Year: 1859

WASHINGTON, April 16, 1852


The Court was opened at 20 minutes past 10
o'clock, and in few minutes afterwards the prison
er was brought in and placed in the box The
jury were called and severally responded. The
crowd this morning was not quite dense as usual
The trial proceeded by the calling on the part of
the defence, of


Peter Cagger.-Resides at Albany. New York.
is member of the bar; have known Mr. Sickles up.
wards OF twelve years; saw Key only once; that was
| in June, 1858; on that occasion witness retained
him as counsel; Mr.. Sckles gave me letter of in
PRODUCTION, and retained him on that account.
Not cross-examined.


Mr. Ould referred to Sd Jones' Reports pape 75
also 9th lredel and Hs South Carolina Reports.
as bearing on the question now before the Court.


Mr. fhlillps resumed the argument, commenced
yesterday afternoon in favor of the admisibiity of
certain testimony offered by the defence to show
the provocation, when the homicide was committed.
as proving the absence of malice. In addition to
the illustration, given last night, he adduced the
case OF Dllnd man who might be informed, through
nearing or touch, that an adultery was being com
mltted in his house. and should find the parties in
the act although it is evident that he could not see
them. Ihere was picture in Hogarth showing the
apsurdlty OF strict adherence to technical rules
where man who had lost his right hand was de.
prived of the right of franchise because his vote
pelng challenged, he could not put his right hand
on on the pook and take the oath required by law
we are told that the only mitigation is that they
must be caught in the act. Suppose the husband
traces the wife into house of assgnation and finds
anem @ IN pea IN state of quiescence, does that
come within the rule? Suppose the man is either
taking OF or putting on his clothes in the room
where his wife is in bed is that finding them in the
act? Certainly not


Mr.. ould did not know precisely where to draw
the line o definition.


Mr.. Phillips said that was just what he was con
tending for. There was no specific rule To show
Where the line should be drawn; and there was no
reason to justify literal adherence to the principle
contended for Reason is the soul of the law and
when that dies, the law dies with it, Hence we
have the old maxim laid down as a well established
prnclple, CesSdne ratione legis cessat ipsa lea -


In TINS case the tongue of the adulterer is silent in
death, and the tongue of the wife is sealed by the
ruling OF the Court. There is, therefore, no other
way to prove the fact than to show incidental cir
cumstances, which afford confirmation strong as
PROOF p OF holy writ AS to the question whether
the Killing was or was not in transport of passion
whether there was was not cooling time we
are not now to discuss; that is question for the


Jury, who are the constitutional triers of this case
Inc rule does not require the killing to take place
concurrently with the act of COTTON Mr. p quoted
russell to prove this; and also cited the case CT
Manning, as given in Raymond's Reports where the
Judge SAID there could not be greater provocation
than adultery, and therefore the parties having
been caught in the act, the prisoner was only con-
| Vlcted OF manslaughter. This was the ONLY ca Sc
OF conviction for crime of this sort that could be
found anywhere in the books. Did the JUDGE
make the law? He has no legislative power. Upon
what authority then did he render that decision ?
1t was by applying the analoges of the law that
when provocation exists it is mitigation of the
| oftence-as proyOcation iusties passion adultery
Is the greatest of prOvOcations. He took the law
as IL stood, but applied its analogy to a new state
OF facts. The punishment in that case was merely
nominal The argument founded upon Manning's
case Is this if the parties are found in the very act
OF adultery, the provocation is sufficient; ergo
where the parties are not found in the very act it
IS not sufficient. He regarded that reasoning as fall
laclous. Was there anything to show that if the
| circumstances of another case did not come up
precisely to the facts found by the jury in that case
! the provocation would not be sufficient? He held
That there was not. The Judge ruled on the
case as it came before him; that was all
| In Massachusetts, there was a distinct law
| against adultery; and what was the nature of the
evidence required to convict under that law? Ey-
dence was received in cases where the parties were
| not caught in the act; and if that was allowable
under statute, why should greater evidence be re-
CURED IN this case, and that evidence be rejected?
! lie cited lst Cushing, 80; IA Pickerinr 5i9. 9th
New Hampshire Reports, SIS; Is Alabama ia
The rule in the English Courts as expounded nv
Lord Stowell, is quoted in I'd Greeneaf's Evidence
81 where it is said that it is necessary to prove
the direct act of adultery but there was NOT ono
case in hundred where the parties were caupht in
| the act 1t was to be proved by circumstances
which lead to fair inference, and which lead to
| dlrect conclusion. Unless this so held no pro-
lection whatever could be given to marital RIGHTS
| What were the circumstances which lead TO sTch
conclusion, could not be laid down universally.
though many of them are to be found in the an
elent books. They vary in the various cases.
Now would it be contended that the husband whose
feelings were peculiarly sensitive, should be re-
CURED to have greater evidence proving the fact
OF adultery, than would be required to convince
jury of that fact?


