Year: 1859

ne was an Involuntary instrument In the nandS OF
his Maker for the purpose of carrying out that
judgment against aduterers which has been de-
nounced against them in the Court of Heaven.


In order to sustain the prosecution the evidence
must prove four facts-lst, that the defendant was
moved and seduced by the instgation of the Devil,
to the commission of the act charged upon him
crime; 3D. that he killed the deceased felonousy,
maliciousy and with malice aforethought; Sd, that
the act was against the peace and government of
the United States; and 4th that at the time of the
commission of this act, the deceased was in the
peace of God and of the United States The de-
fence contended that if the deceased was upon any
such mission as they attributed to him, he ne-
ther in the peace of his Maker of this govern
ment. They were not now invading a new field of
proof, but were seeking merely to extend the line
of proof already commenced, and which, if it should
stop W here 1T now stops, would leave doubt on
the mind of any man. moral or legal as to the ex-
istence of this very adultery which they seek to
establish by more positive proof than has been al
ready adduced. The prosecution had suffered them
to go on thus far without objection, and now sud-
denly seek to shut the door them The prosecu-
ton (said Mr.. G.) have experimental with u.s.
They have allowed US to go 20 a certain stage of
our proof and when they find the avalanche des-
cending upon them they ask the Court to stay it in
its progress. Now we ask whether we shall be per-
mitted to finish the structure the foundation walls
Of which have already been laid, or whether the
Court will arbitrarily exclude the evidence we offer
upon the part of the defence.


Mr.. G. then proceeded to recapitulate the promi-
nent circumstances OF the case, they had already
been proved, in order to show the bearing of the
evidence in question upon them. They had already
carried the parties Key and Mrs. Sickles with their
proof far the door of KEYS house in Fifteenth
street on Wednesday, and they proposed to
continue their proof to the same matter. 1t was
not an attempt to enter territory of proof but
an attempt to exhaust all their proof upon matter
exhaust it partially. We submit as a general
principle of law (said he) that whenever a party
has right to make an objection, that objection
must be made an hnine; and after the threshold is
one passed there is no power which can compel us
to retrace our steps, 1t is not in the power of the
prosecution to resolve this into an experiment. and
and after they find that it is to be be successful
then to avail themselves of place for repentance,
and ask the Court to exclude further testimony
from the Jury.


AS to the point that husband is not excused for
Staying the adulterer unless he is a witness to the
act, he remarked that so long as this crime was
committed in the silence of night and within cur
tanned beds, instead of openly and in the face of day
so long as adultery was pursued in secret, long
would 1t be utterly impossible for the husband to
have any right at all in reference to defending the
honor of his wife against adultery, on the theory
OF the persecution. Every one knew that direct
proof was seldom attainable; and chain of crcum-
stances leading necessarily to the establishment of
the conclusion is all that can be expected or de-
manded. He proceeded to quote I'd GreQnleaf on
Evidence, sections Al and 43. man cannot be
condemned for yielding to the uncomfortable i'm
pulses and instincts of his nature. To take case





had mothers, at any rate. If son. who sees an
lndignlty offered or attempted to be offered to the
person of his mother, should rise in the majesty
OF his lia feelings and in obedience to the h0liest
impulses OF his nature, and say the offender where
was there a jury that would convict him for so do
ing? What is it that jlstes the SLAYER under such
circumstances? 1t is the irresistible impulse of
that love which the great Creator has implanted
even in the breast of the brute Precisely the same
affection exists in the relation of husband and wife,
only in different degree; and when a party is so
trenZed by those instincts, which are a part of his
nature, that he cannot resist them, he becomes an
involuntary instrument in the execution of the
judgment of Heaven. An effort had been made to
show that the defence were relying upon a "higher
law" to justify this homicide They knew very
well the origin of that phrase, and that it had been
applied to the conduct of certain fanatics who for
the purpose of accomplishing political and selfish
ends, were trying to subyer the foundations of our
government. So far odium was attempted to be
cast upon the defence, in connection with views of
that sort, they dsowned them. But they contend
ed that there were stages at which communities,
Ike individuals, were required to take the admins
tratOn of the law directly into their own hands
and administer it for their own benefit because
those who were cOnfded with its administration
had not been true to the trusts imposed upon them
They had witnessed remarkable instance of this
in one of the States of this Union in the princnal
city of which the citizens themselves had to rise in
their own native dignity and majesty and take the
government into their own hands, because the gov
ernment which they had created was not true to
the trusts they had devolved upon it, They in
ficted capital punishment on two persons and
yet, according to the doctrine of the prosecution
no matter what the necessity that produced
that conduct under those circumstances every ner-
son participating in that act and is, for any le
gal purpose, murderer. He would like to see the
Judge who would sit upon the bench where that
act was committed, or elsewhere, and instruct the
jury that those who committed it in the spirit of
setpreservation were murderers. If there are
cases in which communities are justified in rising,
and resenting and Furnishing the wrongs under
which they have SO long groaned, he asked
whether, in analogy to them, individuals might not
become invested with similar rights, and whether
they might not resolve themselves into instruments
IN the hand OF the Deity for the purpose of carry
ing out his ends?


