to examine and future action
must depend upon their testimony and the decision
OF the Court in regard to the prayers for instruc
| tions.


1t is understood that the testimony offered pri-
vately to-day, and decided to be inadmissbe By the
Court, related to the character and conduct of the
| prisoner.


! , TEXAS 1NTELLIGENCE.-The following is an extract
of a letter from an officer in Major Van Dorn's
camp, near the Wichita Mountains, dated March
| 18th, 1859


Things are in a rather bad state up here Since
| left (November) more than hundred horses and


fifty mules have died; the rest look as if they might
go at any time. There has been no rain in the
! time, but good deal of snow. The grass has not
begun to sprout and very little of the old grass is
left. To take advantage of what there is the camp
! has been scattered, and now extends about six
miles along the creek. Major Van Dorm is out
| looking for place, and think we will move in a
short time to some point on the north fork of Red
| river. | do not know that it will be much Of an
! improvement-fOr this country, as far as have
seen, is very much alike and all as poor as can be-


think it would be well to let the Indians have it
| for white men never make living here, unless
at great cost of labor and money The land is very
| poor; without timber, except very little on few
creeks There is but little water, and that general
ly unfit for The climate is too cold for stock
they could not live through the winter. The
country is only fit for Buffalo and wolves these are
found in abundance. So many horses having died
the wolves have collected in great numbers aroune
our camp.


March 27th.-We will leave this in few day.
for place about twenty miles north and among
| the mountains. Good grass and water have been
! found there.


| The Weatherford Neps has a letter from two
of the Arizona gold hunters who have seen re-
markably large elephant there and left for Cal
ifnrnia. They say in effect that Gila gold is a
| phantasm.