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A 



THE 



LAW OF HOMICIDE 



TOGETHER WITH THE 



TRIAL FOR MURDER 



OF 



JUDGE WILKINSON, DR. WILKINSON AND MR. 

MURDAUGH 



INCLUDING THE INDICTMENTS, EVIDENCE AND SPEECHES 



OF 



Hon. S. S. PRENTISS, Hon. BENJAMIN HARDIN, E. J. BUL- 
LOCK, Esq., Judge ROWAN, Col. ROSERTSON, and JOHN 
B. THOMPSON, Esq., of Counsel in Full 

A-' '' - ■ 

By £ B; CARLTON, LL. B 

Formerly Prosecuting Attorney and Circuit Judge in Indiana 



CINCINNATI 
EGBERT CLARKE & CO 

1882 



Entered according to Act of Congress, in the year 1881, by 

A. B. CARLTON, 
In the Office of the Librarian of Congress, at Washington, D. C. 



INTRODUCTION. 



The writer has long been of the opinion that the publi- 
cation of some celebrated criminal trial, with all the 
proceedings, accompanied with notes and commentaries, 
would be useful and entertaining, not only to students, but 
also to those engaged in the practice of law. Accordingly 
this volume is presented to the profession. 

The case selected is " The Trial of Judge Wilkinson, 
Dr. Wilkinson and Mr. Murdaugh, on indictments for 
murder, at the Gait House in Louisville," many years ago. 

In many respects this is one of the most remarkable and 
interesting criminal trials that ever occurred in the United 
States. The circumstances attending the Gait House 
tragedy, the high character and position of the defendants, 
and above all, the celebrity of the leading counsel engaged 
in the cause, invest this remarkable case with a deep and 
abiding interest and entitle it to be preserved in a perma- 
nent and durable form as one of the ^'causes celebres^^ of 
America. The counsel for the Commonwealth of Kentucky 
were Edward J. Bullock, Prosecuting Attorney, assisted 
by the celebrated and eccentric Ben. Hardin. The defend- 
ants were represented by Hoii. Judge Rowan, Hon. 
Seargent 8. Prentiss, and several other able lawyers. 

All the actors in this drama of real life, have (it is 
believed) passed away. The fame of those renowned 
lawyers and orators is preserved mainly by tradition and 
hearsay. Most persons of mature age in the West and 
South have heard of those celebrated advocates, while only 

(3) 



THE LA W OF HOMICIDE. 



Address of Seargeot S. Prentiss. 



a few veterans, yet lingering on the stage, have heard their 
forensic eftbrts. 

Part I of this work contains the trial, now, for the 
first time, presented to the public in a durable form, giving 
the proceedings in full, including the indictments, all the 
evidence, arguments of counsel, etc. The speeches of the 
counsel, alone, will be considered by many readers, espec- 
ially students and young lawyers, as worth the price of 
the book. The speeches of Rowan, Hardin, and others, 
here given, though not entirely in accord with the present 
standard of taste, are powerful and able, and are fair 
specimens of the style of oratory so effective and so much 
admired in the West and South forty years ago. As to the 
address of Hon. Seargent S. Prentiss, of Mississippi, 
it has long been the opinion of many judicious critics, 
that for power, beauty of diction, wit, pathos and humor, 
this address of Mr. Prentiss has never been surpassed in 
this country. If, indeed, Haudari a viro laudato^^ be a 
proof of great excellence, then the high opinion of S. 8. 
Prentiss as an orator, as expressed by Kdward Everett, 
Daniel Webster, Henry Clay, and other noted men, 
North and South, will place the gifted Mississippian along- 
side the most renowned orators of ancient or modern 
times. 

The I'eport of the Wilkinson trial is accompanied by 
foot-notes, referring to subsequent parts of the work, 
explanatory of the text of the trial and showing the 
changes in the law. 

Part II is an exposition of several topics on the law of 
homicide, according to present statutes and authorities, 
arranged under appropriate titles. 

Part III is-a full and comprehensive statement of the* 
Statutes of Indiana, with full abstracts of judicial decisions 
in this State and other states in the Mississippi Valley, in 
relation to homicide. 



INTRODUCTION. 



The Ol^ects of the Author. 



The object of the author has been to prepare a useful 
book, especially to the profession in Indiana, and other 
States in the Mississippi Valley; and while this work is 
not intended to supply the place of other and more 
voluminous publications of a like character, yet it is 
believed that, in no other work, within so few pages can 
there be found so much matter that is so useful to the 
profession in homicide cases. The author hopes to be 
allowed to make this claim, salvo pudere, without arroga- 
ting to himself any extraordinary superiority in style, law 
knowledge or scholarship. He claims no other merit than 
what is found in the plan which he has adopted, and a 
patient and pains-taking collation of the materials he has 
accumulated in his practice and reading during the last 
thirty years. 

A leading object of the author has been, to present in 
Part II, multum in jparvo — as much law as possible in as 
few words as may be consistent with clearness. Accordingly 
he often disposes, in a few lines, with sufficient clearness, 
as he believes, of a topic, that occupies many pages of 
elaborate disquisition in the more ponderous and volum- 
inous disquisitions on criminal law. Avoiding the 
philosophical and metaphysical refinements and new-tound 
classifications and analyses of some modern writers, he has 
endeavored to present a plain, concise and practical view 
of the Law of Homicide, as it is now administered, 
according to the latest authorities and judicial decisions. 

A leading object with the writer has been to present a 
publication that is attractive, entertaining and useful to 
the student and young practitioner, and at the same time 
a work of utility to the profession at large. It is the 
experience of every one in the profession, that at his 
commencement of the practice of law, while he may hav6 
diligently read the text books and other works, and has 
an adequate supply of law knowledge, he is yet puzzled 



THE LA W OF HOMICIDE, 



The Objects of tbe Aathor. 



and quite at sea as to the modus operandi of conduetiDg a 
trial. This kind of knowledge comes, in a large degree, 
by practice and observation of the proceedings in conrt. 
It is one of the designs of this work to accomplish the 
same object by presenting a celebi'ated trial, giving all the 
proceedings from beginning to end, accompanied by 
appropriate comments and notes. The trial selected is 
of remarkable interest, the speeches able and learned, and 
some of them eloquent and thrillingly beautiful. In short, 
the publication is intended to accomplish what is so rare 
in legal publications— a commingling of the utile dulci. 



PART I. 



TRIAL OF 



JUDGE WILKINSON, DR.WILKINSON AND MR. MURDAU6H 

ON INDICTMENTS FOR THE MURDER OF 

JOHN ROTHWELL AND ALEXANDER H. MEEKS. 



SPECIAL TERM, APPOINTED BY ACT OP ASSEMBLY, CHANGING THE VENUE FROM 

JEFFERSON TO MERCER CIRCUIT COURT. HON. JOHN L. BRIDGES, 

JUDGS, EDWARD J. BULLOCK, PROSECUTING ATTORNEY. 



Monday, March 4, 1839. 

§1. Pursuant to Act of Assembly* passed in the Legislature of 
Kentucky on the 24th day of January, on the petition of Messrs. Wilk- 
insons and Murdaugh, for a change of venue from Jefferson county to 
Mercer county, the trial of this important case was appointed to com- 
mence at Harrodsburgh on Monday, the 4th of March, 1839. On the 
appointed day, the Court being opened in due form, before Judge 
Bridges, the counsel for the prosecution applied for time to collect the 
witnesses for the Commonwealth, most of those summoned not being 
in attendance. The Court required till next day for considering the 
grounds urged, and upon resuming, on the 5th, decided that all parties 
should be prepared to go to trial on the following Monday. 

The intermediate time was employed by the prosecution and defense 
in collecting by summons or attachment the several witnesses, most of 
whom arrived at Harrodsburgh on Sunday evening, the 10th, by the 
stages, and next morning it was generally known that all parties were 
prepared and anxious for the trial. 



^See Appendix, letter A. 

(7) 



10 THE LA W OF HOMICIDE, 

The Indictment. 

defense were : Cohoon, Randall, Jones and Huff. C. Humphries and 
Jacob Vanarsdall w»re the two who had heard Dr. Graham speak of 
the matter, but had formed no opinions. 

§4. Judge Rowan, previous to the reading of the indictments, 
addressed the Court for permission to introduce Mr. S. S. Prentiss, of 
Mississippi, a practicing lawyer at the head of the bar in his own State, 
and who now asked leave to practice in this court for the purpose of 
aiding in the present defense. The Court assented, being satisfied of 
Judge Rowan's assertion, and ordered the clerk to swear in Mr. 
Prentiss, which was accordingly done. 

The jurors sworn and called over by the Clerk of the Court were : 
Benjamin Alson, R. M Davis, Buckner Miller, Robert Alexander, John 
Bowman, John Burton, Elijah Gabbett, John Bohan, John Adair, 
Elineazer McGofBn, Charles Humphries and Jacob Vanarsdall. 

The Clerk of the Court then read the two indictments, as follows: 

(1) f 5. The CommoBwealth of Kentucky, Jefferson county, and Circuit, Set. December 
Term of the Jeflferson Circuit Court, in the year of our Lord one thousand eight hundred and 
thirty-eight, the jurors of the Grand Jury, empaneled and sworn to enquire in and for the 
body of the said county of Jefferson, in the name and by the authority of the Commonwealth 
of Kentucky, upon their oaths, present, that Edward C. Wilkinson, Gentleman, (2) John 
Murdaugh, (Gentleman, and Benjamin R. Wilkinson, Doctor of Medicine, late of the said 
county and circuit, on the fifteenth day of December, 18.'{8, in the said county of Jefferson 
and State of Kentucky, with force and arms, feloniously, wilfully, and of their malice afore- 
thought, an assault did make in and upon one John Bothwell, there being ; and the said 



(1) " Edward C. Wilkinson, genUeman, etc. This word " gentleman '* is called an addi- 




was formerly fatal to the indictment. But in Indiana and most of the other States it is no 
longer necessary, either by virtue of statutes or judicial decisions. 6 Blackf., 49. 

" With force, and arms." "Jhe use of these words is now unnecessary. Wharton's Prece- 
dents, pp. 9, 43. 

" Wl<A a certain knife." The common law rule in pleading the Instrument of death, is, 
that where the instrument laid, and the instrument proved, are of the same nature and 
character, there is no variance ; when they are of opposite nature and character, the con- 
trary. Thus, evidence of a dagger will support the averment of a knife, but evidence of a 
knife will not support the averment of a pistol. See further on this subject, post. Part II. 

" Had and held in his right hand." This averment need not be strictly proved. It is not 
a fatal variance, if the evidence shows that the instrument of death was neld in the other 
hand. Arch. C. P.. 10th Ed., 407. 

" Tn and upon the left side qf the back," etc. Hale says that it must be averred in what 
part of the body the deceased was wounded, and therefore if it be charged that the wound 
was on the nrni, hand or side, without saying whether on the right or left, it is bad. 2 Hale, 
185. [N. B. It is believed that this is not good law at the present time in this country.] If, 
however (says Hale), the wound be stated to be on the left side, and proved to be on the 
right, or alleged to be on one part of the body, and proved to be on another, the variance is 
immaterial. 2 Hale, 186 ; see post, g 573 of Part II. The proof need not correspond with the 
averment as to the part of the body to which the violence was applied. 7 Blackf., 70. It is 
not necessary that the part of the body struck should be specified in the indictment. Carter 
V. The StatCy 2 Ind., 617. 

" Bettoeen the Seventh and twelfth ribs," etc., of the length of four inches," etc. It is now 
decided by the English judges that it is not necessary to state, in the indictment, the length, 
depth or breadth of the wound. Rex v. Mosley, 1 Hood. C. C, 97 ; see post. § 673. 

" Lanauishing, did live," etc. This is proner only in cases where there is an actual inter- 
mission between the blow, etc., and the death ; in other cases it may be rejected as surplus- 
age. State of Penn. v. BeU, Add., 171, 175. 

*' Against the form of the stattUe," etc., " and against the peace and dignity," etc Thit 
allegation is superseded as unneessary by statute in Indiana. 

(2)See post, 1572. 



TIBIAL OF JUDGE WILKINSON ET AL. \\ 



Th» Iidktnients. 



Edward G. WUkinson, with a certain knife, which the miA fiiward G. Wilkinson then and 
there had and held in his right hand, the said John Bothwell in vaA upon the left side of the 
back, near the hackbone of the said John Bothwell, and also in and apott the chest, near the 
collar bone and right lung of him the said John Bothwell, then and tlMM^ feloniously, 
▼ilf ally, and of his malice aforethought, did strike, thrust and penetrate, giving l» tbe said 
John Rothwell then and there, with the knife aforesaid, in and upon the left side of th* h«ek« 
near the backbone of him the said John Bothwell, two mortal wounds— one of said 
mortal wounds between the eleventh and twelfth ribs of the said John Bothwell, and of the 
length of four inches and of the depth of five inches ; the other said mortal wound on and 
cutting through the seventh rib on the same left side of him the said John Bothwell, and 
of the length of five inches and of the depth of four inches ; and also giving to the said John 
BothweU then and there, with the knife aforesaid, one other mortal wound, in the chest' of 
him the said John Bothwell, near the collar bone and near the right lung of him the said 
John Bothwell, of the width of one inch and of the depth of five inches ; and that the said 
John Mordaugh and the said Benjamin B. Wilkinson were then and there feloniously, wil- 
fully, and of their malice aforethought, present, aiding, assisting, comforting, helping and 
nudntaining the said Edward G. Wilkinson in ^ving to the said John Bothwell the said 
sevend mortal wounds, in manner and form aforesaid ; of which said mortal wounds, the 
said John Bothwell, from the said fifteenth day of December, in the year aforesaid, until the 
sixteenth day of the same month and year aforesaid, at the county and circuit aforesaid, did 
languish, and, languishing, did live ; and on the said sixteenth day of December, in tbe year of 
our Lord 1838, aforesaid, at the county and circuit aforesaid, the said John Bothwell, of the 
said several mortal wounds aforesaid, did die. So the said jurors, upon their oath aforesaid, 
do aay, that the said Edward G. Wilkinson, tho said John Murdaugh, and the said Benjamin 
R. Wilkinson, then and there feloniously, wilfully, and of their malice aforethought, in man- 
ner and form and by the means aforesaid, did kill and murder the said John Bothwell, 
contrary to the form of the statute in that case made and provided, and against the peace 

and dignity of the Gommonwealth of Kentucky. 

FB. JOHNSON, 

CommtowwwMh Attorney in and /or the Fyih Judicial JHttHet. 

A copy, attest : 

Phil. T. Allin, Clerk. 

2 6. The Gommonwealth of Kentucky, JefTerson county, and Gircuit, Set., December Term 
of the JeflEerson Circuit Gourt, in the year of our Lord 18S8, the jurors of the Grand Jury, 
empaneled and sworn, in and for the body of the said county of ' Jefferson, in the name 
and by the authority of the Gommonwealth of Kentucky, upon their oaths present— that 
John Murdaugh, Gentleman, Edward G. Wilkinson, Gentleman, and Benjiimin B. Wilkin- 
son, Gentteman, late of the said county and circuit, on t^ fifteenth dby of December, 1838, 
in the said county of Jefferson and State of Kentucky, with force and arms, feloniously, 
wilfully, and of their malice aforethought, did make an assault in and upon Alexander H. 
Meek, there being ; and the said John Murdaugh, with a certain knife, which he the said 
John Murdaugh then and there had and held in ^Is left hand, the said Alexander H. Meek, 
in and upon the right side of the belly, between the hip bone and the navel of him the said 
Alexander H. Meek, then and there feloniously, wilfuUy, and of his malice aforethought, 
did strike, thrust and penetrate, giving to the said Alexander H. Meek, then and there, with 
tbe knife aforesaid, in and upon the right side of the belly, between the hip and the navel of 
him the said Alexander H. Meek, one mortal wound, of the breadth of one inch, and of the 
length of six inches, and of the depth of six inches— of which said mortal wound the said 
Alexander H. Meek then and there instantly died ; uid that the said Edward G. Wilkinson 
and the said Benjamin B. Wilkinson were then and there feloniously, wilfully, voluntarily, 
maliciously, and of their malice aforethought, present, aiding, assisting, helping, abetting, 
comforting, sustaining, and maintaining the said John Murdaugh in the felony and murder 
aforesaid, in manner and form aforesaid, to do and commit. So the jurors aforesaid, upon 
their oaths, afcnresaid, do say— that the said John Murdaugh, the said Edward C. Wilkinson 
and the said Benjamin B. Wilkinson, then and there, feloniously, wilfully and maliciously, and 
of their malice aforethought, in manner and form aforesaid, did kill and murder the said 



12 THE LA W OF HOMICIDE, 

WitnesscB for the Prooecation. 

Alexander H. Meek, contrary to the form of the statute in that case made and proyided, 
and against the peace and dignity of the GommonweaLth of Kentucky. 

FR. JOHNSON, 
CommonweaUh Attorney in and /or the Fifth Judicial District, 
A copy, attest : 

Phil. T. Alliu , Oerk Meroer Circuit Court. 

2 7. After reading each indictment the Clerk gave the prisoners in 
charge to the jury in this form : 

" Upon this indictment, gentlemen, the priaonen at the tMur hare been arraigned, and 
liaye pleaded not guilty, and for their trial have thrown themselTes upon God and their 
country, which country you are. You will therefore hear the eyidence between the Com- 
monwealth and the accused, and a true verdict give according to the same ; and if you find 
them guilty you will assess tlie punishment— if not, you will say so, and no more.*' 

Here fifteen witnesses. for the prosecution were sworn, and all but 
Mr. Redding ordered to withdraw into an apartment attached to the 
court. 

Mr. Bedding was then requested by Mr. Hardin to state what he 
knew of the transaction. 

Mr. KjEDDiNo : Some time in Decomber Dr. Wilkinson called at my 
shop to purchase a suit of clothes, and desired that they would be ready- 
on the following Saturday. He then agreed for an overcoat, to be fur> 
nished the next week, and a pair of pantaloons, and said he would call 
at the appointed day for the suit of clothes. 

[Colonel Robertson here rose, and observed to the Court that on a for- 
mer occasion, at the examining court, the counsel for the defense had 
suffered evidence to be gone into Dilative to a matter that had occurred 
some four or five hours previous to the transaction laid in the indict- 
ments. He could not conceive why it should now be attempted to 
connect these transactions. It would be established that the persons- 
killed had not been present at what occurred at Mr. Redding' s, and 
had nothing to do with that affair. He therefore objected to the present 
investigation being allowed to embrace the affair at Redding's store, 
which formed the subject of another prosecution. 

g 8. The Court said it was impossible at the present stage of the case 
to judge whether the two affrays had any connection or not ; and there 
could not be any material objection to hearing the evidence now in 
progress, because if it subsequently turn out that there is no connec- 
tion, it must be discarded by the jury, as far as it relates to the first 
affray ; and whatever may be given in proof that is not legal evidence 
will then become harmless. The witness should be allowed to make 
his statement.] 

Mr. Redding resumed : T had the clothes prepared, and folded them 
on the counter to send to the Gait House on the appointed Saturday 
evening. 

Mr. Hardin : Where was this ? You have a tailor's shop ? 



TRIAL OF JUDGE WILKINSON ET AL. J8 

TeatimoDf of Mr. BeddiDg. 

Mr. Redding : My shop is on the lower corner of Third and Main 
streets. There is but one square between my shop and the Gait House; 
but my shop is on the opposite side of Main street 

Mr. Hardin : In the city of Louisville ? 

Mr. Redding: Yes. 

Mr. Hardin : Well ; proceed with your statement. 

Mr. Redding: On that Saturday afternoon the Doctor came to my 
store about the clothes, and I showed them to him. I asked him to 
try on the coat He said yes, and took off his old coat and tried on 
the new one, which he seemed to like very well. He merely remarked, 
as to the fit of the coat, that it was a little loose; but he had been sick 
and had fallen away, and hoped soon to fill it up. 

He then took the things out of his old coat pockets and put them 
into the pockets of the new coat. He desired me to send the panta- 
loons and vest to the Gait House, and at the same time handed me a 
$100 Mississippi bank bill, which he requested I would hold over for 
a week or two, as he had information with regard to the arrangements 
of the banks below, that the discount in a few days would be consider- 
ably reduced. 

§ 9. He then went away, and in the course of an hour or so returned, 
accompanied by two gentlemen, as I afterward learned, his brother 
Judge Wilkinson and Mr. Murdaugh. When the Doctor came in the 
second time he said he would have to throw the coat on my hands 
as it did not fit and his friends had told him it was badly made — not 
fashionable; it was the Judge that said most about it's not being fash- 
ionable. I offered to get any alteration necessary made. He said no, 
that it was no coat at all. As soon as I found they were not disposed 
to take it, I said I would keep it. The Doctor then took out some 
money and said he would pay for the pantaloons and vest — which had 
been sent to the Gait House. The Judge said, no, do not pay for them, 
perhaps they would not fit — they would be like the coat 1 thought he 
and Murdaugh had more to say against the clothes than the Doctor, 
who, I saw, Would be pleased enough only for them. He daid the law 
was, that if a coat did n9t fit it should be taken back. When the 
Judge interfered so much, I said it took more than one to judge a coat, 
and that t thought he had already said more than h3 ought The 
Judge, who had been sitting near the stove, then Jjumped up and said 
he did not come there to be insulted. I remarked that I did not intend 
to insult him. He snatched up the iron poker at the stove and 
nished at me with it, attempting to strike me, but I received the blows 
on my arm. Seeing that no one in the store was interfering, and 
hearing something about a Bowie knife, I thought to get them to the 
street where some one would be passing, and I seized the Judge and 
jerked him to the side door, near the corner, going, into Third street 



14 THE LA W OF HOMICIDE, 



Testimony of Mr. Bedding. 



As I got to the door I think I slipped and fell, and the Judge fell 
with me. 

§ 10. I thought the whole three were on top of me, and I struggled 
till I got the Judge under me, and I raised to keep oflF the Doctor, or 
to pull him down, when he tried to stab me with his knife but was pre 
vented by some one. The "knife was like this now handed me; I think 
it is the same knife. The Judge still held on to the poker. I should 
have stated that when the Doctor drew his knife on me, a voice quite 
near, which I thought was Murdaugh's, cried out, " Kill the damned 
rascal." It was then that some one ran up and held the Doctor's arm. 
I threw them off and got out on the pavement. Murdaugh was on the 
pavement with his knife drawn. I picked up a brickbat, and told them 
I would whip the whole three if they would lay aside their weapons. 
Seeing no interference, I returned into the shop, and the Doctor fol- 
lowed me in with his drawn knife in his hand, demanding his $100 bill. 
In the scuffle I had lost my pocketbook, in which it was, but some one 
just then, who had picked it up, handed it to me, and I gave the 
Doctor his $100 bill. They then went away with the knives drawn, and 
the Judge carried off the poker. Several persons came into the shop 
after they had gone, and some advised me to get them taken up. I 
did not at first want to do so, but after a little time was persuaded to 
go to the mayor's office, accompanied by Bill Johnson ; but before this 
I went to Mr. Fulton's store and got a small dirk knife from Mr. Noel, 
which I put into my watch pocket. As we went to the mayor's office 
we called at Vacaro's and Hymen's coffee houses to inquire for the 
marshal, Mr. Turner, or one of the police officers. Not meeting any 
of them, we proceeded to the mayor's office, and went up stairs to Mr. 
Pollard's room. I told the circumstances to Mr. Pollard, the clerk of 
the police court, and told him I wanted a warrant. He asked me for 
the names. I said I only knew for certain that one was Wilkinson, but 
I could get the names at the Gait House. 

§11. Mr. Pollard said he could not give me a warrant without the 
names, but if I saw Mr. Turner I could get him to go with me and 
arrest them without a warrant. I told him that I would go to the 
Gait House for the names, and bring them to the office. We then 
started for the jail in search of Mr. Turner, and went around there, but 
could not find him, as he was not there. Bill Johnson went into the 
jail to inquire for Mr. Turner, and I staid on the outside on the pave- 
ment, inquiring about the officers. Before Johnson came out I started 
off to Market street, and over towards Rothwell's corner. I saw Roth- 
well, my brother-in-law, standing at Dr. Bernard*s office, and told him 
what had happened. I was going up Market street, and he went along 
with me. We tried as we went along to find Mr. Turner, or one of the 
city officers, but not being able to do so, we proceeded on to the Gait 



TRIAL OF JUDGE WILKINSON ET AL. 15 

Testimony of Mr. Redding. 