Mr.. Graham quoted Matthew " 2S in the SER
mon on the Mount, to show that the actual com
mission OF the crime was not necessary in order to
constitute adultery-it man looks on a woman to
lust after her, he has committed adultery already
In his heart. Now the law benign as the
prosecution Jay it down; could any person saw that
1t was ever lenent? He proceeded to comment on
the case before quoted from Iredell; but that was
the case of a slave, where the relation of husband
and wife did not exist. As has been remarked by
his colleague, what the Judge said was mere obiter
dtctu, and he thoughtt would be better for Justice
II Judges would contne themselves to the questions
presented to them, and not wander off to the con-
slderation of extraneous points In addition, the
decision there given utterly excludes the idea of
insanity and was not therefore to be regardedas au
Dn.lI
was necessary to GO back and refer to the history of
the early cited. What was the origin of the rule
on which the prosecution rely? 1t dates back to the
times when Juries were made instruments in the
hands OF corrupt judges. He hoped we should
not lower the character of this great palladium of
liberty, but allow the jury to pass upon the uues.
tion presented, and allow them to have the evidence
on which to base their judgment. Was Justice
Hale the Moloch at which we were to bow-a Judge
who presided at trials for witchcraft? Has there
been no progress for the last l6O years? Under the
decision OF Hale, insanity, to be effective at all as
an excuse, must be complete and total; but that is
conessedly not the law now. Then if the law rela-
tive to insanity has changed why NAV not the law
In other respects have changed also? If Hale is
not good authority with regard to the law for in
sanity, he cannot be relied on in relation to the
rights of the husband


He referred to Fosters Crown Laws, page 29S,
where it was laid down that an aduterer stabbed
by the husband in the act of adultery was not
"within the act" and, if indicted for murder,
would be acquitted by direction of the Court to
the jury. While the British government thus,
"under the statute of James the 1st," refused to
hold him guilty of murder, it indicted him under
the common law for murder, and on testimony that
the killing took place when the adulterers were
caught in the act, the offence reduced to man
slaughter. He also referred to I'd Iewen's Crown
Cases page 2l6 Pearsons case to sustain his point


He submitted that the Constitution of the United
States in article 3, section 2 broke up the old prac-
tice of special verdicts and that anything tending
to show the adultery admissible as testimony
Here he referred to lst vol of Statutes at Large
pages Is and 10, wherein it laid down that all
crimes shall be tried by an impartial jury of the
State. This he held to be refutaton of the sound
ness of the position of the prosecution, which
amounted to a claim that d. E. Sickes should be
tried not by the jury but by the Court In several
States their Constitutions provided that juries
should not be required to render special verdicts.
lie denied that there was any rule of law taking
the verdict out of the hands of the jury and placing
it in those of the Court.


lie also argued that this evidence was admissible
as being part of the gesta; for it explained
the meaning of the waving of the handkerchief it
really placed the deceased fagranfe deicto at the
time he met his death. HI was then committing
adultery in his heart, and he was within the prohi-
bition of the Bible. He had seen Sckles emerge |
from his house, and he was going to that house, a
direction in'which he knew he would not meet
the husband, for the purpose of getting up an
adulterous appointment with Mrs. Sickles. Now if
this testimony, and all evidence bearing upon this
point was to be excluded, what need was there of
having this trial at all The case might lust as
well have ended with the examination before the
coroner's jury. He asked whether the Court would
stultfy itself and reverse its former decisions by
ruling out this evidence-he hoped not.


Mr.. Graham closed at 20 minutes past one o'clock
and the jury then took short recess


Mr.. Ould replied.-He commenced by stating the |
true issue now under discussion, and the grounds |
upon which this evidence was sought to be intro
duced. The defence contended that it should be |
received in order to show justification and provoca
tion for the homicide. These were both legal ques
tions-questions for the Judge and not for the Jury
to consider. Some of his positions had been msun-
derstood by the opposing counsel He did not con- |
tend that there could be no excuse for a homicide
unless the man sac the act of adultery. If there |