Year: 1874

While Il Is the policy of the law in oil cases
to apply the humane rules OF modern juris-
pru6 6ence,s yet when go solemn q duty. lis be-
fore the jury as the trial ofsa hnman being
for his life every conSid iderati0n of humanity
REQUIRE that every single Ingredient which
goes to constitute the guilt Of the party shall
be established beyond reasonable doubt.
| II there be one single link that does not
come up to the requirements Of the law it is
the same thing as IL all were faulty


The rule should be made more stringent,
and the evidence should be complete in all
particulars. There is no statute in virginia
which provides for punishment by death for
duelljng. In order, then, to convict In this
case the jury must not look TO the statute.
The idea of yduelling is not known to our
statute. The jury isto decide whether there
has been case Of felonious, willful homl-
eide with malice prepense.


Judge Ould next proceeded to review the
| remarks OF Mr.. Wise in connection with the
public sentiment in the case. The criminal
law requires plenary proof not only as to the
general evidence Of guilt, but also the COM
pleteness Of every feature. No room is left
to doubt. No room is left for conjecture
| It must be proof.


Judge Ould next re-read the authority
1 WutSu SSSh CttCd DJ 4AIss5ff isc, DuC WILD
a different construction. 10 had been
proved bY.xMaor Poe thai there were
eight persohsron that feld-segen besides
the defendant. The old masters Of the law
required that nil men who are said to be eye
witnesses of transaction shall be put upon
the stand The theory Of the Common
wealth is that all these seven gentlemen
were witnesses to the transaction. But we
have no evidence yet to show thai witness
even saw pistol; no witness has been pro-
duced to prove that McCarty ever dis
| charged pistol. 1t is charged in the in-
dictment that he, with pistol in bis right
hand, by the force of gunpowder, did dis
charge leaden bullet in and upon John b.
Mordecai, from which he lapguished and
died. Where are those seven witnesses
| who are admitted to have been present at
the transaction? The law says that it is bet
| ter that ninety-nine guilty men should be
| punished than that one innocent man should
suffer.


Judge OuId next reviewed Major Poe's
testimony. and said that the jury was asked
| to infer from his statement that because the
parties were seen ten PAGES apart lying
| wounded that McCarty shot Mordecai, and
| that Mordecai shot McCarty. The policy OF
the law is that every man is supposed to be
| innocent until he is proved guilty. There
is not that certainty required by the law to
show that these parties shot each
other because they were found lying
there on the ground ten PAGES apart.
1t is the duty of this jury to respond to
every point of fact brought out in this case !;
it is the business of the jury to interpret
facts, and upon them lies the responsibility.
| The speaker next remarked that it could be
fairly interpreted that the 6ght,-if fight
there had been--was one Of chance or a
sudden affray, from the declaration of Nor
deca to Major Poe. II in point of fact DR..
| Cullen is not particeps c,inlsnaS, then all the
declarations which have been made in this
cause by the witness who conversed with


Mordecai amount to nothing; and in order
to make this evidence complete, the jury
must be satisfied that DR.. Cullen is guilty
of the murder of John B. Mordecai, which
is not now alleged. Leave Cullen's declaration
out of it, and the declarations are in perfect


consistency with the theory that there was
chance fight, or a sudden encounter, or
that John B. NIordecai may have been killed
bv one of these seven gentlemen who are
alleged to have been there and witnessed
the aflray. 1t has not even been proved that
John B. Mordecai met his death by pistol
ball, Nobody has sworn that pistol-6all
caused it. The Inflammation may have been
there, but death may have been from some
other cause. And so it has been all the way


through. These loose and disjointed state
ments have been put together by the learned
prosecuting attorney in order to make out
case. There is no proof yet brought out
that there has been homicide by Page Nc
Cartv, and So far as | am concerned l leave
| the case to the Jury.
Judge Ould, in concluding, bespoke the
attention of the jury for Judge Crump, who,
he said, would follow him for the defence.


At this hour, 2 O'Clock, the court took a
recess until T. NJ.


After Recess.


The court resumed its session shortly after


3 o'clock, and the argument in the case was


resumed.


REMARKS OF JUDGE CRCMP.


The argument for the defence was con-
tinued by Judge Crump, who said to the
| Jury he had no doubt that they would be
case on the part of the defence without
! further argument. But the peril by which
the accused is surrounded, and the fact that
he was defending q human being for his
| life, made it imperative that he should say
something more than had already been said.
| He said that the verdict must either be
murder in the first degree or not guilty.
He never feared to stand before a tribunal oi
twelve men in righteous cause. There isn't
said he, one single fact brought out in this
case which points to the accused as being
guilty Of the murder Of Mordecai by means
| Of duel except the fact that the two men


were found lying wounded in the county Of
| Henrico. s@


Judge Crump next proceeded to review
that which he said was the Commonwealth
view of the case, and said that except the


fact that Major Poe saw the two wounded


men lying there on the ground there was no
evidence against the accused, and that there


was not single witness in this cause except
Poe who even saw the deceased in life after
he was. wounded. He might have died of
heart disease or of sudden pneumonia. In
the first place 1t is only to be conjectured that


the deceased died from pistol-ball !; second,
that it was fred from pistol; and third,
that it was fired by the accused. Why is it
| to be inferred because they were lying ten


Yards apart they had fought duel? Now,
there's Major Poe, than whom no more
honest man lives. he went out there to find
duel; and do you suppose he was going
/ to come back without it? Poe went out
there and stepped ten PAGES, but how is it a
fact? Poe might not step as you or l. But
| in whatever way the matter Is argued you
come back to the first and only solid fact,
that Poe saw these men lying out there on
the ground wounded. IT is cropping in the
dark. -,