House. We went into the bar-room and I saw Mr. Sneed, who minds 
the bar, and asked him for the register, and the names of the three 
Mississippi gentlemen. In the meantime Mr. Everett came in, and I 
asked him if he would give me the names on paper. He very politely 
said he would, and immediately did so. I then got to talking with Mr. 
McGrath, who was inside the counter, and told how I had been treated 
at my own store. In a short time' Judge Wilkinson came into the bar- 
room, and came up to the counter to take a glass of water I was lean- 
ing on the counter, and said to him : " I think you are the gentleman 
that struck me with the poker in my own house to-day ?" He observed 
that he was, and then said : " I will not quarrel or fight with a man of 
your profession, but if you interfere with me, or lay a hand on me, I'll 
kill you." As he said this he put his hand behind him, as I thought, 
in his coat pocket for some weapon. I then called him a coward for 
coming to my house with two others to assault me ; and I offered if he 
and they would lay aside their weapons, and come into the street or 
into a room, I would whip the whole three of them. He then walked 
backwards and forwards across the room, and I kept telling him what 
1 thought of him. 

§ 12. In a short time he passed out of the bar-room. He was gone 
but a little while when he and the Doctor and Mr. Murdaugh came into 
the bar-room. I saw the Doctor and the Judge behind, and Murdaugh 
came towards me, a little below where I stood at the counter. I re- 
marked to him as he came up that he was the man who had drawn his 
knife on me in my own shop. He said he had understood that I had 
said that he had drawn a Bowie knife on me,. and if I did say. so, I was 
a damned liar, v^r any one else that said it told a damned lie. As he 
was saying this he threw up his hand with a drawn knife in it. I think 
1 heard some one remark that he was the man, for he had seen him, 
but the fight then began so suddenly, and the crowd rushed so close 
together about Murdaugh and the others, that they were hurried past 
me, and I could not see what was doing. I know that Meeks was killed, 
but I did not see him killed. Mr. Rothwell came up when he heard 
the damned lie given, and pushed me back with his arms, which 
caused me to be outside the scuffle. A little while after that, I saw 
Judge Wilkinson with a large Bowie knife in his hand — he came hur- 
rying past me. The knife he had was like this ; I think it is like the 
same knife. [Mr. Hardin had handed the knife to witness. It was 
probably from eight to ten inches long in the blade, two inches wide, 
heavy, and shaped at the point like other knives of that name.] He 
came rushing by me with such a knife as this*, apparently stabbing at 
several persons. By that time Holmes had Dr. Wilkinson down in the 
left hand corner of the room — the left hand as you face the fire. 



16 THE LA W OF HOMICIDE. 

Examined by Mr. Hardin. 

§13. The Judge went towards the door, and Meeks was lying in the 
opposite corner, between the counter and dining-room, either dead or 
dying. I did not know him. The crowd in the left hand corner by this 
time was retreating into the passage and making towards the stairs. I 
gathered up a chair and followed them, and was in the effort of striking 
with the chair, but fearing I might hit the wrong person, 1 did not 
make the blow, and I got towards the foot of the stairs, where I heard 
Mr. Oldham say, as if in answer to some one on the stairs, that he'd 
give the damned rascal a pistol, and a pistol was fired, but I did not 
then know whether by him or from above. 

Mr. Hardin : Mr. Redding, was the poker large enough to kill a per- 
son with a blow ? A. Yes, I should think it was. 

Q. What did you observe of Roth well in the passage? A. He told 
me that he was very badly stabbed. 

Q. You say you did not know Meeks, or that it was Meeks that was 
killed ? A. Some one — perhaps it was Mr. McGrath — remarked that 
a man was killed. 1 went towards the body, and saw it was dead. I 
did not know him. 

Q. How long did Mr. Roth well live? A. Till next evening. 

Q. He died in the city of Louisville ? A. Yes, at my house. 

Q. Where did you first see Mr. Rothwell that evening ? A. I met 
him in Dr. Bernard's office, in Market street; he lived at the corner. 

Q. Was he related to you ? A. Yes, he was my brother-in-law. 

Q. Did you ask him to go with you to the Gait House ? A. I think 
I did not ask him to accompany me at all. He merely kept on with 
me when I told him what had happened. 

§ 14. Q. What object had you and he in going to the Gait House? 
A. I went with no other design than to get the names of the three Mis- 
sissippi gentlemen. 

Q. What brought you to the mayor's office ? A. I went to the mayor's 
office for the warrant and for the city marshal to arrest them. 

Q. Why, then, did you return to the Gait House without the warrant ? 
A. Because I could not get a proper warrant without first going for 
the names. Not being able to get the names without going to the Gait 
House, I went there for them. 

Q. Were you told of any other way in which they could be arrested? 
A. Mr. Pollard told me that if I came across Mr. Turner, the city mar- 
shal, he could arrest them without a warrant. 

Q. Did you try to get the marshal ? A. I inquired at the jail, at 
Mr. Vacaro's, and at another place, for Mr. Turner. 

Q. When you went into the bar-room, did you tell Mr. Everett the 
object you had in demanding the names ? A. Yes ; and Mr. Everett 
remarked it could not surely be Judge Wilkinson. 



TBIA h OF JUDGE WILKINSON ET AL. 17 

Croeft-examlnation by Ck>l. Robertson. 



Q. You mendoned a dirk you had — did you display it at the Gait 
House upon any occasion that evening? A. No; I never drew it from 
my watch-pocket. 

Q. Was Mr. Rothwell in the room when you first spoke to Judge 
Wilkinson ? A. No ; I do not think he or any friend of mine wa« present. 

§ 15. Q. Did you see the blow inflicted on Rothwell that caused his 
death ? A. No ; the crowd shut me out from seeing distinctly what 
was doing. 

Q. Did you find one of the knives on the floor ? A. Yes, when the 
fray was over. 

Q. Where did you next see these three knives together ? A.I called 
at the jail and asked Mr. Chenoweth if the knives were there. He 
said yes, and produced them. 
. Q. Was there blood on the three knives at the time ? A. Yes. 

Q. Can you account for the blood being on them still ? A. I told Mr. 
Chenoweth at the jail to keep them with the blood on them, just as 
they were. He rolled them up in a piece of paper. 

Q. Wh^t became of them since ? A. He gave them to me rolled up 
in paper, and I put them away in my trunk. [Here the jury examined 
the knives.] 

CROSS-EXAMINED BT COL. ROBERTSON. 

Q. Were either of the unfortunate men who lost their lives at your 
house when the poker business commenced? A. No, sir; I do not 
recollect seeing Mr. Meeks at my house at all. He might have been 
there, but not knowing him, I have no recollection of seeing him. I 
am certain Mr. Rothwell was not there. 

Q. Now, I beg you will be particular in answering me; are you sure 
neither was there ? A. I am certain that I do not know either was 
there. Mr. Meeks might have been there and I not know it. 

§ 16. Q. Did any one take part in it while it was going on? A. I 
don't think any one but myself was engaged in that business. 

Q. How long after that did the affray at the Gait House take place ? 
A. I could not say the time. 

Q. Was it one, two, three, four, five, six or eight hours? A. I can 

not say exactly how long. 
Q. Can you not say about what time ? A. A very short time after 

it happened I went to the mayor's office 

Q. Never mind that now — say about what tin»e did you go to the 
Gait House after the affray at your shop? A. It was but a short time. 

Q. Was it four or five hours? A. Oh, no. 

Q. Well, state about what time ? A. It was late in the evening — I 
suppose it was from half an hour to an hour; I could not now tell. I 

started off a few minutes after the fight 

2— H. 



18 THE LA W OF HOMICIDE. 

CroBS-examlnatlon by Col. Robertson. 

Q. I want to know the time between the fight at your house and the 
fight at the Gait House? A. Well, you know the distance, Colonel 
Robertson 

Q. It is not the distance, but the time I want to know ? 

The Qourt : Say the time, sir. A. Well, it could not have been an 
hour, I think ; it was between half an hour and an hour. I said that 
before. 

Q. When you first started for the mayor's office who was with you? 
A. Mr, Johnson. 

Q. Where did you meet Mr. Johnson ? A. He was in my shop after 
the difficulty. A good many had been in. 

§17. Q. Where did you and Johnson go? A. We went to the 
mayor's office together. 

Q. Where did you part? A. We parted at or near the jail; but I 
can not exactly say where. I know he was not with me when I got on 
Market street. 

Q. Well, when you next saw him, where was it ? A. It was at the 
Gait House. 

Q. You say you got a knife? A. Yes, a dirk. 

Q. You borrowed it from Mr. Fulton's? A. I borrowed it immedi- 
ately after the first fray. It was a small dirk. 

Q. Had it two edges, or one ? A. I do not recollect — I never took 
much notice of it ; I do not even recollect pulling it out of the scab- 
bard. 

Q. For what purpose did you borrow that knife? A. I thought, per- 
haps, these men might attack me ; I knew ^hey were armed and I was 
not. 

Q. Who was with you when you borrowed the dirk ? A. No one was 
with me. 

Q. Where did you see Rothwell first that evening? A. I met him at 
Dr. Bernard's office, near Sixth street. 

Q. Had you really no intention in going to the Gait House but to 
get the names ? A. No ; none. 

Q. Then why did you ask Mr. Rothwell to go with you; you could 
get the names yourself? A. I did not ask Mr. Rothwell to accompany 
me ; he went along unasked. 

Q. When you entered the bar-room of the Gait House whom did you 
see there? A. I saw Mr. McGrath and one or two others. 

Q. How long after you got the names was it till the Judge came in ? 
A. After I got the names I remained a few minutes — probably fifteen 
or twenty minutes — and then the Judge came in. 

§18. Q. Well, when he came in you were the first to begin thfe 
altercation, were you not? A. T merely remarked to him that I 
believed he was the gentleman who had struck me with the poker in 



TRIAL OF JWDGE WILKINSON ET AL. 19 



Cross-examination by €k4. Bobertaon. 



my own shop, and he said he did not wish to qv^rrel or fight with a 
person of my profession. 

Q. Then it was, I suppose, that you exhausted the vocabuUry of the 
English language in abusing him ? A. Why, yes, sir, I suppose I did. 
I told him very plainly what I thought of him. 

Q. You called him some hard names, such as coward and so forth ? 
A. I called him a coward, and other things that I don't now recollect, 
and said I would whip the whole three if they'd lay aside their 
weapons. 

Q. Well, after this language, did he molest you ? What did he do ? 
A. He walked back and forward several times, and finally he went 
out. 

Q. And what became of you ? A. I remained after. 

Q. For what purpose ? You had got the names. A. I had no other 
business than expecting Mr. Turner, the marshal, would be along, and 
call in ; I expected Mr. Turner- or one of the officers would come in. 

Q. llow long was it before Judge Wilkinson returned ? A. A very 
short time. 

Q. Was it five, ten, fifteen, or twenty minutes ? A. It might be five, 
ten, or perhaps fifteen minutes. 

Q. Where was Mr. Roth well ? A.I did not see him then. 

Q. When did you see him afterwards? A. I saw him next when he 
came up to push me aside. 

Q. Had he not a stick ? A. I did not see any stick with him there. 

Q. Did he not go to Mr. Monohan's and get a stick ? A. I did not 
see him have a stick, or know of him preparing himself with anything 
of the kind. 

Q. You and Rothwell went there together. Had he not a stick 
then ? A. I did not sed one with him. 

§ 19. Q. Where was he when you got the names ? A. When we 
first went in he separated, and I did not see him till he came up to 
push me away. 

Q. Did you see him on Dr. Wilkinson, when the Doctor was down ? 
A. I did not see him on Dr. Wilkinson at all. 

Q. Did you see him use a stick in that room ? A. If he had a stick 
1 did not know it; I never saw him use one there. 

Judge Rowan: Have you not employed counsel in this case? 
A. I have spoken to Mr. Hardin. 

Q. Have you not employed him? A. I spoke to him to attend to 
the case. 

Q. Can you not say whether or not you have employed him? 
A. Yes, I have. 

Q. What fee are you to give him ? 

Mb. Hardin: I have no objection to- that being answered. 



20 THE LA W OF HOMICIDE. 



Oraw-examiDfttlMi hj Judge Bowan. 



Judge Rowav : What, sir, is the amonnt of fee yon hare promised ? 
A. Mr. Hardin demanded $1,000, and I made no objection. 

Q. Are you to give him anything more? A. No, sir; there is noth- 
ing more. 

Q. No contingent addition ? A. No, sir; not any. 

Q. After Johnson left you where did you see him next ? A. I do 
not recollect seeing him again till at the Gait House. 

Q. When parting at the jail did you not agree to meet at the Gait 
House? A. No, sir; there was no agreement of the kind. 

Q. Did you make no agreement for him to bring any one with him ? 
A. No, sir. 

Q. IMd you meet him with any person on your way, and with whom? 
A. No ; not that I recollect. 

Q. Did you see any one on your way down Market street? A. Yes; 
on our way down I think we might have met Mr. Holmes and some 
one else. Mr. Johnson might have had some conversation with him, 
but I think I felt uo disposition to talk just then. 

§ 20. Q. Is not Mr. Holmes a remarkably stout and large man ? 
A. I think he is a very stout man. 

Q. With whom else did you meet him ? A. Mr. Wallace, I think. 

Q. Any one else? A. It appears to me there was another gentleman 
with him ; but I am not positive. 

Q. Did Mr. Johnson say nothing about how your friends ought to 
treat the Missiseippiar.:! ? A. No, sir; not that I recollect. 

Q. Was Mr. Holmes at the Gait House? A. Not at first; but I saw 
him there afterwards with Mr. Halbert. 

Q. Mr. Halbert is a large, stout man? A. Yes; he is a very stout 
man. 

Q. Were there any other large, stout men there? A. Yes. 

Q. Was Mr. Oldham there? A. Yes; I saw Mr. Oldham. 

Q. You saw him fire the pistol ? A.I was not sure that it was he 
fired it, or that the shot did not come from above. 

Q. Who else of your acquaintance was there ? A. Mr. Beaugh and 
several others might have been there. 

Q. Was Mr. Monohan there? A. Yes; I saw Mr. Monohan there; 
he stopped at the Gait Hous s. 

Q. Were any of these men in the house or passage while you were 
abusing Judge Wilkinson ? A. I do not know whether they were or 
not. I did not see them, if they were. 

Q. Was not your object in abusing Judge Wilkinson to bring on a 
quarrel, that you might chastise him? A. No, sir; if that had been 
my object I should have proceeded otherwise. 

§21. Q. Do you recollect any of the persons named asking you any 
questions about the Judge? A. I do not recollect. I think not. 



TRIAL OF JUDGE WILKINSON ET AL. 21 

Be-examlnation of Mr. Bedding. 

Q. Why did you stay after the Judge retired ? A. I expected Mr, 
Turner or Mr. Pollard would come up. 

RE-EXAlflNED. 

Q. The bar-room opens into the dining-room ? A. Yes. 

Q. Do the boarders come into the bar-room when waiting for supper? 
A. They do; but there are two ways of going into the supper-room. 

Q. Were not many persons assembled waiting for supper ? A. I do 
not know. 

Q. Did you see these three gentlemen when they entered the bar^ 
room ? A. 1 did not see them immediately when they came in. I saw 
them when Mr. Murdaugh advanced. 

Q. Did you make any observation respecting them when you first 
saw them together ? A. I think I -remarked that I believed they were 
all three on me. 

Q. Which of them did you see first? A. I saw Mr. Murdaugh first; 
the others after him. 

Q. What was the first thing you saw Rothwell do ? A. When Mr. 
Rothwell came up towards us he put his arm so as to push me back. 

Q. Did you see the Doctor knocked down by Mr. Holmes? A. I did 
not see Mr. Holmes knock the Doctor down ; I saw Mr. Holmes over 
him when he was down. 

Q. What in particular did you observe about them when they came 
in ? A. I think the Doctor had his hand in his pocket ; and the Judge, 
too, had his hand in his pocket. 

Q. How was Mr. Meeks stabbed? A. I did not see Mr. Meeks when 
he was stabbed ; the crowd cut me off from seeing him; the whole 
occurred so quick that I had not time to do anything. 

Q. When the crowd got past you what did you observe of Meeks ? 
A. Meeks, when I next saw him, was lying on the floor ; he was about 
half way between the dining-room door and the counter, nearest the 
counter, when Mr. McGrath asked me who was the man that was 
killed. 

RE-CKOSS-EXAMINED. 

Q. Which of your friends had a stick, a sword-cane, or knives in the 

scufile? A. I do not recollect anything of a stick, or sword-cane, or 
of any knives but those I have mentioned. 

§22. Q. Well; who had the sword-cane? A. I saw no sword-cane. 

Q. Who stabbed Judge Wilkinson in the back with the sword-cane ? 
A. I did not see any one do it. 

Q. Did you see Judge W^ilkinson use his knife? A. T saw him stab- 
bing at several persons, as I thought I saw him make one stab at Mr. 
Rothwell 



22 THE LA W OF HOMICIDE, 

Re-croas^zatninatlon of Mr. Redding. 

■ »*■ ■ ■ * 

Q. Was it your friends that pursued Judge Wilkinson into the 
passage? A. I suppose it was; 1 was myself after him. 

Q. Where was it you saw him stab at any one? A. I think it wau 
near the foot of the stairs. 

Q. It is a considerable distance from the foot of the stairs to the bar- 
room? A. Yes. 

Q. Twenty or thirty feet? A. May be not quite so far. 

Q. You say you have no recollection of seeing Meeks before that 
evening? A. No; none that I can remember. 

Q. Bid you not see him as you went up to the Gait House? A. No; 
I do not recollect stopping to speak to any one; but might have made 
some remark to Mr. Hill, as I passed a store where he stood. 

Q. Mr. Horace B. Hill ? A. No ; it was young Mr. Hill. 

Q. Can you account for so many of your friends being there assem- 
bled that evening? A. I don't know that I can account for it; Mr. 
Holmes told me that Mr. Halbert had invited him to go there to have 
some drink. 

Judge Rowan : Who advised you to get out process against these 
gentlemen? A. I do not recollect; a good many advised me; John- 
son was one. 

Q. You stated that you did not see Mr. Meeks till at the Gait House? 
A. I stated that I did not recollect seeing him till then ; he was a man 
with whom I was not acquainted ; I might have seen him frequently, but 
not to know him or to recollect him. 

Q. Did you or did you not see him at your house ? A. He might 
have been at my house, but I did not notice him. I have often heard 
of Mr. Meeks, but do not recollect to have ever seen him to know him 
before that. 

« 

Q. When Mr. Murdaugh came into the bar-room had he on a great 
coat ? A. Yes ; a dralxjolored great coat. 

Q. Holmes did not live in the neighborhood of the Gait House? A. 
No, sir ; Holmes is a river man. 

Mr. Hardin : When Holmes is in town he is frequently with Mr. 
Halbert, I believe? A. Yes; very frequently. 

Colonel Robertson : How do you know that ? A. I am acquainted 
with them both, and have seen it. 

§ 23. Q. Mr. Johnson does not live near the Gait House ? A. He 
has a cellar on Water street, and, I believe, a couple of stalls in the 
market. 

Q. You say you had borrowed the dirk in case you were attacked ? 
A. Yes, sir. 

Q. How came it you did not use it ? A. I did not draw it at all; I do 
not know that I thought of drawing it. I had not been in the habit 
of carrying anything of the kind, or I might have thought of it. 



TRIAL OF JUDGE WILKINSON ET AL. 23 



Be-examination by Mr. Hardin. 



Q. And had you no means of defending yourself? A. I picked up a 
chair. 

Q. Had the dirk any scabbard ? A. It had a small metal case — I did 
not pay much attention to it. 

Q. Did you inquire at Mr. Fulton's the price of that dirk ? A. I 
think not. 

Q. You do not know the price, then? A. I do not. 

RE-EXAMINED BY MR. HARDIN. 

Q. I understand there was no arrangement made by you with any of 
the gentlemen to meet at the Gait House? A. There was none. 

Q. Did Judge Wilkinson wear an overcoat? A. I think he wore a 
frock coat. 

Q. Did Mr. Marshall Halbert board at the Gait House ? A. Yes. 

§ 24. Q. Do not people congregate in the bar-room of the Gait House 
before supper. A. Yes ; they generally do. 

Q. There was no co'ndition in respect to the fee you were to give me ? 
A. No condition whatever. 

Q. Were you urged to employ counsel by the mother and sisters of 
Mr. Rothwell ? A. Yes ; it was at their solicitation. 

The Prosecuting Attorney : When you say you remained at the 
Gait House waiting for Mr. Turner, would you have known where to 
go for him had you left. A. No ; I would not have known where to 
go—I did not know where Mr. Turner lived. 

Q. Would not any other officer have anwered ? A. Yes; if any other 
had come in. 

Q. Had you any intention in addressing Judge Wilkinson at the Gait 
House to revive the quarrel? A. It was not my object to revive the 
quarrel. 

Q. When you spoke to Murdaugh and he said if you said so you told 
a damned lie, who told him he was the person ? A. I think it was Meeks. 

Q What other weapons did you see for assaulting them but the coyi- 
hide? A. I saw no other weapons, nor anv other after, but the pistol 
with Oldham. 

H- Was there any demonstration on the part of any one to induce 
them to think they would be assaulted ? A. None that I know of, 

RE-CROSS-EXAMINED. 

"• Is not Mr. Turner a married man with a family ? A. Yes, sir ; 
^ I understand. 

'*• I^oes he not reside in Louisville ? A. Yes, sir. 

^- Could he not have been found at his house ? A. I did not expect 
^^ ^ould be at home at that time. 



24 THE LA W OF HOMICIDE. 



Be-cnM»-pzaminatioii by Col. Bouertaou. 



Q. When you remarked to Judge Wilkinson, " You are the gentle- 
man who struck me with the poker," what object had you in the 
remark unless to renew the quarrel ? A. I did not say anything more 
to him till he said he would not quarrel with a man of my profession. 

Q. You say you staid to converse with your friend Mr. McGrath. 
Holmes, Halbert, and the rest of your friends remained from some 
other motive ? A. I don't know how many remained, or for what. 

Q. Mr. Rothwell never suggested to you the propriety of " giving 
them a little throwing over to teach them better manners ? " A. No, sir. 

Q. Nor Mr. Johnson? A. No, sir. 

Q. Nor Mr. Meeks? A. I don't say that I knew Mr. Meeksatall, sir. 

g 25. Q. How long did you stop with Mr. Rothwell when you first 
met him on Market street? A. I made no stop at all at Rothwell' s. 
I merely told him what occurred and what I was about to do in respect 
to getting their names. 

Q. What remarks did he then make ? A. He said that was proper 
to do. k 

Colonel Robertson : Did you feel cool and in good humor ? A. I 
did not feel in very good humor, but I kept cool. 

Q. Well, you were very cool and almost in a good humor? A. I was 
collected enough, but a good way from being in a good humor. 

Mr. Hardin : Bid Holmes, or Johnson, or the others accompany you 
when you went to the Gait House? A. No, sir; no one but Mr. 
Rothwell. 

Q. Who interfered when you were talking to the Judge ? A. No one. 

Q. Where did you see Oldham first that evening ? A. The first I 
saw of him was near the foot of the stairs. 

Q. There are two passages, one from across the door of the bar-room, 
and the other from Main street. In which did you see Oldham ? A. 
It was in the passage near the foot of the stairs — they meet there. 

Q. {For the Defense.) You say you were cool and collected; did you 
see that blow given to Mr. Murdaugh ? [pointing to the mark of a blow 
on the side of Mr. Murdaugh's head.] A. No, sir; I did not see it 
at all. 

Judge Rowan: When you called at Mr. Rothwell's how did you 
invite him to accompany you? A. I did not invite him; I told; 
him what had happened, and what I was going to do. I did not stop 
I only mentioned it to hifn. 