Mr.. T. then commented on the case of the Stat
vs. John, laid down in lrede, which was the case
OF slave, as before alluded to. Adultery is the
violation OF marital rights, and where there are
no marital rights there can be adultery. In the
case OF John, there were marital rights as slaves
cannot contract marriage, and hence there was no
adultery Whatever the Judge may have said on
that question was mere obiter; for there being no
marriage and therefore no adultery. consequently
the provocation arising out of adultery could not
legltlmatey appear in the case.


Inc whole matter is as to the relevancy of this
evidence. lfit is relevant for any purpose it is
admitted that it should be given to the jury The
relevancy OF evidence, says Russell, must obvious
y depend upon the particular facts of the
case then on trial. He also referred to the
rules rules of evidence as given in 1st Phillips
~ IT, and lst Greenleaf ia. Now how can
the jury conclude whether the passion in this case
Is real or feigned, unless the provocation be given
in evidence to them? The defence had offered to
prove a systematised adultery carried on by this
party IN the absence of the accused, in his house
and IN his presence in the house of the deceased
himself They offer to show that not long before
the commission of this act, the knowledge of
these things was brought home to the mind of the





before the killing, the signal of the adulterer was
houted in the very face of the prisoner himself.
and an invitation given to his wife to repeat
the crime of adultery. This was evidence const-
tutlng the provocation, not only known on Satur-
day night, but it was evidence constituting
a new provocation occurring Immediately before the
homicide, which is the matter of inquiry
Under these facts whatever may have been the con-
dlt0n OF calmness which time may have impaired
to the mind OF the accused after his first knowledge
of the transaction-if we can suppose that the hn-
man heart could become calm under a knowledge
OF such rcumstances-whatever NAV be said in
reference to the cooling time which the prisoner
had, he contended that there was Immediately be-
before the killing new provocation, sufficient in
the minds of all reasonable men, to Justify the mas.
sion which led to to the commission of the act He
was astonished aud grieved to hear the gentleman
say that, inasmuch as the accused knew the faith
lessness of his wife when that signal of adultery
was thus fouted in his face, he had no right as a
man to feel aggrieved by that act.


Mr.. Carse.-l beg pardon The gentleman en-
tireiy msunderstands my argument. l was speak
ing then IN regard to that aspect of the case in
which it had been presented as the prisoner stand
ing IN defence OF his wife to protect her against
adultery. was not speaking of what would put
him in passion, or would grieve him. The fact
was about to be repeated, and it was to prevent the
act of adultery.


Mr.. Phillips replied that no one had pretended
that 1T was to prevent repetition of the adultery
The idea was, and the whole argument was, as to
the condition of mind which would be produced by
such transaction. That was the point which
was In dispute. The gentleman said she had be-
come, or ought to have become loathsome thing
and the inference was that iEasmuch as she had
thus become loathsome and lost to him, the signal
OF the adulterer was no ground to produce con-
diton of mind which could justify or mitigate the
act with which the accused is charged


Mr.. Carlisle-'1 have distinctly disclaimed that


Mr.. Phillips-'If the gentleman disclaims it |
have no more to say about it,


Mr.. Carlsle-'I hope your Honor did not so un-
derstand me-"


The COurt-"No, understood it. think"


Mr.. Phillips continued-Havngs shown the cond-
tlon OF mind, are authorized to show the provo
cation, and to show whether the apparent passion
was real or fictitious? If it is necessary to show
either of these, evidence of the fact must be given
to the jury, for it is for them to determine both
propositions. In the present case, the Judge occu-
pies position which seldom falls TO the lot of a
Judge in criminal trials He was not called upon
to MAKE law for this case, but to apply the anao
gies OF law to new state of facts, as presented in
this extraordinary In civil trials Judges were
often called upon to decide new questions, from
the great variety of cases that might arise;
they were not to act attton,ata, but as men
whose minds were richly stored with legal
knowledge, which they could apply to the various
cases as they presented themselves. In criminal
trials this more seldom happens, but the point now
under discussion never had before been argued, so
far as his own research had extended-nameiy, how
far the party must the very act to Justify the
provocaton. Sc far as he knew, this point had nev-
er been discussed, and had never been adudica ted
by any tribunal, either in England or in this coun-
try. The defence now offer to prove the truth to
the jury. What are the rules Of evidence made for
but for the evsceraton of truth and shall the
truth relative to the fact be excluded Shall