Q. The jail is nearer to Jefferson street than to Market street; why 
did you not take the shortest way to the mayor's office, instead of going 
round by Market street ? A. Because it is shorter to go by Market 
street to the Gait House than by the mayor's office. 

Q. When you were at the mayor's office, was it not shorter to go 
from that to the Gait House than by RothwelFs corner, if you had 
nothing to get but the names? A. I went to the jail to look for Mr. 



TRIAL OF JUDGE WILKINSON ET AL. 25 



Examination of Mr. Craig. 



Turner; when there, it was shorter to go by Market street than to 
return by the mayor's office. 

Q. Was not Mr. Rothwell a large stout man ? A. Yes; he was a tol- 
erable large and stout man. 

Colonel Robertson : You have spoken of a knife being found on 
the floor ; do you know whose knife it was ? A. No ; I do not know 
whose knife it was ; I only picked it up. 

Witness allowed to retire. 

MR. CRAIG CALLED AND EXAMINED. 

§ 26. Mr. Hardin : Mr. Craig, state what you know of this transaction. 

Mr. Thomas Craig: I was in Mr. Bedding's shop on the day theaflTray 
happened which led to the unfortuate occurrence at the Gait House. 
It was on Saturday, and Dr. Wilkinson called and tried on part of the 
suit of clothes made for him, not seeming to make any objection to the 
coat. He left a $100 bill, and he also left his measure for an overcoat, 
and said that he would redeem the $100 bill and pay for the whole of 
the clothing. He took away the coat on him, and returned in about 
an hour and said he would leave the coat on Mr. Redding's hands. He 
said he found a deficiency under one arm. The Judge made a great 
many objections to it. He said it was not a fashionable coat; it had 
not a proper collar, and that it was no coat at all. I went myself up 
to the mirror with them to look at the fit of the coat. 

The Judge came around to the stove and sat by it. My attention 
was not directed to the conversation, and I can not recollect what was 
said; but the coat was returned, and the Doctor took out money to pay 
for the pantaloons and vest, when the Judge remarked that he ought 
not to pay for them till he would know how they might fit — that they 
might be like the coat. They came towards the back part of the store, 
and the Judge sat on a high stool at the stove. The Doctor was near 
the cutting board.* When the Judge made the remarks about the panta- 
loons, Mr. Redding observed he had more to say about them than he 
ought; upon which Judge Wilkinson picked up the poker and struck 
Mr. Redding, and Mr. Redding jerked him to the side door. Mr. 
Redding, after being out on the street with them, picked up a brickbat. 
He said he would whip the whole three if they would lay by their 
weapons. I saw Mr. Murdaugh standing on the edge of the pavement 
with his knife drawn, in this position [showing position.] 

Mr. Hardin: Did you see a knife with Dr. Wilkinson in the shop? 

A. No; I did not see the Doctor have any knife before he left the 

shop. 

cross-examined. 

Q. Was there not a damned lie given before Judge Wilkinson picked 
up the poker? A. I did not hear any. 
Q. Did not Mr. Redding walk up to Judge Wilkinson with his arms 



26 THE LA W OF HOMICIDE. 



CrofSB-^xamination of Mr. Craig. 



akimbo in an offensive manner before the Judge picked up the poker? 
A. I did not see anything of the kind. 

§ 27. Q. What were the positions of the parties at the time ? A. 
The Judge was sitting and Mr. Redding standing when the Judge 
picked up the poker. 

Q. Repeat as nearly as you can the exact words which led to this. 
A. The Judge remarked that the law was, that when the clothes did 
not suit they were to be thrown on his hands. Mr. Redding said to 
the Judge that he had rather more to say about it than he ought. The 
Judge said he did not come there to be insulted. Mr. Redding ap- 
peared to me to be very mild. 

Q. Is this all you heard pass between them ? A. I heard the con- 
versation going on, but did not pay much attention to it. I suppose I 
heard all that passed between them, but was not paying any attention. 

Q. How far were you from them ? A. About as far as from this to 
you. 

Q. Bid you not hear Mr. Redding say " who are you," or *' you are 
too officious?" A. I did not. 

Q. What time of the day was it? A. It was after dinner. 

Q. What hour? A. It might be between three and four o'clock; 
perhaps it might be near three, or between that and four. 

Q. Which was it, nearer to three than to four? A. I can not exactly 
say. 

Q. Were there many people about the shop during the difficulty ? 
A. There were not many at the shop until after the affray ; after that 
several were there, and advised Mr. Redding to take the law of the 
Mississippi gentlemen. 

Q. Mention those that were there. A. I think Mr. Holmes v^as 
there; I can not well say the others, being a stranger at Mr. Redding* s. 
I did not then know Mr. Holmes. 

Q. Did you see Mr. Johnson or Mr. Meeks then? A. I did not 
notice Mr. Meeks, nor did I then know Mr. Johnson. 

Q. When some of those present advised Mr. Redding to take the 
law of them, what reply did he make? A. He said he did not like to 
sue them. 

Q. Did not some one, or several, recommend him to take redress 
himself, with his friends? A. None that I ever heard. 

§ 28. Q. When the Judge struck at Mr. Redding, did the Doctor 
try to separate them? A. I thought he did, but could not say whether 
he intended to separate them or to assist his brother. 

Q. Could you not tell by his approach whether he meant to separate 
them or not? A. It was difficult to tell, because Mr. Redding so in- 
stantly made a rush out th'e door when he caught the Judge, that there 
was no time to see what the Doctor meant. 



TRIAL OF JfTD^JS WILKINSON ET AL. 27 



Examination of W. Weatw. 



Q. Did the Doctor touch either of them? A. He did not put "his 
hands upon Mr. Redding, but he put his hand, 1 thought, upon his 
brother. 

Q. Did you see any knife with the Judge on that occasion ? A. I 
did not see him draw a knife in that affair. 

Q. Did you see any knife at all ? A. I can not say that I saw any knife 
but with Mr. Murdaugh, after Mr. Redding had picked up the brick- 
bat. 

Q. Did you see any one but Judge Wilkinson strike Mr. Redding ? 
A. No ; I did not see either of the others strike him. 

Judge Rowan : Did not various persons come into the shop before 
Mr. Redding went to the Mayor's oflBlce? A. Yes; several . 

Q. Was Meeks among them? A. I do not recollect seeing Mr. 
Meeks. 

Q. Where was Mr. Redmond ? A. He was outside the door. I think 
I saw him when I went to the door. The Judge and Mr. Redding had 
been separated, and I saw Mr. Redding pick up the brickbat 

Q. Was not Mr. Redmond in the house any part of the time? A. 
I think not; but he might have been, without my seeing him. There 
is a projection which might have prevented me seeing him from where 
I sat. I did not observe Mr. Redmond, if he was in the shop. 

§ 29. Q. How much of the room was hid from your view by the 
projection? A. About one-fifth. I might have seen Mr. Redmond, 

but am not certain. 
Q. Do you live with Mr. Redding? A. Yes ; I live with him yet, and 

work in his shop. 
Q. Did you not hear Mr. Murdaugh say, "stop this fight?" A. No, 

sir. 
[Witness allowed to withdraw.] 

W. WEAVER, A BOY, CALLED AND EXAMINED. 

Mr. Hardin: State what you know of the affray in Redding's shop. 

W. Weaver : I was in Mr. Redding s shop, and saw the gentlemen 
talking about the coat. Mr. Murdaugh said he did not like the coat; 
the other said he did; one of them, the Judge, said he'd be damned 
if it did not take more than one to judge of the coat. Judge Wilkin- 
son called out for his knife. Dr. Wilkinson had a white-handled knife. 
Mr. Redding pulled Judge Wilkinson out of the door, and the Doctor 
followed. I think that knife on the table is the same I saw with the 
Judge when he came in from the street to get back the $100 bill. 
Q. Which of them entered with the knife to demand the $100 bill? 

A. It was the Judge. 
Q. Who hallooed for the knife? A. It was the Judge. 



28 THE LA W OF HOMICIDE. 



CnMB-ezaminatloa of W. Weaver. 



Q. Are you sure it was not Redding? A. I heard some one halloo for 
the knife — it might be Redding. 

Q, Were these gentlemen in the shop when you first went in ? A. Yes. 

Q. Whom did you first tell about this affair? A. I told my uncle. 

Q. What brought you into Redding's shop? A. I went there for 
money. 

CBOSS*EXAMiyED. 

Q. What passed between Judge Wilkinson and Mr. Redding when 
the coat was taken back ? A. When the Judge told the other men he 
would not take the coat, Mr. Redding said he did not insist on him 
t:iking it, and then Judge Wilkinson said that Mr. Redding had no 
right to judge. Mr. Redding said he had no right. I believe Mr. 
Redding said he meddled more about the coat than the Doctor did. 
Mr. Redding said something like the Judge making himself damned 
meddlesome about the matter. Dr. Wilkinson pulled out money to pay 
for the pantaloons and vest. 

Q. Did you see those knives since that period ? A. I saw one of them 
with Mr. Turner. 

Q. Did you see them with Mr. Redding? A. No; I did not. 

Q. Did you give any testimony at the examining court? A. No, sir. 

Q. Do you know why you were called up now to t^tify ? A. I do 
not know. . 

Q. Is this the Doctor or the Judge? (pointing to the Doctor.) A. 
The Doctor, I think. 

Q. Is this the Judge? A. It is. 

Q. Was it he came in with the drawn knife to demand the $100 bill? 
A. Yes ; it was. 

Q. Who were the other persons in the store besides yourself? A. 
No one but the Doctor, Judge Wilkinson, Mr. Murdaugh, Mr. Redding, 
and Mr. Craig, except another boy with me. One went in and went 
out again before the fight began. 

Q. Do you know any one named Redmond in Louisville ? A. I do not. 

[Witness allowed to withdraw.] • 

The Court said it was time to ciose for the night, which was assented 
to by the gentlemen of the bar. 

The Court : What do you propose to do with the jury ? 

The counsel for the defense said they had no objection to the jury 
being allowed to retire, and have proper accommodations. 

The Court : Very well; let the sheriff take charge of the jury, and pro- 
vide for them at a tavern. You, gentlemen of the jury, will take care not 
to converse with any person on the subject, or express any opinion con- 
cerning this cause, or to allow any one to address you about it, during 
your absence from court. 

Adjourned to eight o'clock next morning. 



TRIAL OF JUDGE WILKINSON ET AL. 29 

Examination of Mr. Bedmond. 



SECOND DAY. 

Tuesday Morning, March 12. 

§ 30. Pursuant to adjournment the court sat this morning at eight 
o'clock, and the clerk having read the minutes of the former day's pro- 
ceedings, called the names of the jurors, and the sheriff was directed to 
remove the witnesses for the prosecution out of hearing of the court. 

Colonel Robertson then recalled and examined Mr. Redding. 

Q. You have prosecuted these gentlemen for the afl^ay in your own 
house, separately, for your own benefit? A. Yes, sir; I have sued 
them for damages. 

Q. Is there a coffee-house kept in your house ? A. My shop is on 
the corner. 

Q. There is a coffee-house in the same building ? A. There is a coffee- 
house on Pearl street, next above my shop, in the same building. 

Q. Who owns that coffee-house ? A. It belongs to my brother and 
me; the coffee-house is attended by my brother. 

[Witness allowed to retire.] 

MR. SAMUEI REDMOND CALLED AND EXAMINED. 

Mr. Hardin: Mr. Redmond, go on and tell all that you observed 
at Mr. Mr. Redding' s store that evening. 

§ 31. Mr. Redmond : I worked for Mr. Redding and went to his store 
that Saturday afternoon to draw some money. I saw these gentlemen 
at the store. The first of the difficulty I saw, was Mr. Redding pulling 
the Judge out of the door. He fell and turned under, the Judge being 
on top; but Mr. Redding succeeded in turning the Judge under, and the 
Doctor immediately attacked Redding with his knife, and Mr. Murdaugh 
cried out, " Kill the damned son of a bitch." Just as the Doctor was in 
the act of stabbing Mr. Redding, and the kViife was within three or 
four inches of his breast, I seized the Doctor's arm and said, " Don't do 
that, if you please;" and then Mr. Murdaugh said, " Part them." Red- 
ding then got out into the street, with one shoe off and the other on ; 
and at the same time Murdaugh was on the pavement with his knife 
drawn. 

Q. When you first saw the Doctor approaching Redding and the 
Judge, had he his knife drawn ? A. I supposed he had it in his hand 
and drawn. 

Q. What induced you to interfere? A. I seized the Doctor's arm to 
keep him from stabbing Mr. Redding. 

Q. What were the relative positions of the parties after you seized 
the Doctor's arm ? A. The Doctor raised up and Murdaugh was on the 
pavement with his knife drawn. 

Q. Which followed Redding into the store ? A. The Doctor ; he 



30 THE LA W OF HOMICIDE, 



CroM-examlnation of Mr. Bedmond. 



entered the store with hia knife drawn in his hand, demanding his |100 
bill. 

Q. Well; what followed? Mr. Redding had dropped his pocket 
book in the scuffle, and I picked it up and carried it in to him ; he then 
took out the $100 bill and returned it to the Doctor, saying, "Here's 
your $100 bill." 

Q. What color was the handle of the knife you saw with the Doctor? 
A. It was white ; and so was that of Mr. Murdaugh. 

Q. Did the Judge remain with the others? A. He had gone over to 
the other side of the street and then returned as if to persuade one of 
the gentlemen to go away. They all then went off, two with their knives 
drawn, and the Judge with the poker. 

CROSS-EXAMINED. 

Q. Where had you been before they fell into the street ? A. I had 
been in the back shop ; I came to the store to get money. 

Q. Were you living with Mr. Bedding then ? A. Yes ; I worked for 
him. 

Q. Are you in his employment now ? A. No ; I am not. 

Q. Why did you stay at the door ? A.I was only staying to get the 
money. I had left the back shop to go to the front shop to get the 
money. 

Q. Had not you stated times for getting your money ? A. No, I had 
none ; whenever I asked for money I got it. I had finished my job 
and went to get my pay. 

Q. Were you in the shop after the affray was over ? A. Yes, 

§ 32. Q. Did you not say in the examining court that you were in 
the shop when the affray began ? A. I did not say so. 

Q. Did you not say at the examining court anything about offensive 
language you had heard ? A. No; I did not. 

Q. Did you not, in fact, hear Mr. Redding give the damned lie in the 
shop ? A. I was not in the shop then and did not hear Mr. Redding 
give the damned lie at all. 

Q. Did you or did you not say so at the examining court? A. I did 
not say so there or any where else. 

[Here Judge Rowan stated to the Court that the minutes taken at 
the examining court had been transmitted through Mr. Redding's 
hands to the Prosecuting Attorney of this court, and it was only in 
courtesy and through the politeness of th^ Prosecuting Attorney that 
the counsel for the defense had been allowed the perusal of them. 
The Prosecuting Attorney had now withdrawn these minutes and he 
(Judge Rowan) now deman(^d it as a public document. 

The Court said it was probable the right was regulated by Act of 
Assembly. 



TRIAL OF JUDGE WILKINSON ET AL. 31 



Cro6»>exaininatioii of Mr. Redmond. 



Mr. Bullock, the Prosecuting Attorney, said he did not stand upon 
that point ; but the reason he withdrew the minutes was that they were 
neither minutes of evidence nor even a synopsis of what had taken 
place at the examining court. They appeared to be nothing but a few 
memoranda made for the use of the grand jury, but so inadequate 
for any purpose in a final trial, that, finding they could not be availa- 
ble to either side, he had decided upon not using them on the prosecu- 
tion nor yielding them to the defense. Here the matter dropped, the 
understanding appearing to be that the minutes were not perfect 
enough to use in evidence.] 

MR. REDMOND IN CONTINUATION. 

Q. Who went with you to Mr. Redding's store? A. I don't recollect 
that any one was with me. 
Q. Which, did you say, attempted to stab Mr. Redding? A. It was 

Doctor Wilkinson. 

Q. Well, now, how can you be sure that was his design ? A. All I 
know is that he would have stabbed him had I not arrested his hand. 

Q. Had not Mr. Redding a pair of shears in his hand defending 
hunself in the shop ? A. I did not see any such thing. 

Q. Where were you when Dr. Wilkinson was attacking Redding ? 
A. I was on the pavement. 

Q. Was not Mr. Redding, by his superior strength, near turning over 
Dr. Wilkinson ? A. Yes ; I thought so. 

§ 33. Q. Did he attempt to use the knife till he was in danger of 
being turned under? A. I did not see the knife till the Doctor had 
it in the attitude of stabbing ; Mr. Redding raised up a little, keeping 
the Judge under with one arm, and with his other arm around the 
Doctor's neck, trying to pull him down. 

Q. I wish you to be as particular as possible in describing this. 
A. Well, I have done so already. Mr. Redding had Judge Wilkinson 
down and reached his arm to pull down the Doctor, when the Doctor 
raised his knife to stab Mr. Redding as he was about to be pulled under 
by Mr. Redding. [Here witness showed the manner]. 

Q. Where was the Doctor's knife till then ? A. I did not see the 
knife till that time with the Doctor. 

Q. What appeared to be his intention when he came up ? A. It 
appeared to be his design to pull Mr. Redding off his brother. 

Q. Was it not when Mr. Redding had him nearly turned under that 
he drew his knife ? A. As Mr. Redding was trying to pull him down, 
the Doctor raised the knife to stab him. 

Q. Could you recognize the knife? 'A. I think it is one of ' those 
present in court. 
Q. Was it not at that moment that he drew and opened his knife ? 



82 THE LA W OF HOMICIDE, 



B^xamlnation of Mr. Redmond. 



A. He must have had it drawn and open before, because he could not 
have got his other hand disengaged to assist in opening it when Mr. 
Redding had hold of him. 

Q. Which of these was the knife? A. I think that was it; the 
other is the one Mr. Murdaugh had. 

Q. Where was Mr. Craig ? A. I saw him after I went into the shop. 

Q. When these gentlemen were in the shop talking, where was Mr. 
Craig ? A. Mr. Craig was at his board. 

Q. Did you see a boy named Weaver there ? A. Yes. 

Q. What hour was it when the affair happened ? A. I think it was 
between three and four o'clock. 

RE-EXAMINED. ' 

Q. Did you see the Doctor taking out his knife ? A. No ; I saw him 
with it drawn in his hand when he made the stab at Mr. Redding. 

Q. Did you see Mr. Murdaugh when he cried out ** Kill the damned 
rascal," or some such word? A. Yes. 

Q. Was there any attempt made by the Doctoi to take his brother 
off when on the top of Mr. Redding ? A. No. 

Q. Did you see any indication from Mr. Murdaugh to take Judge 
Wilkinson off Mr. Redding ? No ; not any. 

§ 34. Q. Did you see Mr. Redding under Judge Wilkinson ? A. 
Yes ; when they fell on the pavement out of the door, I saw Judge 
Wilkinson uppermost. Mr. Redding fell underneath when they fell 
out of the door. 

Q. Did they put up their knives when they raised up ? A. The Doc- 
tor and Mr. Murdaugh had their knives drawn after that, when out on 
the pavement. 

Q. Where was the Judge then ? A. He returned from the street to 
the pavement and took one of the gentlemen by the arm to get him 
away. 

Q. When they went off were they still armed ? A. They went with 
the knives in their hands. 

Q. Did you see Mr. Redding take up a brickbat when he got disen- 
gaged? A. Yes. 

Q. Was this before or after the knives were drawn ? A. The knives 
were drawn before Mr. Redding picked up the brickbat. 

Q. Where was Mr. Murdaugh when h« called out " Kill the damned 
rascal?" A. Mr. Murdaugh stood on the pavement near the street, 
when he said " Kill the damned son of a bitch.' 

Q. It was not till you caught the Doctor's arm, so that he could not 
make the blow, that Murdaugh advised you to " Part them — don't let 
him kill him?" A. Yes; I kept hold of the Doctor s arm, so that he 
could not make the blow. 



TRIAL OF JUDGE WILKINSON ET AL. 33 

Re-examination of Mr. Pari-s. 

Q. Was it all in the same breath that he said " Kill the damned 
rascal," and " Part them — don't let him kill him ?" A. No; not in the 
same breath — there was a little time between the expressions. 

MR. JOHN PARIS EXAMINED. 

Mr. Hardin : Mr, Paris, state to the Court and the jury what you 
know of this affair. 

Mr. Paris: I was passing Mr. Redding'^ store* after dinner, when I 
heard some fuss, and stopped to look in. When I heard the fuss at 
first I was in Main street, and I went aroj.nd the corner into Third 
street, when I saw Mr. Redding fall out of the side door with one of 
the gentlemen. Another gentleman had a knife and said he would 
kill him. I said '* Don't kill him," and a young man then caught his 
arm. After this Mr. Redding picked up a brickbat, and one of the 
gentlemen said, " Give me my money " He followed Redding into the 
shop and got the $100 bill. They returned to the street, and as Red- 
ding got to the door he said he would whip the whole three of them if 
they would put away their knives. 

Q. Which of the gentlemen had the knife when you first saw them ? 
A. I think it was the gentleman they called the Doctor. 

Q. What sort of knife was it? A It was just such a knife as one 
of them — [pointing to a knife.] 

Q. Who caught the Doctor's arm? A. I do not recollect the young 
man's name who caught the Doctoi^'s arm. 

Q. Look here [pointing to the witness* bench], if you can recognize 
the person. A. I think that young man [pointing to Mr. Redmond] 

is the person. 

Q. Which way were you going when your attention was first attracted ? 
A. I was coming up Main street when I heard the scuffle, and then 
turned the corner into Third street. 

Q. Did you see Mr. Murdaugh, and what was he doing? A. 1 saw 
Mr. Murdaugh there but he was not taking any part in the affair. 

Q. Was he not also armed with a knife? A. I saw him after, on the 
pavement, with a drawn knife. 

CROSS-EXAMINED. 

Q. Which of them said " Damn you, I'll kill you r A. It was the 
gentleman with the knife. 

Q. You made some remark to him ? A. I said, " Don't kill him." 

Q. Then he must have had time to stab Redding, if you had time to 
ask him not to do it. A. No ; he had not time to make the stab when 
his arm was caught. 

Q. While he was saying the words, " I'll kill you," had he not time 
to do so if he had intended it? A. I can not say whether he had time 
to kill him in the saying of the words. 
3— H. 






34 THE LA W OF HOMICIDE. 



Examination of Mr. Everett. 



Q. What occurred after they got up? A. All three went into the 
shop, and when they came out Mr. Redding came to the door and said, 
" Lay down your damned knives, and I'll whip the three of you." " No," 
said Mr. Murdaugh, " I'd rather cut your damned guts out." With 
that one of the gentlemen came up and took him away. They went 
off with their knives drawn. 

Q. What hour was it? A. It was between three and four o'clock. 

Q. Did you hear Mr. Redding say there were " fifty or five hundred 
on him V A. No ; I did not. 

Q. Or Mr. Murdaugh say "it was a damned lie?" A. No; I heard 
nothing of that sort. 

Q. Are you positive as to the words used by Murdaugh when Red- 
ding offered to whip the three of them ? A. I think Redding said, " If 
you are gentlemen, lay down your knives, and I'll whip the three of 
you." Mr. Murdaugh replied, " I'd rather cut your damned guts out." 

g 36. Q. Are you a coffee-house keeper? A. Yes. 

Q. What were the relative positions of the parties when the Doctor 
said, " I'll kill you ?" A. I can not say exactly, being frightened at 
the time. The Doctor was standing up; Mr. Redding standing up^ 
but rather leaning back, and Judge Wilkinson standing up. 

RE-EXAMINED. 

Q. Were they so that you could see them distinctly? A. No; they 
were crowded or huddled up, and I could not well tell how their posi- 
tions were. 

Q. Were you at the examining court? A. I was, but not examined. 

Q. Did any one ask you any questions about what you could tell ? 
A: Col. Robertson asked me some questions. 

Q. (For Defense.) When you say they were huddled together, do 
you mean to say they were on their feet? A. Yes. 

MR. EVERETT CALLED AND EXAMINED. 

Mr. Hardin: State, Mr. Everett, what you know of this transaction. 

Mr. Everett : Mr. Redding applied to me for the names of three 
Mississippi gentlemen, one of which, he said, was Wilkinson. I gave 
him the names. I called Mr. Redding to the window and asked him 
the nature of the difficulty. He told me about it. Shortly after I went 
out, and in ten or fifteen minutes I was told by Mr. Snead that there 
was likely to be some difficulty, upon which I returned, and saw Judge 
Wilkinson walking up and down the bar-room, very much excited. 
Redding was addressing the Judge. I determined to go around and 
get the Judge away, and, going into the passage towards the bar-room 
door, I met the Judge coming out of the bar-room. I asked him to go 
with me to his room, which he did. We found his brother and Mr. 
Murdaugh there. The Judge asked me if I had pistols. I said no, 



TRIAL OF JUDGE WILKINSON ET AL. 35 

* CroBB-examination of Mr. Everett. 

and he then asked me to get him some. I said I would try, and I 
went down to the bar. In about ten minutes 1 saw the Judge enter 
the bar-room, and I then put on my hat and walked out of the house. 

[Here Mr. Everett was asked to make a drawing of the bar-room, 
which he did, and it was examined by the jury and some gentlemen 
of the bar]. 

§ 37. Q. When you went up stsDirs with the Judge, who was in the 
room ? • A. We found the Doctor and Mr. Murdaugh there. 

Q. What passed between the parties? A. The Judge told them what 
had occurred below in the bar-room. 

Q. He then asked you for the pistols? A. Yes ; it was then he asked 
for the pistols. 

Q. What part of the house is the room in ? A. It is on the first story 
above — room 35. 

Q. Does the supper bell be rung in that part of the building ? A. It 
is rung along the passage, and then down the stairs. 

Q. Had the bell been so rung at or nearly after the time you were 
above with them ? A. No ; it was too soon for supper. 

Q. Is the room in the southeast corner of the building? A. Yes; 
on the first floor above. 

Q. Had the bell been rung for supper when the Judge came down 
to the bar-room the secon4 time ? A. No ; it was rather before supper 
time. 

Q. What time does the bell ring for supper ? A. At that season it 
rings about half-past five or near six o'clock. 

Q. Did you see any part of the affray when the Judge re-entered the 
bar-room ? No, for I picked up my hat and went away. 

Q. Did you afterwards see any of it ? A. The difficulty was over 
when I returned. 

GROSS-EXAMINED. 

Q. What were the words that passed between the Judge and Mr. 
Redding when you first saw them? A. I do not recollect them. 

§ 38. Q. Did you observe by them and others anything alarming ? 
A. I observed that there was a good deal of excitement. 

Q. Did you see many ettrange faces in the bar-room ? A. There were 
many strange faces in the bar-room that evening. 

Q. Had you any difficulty in getting the Judge to go to his room ? 
A. I merely asked him to walk up, and he immediately consented, and 
we went up the public steps. 

Q. Why did you interpose to get the Judge to his room ? A. From 
what I saw pass between the Judge and Mr. Eedding, I saw the Judge 
was greatly excited, and 1 thought it my duty to prevent a quarrel. 

Q. Was not Mr. Redding greatly excited? A. I did not notice 
whether Mr. Eedding was greatly excited or not. 



86 THE LA W OF HOMICIDE. 



OroflA-examinatioa of Mr. Everett. 



Q. What way did you understand the Judge's request for pistols? 
A. No words passed to justify me in forming an opinion of what they 
were wanted for. ^ 

Q. Well, ^ hat did they want them for ? A. I can not say that they 
mentioned what they wanted them for. 

Q. When they afterwards came down to the bar-room, was it by the 
usual and main passage and door to the supper room they came ? A. It 
was. 

Q. is it usual for those who are boarding to assemble in the bar-room 
a short time before supper? A. It is the usual practice. 

§ 39. Q. How many bells are rung for supper? A. Only one bell 
for supper. The practice of the house is to collect in the bar-room be- 
fore the supper is ready ; sometimes there is delay ; sometimes none. 

Q. When the bell rings, is there not a considerable rush made to the 
supper-room ? A. It has been the case that if a person did not rush in 
he would be late for supper. Unfortunately, of late it has not been so. 

Q. What time was it when you noticed those strange faces assembled 
in the bar-room ? A. I think it was about five o'clock. 

Q. What hour was it when Mr. Kedding first came to the Gait 
House ? A. When he came to ask for the names it was about four 
o'clock. 

Q. What time was it when the affray took place ? A. It was about 
dark. 

Q. What hour was it when all was oyer ? A. It must have been 
about six o'clock. 

Q. Was it not on account of the number and strange faces of those 
in the bar-room that you feared Judge Wilkinson was in danger when 
you took him out of the bar-room ? A. Mr. Sneed told me that there 
would probably be a difficulty ; on that account I wished to take the 
Judge away. I did not infer danger from any particular person or 
collection. 

Q. Did not Judge Wilkinson on reaching his room in company with 
you exclaim, "Great God! we claim from you the means of our protec- 
tion?" A. I can not say that I heard such words. 

Q. Were Meeks, Roth well, Johnson, Holmes and Oldham frequenters 
of the house ? A. Meeks I did not know ; I did not know Mr. Roth- 
well, though I have been in Louisville since '35 ; Johnson I did not 
know; nor Holmes; I knew Oldham. 

Q. Was Mr. Redding a frequenter of the house ? A. No ; Mr. Red- 
ding was not in the habit of being at our house. 

Q. Do you not easily recognize persons who have been at the house? 
A. I usually know a person who has been at the house. 

Q. Mention some that were there that evening who frequented the 



TRIAL OF JULGE WILKINSON ET AL. 37 



Cross-examination of Mr. Everett. 



house occasionally. A. Honohan was often at the house ; he generally 
has business when he attends there. Mr. Beaugh is sometimes there. 

§ 40. Q. Well, to come to the point, what was it about the persons 
in the bar-room that excited your alarm and caused you to take Judge 
Wilkinson to his room ? A. I remarked many strange faces, which 
tended to excite my alarm and apprehension. It was from what I 
had heard of the affair at Mr. Redding's store, the assembly of per- 
sons, and the words between Mr. Redding and the Judge, that my 
apprehensions were excited. 

Q. Can you see into the bar-room from the stairs ? A. Yes; there is 
a window looking into the bar-room from the steps of the stairs. 

Q. Are these the public stairs ? A. Yes, the principal and public 
stairs. 

Mr. Hardin: Is there not another door to the dining room 
known to those familiar with the house ? A. There is a small, private 
door used by those well acquainted with the house. 

Q. Was there such a crowd in the house as to cause a rush to the 
dining room door at supper time ? A. No ; not at that time. 

Q. When navigation is open and the Legislature in session, are th^re 
not many strange faces arriving at the Gait House every evening? 
A. I could not say what proportion of strange faces these circumstances 
would cause to be present. 

Q. Do you recollect the date of this affair ? A. I can not say whether 
it was the 15th day of December or not. 

Q. Was not the navigation open then ? A. I can not say. 

Q. Had Mr. Marshall Halbert been boarding at the Gait House at 
that time ? A. He had been there about a week. 

Q. If the affray had not happened at Mr. Redding^ s shop, would the 
assembly of strangers in the bar-room of the Gait House that evening 
have attracted your attention ? A. I do not think it would. 

Q. {For Defense.) Had Judge Wilkinson been at the Gait House 
many times before ? A. Yes, many times. 

Q. What were his deportment and general character ? A. He had 
always been a remarkably mild and retiring gentleman, of inoffensive 
manners. 

§ 41. Q. Was it because you saw strange faces in the bar-room at 
the same time Mr. Redding was there, and on account of what you had 
heard of the previous affray, that you wished to get Judge Wilkinson 
to his own room ? A. Those were the reasons I wished to get the 
Judge away. 

Mr. Hardin: Had not a number of boarders who do not lodge 
in the Gait House assembled in the bar-room for supper ? A. Yes ; 
several. 

Q- Do not other citizens assemble there from half of an hour to a 



38 THE LA W OF HOMICIDR 

Examination of Mr. Pope. 

quarter of an hour before supper, to hear the news and look over the 
book of arrivals ? A. Yes, it is very general. 

Q. {For Defense.) From the time Mr. Redding asked the names till 
the whole difficulty was over, how long was it? A. I think it was 
probably over an hour. 

Q. How long was it from the time Mr. Snead spoke to you till you 
went up with Judge Wilkinson to his room ? A. It was only a few 
minutes. 

Q. How long was it till the Judge returned ? A. It was probably 
fifteen minutes. It could not have been more than twenty or twenty- 
five minutes from the time Mr. Snead spoke to me to go in till the 
Judge returned to the bar-room. 

JOHN LUCAS, CALLED AND EXAMINED. 

Mr. Hardin : Are you one of the city officers that arrested these 
gentlemen ? A. Yes. 

Q. Did you find any of these knives about them ? A. I did not see 
any of these knives at the time. 

MR. ROBERT POPE, CALLED AND EXAMINED. 

g 42. Mr. Hardin : Mr. Pope, tell the Court and jury what you 
know of this transaction. 

Mr. Pope : I was in the Gait House the evening this afiair took 
place. I boarded there at that time. When I went in that evening 
there appeared to be a great deal of excitement. There were many 
persons in the bar-room not usually there. I was standing behind the 
counter when Mr. Redding came in with a paper in his hand and pro- 
nounced Judge Wilkinson a damned rascal, liar, swindler and 
murderer. Shortly after the Judge entered the room and came 
towards the counter where the glasses and decanters were to take a 
glass of water. Redding said to him he was the gentleman who struck 
him in his shop that evening. The Judge said he would not fight him 
or quarrel with him, but 'if he touched him or laid a hand on him he'd 
kill him. Redding then called him names and abused him — calling 
him coward, etc. The Judge walked up and down the room, and then 
left it. In some short time after Judge Wilkinson returned into the 
bar-room, and Murdaugh and the Doctor along with him. Murdaugh 
came towards Redding who was standing with his back to the counter, 
and Redding remarked you are one of the damned rascals who 
attacked me at the shop with a bowie knife this evening. Mr. Mur- 
daugh said, " If you say I attacked you with a bowie knife you are a 
damned liar, and if you touch me I will cut your guts out." 

Some one then caught Murdaugh's hand and the fight commenced. 
Blows were struck at Murdaugh, and the crowd closed up as they 
passed round towards the dining room door. Immediately after, my 



TRIAL OF JUDGE WILKINSON ET AL. 39 

Examination of Mr. Pope. 

attention was attracted to the other corner of the room near the folding 
doors into the passage, and I saw Judge Wilkinson standing in the 
door way with a bowie knife in his hand. Rothwell was standing a 
few feet from the door in a line towards the fire-place. The Judge 
looked a moment and then stabbed Bothweli under the shoulder. 
Rothwell was stooped a little— not as if fighting — but leaning over some 
one down on the floor. Almost instantly z. fight commenced with 
raised chairs, and the crowd moved out of the room into the passage. 

\ 43. Q. Did you see the Judge eflPect the stab he made ? A. I sav 
the knife enter Roth well's back. 

Q. Which way was he turned ? A. His back was full toward me, 
rather leaving his side inclining to his back next the folding door, and 
his face turned from the door. 

Q. Was he fighting at the time? I did not think Rothwell was 
doing anything at the time. 

Q. Did you see him get the other wounds ? A. I saw but. the one 
stab. 

Q. What sort of door is that from the passage into the bar-room, and 
what was the relative positions of the parties ? A. It is a folding door. 
Onefold was open; the other shut. The Judge was in the open part 
by himself Rothwell was a few feet from the door towards the win- 
dow of second cross street. 

Q. Which was he nearer to — the window or the door ? A. About 
one-fourth nearer to the door than to the window. 

Q. How far was he from where the Judge stood before he made the 
stab ? A. About five or six feet. 

Q. In what part of the room did the fight begin ? A. It began with 
the altercation between Redding and Murdaugh, near the place at the 
counter where the bottles and glasses usually stand — about one-third 
of the counter from the passage door. 

Q. When Murdaugh came up to Redding was he armed, and with 
what ? He had his knife open in his hand ; a Spanish dirk knife like 
one of these. 

Q. When the words passed was the open knife-in his hand ? A. It 
was. 

§ 44. Q. How soon did you notice him with his knife drawn after 
entering the room ? A. My attention was drawn to him when Redding 
said he was one of the men who attacked him with a knife in his shop 
that evening. 

Q. When Redding said that, what reply did Murdaugn make ? A. 
He said, " If you lay your hands on me, or touch me, I'll cut your guts 
out. 

Q. When Murdaugh came in at the door from the passage, had he 
his knife drawn in his hand ? A. I did not notice him coming in at 



40 THE LA W OF HOMICIDE. 



Re-examination by Mr. Hardin. 



the door. My attention was first drawn to him when the w<wds i>asced 
which I have ah'eady mentioned. 

Q. Did you see Mr. Meeks killed ? A. No ; I did not. I saw him 
afterwards lying on the floor, and perceived that he waa stabbed in the 
belly. There was a short cow-hide, or something that I took to be 
such, lying by his hand. It *had been an impression on my mind that 
he had struck Mr. Murdaugh with tliat cow-hide, which caused him to 
be stabbed. He was expiring when I looked at him, and in a moment 
died — almost instantly as I looked at him. 

CROSS-EXAMINED. 

Q. Were you acquainted with Dr. Wilkinson ? A. I never saw Dr. 
Wilkinson, to know him, till he was before the examining court 

Q. What was RothwelVs position when stabbed ? A. He was stoop- 
ing and the fight was going on before him, where I supposed some one 
was down, but I did not see any person down. 

Q. What occasioned you to be in the bar-room at the time ? A. I 
was there to supper. I generally went into the bar-room fifteen min- 
utes before supper. 

Q. When Murdaugh's hand was caught, and he struggled towards 
the dining-room door, did you see any blows struck on him? A. I 
saw some blows given at him, but could not say by whom, the crowd 
closed them up so. 

Mr. Hardin : Do any persons board at the Gait House that do not 
lodge there ? A. Yes ; several. 

g 45. Q. Do such boarders congregate in the bar-room before meals ? 
A. Yes; always. 

Q. {For Defense.) Did you see Murdaugh struck at with a stick? A. 
I had an impression that some one was using a stick at Murdaugh. 

Q. Was the fight going on before Rothwell when he was stabbed ? 
A. It was going on between the door and the window, and he was be- 
tween the fight and the door when he was stabbed. 

Q. What was the distance between the crowd and where Judge Wilk- 
inson stood ? A. About six or seven steps. [Feet.] 

Q. How far was the Judge from the end of the settee? A. About 
two or three feet. 

Q. Which was Judge Wilkinson nearer to, the door or the settee ? 
A. About two-thirds nearer the settee than the door. 

Q. What space was between where the Judge stood and Rothwell ? 
A. About five or six feet. 

Q. From the position in which Rothwell stood could the Judge tell 
from where he stood whether Rothwell was taking part in the fight ? 
A. It appeared to me that Rothwell was not interfering but leaning 
over something down before him. 



TRIAL OF JUDGE WILKINSON ET AL. 41 

Examination of Mr. Johnson. * 

Q. Could you tell what he was doing before he was stabbed ? A. I 
had not observed him till I saw the Judge make the stab. 1 did not 
know that he was in the room till then. 

§46. Q. When Murdaugh was seized by the hand was he not 
dragged over towards the dining-room door? A. Yes; I thought so. 

Q. Were not> several blows inflicted on him during that time ? 

Mr. Hardin: Had he his knife drawn in his hand before any 
blows were struck at him? A. Yes ; when he came up to Redding and 
Redding said, " You are one of the men who struck me in my house." 

Q. [Fw Defense.) When Murdaugh was first closed upon by the 
crowd did you see him struck ? A. He might have got a couple of 
blows at the moment. 

Q. What is the distance from the entrance of the bar-room from the 
passage to the dining-room door ? A. About eight steps. 

Q. Which is the length of the room ? A. It is longer between the 
doors than from the counter to the door ; but the whole room is longer 
the other way. 

Q. Where in the room was Meeks stabbed? A. Near the dining- 
room door. 

Mr. Hardin: How many weapons did you see in use that night? 
A. I saw only two— Mr. Murdaugh's and Judge Wilkinson's. 

[Witness allowed to withdraw.] 

WILLIAM JOHNSON CALLED AND EXAMINED. 

§ 47. Mr. Hardin : Mr. Johnson, state what you know of this affair. 

Mr. Johnson : On Saturday evening I was going from Main to Third 
street, and near the corner went into the Pearl Street House, kept by 
Mr. Redding's brother, who told me Jack was irritated at what had 
occurred at his shop. I went in to ask Jack about it and saw Mr. 
Rowland, Captain Rogers and Mr. Norris there. Some one said the 
Mississippians were damned rascals and ought to be punished ; and 
somebody else said there was a regular course to be taken. Mr. 
Redding said he had no one to go with him to the mayor's office, and I 
volunteered to go with him. We went, and took Henry Shone along 
with us. As we went along we called at Vacaro's and at Hy man's, 
inquiring for the officers. We then went to the mayor's office and up 
to Mr. Pollard's room, but he refused to give a warrant without the 
names. He offered a blank warrant to have the names inserted as 
soon as they could be ascertained. Redding would not take the warrant 
till he could get the names. Mr. Pollard said if we could get the mar- 
shal, Mr. Turner, he would act without the warrant. We went to the 
jail to inquire for him and see Mr. Ronald. Mr. Ronald asked me about 
the matter, and I was a minute or two telling him and Mr Chenoworth. 
Mr. Redding was out on the pavement talking to Mr. Shone, as I sup- 
posed, but when I turned out again he was gone. It appears that Mr. 



42 THE LA W OF HOMICIDE. 



Examination of Mr. Johnson. 



Redding called at Mr. Roth well's, and took him along to hunt for the 
names. As 1 passed on I overtook Mr. Beering between Mr. Vacaro's 
and Mr. Shatt'oi's, and he went along with me, and as we went, we 
inquired where Ave'd find Mr. Turner or Mr. Dunn, the officers, till we 
came to Zanone's corner, where we parted. I went on tc Jack Red- 
ding's, and Mr. Varmun's son told me Mr. Redding an4 Mr. Rothwell 
had gone to the Gait House for the names. I went on in the direction 
of the Gait House, having a little business with Mr. McCrum, about . 
buying a calf I stopped to talk to Mr. McCrum, awhile, about the calf 
and then I passed on to the Gait House. I went into the bar-room and 
saw Mr. Rothwell standing at the fire-place with his back to the fire, 
and saw Mr. Redding at the counter getting the names. I stepped to 
the door and invited Rothwell to come over to the City saloon and have 
something to drink, but he refused, saying he had taken something at the 
bar. I then went myself, and took Mr. Oliver and Mr.Meeks over, and we 
met Mr. Taylor at the door of the saloon, and we all went in and drank 
something. After drinking, Taylor and Meeks went over to the Gait 
House and Mr. Oliver and I had a few words with the bar-keeper, after 
which weleftand went to theGalt House. On returning there, it appeared 
as if some excitement had been going on there. Mr. Redding was 
leaning on the counter, relating some circumstances, and Mr. Murdaugh 
came in. He spoke, and the damned lie passed between them, and, as 
I thought, Mr. Murdaugh struck at Mr. Redding, and made two or 
three blows at Mr. Meeks, who struck him with a whip or cane. They 
were then crowded toward the dining-room door, and I saw Murdaugh 
strike at Meeks with his knife. I saw Judge Wilkinson make a thrust 
at Meeks, too, and shortly after observed him fall dead. The Judge re- 
treated back to the counter from which he had approached 
Meeks, and by the time he got back, Meeks fell dead. After Meeks 
fell, Murdaugh tried to escape out of the door, and the Judge passed 
between the dining-room door and Meeks' feet, as if to make his escape 
after Murdaugh. While doing so, the Doctor was down in the other 
corner, and Holmes beating him with his fist, and Rothwell leaning 
over Holmes, saying, " Peace, gentlemen, for God's sake," and trying to 
get Holmes off the Doctor. When Murdaugh had got to the door, and 
the Judge after him, and when the Judge got to the door, seeing the 
fight in the corner with his brother, he turned back and made a lunge 
with his bowie-knife at Rothwell, whose back was to him. Then Mur- 
daugh and the Judge made their escape, and the Doctor got disengaged 
and made to the door, when Oldham was entering, and the Doctor 
struck at him with his knife, and Oldham sort of shrunk from the 
blow, when the door closed, and I saw no more. 

g 48. Q. What part of the bar-room was Murdaugh in, after entering 
the room ? A. In the southeast corner, with his knife drawn. 



TRIAL OF JUDGE WILKINSON ET AL. 43 

Crofis-examination of W. Johnaon. 

Q. Where was Judge Wilkinson then ? A. Judge Wilkinson was in 
the northeast corner, probably unknown to the spectators. 

Q. Which, did Murdaugh or Redding speak first? A. I think Mr. 
Redding said, " I presume you are the gentleman who attempted 
to strike me with your knife; give me some cause why you did so." I 
think Murdaugh said, "It is a damned lie !" 

Q. Is this the knife Murdaugh had in his hand ? A. I think it is — 
it was just such a knife. 

Q. Bid you see Murdaugh aim a blow of the knife at Redding ? A. I 
think he struck at Redding, and that Meeks struck him off. 

Q. Had you seen Meeks that day before the affray at Redding' s shop ? 
A. I did not see Meeks that day till I saw him at the tailor shop. 

Q. When Murdaugh, and Redding and Meeks were at the counter 
near the center of the bar-room, where was Judge Wilkinson ? A 
Judge Wilkinson was in the northeast corner, and kept there till 
Meeks was in the northwest corner, when he approached him and made 
a thrust of his bowie-knife, and then retreated back to the same corner 
he had been in before. As Judge Wilkinson made the thrust, before 
he could get back, Meeks fell dead. 

CROSS-EXAMINED. 

Q. Where did you first meet Meeks that day ? A. As I was going 
from the post-office to the Pearl Street House, I saw Meeks and Red- 
ding's brother. I had a few minutes' conversation with them, and then 
observed I would go and ask Jack about it myself. I then starts to do 
80, and Meeks came out of the door, but whether he came with me into 
the store or not, I do not know. 

§ 49. Q. Who were in the store when you went in ? A. Captain 
Rogers, Mr. Rowland and Mr. Redding. 

Q. Did you notice any conversation between Meeks and Redding in 
the store? A. No; there was none. 

Q. Was Meeks present when you spoke to Redding ? A. He was 
either in the store or at the door. 

Q. Did you see Meeks and Redding in conversation in the shop ? A. 
I do not know whether Mr. Meeks spoke or was known to Mr. Red- 
ding. 

Q. Did you not see him in the shop? A. I do not know that I saw 
him in the shop or not. Mr. Meeks came with me from the coffee, 
house towards the store. He was my acquaintance, and accompanied 
me toward the door. 

Q. Was Mr. Redding in the coffee-house, just before that ? A. I did 
not see Mr. Redding in the coffee-house; it was his brother. Mr. 
Meeks went with me toward the shop, but I can not say whether Mr. 
Redding noticed him or not. 

Q. Did Meeks say why he accompanied you ? A. He did not inti- 



44 THE LA W OF HOMICIDE. 

Grofls-examination of Mr. Johnson. 

mate why he accompanied me. He started with me from the coffee- 
house, when I said I'd go to the shop. 

Q Can you say whether he did, or did not, enter the shop ? A. I do 
not know whether he came into the shop. 

Q. When you were in the shop, what adyice was giyen to Redding ? 
A. Some advised Redding to chastise the Missisuppians ; but one 
said there was a regular course to take. 

Q. Who were the persons in the store then? A. Mr. Redmond, 
who had seen the iiiss. Mr. Rothwell was also there. 

Q. Are you sure Meeks was not one of those present ? A. I can not 
say whether Meeks was in the store. He had started with m^ from 
the coffee-house toward the store door, but can not say that he 
entered. 

§ 50. Q. Well, who else was in the store ? A. Mr. Roland and 
Captain Rogers and Mr. Redmond. There might be three or four 
more standing about. I saw Mr. Paris there. 

Q. When the proposition was made to Redding, to chastise these 
gentlemen, did you interfere ? A. Yes ; I said to Redding, '^ No, take 
the law." Mr. Redding then asked me if I would go with him to the 
mayor's office, and I went with him. 

Q. When you went to the jail, whom did Redding converse with ? 
A. Mr. Redding and Mr. Chenoweth were talking on the pavement, 
and I went in. 

Q. Did you see any one besides those you have already named, on 
your way to the mayor's office ? A. I saw others as I went, that I did 
not know. 

Q. Did you hear Deering say, if they were not secured, they would be 
gone before the warrant could be got ? A. I did not. 

Q. Did you not say to Deering, that if they came out their hides would 
not hold shucks ? A. I never said so to Deering. 

Q. When you were in the bar-room, did you hear Mr. Miller make 
any observation about his being a grand juror, and the boys must mind 
themselves ? A. I have no recollection of hearing Mr. Miller say that 
he was one of the grand jury, and the boys must mind themselves. 
I saw him talking to Mr. Reaugh, but do not remember the conversa- 
tion. 

Q. What motive had you for following Redding and Rothwell to the 
Gait House ? A. I only went up Main street to negotiate with Mr. 
McCrum about his calf. When I was so far, I thought I would go into 
the Gait House to see if Mr. Redding had got the names. 

551. Q. When you did go in, what passed between you and them? 
A. When I was going to take Meeks, Oliver, and Joseph Taylor to the 
opposite coffee-house, I asked Rothwell to come over and have some- 
thing to drink ; he refused, saying he had drank some at the bar. 



TRIAL OF JUDGE WILKINSON ET AL. 45 

Cross-examination of Mr. Johnaon. 

Q. What motive had you for returning to the bar-room, when you 
knew Redding had got the names ? A. I expected Mr. Turner would 
be along to arrest them. 

Q. How did you know Redding and Rothwell were at the Gait House 
together, before you got there? A. When I called at the store and 
asked Mr. Varnum's son for Mr. Redding, he told me that he and 
Rothwell had gone to the Gait House to get the names. 

Q. When you proposes! to Meeks, Oliver, Taylor and the others in 
the saloon, to have something to drink, did you not say " Come, boys, 
let us take a drink, and then let us go over and give these fellows 
hell ? " A. No, ZUR— No, *$'«>/— Nothing of the kind. 

Q. After these gentlemen were put in jail, did you not go from house 
to house, proclaiming that they ought to be hanged ? A. Many gentle- 
men asked question's, and I told them as near as I could tell, about what 
I had seen, but always said let the law take its course. 

Q. What conversation passed at the opposite coffee-house while you 
and the others were drinking, relative to the expected row? A. There 
was no conversation of that kind. 

Q. When you met Holmes in Third street, who was with him? A. 
He and some other person were passing along toward the theatre — 
they were going about a dog. 

Q. Did Mr. Redding or Mr. Shone speak to him ? A. They might 
have spoken to him but I do not recollect that they did. 

Q. What did you say to Holmes ? A. I am not sure I said anything^ 
or what it was, if I did, except it might be something about the dog. 

§52. Q. When you invited Rothwell to go from the bar-room to 
the cofiee-house, what sort of a stick had he in his hand ? A. I did 
not see any stick with him. 

Q. When he was at the door had he not a stick ? A. I did not see 
a stick with him at the door, or the light, or at all that night. 

Q. At the beginning of the fight in the bar-room who struck the 
first blow ? A. I thought Meeks struck at Murdaugh with the whip 
to keep him from making the stab with the knife. 

Q. What weapon had you prepared yourself with ? A.I had neither 
weapon nor stick myself 

Q. Who had the sword-cane? A. I saw no sword-cane. 

Q. Who gave Judge Wilkinson the stab in his back? A. I don't 
know. 

Q. What conversation took place between you and Mr. Reaugh? 
A. I do not remember — it was about some men being sponges, or some 
such thing. 

Q. Try if you can recollect ? A. Oh, it was about that, and one thing 

and another. 
Q. Come, now, recollect what it was about? A. Why, Judge, can 

you recollect what corn-patch you planted ten years ago ? 



46 ' THE LA W OF HOMICIDE, 

Be-exAraination of Mr. JohnBon. 

Q. My question is a very plain one ; can not you recollect some of 
the words that passed ? A. No, for I do not keep the leaves of a dic- 
tionary in my head. 

Q. Well, we'll see if some one else can recollect it. When the prop- 
osition was made to Mr. Redding to take vengeance on these gentle- 
men, who observed it, and what did Meeks say ? A. It was proposed by- 
some by-stander or loafer, but I do not recollect Meeks recommending it. 

Q. Was Mr. Samuel Jackson there? A. I do not recollect seeing 
him there at all. 

Q. What time of the day was it ? A. It was before sun-set — ^may be 
an hour. 

Q. Did you see Mr. Holmes in the bar-room of the Gait House when 
the affray began ? A. Yes. 

{53. Q. Bid you see Mr. Oldham? A. I saw him at the door, as 
they made their retreat out. 

Q. Did you hear or see him shoot the pistol ? A. I did not mind it. 

Q. Did you not know he had pistols ? A. I knew he always carried, 
arms since he was a city officer. 

* § 54. Q. When you and Redding went to the mayor's office, and saw^ 
Mr. Pollard, what did he say ? A. As we had not the names he offered 
to let us have the warrant with blanks for the names, to be afterward 
filled up, and said if we could find Mr. Turner, he could act without a 
warrant. Mr. Redding said no, he would get the names first. 

Q. After that, whom did you invite to the Gait House. A. I do not 
recollect inviting any one. 

Q. Did you not tell any one to be there? A. No ; I have no recollec- 
tion of any such thing. 

Q. Did Redding refuse to take the blank warrant? A. Yes; he said 
he would get the names first. 

RE-EXAMINED. 

Q. Where did you see Mr. Holmes first in the Gait House ? A. In 
the passage, talking to Mr. Halbert. 

Q. Where did you see him during the fight? A. I saw him stand- 
ing over the Doctor. 

Q. Whom did you talk to, besides Mr. Redding and Mr. Shone, about 
going to the Gait House. A. No one that I recollect. 

Q. Did you go to the Gait House for the purpose of assaulting these 
gentlemen ? A. I did not. 

Q. Did Mr. Redding say he was going for that purpose ? A. I never 
heard him announce any such intention. Mr. Redding and others 
apprehended some little difficulty might occur in getting the names, 
but I did not hear any reason assigned. 

Q. Did you know Mr. Meeks, and if you did, say what sized man 
was he ? A. I knew him well — he was quite a small man ? 



TRIAL OF JUDGE WILKINSON ET AL. 4T 



Examination of Mr. Trabue. 



Q. Did you see Meeks after you left him at the door of the tailor's 

shop till youi saw him in the Gait House ? A. No ; I did not. 

Q. When you met Meeks at the Pearl street coflFee-house. what did 
he say ? He said it was hard the way these gentlemen had treated 

Redding. 

[Witness allowed to withdraw.] 

MR. TRABUE GALLED AND EXAMINED. 

§55. IMr. Hardin: Mr. Trabue be so good to tell the Court and 
the jury what you saw of this business. 

Mr. Trabue : I was in Louisville about the 15th or 20th of December, 
when this affair took place, I heard this business talked over — myself 
and another gentleman boarded at the Gait House. I was in the bar- 
room near the fire when some one observed that had not the Mississippi 
gentlemen gone up stairs they would have been badly treated. Some 
one pointed out Mr. Redding, whom I knew before. Judge Wilkinson 
came in and walked backward and foiward two or three times greatly 
excited. Mr. Redding then entered the door and crossed the Judge's 
path. The Judge stopped and looked at him, and Redding placed his 
back against the counter. I think when Murdaugh entered, he was the 
first that spoke, saying, " I understand you say that I drew a bowie 
knife on you — if you say so you are a damned liar. " Mr. Redding said, 
" I don't know that you are the man, but one of the three did." Mr. 
Murdaugh replied, " If you or any one else says it was I, it is a damned 
lie." A little man, whom I knew afterwards to be Meeks, came up and 
said, " You are the damned little rascal that did it," and he struck at 
Murdaugh with his whip. About the same time, Rothwell struck 
Murdaugh, who had his knife open in his hand when he was first struck 
at. The crowd closed up on them, and they were hurried towards the 
dining-room door. Shortly after, I saw the Judge stabbing about, with his 
bowie-knife. Murdaugh, Meeks and Rothwell were in the middle of the 
scuffle when the Judge made toward them, and I saw him stab Rothwell 
in the back, or toward the side. Rothwell made a slight shrink on 
getting the slab, and sort-o' turned round to see who struck him. As 
soon as I saw Judge Wilkinson stab Rothwell in the back. Dr. 
Wilkinson was knocked up against me ; and sometime after. Holmes 
had the Doctor down, and raised his head with one hand to strike him 
with the other. Marshall Halbert came up and addressed Holmes, 
saying, " You have beat him enough." I helped to separate them and 
the Doctor made his escape. I saw the «Tudge, and I saw a bowie knife 
glistening; they got out into the passage and I heard a pistol fired. 
At the same moment I saw Meeks drop dead. Rothwell on the 
instant came in with the blood flowing from his wound. He took off 
his coat with some assistance. 



48 THE LA W OF HOMICIDE, 

CroaB-ezamination of BCr. Trabue. 

2 56. Q. When you saw Judge Wilkinson stab Rothwell, in what part 
of the room was it? A. Near the dining-room door. 

Q. Bid you see Rothwell get any other stab ? A. I saw but the one. 

Q. Which corner of the room was it in? A. In the opposite corner 
from where Dr. Wilkinson and Holmes were engaged. 

Q. Describe the corners as you face the fire ? A. Holmes and Dr. 
Wilkinson were fighting in the left-hand corner as you face the fire ; 
the Judge, Rothwell, and Halbert, were fighting in the right-hand 
corner as you face the fire. 

Q. Are you sure you saw Rothwell get but the one stab? A. It 
sometimes has been an impression on my mind that as Rothwell 
turned, the Judge made another stab at him, but I am not certain. 

Q. Did you see Judge Wilkinson attempt stabbing any one else? 
A. I saw him repeatedly stabbing about with his bowie-knife. 

Q. Was any person then molesting him ? A. At the time he was 
stabbing about, I did not see any person interfering with him. 

Q. Is this the knife he had ? A. The knife was similar to that. 

Q. What was his manner of stabbing about as you describe ? A. I 
saw the Judge make several thrusts forward in this way, throwing his 
head back [jerking forward his arm.] 

§ 57. Q. When Murdaugh came into the room which, did he, or Red- 
ding speak first ? A. Although there are many persons say Redding 
spoke the first word, I am certain it was Murdaugh, unless Redding 
spoke very low. 

Q. On whom was your attention first fixed ? A. I had my eye upon 
Murdaugh, Meeks and the Judge ; as soon as this striking commenced 
I retreated from them. 

Q. Did you then see the Doctor ? A. I had not discovered the Doc- 
tor till I saw Holmes beating him. I would have seen more of the 
fight between Meeks, Murdaugh and Rothwell had not Dr. Wilkin- 
son been struck up against me. 

Q. Was he then knocked down ? A. He was not knocked down till 
after Rothwell had been stabbed by Judge Wilkinson. 

Q. Did Rothwell continue to fight after the stab you saw ? A. My 
attention was drawn from Rothwell to Dr. Wilkinson, and I did not 
see Rothwell again until he was walking from where Meeks fell 
toward the passage through the door. The pistol wap fired and he 
turned into the room bleeding. 

Q. Were they fighting out of the room at the time ? A. The room 
had been cleared. 

CROSS-EXAMINED. 

Q. Did any one else strike at Murdaugh besides Meeks ? A. I saw 
some one besides Meeks strike at Murdaugh, and have an impression 
it was a large man like Rothwell with a stick or cane. 



TRIAL OF JUDGE WILKINSON ET AL. 49 

Be-examination of Mr. Trabue. 

Q. What sort of whip or cane was it Meeks struck with? A. I 
thought it was a polished steel cane that Meeks struck with, but I 
may be mistaken in that ; my impression is very indistinct. 

§ 58. Q. When Mr. Murdaugh was struck, was he warning them off? 
A. He was warning them not to strike him. 

Q. When did he draw his knife? A. As he gave the lie to the 
report. He said, " Any man that says so, is a liar." 

Q. Bid he say knife, or bowie-knife ? A. I do not recollect that he 
said bowie-knife. His words were, " It is reported that I drew a 
knife on you, and if any one says I did, he is a damned liar." Meeks 
came up and said, " You are the damned little rascal that did it," and 
with that struck at Murdaugh. 

Q. Did any one else at the same time commence striking ? A. My 
impression is that another, a large man, struck at Murdaugh with a 
stick at the same time. 

Q. When the Judge first left the bar-room, did Redding remain until 
the Judge's return? A. Redding went out before the Judge came in. 
After the Judge canfe in and paced the room, Redding entered and 
crossed his path to the counter, and by that time a right smart crowd 
entered the door and got about them. 

Q. Was a difficulty expected by those in the room? A. I don't 
think there were five men in the house that did not expect a difficulty. 
It was considerably talked of all the evening. 

Q. What occurred in the passage when they got out there ? A.I 
was not out to see what passed in the passage. After Rothwell 
got his coat off and lay on the chairs, I left the bar-room and went to 
my room. 

Q. What weapons did. you observe with both parties? A. The only 
weapons I saw as I recollect, were the two Itnives, the whip, or what 
appeared to me to be a polished steel cane. 

I 59. Q. When Murdaugh was struck with that cane, did it wound 
his head ? A. I think there was a wound made when I saw it strike. 

Q. Where did you last notice Murdaugh in the fight ? A. The last 
of Murdaugh I saw after the first scuffle, I thought he was staggering 
back for the door where he had entered. 

Q. Could any one observe all that was going on together. ? A. I do 
not think it possible that any one could see everything that occurred. 

Q. The terror was so great that people fled from it? A. I think 
before the fight was half over, there did not remain more than ten or 
a dozen persons in the house. 

RE-EXAMINED. 

Q. What time in December did it occur? A. I think aboui} the 15th 
or 20th. I was there a day or two before it happened. 

4— H. 



50 THE LA W OF HOMICIDE. 

Examination of Mr. Montgomery. 

Q. It was in Louisville, in the county of Jefferson? A. Yes. 
[Witness allowed to withdraw.] 

MR. MONTGOMERY CALLED AND EXAMINED. 

g 60. Being requested by Mr. Hardin to state what he knew of the 
affair — 

Mr. Montgomery : I was at the Gait House with Mr. Trabue. The 
first I saw of the affair, was at Mr. Bedding's shop. As I was passing 
in the street I saw two or three gentlemen engaged in the doorway. 
Mr. Redding appeared to have turned back on the pavement. Mr. 
Murdaugh was on the pavement too, and had a drawn knife in his 
hand. Redding said if they would lay aside their weapons he would 
whip the three of them. Murdaugh said he could not begin to do it, 
pointing his knife at him. Judge Wilkinson then came up and took 
Murdaugh away. 

Q. What time was it ? A. It was between three and four o'clock. 

Q. State what you know of the affair at the fralt House. A. After- 
wards, at the Gait House, I saw Redding getting the names. He 
was using very rough language. R was nearly dark when Redding 
came back into the bar-room. Mr. Halbert said there would be rough 
work with the Mississippians. Hearing some one speak loud near the 
counter, I got up and went toward the counter. Mr. Meeks was near 
Mr. Redding, who was addressed by Mr. Murdaugh. Mr. Rothwell 
was next Mr. Redding. Murdaugh had his drawn knife in hie hand. 
He remaked that " if any one said he drew a bowie-knife, it was a 
damned lie." Meeks said " he was the damned little rascal that did 
it," and struck at him. Murdaugh tried to use the knife, but his hand 
was seized, and he changed his knife into the other hand, and made a 
stab at Meeks, and cut him in the belly, and his blood shot out upon 
my pantaloons and vest. 

Q. Did you see Rothwell stabbed ? A. I saw the Judge thrust his bowie- 
knife into Rothwell' s back. The crowd dispersed, like, and the Judge 
backed out toward the passage. I turned towards the fire, and saw 
Mr. Holmes pounding Dr. Wilicinson very heavily. Halbert said to 
him. " Bill, you have beat him enough," and he and others took hold 
of him. By that time I saw the Judge again appear at the door, and 
make a stroke with the knife at Holmes, and immediately I saw Roth- 
well with the blood flowing from him. 

§ 61. Q. Did you see the Judge stab Rothwell twice? A. I did not 
see the Judge stab Rothwell more than once, and that was in the right- 
hand corner of the room as you face the fire. 

Q. Was the Judge usipg his knife freely ? A. Yes ; very freely. 

Q. Was any person attacking him ? A. I did not see any person 
attack him. I did not see any one attempt to strike him till after he 



TRIAL OF JUDGE WILKINSON ET AL. 51 

Examination of Mr. Beaugh. 



had struck at Holmes with his knife, when Holmes and Halbert raised 
chairs against him. I too, raised a chair, not that I thought he struck 
at me. Holmes had been separated from the Doctor, when the Judge 
struck at him. 

Q. When the Judge stabbed Rothwell, was Roth well's back to him ? 
A. Not exactly ; but a sort of quartering. 

GROSS-EXAMINED. 

Q. You live in Oldham county ? A. Yes, sir ; I do. 

Q. Did you hear any person say they would beat the Mississippians ? 
A. Yes; several said they would beat them well. The Mississippians 
were not in the room at the time. 

[Witness allowed to retire.] 

MR. THOMAS REAUGH CALLED AND EXAMINED. 

§ 62. Mr. Hardin : Mr. Eeaugh, state what you know of this trans- 
action. 

Mr. Reauge : I had been in the country that evening, and on my 
return, Mr. Kintner, of Corydon, asked me to go to the Gait House 
and have a glass of wine. He was boarding at the Gait House. I 
drank with him at the bar, and walked to the fire-place. On turning 
round, I saw Mr. Redding talking to Mr. Rothwell. In a few minutes I 
saw Mr. Holmes. Mr. Redding was in conversation with Mr. Roth- 
well, and I think with Mr. Halbert. I turned to Mr. Johnson and 
asked Eim if anything was the matter ; he said yes, and told me about 
the difficulty at Mr. Redding s store. I remarked that if the Missis- 
sippians fell into the hands of these men they would fare rather 
rough. " Yes," replied Johnson, " they would skin them quicker than 
I could skin a sheep." I heard a Mr. Miller say to Mr. Redding that 
if he'd get the names he'd attend to the matter in the grand jury. Mr. 
Riding went to the bar ; shortly after, a gentleman came in and Mr. 
Redding turned to him and said, " I believe, sir, you are the gentleman 
that struck me with the poker ?" He turned round and said, " Yes, 
sir, I am." Mr. Redding then used very rough language, when the 
Judge said, " Go away, or FU kill you." The Judge then walked the 
room, and peaceably passed out to meet Mr. Everett in the passage. 
The Judge was gone some time when he returned again and walked 
across to the dining-room door. I think he had his right hand in the 
left hand pocket of his coat. He stood with his eye fixed on the 
opposite door, Mr. Redding a few steps from him, when a gentleman 
with a drab overcoat came toward Mr. Redding with a knife in his 
hand. He addressed himself to Mr. Redding in this way : " Sir, do 
you say I drew a bowie-knife on you ? If you say so, you are a damned 
liar !" Mr. Redding said, " I • don't say it was you, but one of the 
three." A little man, whom I afterwards knew to be Meeks, came up 



52 THE LA W OF HOMICIDE 



Re-examination of Mr. Bedmond. 



and said, " You are the damned little rascal/* and I think he was making 
the blow with his whip as he said the words. I retired to the iSre-place 
and saw Mr. Meeks stagger to the northwest corner of the room. I saw 
him struck, as I tliought, with a dirk, and then falL At the same time 
I saw a fight in the southwest corner, and Judge Wilkinson at the door 
striking the first blow at Rothwell, but it did not seem as if the blow 
could reach him, but as he turned a little the second blow did, and it 
appeared as if, at the time, Rothwell was inthe act of taking off Holmes 
from Br. Wilkinson. 

g 63. Q. When Judge Wilkinson stabbed Rothwell, was Rothwell in 
the southwest corner in the act of taking hold of Holmes to relieve Dr. 
Wilkinson? A. Yes; it appeared as if he was taking Holmes, or some 
other man, off the Doctor. 

Q. In what corner of the room, as you face the fire ? A. In the left- 
hand corner. 

Q. It was some twenty feet from the dining-room door? A. I think 
it was. 

Q. If you took a line from the passage door to the fire-place, where 
would Rothwell's position be ? A. A little to the left of that range line. 

CROSS-EXAMINED. 

*Q. What part did Rothwell take in the fight between Meeks and 
Murdaugh ? A. I did not see him take any part, 

Q. Had not Rothwell a stick in his hand ? A. To the best of my 
recollection I think he had. 

Q. Where did you see Meeks first that evening, and was he then 
excited ? A. Mr. Meeks seemed considerably excited when I first saw 
him that evening in the passage, and he asked me to go and drink with 
him in company with another man. 

Q. When you remarked these large gentlemen would handle the 
Mississippians roughly if they fell into their hands, and Johnson said 
"they would skin them as quick as he could skin a sheep," what oaused 
you to ask Johnson what was the matter ? A. The appearance of these 
men made me ask Johnson the question. 

Q. How many blows, and in what manner did Judge Wilkinson 
strike at Rothwell? A. Judge Wilkinson struck two blows, as I think, 
holding the knife in this way [showing it in his right hand, pointing 
forward.] 

Q. Had Murdaugh a knife in his hand when he was struck by Meeks ? 
A. He had a knife, but they were so close together it was impossible 
for me to tell what was done. 

[Witness allowed to withdraw.] 

MR. REDMOND RE-CALLED. 

§ 64. Mr. Hardin : Mr. Redmond, state what you saw at the Gait 
House that evening. 



TRIAL OF JUDGE WILKINSON ET AL 63 

Cross-examination of Mr. Redmond. 

Mr. Redmond : I was at the Gait House that evening, on my way to 
my supper. I live on Market, between Brook and Floyd streets, and 
passing the Gait House, on my way home, I heard pretty lould talk 
inside, which induced me to enter. When I went in Mr Redding was 
abusing Judge Wilkinson, who remarked he did not want to have 
anything to do with a man of his profession, and if he laid hands on 
him, he'd kill him. He then walked up and down the room with his 
right hand in his left hand coat pocket Mr. Everett called him to 
the counter, and, catching his arm, told him he had better go to his 
room. He went out, and in ten or fifteen minutes he returned, accom- 
panied by Mr. Murdaugh, the only one I noticed coming in with 
him. When Mr. Murdaugh came in, I was behind Mr. Redding. Mr. 
Redding said, " You are one of the gentlemen who drew a knife on 
me." Murdaugh said, " You are a damned liar." Meeks said, *• You 
are; I saw you myself." Murdaugh replied, "You are a liar," and 
made a pass at him with his knife at the same instant that Meeks 
struck him with his whip. Some one caught Murdaugh's right hand, 
and he changed the knife into his left hand, and the second thrust he 
cut Meeks in the belly. Meeks staggered about, a little backward, 
and finally fell toward the counter. I was then making my way out 
of the room pretty quick, I tell you ; and, and as I was going by the 
crowd in the left-hand corner, I saw Holmes scuffling with the Doctor. 
The Doctor had a knife in his hand at the time. Rothwell was lean- 
ing over Holmes, begging him to get off. Holmes said, " Let me hit 
him one more blow." Judge Wilkinson was at the door, and made a 
thrust at Rothwell, and stabbed him over the hip, when Rothwell 
straightend up and exclaimed, ^' Oh ! I am cut,'* and the Judge 
retreated out of the door. 

§ 65. Q. Were you asked at the examining court anything con- 
cerning what you had seen at the Gait House? A. No; I was not 
asked about it 

Q. After the Judge left the bar-room, you left also ? A. Yes ; I had 
no object in view to remain. 

CROSS EXAMINED. 

Q. Did you not tell a journeyman tailor who works for Mr. Davie, 
what was to happen at the Gait House? A. No, SIR! I told him 
what had happened at Reddings's shop. 

Q. You say you saw a knife in the Doctor s hand ; was he using it? 
A. When the Doctor lay on the floor his hand was flat on the boards 
with his knife in it. I think he was pretty well used up ; and from 
the way Holmes had him fixed, I expect he had no chance of using his 
knife. 

Q. During the ten or fifteen minutes between the acts in the bar- 



54 THE LA W OF HOMICIDE. 



Examination of Mr. OarriaoD. 



room was there any talk among those present about what had passed?* 
A. There was talk of what had happened, and of Redding having 
offered to whip the whole three if they would lay aside their weapons. 
Q. Were you at the Gait House when Redding went first? A. No; 
I did not go to the Gait House to see that. 

Q. You were in Mr. Redding's employment ? A. I worked for Mr. 
Redding at the time. 

[Here the court adjourned for dinner, and re-assembled at 2 o'clock.] 

MR. JAMES W. GARRISON CALLED AND EXAMINED. 

g 66. Mr. Hardin : Mr. Garrison, state what you observed of this 
affair. 

Mr. Garrison : I was at the Gait House that evening and saw Mr. 
Redding there, and heard him tell a gentleman that Judge Wilkinson 
was one of the persons who had attacked him at his own house, and 
that they were cowardly fellows. After a little I heard the Judge say 
to Redding, " I will not fight with a man of your profession; but if 
you interfere with me I will kill you." He shortly after retired. I 
observed to Redding, that if I was in his place I would not interfere 
with these fellows. Another person observed, " Yes, I would get their 
names and put them under city authorities." Redding replied that 
he had got or would get their names. In about ten minutes the Judge 
returned and walked across the room very briskly with his right hand 
in his coat pocket. On the third time. Redding crossed the track to 
the counter, and observed that the three men were now present. Mr. 
Murdaugh then spoke to Mr. Redding, and he turned round and said 
something very short to him in reply ; directly the damned lie was 
given to what Redding said, and the crowd closed on them. I vras 
outside the crowd and did not see the knives. I saw blows struck, but 
could not tell upon whom. 

CROSS-EXAMINED. 

Q. state, if you can, who gave or received the blows ? A. I can 
not tell either. 

Q. When Mr. Redding said the three men were present, did he 
speak loud enough to be heard all over the room? A. Yes; I 
thought so. 

Q. You stated that when Mr. Murdaugh addressed Mr. Redding, 
Redding turned round toward him ? A. Yes. 

Q. What was Mr. Redding doing after that ? A. I did not see hini 
that evening afterwards. 

§ 67. Q. What did you observe of Mr. Johnson, Mr. Meeks or Mr. 
Holmes? A. I did not see Mr. Johnson to know him, nor was I 
acquainted with Meeks or Holmes. 

Q. What induced you to caution Redding by saying, if you were he, 



TRIAL OF JUDGE WILKINSON Ef AL. 55 



Examination of Mr. McGrath. 



you would not interfere with these fellows ? A. From what the gentle- 
men said to Mr. Redding, I thought, perhaps, t|ie gentlemen had 
knives and that some one might be killed. 

Q. Did not Mr. Redding use very hard and opprobrious language to 
the Judge when he first addressed him ? A. I think I was in the bar- 
room when the fuss began. I did not consider Redding had used very 
hard language, except saying that they were cowarc(s, and if they would 
lay aside their weapons and go into a room he'd whip the whole three 
of them. 

MR. THOMAS A. m'gRATH CALLED AXD EXAMINED. 

§ 68. Mr. Hardin : Mr. McGrath, state what you know of this affair. 

Mr. McGrath: I happened to be in the Gait House on the evening 
of this fight, and had been there but a short timp until I understood 
there had been a difficulty. I heard some person speaking of it and 
saw Mr. Redding there a few minutes before Judge Wilkinson came 
into the room. Either Mr. Redding or some of hi^ friends had spoken 
to me. Judge Wilkinson came into the room, and Mr. Redding 
addressed the Judge in this manner : " Sir," said he, " I believe you are 
the gentleman who struck me with the poker in my house this even- 
ing, and you are a damned rascal; and if you will come into a room or 
the street and lay aside your weapons I'll whip the whole three of 
you !" The Judge walked up and down the room with his hand in his 
pocket. After Mr. Redding had abused him a good deal, the Judge 
came to the counter and took a glass of water. He then said to Red- 
ding he would not quarrel or fight with a man of his profession ; but if 
he would interfere with him he would kill him. I ladvised Mr. Everett 
to take the Judge to his own room, and Mr. Everett went around to do 
so. At the same time the Judge left the bar-room. In five or ten min- 
utes, the Judge, Mr. Murdaugh and Dr. Wilkinson, all three, entered 
the bar-room together. I was inside the counter, in the bar-room, and 
Mr. Redding stood at the counter, opposite me. Mr. Murdaugh came 
forward toward Mr. Redding, who said to him, "Sir, I believe you are 
one of the men who drew a knife on me at my house this evening ?" 
Mr. Murdaugh said, "Sir, I understand you say I drew a bowie-knife on 
you, and you are a damned liar if you say so," opening his knife. In a 
moment the crowd got round them and they moved down the counter 
and I could not well see what was doing. Mr. Redding moved down 
with them. I could see in the crowd, that blows were passing, but 
could not discern who gave or received the blows. I saw- a knife with 
Mr. Murdaugh, and observed him striking with it, and I thought he 
had killed Mr. Redding, when I saw a man fall. After that there was 
a general fight through the room. 

§ 69. Q. Did you see Mr. Meeks killed? A. I saw him fall, but did 
not see the knife enter him. 



56 THE LA W OF HOMICIDE. 

Cro«»-examination of Mr. McGrath. 

Q. Which hand did Murdaugh hold the knife in, when you saw him 
strike? A. It was in his right hand I saw the knife. 

Q. After Meeks fell, what was done to Murdaugh? A. I saw no 
more of Mr. Murdaugh that evening. 

Q. State what you observed of Judge Wilkinson. A. The first I saw 
of Judge Wilkinson after the fight began, he was standing near the 
dining-room door, with his back to the door, not standing ereci, but a 
little st-ooped, and holding his arm above with a bowie-knife, six or 
eight inches in the blade in his hand. He held his arm and the knite 
in his hand rather above the heads of the crowd, as if to make a 
passsage. He passed through the crowd to the door opposite, and 
when he got in that door-way he turned and faced into the room. He 
seemed to take his stand there, and then I saw him take a jump 
forward and make a thrust toward where I believe Mr. Holmes, or 
Mr. Rothwell, I could not tell which, was engaged in the fight with 
Dr. Wilkinson. He returned from the blow and jumped forward, 
making another thrust, and again returned; and as he lunged forward 
the third time, Marshall Halbert took up a chair and threate^ied the 
Judge to keep back, though I do not think he could have reached him 
with the chair from where he stood. 

Q. Did you see the stab inflicted on Rothwell? A. I did not see the 
knife enter Rothwell at all. 

CROSS- EXAMINED. 

(a) Q. State how long you have known Judge Wilkinson, and what 
has been his general character. 

A. I have known Judge Wilkinson for three years. I have heard a 
good many gentlemen speak of him before and since this transaction, 
and have always heard him spoken of in the highest terms. I have 
been in the South this winter, and in his neighborhood, and have heard 
him spoken well of there. 

RE-EXAMINED. 

§ 70. Q. You have made clothes for Judge Wilkinson' and I suppose 
he has treated you civily ? A. He has always acted like a gentleman 
to me. 

Q. You were in the South this winter? A. Yes, sir; I have said so. 

Q. Did you hear a letter spoken of, there, as having been written by 
Judge Rowan, which caused a great excitement in Judge Wilkinson's 

(a) This question was irr^ilar. It was not a matter of cross-examination. After 
the Commonwealth closed, the defendants had a right to prove their good character. But as 
no objection was made, it was properly allowed. *' What has been his general character" is 
too broad. The law requires (in such a case as this), that the inqury should be confined to 
the defendant's general character for peace and humanity, or the reverse. 



TRIAL OF JUDGE WILKINSON ET AL. 57 

" W ' 

Examination of Dr. Knight. 



favor? A. I heard the letter much spoken of. There* was a great 
excitement, but I can not say it was caused by that letter. 

Q. {For Defense). I suppose a great many gentlemen spoke to you 
about this trial ? A. Yes ; a great many. 

[Witness allowed to retire.] 

MR. JAMES W. GRAHAM CALLED AND EXAMINED. 

Mr. Hardin : Mr. Graham, state what you know about this trans- 
action. 

Mr. Graham : I was passing by the Gtilt House that evening, about 
dusk, and I saw Mr. Redding and Mr. Rothwell^ crossing the street 
alone ; Mr. Rothwell probably ahead of Mr. Redding. I slapped Mr. 
Redding on the shoulder, and thought there" was something singular 
about his countenance. He turned round and shook hands with me. 

CROSS-EXAMINED. 

Q. Was it not some strong appearance of excitement attracted your 
attention? A. It was something unusual in Mr. Redding's counte- 
nahce that caused me to take notice. 

Q. Were there any persons following them at the time ? A. I do not 
think there was any person in the street within a square of them at 
the time. 

dr. knight CALLED AND EXAMINED 

Mr. Hardin: Br. Knight, describe the iiyuries inflicted on Mr. 
Meeks and Mr. Rothwell. 

Dr. Knight: I did not examine the wound on Mr. Meeks. I 
saw it, but he was dead at the time. I examined Mr. Rothwell — he 
had three wounds ; one between the eleventh and twelfth ribsi ; the 
second through the seventh rib, separating it. Both wounds were 
through the spleen. There was a third wound in the chest near the 
collar bone, down to the right lung. I consider the wound in the chest 
caused his death ; the wounds in the side had a favorable appearance 
from the protrusion of the lips of the wounds. 

Q. Did not these wounds in the spleen contribute to death ? A. 
Though not the immediate cause, they certainly contributed. 

Q. By what sort of weapon did the wounds appear to be inflicted i 
A. Those through the spleen by a large knife ; that in the chest by 
some small instrument. 

Q. Could it have been made by any of these knives? A. It was not 
by a bowie-knife. It was quite a small puncture — made by a very 
small instrument. I think the puncture must have been about six or 
seven inches in length to where it penetrated. The wound was about 



58 THE LA W OF HOMICIDE. 

■ " ^^^-^^— ^— ^— ^— ^ " ♦ I i^^i— — ^— 

Examination of Dr. McDowell. 

as broad as the blade of this knife, and to the depth of from five to 
seven inches. 

CROSa-EXAMIKED. 

Q. Were the wounds made by the bowie-knife the immediate cause 
of death ? A. No, the wound in the chest caused the death by suffo- 
cation. 

Q. Without that wound would death necessarily have ensued? A. It 
is hard to tell what might have been the effect of the wounds in the 
spleen. It is not a vital organ ; but wounds leading to inflammation 
might prove fatal ; however, if inflammation could be kept down, and 
there were no oth*r aggravating tendencies in the system, I do not 
consider that they would have caused death. 

RE-EXAMINED. 

§ 72. Q. Was there not air admitted and expelled by the wounds in the 
side, which caused the collapsing of the lung ? A. Air might have been 
taken in and expelled in that way, but not by the lungs, for there is 
no connection between the cavity of the abdomen and that of the 
lungs, but the puncture through the seventh rib passed through the 
diaphragm. 

Q. {For Defense). Could the puncture in the chest be made by that 
bowie-knife ? A. Certainly not. 

Q. The circumstance of the lips of the wound protruding, you con- 
sider a favorable symptom ? A. Much more favorable than if they had 
contracted, because the protrusion i>f the lips admitted of the flowing 
of any blood or suppuration; a contraction would confine these, and 
thus lead to inflammation, which might prove fatal in its progress. 

DR. m' DOW ELL CALLED AND EXAMINED. 

Mr. Hardin: Doctor, state whether it is your opinion that the 
wounds you examined on the body of Rothwell, through the spleen, 
contributed to his death ? 

Dr. M'Dowell: lam of opinion that all the wounds contrib- 
ted to death ; but the immediate cause was from the puncture on 
the right side. 

Q. Did not the other two wounds, in conjunction with that, contrib- 
ute to death, and, in fact, accelerate it? A. Certainly; that is my 
opinion. 

CROSS-EXAMINED. 

Q. Would not the puncture have caused death of itself? A. No; 
the lobes of one side afford sufficient respiration to sustain life. 

Q. What collapsed the lobes on the left side? A. Atmospheric 

pressure. 

Q. How could atmospheric pressure affect them from wounds pene- 



TBIAL OF JUDGE WILKINSON ET AL. 59 

Examination of Mrr Jadcson. 

trating tba al>dc»nen, as both the bowie-knife wounds entered the 
spleen? A. BoHi 'w^ounds entered the cavity of the chest, and passed 
through the diaphragm into tke spleen in the abdomen. 

Q. What was the injury on the lung? A, It was not wounded. 

Q. Did both wounds penetrate the cavity of th« abdomen? A. Yes; 
both. 

§ 73. Q. What sort of instrument do you think the puncture on ilie 
right side was made with ? A. I conceive it must have been a very 
slender instrument; I should think not more than half an inch in width. 

Q. What direction did it take ? A. From the top of the sternum to 
the juncture of the second rib with its cartilage. 

Q. Was the lung penetrated ? A. We could not find any trace that 
it was. 

Q. What appearance had the puncture on the skin where the instru- 
ment entered ? A. The puncture of the skin was very small, as with a 
dull blade. The perforation was from a third to half an inch in breadth. 

Q. Would death have ensued from the wounds in the left side ? A. 
By process of inflammation, it might ; by process of suppuration the 
patient might recover. 

(TROSS-EXAMINED. 

Q. What did you observe of Judge Wilkinson's wounds on visiting 
him in the jail ? A. On attending Judge Wilkinson in jail with my 
partner, Dr. Powell, his attending physician, I merely saw the 
wound. 

Q. What depth was the wound in his back? A. I declined probing 
it, but from the length of the discoloration, supposed it to be three or 
four inches, extending from near the shoulder blade towards the spine. 
It must have been the puncture of a very slender blade. 

Q. How would it compare with the puncture in Rothwell's chest? A. 
It was a little larger. 

Q. Did you examine the wounds on Mr. Murdaugh's head ? A. His 
head had been dressed, and the adhesive plasters were not removed. 

Q. What state was Dr. Wilkinson in ? A. His face and head were 
greatly bruised. His face very much discolored, and his eyes swollen 
till nearly closed. 

Q. Had not the Judge some contusions about the face? A. I did 
not remark them particularly. 

[Witness allowed to retire. It was here announced by the Prose- 
cuting Attorney that the evidence for the Commonwealth was through. 
Twelve witnesses for the defense were then called up and sworn.] 

MR. JACKSON CALLED AND EXAMINED. 

J 74. CoL. Robertson: Mr. Jackson, state what you know of this 
business. 



60 THE LA W OF HOMICIBR 

Grow-ezaminatiou oi. Mr. Jackson. 

Mr. Jackson : I can not say that I know anything of either fight. I 
was passing Mr. Redding's in the evening. From a few doors below 
Mr. Redding's I heard some loud talking* I had some clothes in my 
hands. I went in and saw Mr. Johnson, Mr. Redding and Mr. Meeks. 
I heard Mr. Johnson talking of what ought to be done with these men. 
He said to Redding and the others that they ought to go to the Gait 
House and flog them. He asked Mr. Redding to do so. Mr. Redding 
did not seem to say anything. Johnson said, " Jack, just say the word 
and I'll go for my friend. Bill Holmes, and we'll give them hell !" and 
said he had as much manhood as ever was wrapped up in so much hide. 
Meeks said, " Let us go any how, and we'll have a spree." After this,> 
Mr. Redding said, " No; I'll see them another time and get satisfaction.' 

Sometime after, I met Mr. Johnson in the street, and tried to pass 
him, but he stopped me, and I asked what he wanted. He said, " I am 
going after Holmes and think you ought to come to the Gait House ;" 
and that Jack Redding was a fine man and good citizen, and that we 
ought to see him righted. I refused to interfere, saying I was not a 
man of that character, and I would do my own fighting, and let others 
do the same. 

§ 75. Q. Meeks was the same man who was afterwards killed ? A. 
Yes. I sa.w him fifteen minutes after he died ; he was on a cot in the 
Gait House. 

Q. Did not Johnson make use of some strong expression when you 
observed you were not a man of that character ? A. He observed, 
" church, hell or heaven ought to be laid aside to right a friend." I told 
him he had better not have anything to do with these men. 

Q. Was Meeks with Johnson at the time ? A. No. 

CROSS-EXAMINED. 

. Q. Did Johnson tell you a fight was intended ? A.I judged it from 
the way he talked. I told him it was not my character to seek places 
of quarrel. 

Q. What brought you into the shop ? A.I went because I heard 
loud talking. I heard Johnson talking loud ; the high words brought 
me into the shop. 

Q. Why, on that occasion, were you induced to go in, if your char- 
acter was not of a fighting nature? A. I had no reason but because I 
heard the loud talk — ^louder than common. 

Q. Who was in the store when you went in ? A. I saw Mr. Craig, 
Mr. Paris, Mr. Johnson and Mr. Redding. I do not remember whether 
it was Mr. Craig or Mr. Redmond — Meeks was there, too. 

Q. And Johnson said, "Jack, just say the word, and I'll go round 
and get my friend Holmes?" A. " To give them hell." 

Q. What did Redding say to that ? A. He discouraged the idea. 



TRIAL OF JUDGE WILKINSON ET AL. 61 



Examination of Mr. Deering. 



Q. Were you examined before the examiDing court ? A. Yes. 

Q. Did you then tell of Johnson inviting you to the Gait House? 
A. I think I did. 

§ %. Q. How long did you stay in the shop ? A. About five 
minutes. 

Q. Did you particularly remark Meeks ? A. Yes ; he appeared to be 
excited, and directed his conversation to Mr. Redding. 

Q. What part of the store was he in ? A. I don't think he was in 
the house. He had one foot on the step of the door. 

Q. Which was it, Mr. Craig or Mr. Redmond was present? A. I 
think it was Mr. Craig. 

Q. Where did you next meet Mr. Johnson ? A. In about fifteen 
minutes after, I met him going towards the market. 

Q. In what direction ? A. From Mr. Redding' s corner towards 
Market street, in an opposite direction from the Gait House. 

Q. Were there not boys in the shop ? A. I do not recollect seeing 
any. 

Q. Did Mr. Redding agree to Mr. Johnson's proposition? A. No. 

Q. When in the shop Johnson, said he would go see Bill Holmes and 
his friend, and go up and give them hell, what did Mr. Redding say to 
that ? A. Mr. Redding said no. 

Q. When you next met Johnson, in what direction with respect to 
the Gait House was he going ? A. In a direction from the Gait House. 

[Witness allowed to retire.] 

MR. E. R. PEERING CALLED AND EXAMINED. 

§ 77. Col. Robertson : Mr. Deering, what did you see of this affair ? 

Mr. Peering : I Avas passing down Market street about sun-down, 
and near the Market House I saw Mr. Johnson, Holmes, and others, 
talking about Mississippi gentlemen who had treated Mr. Redding very 
badly. I went on, and returning again, between Fourth and Fifth 
streets, I met Mr. Johnson, who asked me about Mr. Turrjer. I asked 
him what was the matter. He said he wanted officers to assist them, 
and I said he'd be late to get officers, for they would be gone. He 
said there was enough gone there, and if they came down their hides 
would not hold shucks. Curiosity afterwards brought me to the Gait 
House to see what was going on ; the first I saw was Oldham. Mr. 
Redding was in the bar-room with a piece of paper in his hand. I 
went away towards home, and some time after returned, and found a 
good many persons in the bar-room. I saw a gentleman with a drab 
coat coming in, and heard Mr. Redding say he was the gentleman that 
drew his knife. He said, " If you say so; you are a damned liar," and 
Meeks came up and said, " You are a damned little rascal," and struck 
at Murdaugh with the whip two or three times. I then left. 

Q. When Johnson that evening asked you to go to the Gait House, 



62 THE LA W OF HOMICIDK 

— 4. 

Examination of Mr. Oliver. 

did you understand by him that he was to take part in what was to be 
done there ? A, He did not so express himself. 

Q. When you saw the talking at the end of the market, did Johnson 
seem much excited? A. I think he did. 

Q. Were those he talked to excited? A. Not that I could see. 

Q. What did Johnson say ? A. He said the Mississippians ought to 
be ta.ken out and get a genteel flogging. 

Q. Did you see Mr. Redding and Mr. Rothwell at the Gait House ? 
A. Yes ; and I asked Rothwell what was the matter. He said he was 
not so very well pleased. 

§78. Q. Is Mr. Holmes a very large and stout man? A. He is a very 
large and stout nmn ; but I knew him for five years when I was captain 
of the watch, and considered him a very peaceable man, though reputed 
one of the stoutest men in Louisville. 

Q. Are not Mr. Halbert and Mr. Oldham very stout men ? A. Yes ; 
Mr. Oldham is considered a very stout man. 

CROSS-EXAMINED. 

Q, What time in the evening was it when you saw Mr. Holmes and 
Mr. Johnson talking? A. It was near sun-down. 

Q. How long were they talking? A. I don't know; Ileft them talk- 
ing there. 

Q. When you next saw Johnson where was it? A. I think he was 
coming from the mayor's office, 

Q. Where and how long did you see Oldham at the Gait House ? A. 
I saw him going in, but did not see him again that evening. 

Q. What time was it ? A. It was dark — about half an hour before 
the fight. 

Q. Did you, after that, see him in the bar-room? A. I did not. 

[Witness allowed to retire.] 

MR. ALFRED HARRIS CALLED AND EXAMINED. 

CoL. Robertson : Mr. Harris, state what you know of this business. 

Mr. Harris : I met Mr. Johnson near my own house that evening. 
He was accompanied by Mr. Shone. He told me about three Missis- 
sippi gentlemen who had insulted Mr. Redding, whose friends should 
go to the Gait House. He asked me to go. I said I would not. He 
said, " Are you a friend of Mr. Redding's ?*' I said yes ; there was no 
man I felt more friendly to, but if he had been assaulted, as Mr. John- 
son stated, the law was at his side, and that the thing was so far past 
now that it was not worth while to go. He said, " Then you won't go ?" 
and I said I would not. I heard no more of it till next morning. 

[Witness allowed to retire.] 

MR. BENJAMIN OLIVER CALLED AND EXAMINED. 

§ 79. CoL. Robertson : — Mr. Oliver, state what you know of this afiair. 



TRIAL OF JUDGE WILKINSON ET AL, 63 

Examination of Mr. Miller. 



Mr. Oliver: I was on Jeflferson street, and on my way home; at 
Zanone's corner some one asked me if I had heard anything of the 
fracas at the Gait House. I said no. I then met Meeks. He and 
myself and Taylor and Mr. Johnson went from the Gait House to the 
opposite coffee-house. When I heard Meeks proposing to go to the 
Gait House I thought to stop him and talked to him about it. He had 
his knife out, and I said to him, " Mr.. Meeks, give me your knife to 
cut my nails." He gave it to me. He said he must go to the Gait 
House for he was bound to have a fight that night, and by G — d he'd 
have it. He went, and in some time came back and asked for his 
knife, and I gave it to him and he went over. Some time after he 
came over again and wanting to get the knife; afraid he'd get into 
some scrape," I said it was strange he would not lend me his knife to 
pair my nails after so long an acquaintance. He said, *' My dear sir, I 
thought you had done ;" and he gave me the knife. He then started for 
the Gait House, saying he was bound for the Gait House that night 
and would go. He went, and sometime after I followed. When I fol- 
lowed him and entered the Gait House, shortly after, I heard the word 
that Meeks was a dead man. I went into the bar-room and saw that 
he was dead. I put my hand on him and found life was extinct. I 
then retired to the reading room and saw Mr. Holmes was wounded, 
and a Doctor tj'ing up his arm. I then saw some fuss towards the stairs 
and a chair moving in the air. After a while Mr. Throckmorton asked 
if any one knew him well ; he asked me to help and put him on a cot. 
I did so. Meeks was a small man. He had been keeping bar for Mr. 
Dewees on Wall street. 

[Witness allowed to retire.] 

MR. WILLIAM MILLER CALLED AND EXAMINED. 

§80. CoL. Robertson: Mr. Miller, state what you know of this aflFair. 

Mr. Miller : I -was on the third cross street in the evening about 
five o'clock, and, between a tin shop and the corner heard that an affray 
had taken place on the corner, and being on the city grand jury I 
thought I would inquire about the matter. I went into the shop and 
asked for the names of those who had seen the fray, and got those of 
Craig and Redmond. Mr. Halbert came in and said a good deal of 
what he'd do. I went home and remained for some time and then 
went to the Gait House to my supper. As I entered the bar-room I 
observed Mr. Redding say to Judge Wilkinson that if they'd come out 
into the street without their weapons he would light the whole three ; 
and the Judge said he did not want to have anything to do with him. 
Mr. Redding repeated his observation, and the Judge made the same 
reply at least twice. I sat in the corner and was chatting, when Mar- 
shall Halbert passed near me, and I advised him to take his friend 



64 THE LA W OF HOMICIDE. 

Ejuunination of Mr. Waggry. 

Redding away, and I said I was on the grand jury and had names down 
which would enable me to take care of the matter. Some one made 
some speech about steaks and passed on ; the speech was, as if I ought 
to leave the room, or I'd see beef steaks served up. I shortly after 
heard it proclaimed at the counter, '* There they are — all three of them," 
and the crowd gathered to the counter. I left the room and went out 
to one of the clothing stores. While there, I heard a pistol fired and 
some time after returned and the affair was over and Meeks was killed. 

§ 81. Q. Bo you know Johnson, and that it was he talked about 
the steaks? A. I have seen him, but can not say he was the person, 
talked about the steaks. 

Q. Do you believe he was the man ? A. I do, but could not affirm 
it positively. 

Q. What was the date of this transaction ? A. I think the 15th — it 
might be from a week to ten days before Christmas. 

Q. Bo not the boarders collect in the bar-room a short time before 
supper ? A. Yes ; generally from ten to fifteen or twenty minutes. 

Q. Was the navigation of the river open at that time ? A. I can not 
now say. 

Q. Was Mr. Marshall Halbert a boarder in the house at that time? 
A. He was. 

[Witness allowed to retire]. 

MR. GEORGE WAGGRT CALLED AND EXAMIKED. 

CoL. Robertson : Mr. Waggry, state what you know of this trans- 
action. 

Mr. Waggry : I was sitting in the bar-room of the Gait House, and 
talking to Mr. Miller when some one turned round and said '* There is 
one of the men." Some one said to Mr. Miller, " We'll have some 
steak after a while for supper." Another person came along and said, 
*• We'll have a hell of a fight here just now." Mr. Miller advised Mr. 
Halbert to take away Mr. Redding. 

Q. Bo you know the person who spoke about the steak ? . A. No ; I 
would not know the person. 

Q. Well, go on. A. Shortly after, I saw the three men enter, and 
when the damned lie was given I saw Meeks strike at the smallest, and 
saw dirks and knives and canes in the fight. Some time after I saw 
Rothwell come round and blood flowing from his wounds. 

Q. How many did you see beating Murdaugh near the dining-room 
door ? A. I saw two men beating the small man who, I suppose, was 
Murdaugh. 

Q. Who had the bowie-knife? A. One of the three that came in 
abreast. 

Q. Bid you know any of the parties ? A. They were strangers to me 
on both sides. 



TRIAL OF JUDGE WILKINSON ET AL. 65 

ExamiQation of General Chambers. 

Q. Did you see any of the business in the passage ? A.I saw one, 
said to be Mr. Wilkinson, going up the stairs and a chair thrown at 
him. I also saw a pistol fired. 

Q. Where did you then observe Mr. Holmes ? A. In the reading- 
room with his arm wounded. 

[Witnejss allowed to retire.] 

GENERAL CHAMBERS CALLED AKD EXAMINED. 

§82. CoL. Robertson: General Chambers, state what you saw at the 
Gait House. 

Gen. Chambers: On going into the bar-room of the Gait House, I 
observed persons that I was not in the habit of seeing there, which cre- 
ated in my mind some suspicions. I was at the fire-place, and made 
some inquiry of the cause. Shortly after I observed Mr. Bedding make 
use of very opprobrious language to Judge Wilkinson, and the Judge 
said, " If you lay your hands on me I'll kill you." Mr. Redding made 
some remarks as if he did not understand him, when the Judge faced 
around and repeated what he had said. He then left the room. 
In ten or fifteen minutes he came back, and on his return 
he began to walk backward and forward. When he came in, he 
was followed by two persons. He had not walked more than twice 
when the crowd got round those two who had followed him in. 
I then heard some angry words, and the affray commenced. One 
of the persons broke off and got towards the supper-room door, followed 
by Mr. Rothwell, beating him with a stick very severely. Mr. Rothwell 
partly lost hold of his stick and endeavored to catch a fresh grip, and 
on resuming his hold struck at the person again, when the Judge 
stepped up and made a thrust of his bowie-knife at him. Rothwell 
turned his face to see who had struck him. Just then I saw another 
man fall, and observed, *' There was one gone." I turned my attention 
to another corner and saw one of the gentlemen down, and a large man 
beating him very severely. My attention was next directed to the other 
corner, where the first stab was made, and I saw Meeks lying dead. 

Q. Are you sure whom it was you saw Rothwell beating in the other 
corner? A. I think it was the Doctor, and that Rothwell was beating him. 

§83. Q. Can' you repeat any of the language used by Mr. Redding 
to Judge Wilkinson when he was abusing him ? A. I think part of the 
language was, " You are a damned rascal and a coward and a pretty 
Mississippi judge." 

cross-examined. 

Q. In what part of the room was it that you saw the Judge make the 
first thrust of his bowie-knife at Rothwell ? A. It was near the dining- 
room door ; in the opposite corner from where Holmes had the man 
down. 

5 — ^H. 



66 THE LA W OF HOMICIDE. 



Examination of Mr. Sutherland. 



Q. How far might it be from the passage door into the bar-room ? A. 
It would be about twenty-four feet. 

Q. Describe the relative places, and distance between them ? A. It 
was near the left-hand corner, as you face the fire-place, that Holmes 
had the man down ; Rothwell was stabbed in the opposite corner — 
probably the two positions were twenty feet apart. Rothwell at the 
time was striking a man that I thought was Dr. Wilkinson. 

Q. Are you not now sure that it was Mr. Murdaugh? A. I am not 
now satisfied that it was. However, they were all strangers to me 
except Judge Wilkinson, whom I had known a little. 

RE-EXAMINED. 

Q. Did you observe how the Doctor had got to the left-hand corner? 

A. While he was beaten he seemed to make a circuit in that direction 
till he fell. 

Q. Was your attention confined to that part of the affray ? A. When 
they beat round to the corner where I was, an opening was made, and 
my attention was immediately attracted to where Meeks had fallen. 

[Witness allowed to retire.] 

MR. F. DONOGHUE CALLED AND EXAMINED. 

g 84. CoL. Robertson : Mr. Donoghue, state what you know of this 
business. 

Mr. Donoghue : I was in the GaJt House on the evening of the affray, 
a few minutes before the first supper bell rang, and saw Mr. Rothwell 
and other gentlemen at the fire in the bar-room. One of them walked 
to the bar. I started from the fire-place to go to my supper, and as I 
went I heard Mr. Rothwell ask some one — I think it was Mr. Redding — 
if they were there. He was answered, " No." He then said, " Come, 
let us go up stairs and bring them down and give them hell !" 

cross-examined. 

Q. Did you board at the Gait House? A. No; I boarded at Mr. 
Green's, three squares from that, on Market street. 

Q. Did you see the fight ? A.I did not come back till all was over. 

Q. Where was Rothwell when you returned ? A. He was still lying 
in the bar-room. 

Q. Did you frequent the Gait House much ? A. I was there fre- 
quently that week — I had some acquaintances there. 

Q. What other person besides Rothwell did you see in the bar-room 
at first ? A. I did not know any others of the men — ^but think it is 
likely I saw Mr. Johnson there. 

[Witness allowed to retire]. 

MR. WM. SUTHERLAND CALLED AND EXAMINED. 

§ 85. CoL. Robertson : State to the Court, Mr. Sutherland, what 
you saw of this transaction. 



TRIAL OF JUDGE WILKINSON ET AL. 67 

Examination of Mr. Brown. 

Mr. SiTTHERLAND : The first thing that drew my attention was Mr. 
Redding abusing Judge Wilkinson. The Judge was walking across 
the floor and Mr. Redding abusing him for some little time, and the 
Judge left the room. The fuss was hushed up for a little while, and 
Mr. Miller observed to Mr. Redding that that was not the way to do 
•business, and that he ought to get their names and bring them before 
the grand jury. Mr. Redding said he had got the names. I had my 
face toward where Mr. Miller was sitting. Mr. Miller had his face turned 
toward the dining-room door. I heard a fuss in the direction of the 
door, and on turning, saw a crowd. Some one said there would be 
shooting, and I got out of the room and tried to see through the win- 
dow what was doing, but could not see very distinctly. I remained at 
the window until Mr. Murdaugh came and got on the stair-steps, when 
some one struck at him, and he sort of fell forward, but recovered and 
got up the steps, when some one fired a pistol up the stairs, and I very 
quick got over the banister. 

[Witness allowed to retire]. 

MR. JOSEPH BROWN CALLED AND EXAMINED. 

§86. Co^r.. Robertson: Mr. Brown, state what you know concern- 
ing this affair, and whether you were examined at the examining 
court. 

Mr. Brown : I was not examined at the examining court. The eve- 
ning of this affair, I had been engaged at Louisville, for some ten or 
twelve days, and had, about supper time, come to the Gait House to 
tapper. When I entered, I saw General Chambers sitting at the fire. 
Mr. Miller was there also. The first thing that attracted my attention 
was Mr. Redding abusing Judge Wilkinson. Judge Wilkinson was 
walking back^ind forward with his right hand in his coat pocket, when 
he said, " If ycmtowch me I'll certainly kill you." He then left the room, 
and what had taken plaee became the general subject of conversation. 
Some time intervened, when the Judge returned to the room with Br. 
Wilkinson and Mr. Murdaugh, whom I did not then know. I then 
remarked to General Chambers that there woMid be some difficulty. 
Befare this,, Mr. MiU€>r had sard to Mr. Redding, " Hush that stuflT— it 
is not the prcq^cr way — ^et the names and we'll have them before the 
grand jury" — when a man stooped down to Mr. Miller and said, 
" Hush, you, Billy Miller, if it comes to handicuffs, the boys will settle 
it." I then determined to leave the room, and as the gentlemen 
entered, I passed out and saw the crowd gather round them. When I 
got near the stairs I met Mr. Everett going out. From the third or 
fcttrth step I ctrald see into the bar-room through the window. The 
crowd was moving about, as if in a scuffie, in a kind of circle round the 
room by the dining-room door. The first licks I had seen struck were 



68 THE LA W OF HOMICIDK 

CitM»«zamlnati(m of Mr. Brown. 

by a large man with a Btick. He laid on Mr. Murdaugh. The next I 
saw in the fight was this gentleman they call Dr. Wilkinson, falling at 
the left hand side of the fire place. The room began to get clear, the 
rush being made into the passage. I retreated to my room and out on 
the porch, and as I made a turn I saw Mr. Murdaugh was struck with 
a chair as he ascended the stairs, and Judge Wilkinson also had a 
chair thrown at him as some one hallooed, " Shoot the damned rascal/' 
and immediately a pistol was fired. 

§87. Q. Where were you before the fight began ? A. In the bar- 
room. 

Q. When you were on the stairs, what portion of the fight could you 
see ? A. I could see through the glass window all of the fight opposite 
the window. 

Q. How far was it from where you stood to where the fight was going 
on ? A. It might be about thirty feet. 

Q. Did you see Dr. Wilkinson when he was knocked down near the 
fire-place? A. Yes, and I thought when he fell that his head 
struck the grate or fender. 

CROSS-EXAMINED. 

Q. How long were you at the Gait House, then? A. About ten days. 

Q. During that time were strangers coming and going ? A. Yes ; 
continually. 

Q. It was no uncommon thing to see strange faces in the bar-room ? 
A. I always saw many strange faces there. 

Q. Did you see Judge Wilkinson inflict the wound on Rothwell with 
the bowie-knife? A. I did not see a bowie-knife with Judge Wilkin- 
son, nor did I see the wound inflicted. All I saw distinctly was a big 
man striking with a stick. 

RE-EXAMIVED. 

Q. During the time you were at the Gait House was there much 
communication by the river? A. No; I think not. 

Q. Did you notice as many strange faces before that evening of the 
affray in the bar-room as you used on former times ? A. I did not think 
there were so many. 

RE-CROSS-EXAMTKED. 

Q. Have you not remarked that business men congregate in the bar- 
room about the time the stages arrive to learn the news by them, and 
see the names entered on the register? A. Yes; it is customary. 

[Witness allowed to retire.] 

MR. MARTIN RAILY CALLED AND EXAMINED. 

§88. Col. Robertson: State, Mr. Rally, what you know of this 
affair. 



TRIAL OF JUDGE WILKINSON ET A L, 69 

Examination of Mr. Baily. 

Mr. Raily: I came to the Oalt House between sun-down and dark. 
When I got in there were but few there. Afterwards, numbers crowded 
in. I was at the fire-place, and a gentleman stood at the fire, I think 
it was Mr. Eeaugh, who said if there was any fighting to be done he 
should be in it. Mr. Miller said to Mr. Redding, that it was not the 
way to settle the matter ; that he ought to get a writ and have them 
taken. Redding said he had applied for the names. Shortly after I 
heard Judge Wilkinson tell Mr. Redding that if he meddled wath him 
he would kill him. Then Judge Wilkinson passed out of the room 
into the passage, and Mr. Redding shortly after left the room also. 
After Judge Wilkinson returned he had got nearly across the room 
toward the dining-room door, when Mr. Redding entered the room, 
and as the Judge whirled and returned. Redding crossed his path 
toward the counter. Mr. Murdaugh and Dr. Wilkinson then came in. 
Mr. Redding said, "These are the three gentlemen who assaulted me in 
my own house." When he said this, one of the three said to him, " I 
understand you said I am the person who doubled teams on you this 
evening; if you say so, you are a damned liar." Another came up and 
said he was, and struck at him. A big man also struck at him with a 
sword cane, and as he was striking, the scabbard part flew off^ and he 
continued beating with the spear part. The crowd was getting up to 
the fire-place, and Mr. Roth well came into the corner and was either 
assisting to beat, or to save, the Doctor, when I saw a person from the 
folding-door ^tab RothwelL Another person took up a chair and 
attempted to beat at the person that stabbed, but finally laid it down 
and pursued him. Shortly afterwards I heard a pistol fired. 

§89. Q. Did you see Oldham with any weapon? A. I saw him 
with a bowie-knife, wiping the blood oflT it with his handkerchief. 

Q. What time that evening did you arrive at the Gait House? A. 
Between sun-down and dark. I got shaved at the barber's shop and 
then went to the Gait House. 

Q. Are you sure what kind of stick the big man used when beating 
Murdaugh? A. It was a sword-cane. I saw the cane part fall on the 
floor, and the spear part remain in his hand. 

Q. Was Oldham in the room then? A. No; I saw Oldham, but not 
in the room when the fighting was going on. 

Q. You are certain you saw him wipe the blood from his bowie- 
knife? A. I think it was, for certain, the man they called Oldham. 

Q. Who thrust the bowie-knife into Rothwell? A. I did not know 
the person. If it had been even an intimate acquaintance I should 
not have known him. 

[Witness allowed to retire.] 

MR. JOHN C. DAVIE CALLED AND EXAMINED. 

Col. Robertson : Mr. Davie, state what you know of the affair at the 
Gait House. 



70 fHE LA W OF HOMICIDE. 



Examination of Sir. Pearson. 



Mr. Davie : I know nothing of the affitir at the Gait House. 
[Witness allowed to retire.] 

MR. p. S. BARBER CALLED AND EXAMINED. 

§ 90. CoL. Robertson : Well, Mr. Barber, will you state what you 
know about this hat ? — [handing a hat to Mr. Barber.] 

Mr. Barber : This is a hat I sold to Mr. Murdaugh. It was the day 
before this affray took place. It was then a sound hat. At present I 
see defects in it. It must have been cut by some sharp instrument — 
here in the side of the leaf, and also in the side. 

[Witness allowed to retire.] 

JOHN C DAVIE re-called. 

Q. How did you come into possession of the hat? A. Judge Wil- 
kinson, Mr. Murdaugh and the Doctor sent for me to the jail and 
requested of me to go to the Gait House and ask for the key of the 
room 35, and I did so. A servant bnwigfat me to the room, and I got a 
black satin vest with blood on it, and the hat «iid drab coat, with other 
clothes, which, according to directions I had got, I packed up and took 
to my store. I observed the hat had some cuts on it. It wvs in my 
possession until brought into the examining court, since which, with 
the other things, it has been in possession of the clerk of the city 
court. 

[Witness allowed to retire.] 

MR. EVERETT RE-CALLED. 

Q. What room did these gentlemen occupy? A. Room 35. 

Q. Had any person access to that room from the time these gentle- 
men were arrested till Mr. Davie went there by their directions? A. 
No; not any person. It was locked up from eight or nine o'clock that 
evening till Mr. Davie entered it. The servant had charge of the 
room. 

MR. JAMES E. PEARSON CALLED AND EXAMINED. 

g 91. CoL. Robertson: Mr. Pearson, detail what you know of this 
business. 

Mr. Pearson : On the evening this affray took place, I was going up 
street before sun-down, and at the corner opposite Mr. Redding's store 
three gentlemen were on the pavement and left for the Gait House. I 
went to the Gait House before supper time and got behind the bar and 
stood at the fire. Captain Rogers remarked to me that there would be 
a fight, from the crowd he saw. He asked where Major Throck- 
morton was. I turned out and thought I saw the Major talking to 
Captain Rogers, when I came back into the bar. Captain Rogers asked 
me, did I know who the persons in the bar-room were? I said I knew 



TRIAL OF JUbGE WILKINSON ET AL. 71 

Examination of Mr. Prarson. 

Redding. But presently I saw General Chambers and I thought I would 
go round to talk with him. I went to where General Chambers stood, 
and we fell into conversatipn. Mr. Rothwell was there with a stick in 
his hand, and Mr. Reaugh, Mr. Halbert and Mr. Holmes were also 
there. Judge Wilkinson, by. this time, was walking up and down the 
room, and Redding abusing him very much, saying he was a pretty 
sort of Mississippi judge ; that he was a rascal, swindler and assassin. 
The Judge said, " My friend, you may say what you please, but I do 
not fight men of your profession." Shortly after the Judge left the 
room and staid away a little time. When he returned there must 
have been fifty men in the room, which induced me to go to the Judge 
and ask him to leave the room. He made a step or two with me to 
retire, when about twenty men were crowding in, and we heard some 
angry words, and the affray began. The Judge turning, and seeing 
this, said, " Sir, I can not leave the room and my friends, till I see how 
this -affair with these men ends." He did not get from me immedi- 
ately. I saw persons strike the man with the drab coat, but think it 
was Mr. Rothwell struck v/ith the stick. I observed some person 
catch a chair, and first thought he was taking up the chair to fight 
with, but soon perceived he was only leaning on it for support. My 
attention was attracted to another corner, and I saw a person knocked 
down very suddenly. I turned next to where the other man had been 
struck, and saw Meeks attempting to stagger toward the counter; 
when about halfway, he fell forward. 

§ 92. Q. Was he the man that had the cow-hide ? A. Yes ; it was 
the person that was killed that had the cow-hide. 

Q. Which was the person he was engaged with ? A. Murdaugh ; he 
was trying to press on Meeks, who was striking him oflf with the cow- 
hide. 

Q. What part of the room did the person lie in whom you saw 
knocked down ? A. If you draw a line from the passage-door to the 
fire-place, the part where he lay would be on that line. 

Q. Did you see Judge Wilkinson make a stab from the door-way 
towards Rothwell? A. Yes; but I think the stab was past Rothwell 
at Holmes, who was engaged with the Judge's brother. Holmes had his 
arm badly cut. I heard him say he was badly wounded in the arm. 

Q. Did you board at the Gait House? A. Yes, about that period. 

Q. Which is it, before or after supper, the crowd generally goes to 
the bar-room to hear news and look at the register ? A. Generally 
after supper. 

Q. How long before supper do the boarders assemble in the bar- 
room? A. Generally twenty minutes before supper time; sometimes 
less ; I have often been late, and obliged to go to the second table. 

Q. When Holmes said he was badly wounded, where was he, and 



72 THE LAW OF HOMICIDE, 

Examination of. Ifr. Montgomery. 

was he armed ? A. He was going out of the room into the passage, 
and, as I thought, took out a bowie-knife. 

§ 93. Q. Did you notice many strangers, in particular, that evening 
in the bar-room? A. I heard there were strangers there, but did not 
notice many. 

Q. Was the river in a good state of navigation ? A. I think the river 
was very low then, and navigation not open. 

Q. Were you acquainted with Mr. Holmes's person ? A. I had never 
seen Mr. Holmes before. 

[Witness allowed to retire.] 

MR. MONTGOMERY CALLED AND EXAMINED. 

Col. Robertson : State, Mr. Montgomery, what you know. 

Mr. Montgomery : I was in the bar-room, sitting near the fire, when 
the fuss began near the bar and counter. I heard the gentleman say, 
•• There are the three now." I then heard one of the men say, to.keep 
their hands oif him, and not to touch him, or he'd kill them. I saw a 
gentleman draw a stick or sword cane, I could not tell which, and I 
retreated out, and was pretty near the stairs wh^n the pistol was fired. 
I heard either Dr. Wilkinson or Mr. Murdaugh desire the crowd to 
keep off, and say, if they touched them it would be at the risk of their 
lives. I understood the reason of their giving that warning was on 
account of what had happened at Bedding's store. 

Q. Did you hear what passed between Judge Wilkinson and Mr. 
Redding ? A. I heard some words pass, but could not tell what they 
were. 

GROSS-EXAMINED. 

Q. Where do you live? A. I live at Greensburg. 

Q. How did you happen to be in Louisville ? A. I was there upon 
business. 

Q. Are you well acquainted in Louisville ? A. I am a stranger there, 
but know some of the citizens. 

Q. When you heard the first words spoken, did you see the speakers? 
A. After the words had passed, I could see them. I heard one say 
" Don't you interrupt us, or it is at the risk of your lives." 

[Here the evening being far advanced, the propriety of closing for 
the day was suggested, and the court acyourned to half past 8 o'clock 
next morning] 



TRIAL OF JUDGE WILKINSON ET AL. 73 



Examination of Mr. Banks. 



THIRD .DAY. 

Wednesday, March 15, 1839. 

§ 94. The court sat at half past 8 o'clock, and the clerk having read 
over the minutes of the previous day's proceedings and called over the 
names of the jurors during a short delay waiting for the appearance of 
the gentlemen on trial, Mr. Hardin rose to ask the Court for instruc- 
tions to the court-keeper not to keep such strong fires in the stoves 
[one at each end of the Attorney's bar, Mr. H's seat being between the 
two stoves]. The Court facetiously remarked that as the gentleman 
did not like to he placed between two fires, there could be no objection to 
acceding to his wishes. This was a happy hit, as Mr. S. S. Prentiss sat 
rather to Mr. H's left hand, and Judge Rowan to his right ; and it 
was understood both were preparing a battery of eloquence to fire off at 
him in the arguments to evidence. Mr. Davis, one of the town attor- 
neys for the defense, hoped the Court would allow the stove to remain 
lit next the end of the bar appropriated for the gentlemen on the 
defense. The Court observed that the gentleman [Mr. Hardin] 
would not, of course, impose a greater degree of coldness on the oppo" 
site gentleman than they ^ould bear; ii they felt chilly they too ought 
to be indulged. 

By this time the three gentlemen on trial and their counsel came 
into court, and the examination of witnesses was taken up. 

MR. PEARSON WAS THEN RE-CALLED AND EXAMINED. 

CoL. Robertson : State the fact you informed me of last evening. 

Mr. Pearson. A. On coming back into the bar-room, the first person 
I met at the bar-room door was Mr. Marshall Halbert. I requested he 
would have the business stopped. Mr. Halbert said, *' No, let it go on.'* 
The next person 1 met was Mr. Reaugh, to whom I said the same. He 
concurred with me, and thought it ought to be stopped. Mr. Halbert's 
feelings appeared to be entirely on the other side. 

[Witness allowed to retire.] 

MR. HENRY BANKS CALLED AND EXAMINED. 

§ 95. Mr. Banks : I was walking from Market to Main street, when 
I discovered a little difficulty at Redding's shop. I made some inquiry 
about the fuss, and was told by a young man named Hill about the 
three Mississippians. I then turned to Mr. Redding and asked if he 
was hurt. He said not. I asked him who they were. He said that 
they were three Mississippians, and that he'd have satisfaction. He 
said he'd whip all three in a room. I went on to the stage office and 
was sitting there. In about an hour and a quarter a young man came 



74 THE LA W OF HOMICIDE. 

Examination of Dr. Graham. 

in and said there would be the damn'dest work at the Gait House in a 
short time that I ever did see. [Objected to.] In about fifteen or 
twenty minutes the aifray in the Gait House began. All I saw in the 
Gait House was Murdaugh knocked down on the steps, and afterward 
fired at. There were two balls discharged by the shot at him; one 
struck in the casing, and the other in the wail at the left-hand side. 

Q. Who fired the pistol ? A. Oldham. The young man said some- 
thing about a pistol going up the steps. Oldham smd, " There it isi 
damn you — you have it," and fired at the same time. 

Q. Who knocked Murdaugh down on the stairs ? A. I do not 
know. 

CROSS-EXAMINED. 

Q. What answer did Redding make to your first inquiries of him 
that evening? A. That he was not hurt. 

Q. What sort of satisfaction did he say he would have? A. He did 
not say what kind. 

Q. Then it might be by law as well as anything else? A. He did not 
say whether by law or otherwise. 

Q. Do you keep the stage office? A. No; I do not. 

Q. What passed in the bar-room of the Gait House? A. I did not 
see what passed there. I only came into the Gait House as the 
Mississippians went up the stairs. 

Q. Did you go up the stairs? A. I went up when these gentlemen 
were arrested. 

[Witness allowed to retire.] 

DR. GRAHAM CALLED AND EXAMINED. 

g 96. CoL. Robertson : Doctor, state what you saw of this business. 

Dr. Graham : The first I recollect of the affair was in the bar-room 
of the Gait House. Mr. Redding was abusing Judge Wilkinson. The 
Judge made no remark for some considerable time. I went away upon 
some business, and in about twenty minutes returned again to the Gait 
House. I saw the servants peeping into the bar, and guessed there 
was something like an exhibition going on. I went in and saw the 
Judge and Redding moving a little backward and forward, abusing 
and calling hard names, such as coward, liar, villain and scoundrel, and 
saying, " he should like to know in the name of God, who made him a 
judge, and that he must have taken the title on himself; and that he 
was too big a coward to do anything right." He continued so long that 
I got tired, and turned to speak to some one. Judge Wilkinson paced 
the room, pulled his cap over his face, and, as I thought, assumed the 
philosopher, or tried to do it. He walked to the counter and put his 
cap before his face, one hand in his pocket, and walked alon^ the 
counter, Mr. Redding going to the extreme of exasperation all the 



TRIAL OF JUDGE WILKINSON ET AL. 75 

Exaiuiaation of Dr. Graham. 

time. Redding at last pulled his hand out of his pocket, and said he'd 

whip the whole three if they'd go into the street. The Judge said he did 
not wish to fight or quarrel with a man of his profession. I turned round 
and in a short time Judge Wilkinson passed out of the room. Some 
one observed, '* The damned rascal has run." I don't think it came 
from Mr. Redding. I walked into the passage to go to the bar for the 
purpose of inquiring the cause of the quarrel ; when in the bar I heard 
the word " lie," and " damned lie," in succession. I saw a small man, with 
a drab coat, holding a knife in this position [showing position] with his 
hack to the writing desk. I recognized him only as a small man with 
a drab coat. He had a small knife, held that way, and spoke in a 
threatening manner. He hallooed out, " Stand back and don't crowd 
on me, or I'll kill the first man that rushes upon me." I thonght he 
looked like a rattling viper that would say, " Don't step on me or I'll bite 
you." I heard other voices cry out, " Stand back, G — d damn you, or I'll 
kill you !" At that word, 1 saw a cane strike at his head, and most 
probably hit on the left shoulder. As he uttered the exclamation the 
blow came. He held his knife, and from the violence in which he shook 
I it, and the manner in which he spoke, I conceived he felt danger. I 
I did not see any one touch his hand, but I think before he lowered his 
hand I saw a cane, of the size and Appearance of a sword-cane, strike 
Um. A ovvrd sad general row commenced, and chmirs were raised — 
I some rushing in and some rushing out, and such confusion ensu«d that 
I saw no more of that part of the affair. After a little I saw Dr. Wilk- 
inson, or a 'man, lying on the floor, making an effort to get up, but at 
every effort he was beat down by the person leaning over him. I 
then saw the same person take him by the collar with one hand and 
heat him with the other. I hallooed across the counter to part 
them — that it was a shame. 
! § 98. Q. Did you see Meeks killed? A. Towards the dining-room 

I door I saw a man fall forward. I saw him first leaning on a chair, and 
I then fall, leaning on his elbow. I saw an arm from behind him, make, 
I as I thought, a stab, but it may have been some one supporting him, 
I judging from the rattling of the chairs. 

j Q. Then what made you think it was a stab? A. The quickness of 

i the stroke made me think it was a stab. I just saw the arm round the 
[ falling man. This I did not state at the examining court. 
Q. Did you know Roth well? A. I did not. 

Q. Who was beating Dr. Wilkinson? A. I can not say; it was a 
very large man. 

Q. When the Doctor fell, did it seem to be by a trip, or how? A. I 
never saw a man knocked down as suddenly by a blow. 
Q. When the fight first occurred, what was the first serious occur- 



76 THE LA W OF HOMICIDE. 



Cro8»-Exaiuination of Dr. Graham. 



rence you observed? A. After a while I saw a man fall on the floor, 
and Mr. McGrath observed, " There is one gone; can you do anything for 
him ? I then got over the counter, and went to the person lying on 
the floor. I discovered a small opening in the abdomen, and taking 
off his waistcoat, found his bowels were protruding. I saw that the 
blood vessel supplying the lower system was severed. I commenced 
trying to put in the bowels, but found the man was dying, and I 
desisted, saying it was no use. Several persons asked about his name, 
but no one appeared to recognize him. I then passed on and saw 
Rothwell lying in the other corner, on his right side, and Dr. 
Johnson dressing his wounds. 

Q. Di<l you observe a cow-hide with Meeks when you went to him? 
A. Yes ; it was lying near his hand. It had a small whip end, tied in 
a knot. I took it up, saying it might be a letter in the alphabet; and 
I had it handed in to the bar to be locked up. 

CROSS-EXAMINED. 

g 99. Q. Did you hear the lie given when the blows began? A. Yes, 
I heard the lie and the damned lie more than once. 

Q. By whom were they given ? A. I can not tell by whom. 

Q. Who warned the opposing party to stand back? A. I think it 
was Mr. Murdaugh used the admonition to stand back or he'd kill 
them. I was at the time asking about the persons so excited. I was 
in the bar, and the counter and some distance were between me and 
them. 

Q. Was it a white-handled knife Murdaugh held in his hand? A. I 
only saw the blade of the knife. It was a knife like that [pointing to 
one on the table], and judging from the glistening of the blade, which 
was highly polished, I thought it must be a new knife. 

Q. What were the exact words used ? A. I think they were, " stand 
back, or I'll kill you." 

Q. Might it not have been from some one opposite Mr. Murdaugh ? 
A. It was in a loud voice, and I did not then think it was Mr. Mur- 
daugh. 

Q. Are you now satisfied it was not Mr. Murdaugh ? A. I am of 
opinion myself that it was Mr. Murdaugh. 

Q. What occurred when the words "damned rascal," or, " it's a damned 
lie," were uttered ? A. I saw a stick come at Mr. Murdaugh, as they were 
uttered. 

Q. How far oflF were you ? A. I was about as far off as yon stove. 

g 100. Q. Did not Mr. Halbert know and recognize Meeks as he 
was dying ? A. Several came up to ask who knew the man as I was 
trying to put in the bowels, but I did not notice whether Mr. Halbert 



TBIAL OF JUDGE WILKINSON ET AL. 77 



Examination of Mr. Prentias. 



came up or not. One or two of my friends and some strangers came 
up to ask. 

RE-EXAMINED. 

Q. State what Mr. Halbert said when the affray was all over. A. 
Marshall Halbert came up to the counter immediately after the affray, 
before the room was cleared, and asked me to drink. He seemed dis- 
posed to commuii.Cu,ce Ireely, and said, " By Gr — d, I hoed a wide row 
this evening — we took it with a rush ; Dr. Wilkinson, the first man 
that entered, I downed with a chair, and Bill Holmes mounted him and 
rode him round the room. The Doctor's back was to me when I 
downed him ; it was rather bad, but, by G — d, I could not help it. Bill 
then pounded him so that he fell quite limber upon the floor, and I 
thought he was dead; but the Judge came round and Bill took a chair, 
when the Judge, throwing up his arm, with his bowie-knife in his 
hand, struck Bill, and, by G — d, I thought his arm was cut off." 

Q. When the crowd closed upon the little man in the drab coat did 
he advance? A. No; he kept rather backing. 

Q. Were they large men that were in the crowd ? A. Yes — and very 
large men. 

RE-GROSS-EXAMINED. 

Q. Were you not examined in the examining court ? A. Yes. 

Q. Was Mr. Halbert there? A. He sat beside me in the court. 

Q. Did you state the same there as here ? A. I stated the same 
there as here. 

Q. Did you see Halbert performing those great actions he boasted 
of? A. I did not see him at all during the action. My attention had 
been attracted from that quarter of the room. I, myself, think Halbert 
was bragging of more than he did. 

Q. Which was it ; you or Halbert, first invited to drink ? A. I am 
not sure which. It is probable I asked him, but I am not certain. 

[Witness allowed to retire.] 

MR. S. S. PRENTISS CALLED AND EXAMINED. 

§ 101. Judge Rowan: Mr. Prentiss, please to state what you know of 
these gentlemen's character and standing in society. 

Mr. Prentiss : I have been acquainted with Judge Wilkinson inti- 
mat^y, in Mississippi, for six or seven years. My profession has brought 
me into intercourse with him as a practicing lawyer. I believe there 
is no man in the State of Mississippi whose character stands higher 
than that of Judge Wilkinson, particularly, to a marked extent, for a 
modest and retiring disposition. I know, this to be his character as a 
legislator and public man. ^ 

I know his brother. Dr. Wilkinson, and as far as I have known, his 
character is of a very high standing in the State of Mississippi. 



78 THE LA W OF HOMICIDE. 

Examination of Mr. Dawson. 

The first time I saw Mr. Murdaugh was in the winter of 1835 or 
1836; he was introduced to me by Judge Wilkinson as a protege of 
his. The Judge has acted for some time as his friend and guardian. I 
know the Judge, and we have been very intimate, and that Mr. Mur- 
daugh accompanied Judge Wilkinson as his friend on the occasion of 
his marriage. It is three or four years since I got acquainted with 
Mr. Murdaugh, at Jackson, in Mississippi ; his general character is 
very good and stands high in every respect. I have never heard of 
his being engaged in any difficulty. 

Of Judge Wilkinson I can speak with the utmost confidence. As a 
circuit judge, a distinguished member of the Legislature, a commis- 
sioner appointed by the State to go to IS^ew York on State business, and 
a public man, I know that no man ever stood higher in the estimation 
of the South. In his public capacity he has been particularly noticed 
for being free from anything like a controversial disposition. His gen- 
eral character is for being more retired and unwilling to meddle in 
controversy than others. 

Q. How long have you been acquainted with him ? A. About seven 
years. I became acquainted with Judge Wilkinson, then commencing 
practice in the law, in Yazoo. During my profeational business in Mis- 
sissippi we have been thrown together very much, and I have had 
opportunities of knowing his friends and acquaintances, and can form 
a fair eatamate of his general character. 

CBOSS-EXAMINED. 

Q. You say you got acquainted with Mr. Murdaugh three years ago ? 
A. Yes ; about that time. 

Q. When did he receive license as a practicing lawyei*? A. I think 
it was last winter. 

Q. Had he been qualified as such, before, anywhere else? A. I do 
not know whether he had been in Virginia, or not. 

Q. Was he not in the navy ? A. I know nothing of that. In fact, I 
know nothing of his early history ; nor would I have known of his 
finnily had not inquiry grown out of this transaction. 

Q. Did you not hear Judge Wilkinson make a certain speech at the 
election in Mississippi ? A. 1 did not hear that speech delivered. 

Q. Did not that speech render him unpopular? A. The iqpeeeh was 
talked of as being unpopular, notwithstanding which he was elected. 

[Witness allowed to retire.} 

MR. DAWSOir CALLED AlO) EXAMINED. 

§ 103. Judge Rowan : Mr.* Dawson, state what you know of these 
gei#lemen's character. 

Mr. Dawson : I formed an acquaintance with Judge Wilkinson a 
year ago. I live in Vicksburg. I have known him, from gencnd char- 



TRIAL OF JUDGE WILKINSON ET AL. 79 

Examination of Mr. Everett. 



acter, since I have lived in Mississippi — for seven or eight years. There 
is no man stands higher in his State in the affections and esteem of its 
inhabitants. I have never heard anything improper imputed to him. 

CROSS-EXAMINED. 

Q. What part of the State do you live in ? A. I live in Viokshurg. 

Q. How far from Vicksburg does Judge Wilkinson live ? A. About 
seventy miles. 

Q. How long have you resided in Mississippi? A. About eight 
years. 

[Witness allowed to retire.] 

MR. ROWAN, JR., CALLED AND EXAMINED. 

Judge Rowan : State what condition you found these gentlemen in 
on visiting them in jail, the night of this affray. 

Mr. Rowan : I visited these gentlemen in jail shortly after the affair 
occurred. I was there in an hour after it had happened. I saw 
that they were very much bruised and that they had wounds and 
blood on them. The Doctor particularly was very much bruised and 
cut. Mr. Murdaugh also was very much cut, and there was a good 
(leal of blood about him. 

Q. Do you know upon what occasion Mr. Murdaugh then had accom- 
panied Judge Wilkinson from Mississippi ? A. I know that he accom- 
panied him on the occasion of the Judge's expected marriage. 

Q. Had Judge WilkinsonVisited Bardstown some time before? A. 
Yes; ten or twelve months before his marriage. 

§ 104. Q. Was his engagement with the lady whom he since married 
made at the time of this affair ? A. Yes ; and I think the marriage was 
to take place about a week before this affair. 

Q. Recollect if it was the Thursday after, that the marriage was to 
take place? A. I think, upon recollection, it is probable that it was. 

Q. Have you not been in the State of Mississippi and heard these 
gentlemen's general character ? A. I have, and know that they are 
spoken of as testified by Mr. Prentiss and Mr. Dawson. 

[Witness allowed to retire."] 

MR. EVERETT RE-CALLB1>. 

Q. Mr. Everett, when did these gentlemen arrive at the Gait House ? 
A. They all arrived together at the Gait House about a week before 
this affair. They occupied the same room as Mr. Wickliffe. 

Q. When was the Judge's marriage to take place ? A. I only know 
from the information of my family and neighbors that the marriage 
was to take place the Tuesday succeeding the affray at Louisville. *The 
preparations for the wedding, as I understood, had been made. 

Q. What was the general character of Judge Wilkinson ? A. As far 



80 THE LA W OF HOMICIDE. 

Be-ezamioation of Mr. Craig. 

as my information or knowledge of Judge Wilkinson goes, I have never 
heard anything of him but a fair character. 

[Here it was announced by defendants' counsel that they were 
through with the evidence for the defense. Mr. Hardin stated that it 
would be necessary to recall some witnesses for the prosecution.] 

MR. OUVER RE-CALLED. 

Q. What did you state in your evidence about seeing Holmes in the 
reading room? A. I said in my examination that when I came back 
to the Gait House I saw some one dressing Mr. Holmes' arm in the 
reading room, and after that I saw the fighting at the foot of the stairs 
with the chair and heard the pistol fired. 

Col. Robertson here arose and addressed the Court for leave to intro- 
duce one more witness for the defense— Mr. Franklin Roberts — ^which 
was granted by the Court. 

MR. FRANKLIN ROBERTS CALLED AND EXAMINED. 

§ 105. CoL. Robertson : Mr. Roberts, state what you know of the 
matter. 

Mr. Roberts : All I know is that I happened to enter a coffee house 
on Christmas morning and heard gentlemen talking of this affair. Mr. 
Henpy Oldham was one. I heard him say that Mr. Holmes came out 
with a chair, Oldham following the Judge, and that he, Oldham, took a 
pistol out of his pocket and fired at the Judge. Some one asked if it 
was his pistol ; he said, " No, it was my pistol and I fired it, and I 
wonder it did not hit him for it had two balls in it." 

POR PROSECUTION — THOMAS A. m'gRATH RE-CALLED. 

Q. Was the fight over before Mr. Holmes' arm Was dressed? A. 
Yes ; it was entirely over. 

Q. Was the pistol fired before Holmes' arm was dressed? A. Yes; 
the fight was over five minutes at least before his arm was dressed. 

Q. Did you help to take off Holmes' coat ? A. No ; I did not help to 
do so. 

Q. Do you know Mr. Oliver ? A. I do not. 

Q. Have you not heard of his character and reputation ? A. I did 
not hear any thing about his reputation till I heard it here. 

Q. Do you know Mr. Deering and his character? A. I know Mr. 
Deering. I never heard any thing against his character. 

MR. REDDING RE-CALLED. 

Q. Was Mr. Johnson at your shop that evening ? A. I do not recol- 
lect seeing him at my shop that evening at all. 

MR. CRAIG RE-CALLED. 

g 106. Q. Did you see Jackson in Redding's shop that evening ? 



TRIAL OF JUDGE WILKINSON ET AL. 81 

Cross-examination of Mr. Graham. 

A. I did not know Jackson at that time. I did not, that I can say, 
see such a man in the shop that evening. 

Q. {For Defense). Bid you hear Johnson say he would go for Bill 
Holmes and give the Mississippians hell? A. I heard nothing of the 
kind from Johnson. 

MR. WILLIAM JOHNSON RE-GALLED. 

Q. Did you see Jackson at Redding's that evening? A. I do not 
remember seeing Jackson that evening. He might have been at my 
stall in the morning. 

MR. J. W. GRAHAM RE-GALLED. 

Q. (a) State what you know of Jackson. A. I know Jackson. I 
was a carpenter and he served three years of his time to me. From 
what I know of his general character, I would say he is a man of mid- 
dling character. 

Q. Would you place confidence in his statement upon oath ? A. I 
have no confidence in a man's veracity whose integrity I have no con- 
fidence in. I have had some dealings with him. [Objected to.] 

Q. State from his general character among his neighbors and 
acquaintances what credibility is due to him as a witness. A. From 
that general character, I would say that there are a great many -men I 
would believe in preference to him. That is, probably, owing to my 
opinion of the man, as I have mentioned. Mr. Jackson has made 
statements to me, that I [Objected to,] 

§ 107. Q. What do you know of Mr. Oliver's general character ? 
A. I have known Mr. Oliver a long time, and have heard his character 
spoken of. It was not very good — ^it was very bad — ^and I know it 
would not be entitled to any credit in the city of Louisville. 

Q. Say if you know Mr. Redding and his character? A. T know 
Mr. Redding. His character for integrity, industry, and veracity 
standi as high as that of any man in the community. 

CROSS-EXAMINED. 

Judge Rowan: Q. Did Mr. Jackson serve his time to you? A. He 
served part of his time to me. 

Q. You are a sort of steam-doctor ? A. Not exactly ; do you know 
me, Judge? 

(a) " State what you know of Jackson ?" It does not appear that this form of the ques- 
tion was objected to. But it is certainly a very loose mode of impeaching the character of a 
witness. The proper question is : " Are you acquainted with the general character [or 
reputat;^] of the witness for trutti among his neighbors, or in the neighborhood in which 
he resides?" If the answer \z in the affirmative, then the next question is: *' What is that 
cliaracter?" The evidence is not confined to the very time of the trial, nor the place where 
the witness to be impeached, then residen; but he may state his general character in the 
neighbOThood where he lived for a reasonable period theretofore. 

6— H. 



82 THE LA W OF HOMICIDE. 



Cross-exaiuination of Mr. Graham. 



Q. Did Jackson serve all his time to you ? A. He just finished out 
his time with me. 

Q. Is he not a hard-working man? A. Yes; when he does work. 

Q. Have not you and he had differences ? A. Yes, but not of late. 

Q. Are you not still acquainted with him ? A. I am, and have at 
<UfFerent times advised him to change his habits — of late particularly. 

Q. Is he not a member of the church ? A. He was that six years 
ago; I do not know that lie is now a taiember of the church. 

Q. Is he not, in fact, a hard-working, industrious man? A. I would 
not call him industrious, though at times he works hard by spells. 

Q. Had not you and he a fight some time ago ? A. Eight or nine 
years ago Mr. Jackson and I had a fight. 

Q. Is he not a man of family ? A. He has a wife, but I do not 
know whether he has children or not. 

Q. Is it not your own opinion, more than his general character, you 
give ? A. I have heard a good many people speak very hardly of him. I 
have no unkind feelings toward him myself He knows that I have 
within the last year advised him to change his habits, and have pointed 
out how he would prosper if he did so. His habits are, that when he 
has a job, he works hard, and then any sport carries him off to the 
neglect of his business. 

g 1 08. Q. Why do you, from that, doubt his veracity ? A. I doubt 
his veracity from what I have heard his acquaintances, and men with 
whom he has been dealing, say of him. 

Q. Did not Mr. Jackson, -in the fight with you, prove rather the 
strongest ? A.I should say not. 

Q. Did you not keep up this opinion of him from the examina- 
tion at the Louisville Police Court. A. No ; for I was not there. I 
know nothing of what he proved. I did not even know that he had 
been a witness there, or was to be one here. 

Q. Were you not greatly excited against these gentlemen when the 
affair occurred ? A. I did then think it a most outrageous affair, but 
took no part about it. I spoke of it on several occasions as an outra- 
•reous act that ought to be punished severely. I was then living in 
Louisville; 1 now live in the country. 

Q. Did you not so lately as yesterday express yourself in violent 
language about this trial ? A. I spoke of the outrage of being dragged 
off here. 

g 109. Q. Did you not make use of violent expressions about our 
Legislature? A. I said if they were in hell, and I a fireman, I would 
give them a good warmitig, because 1 felt aggrieved at being brought 
this distance from home. 

Q. What do you know of the Gait House affair ? A. Nothing, I did 
not hear of it till next morning. 



TRIAL OF JUDGE WILKINSON ET AL 83 

Examination of Mr. Oldham. 

I ■ ■■ I - ■J_ I ■ ■ im I I ■ -II -HM ■ ■ ■ *™ 

Q. Did you not go about in an exasperated manner talking of it ? A. 
My excited feelings were not expressed till after the affair was over ; but 
whenever it was spoken of in my presence, I expressed my opinion freely. 

MR. REAUGH RE-CALLED. 

Q. State what you know of Mr. Oliver and his character. A. 1 only 
know Mr. Oliver by sight. I have no personal acquaintance with him. 
His reputed character in Louisville is not very good. I know nothing 
of him myself. 

Q. {For Defense.) Was it not since this affair that you heard him 
spoken of? A. I do not recollect having heard of him before. 

MR. TRABUE RE-CALLED. 

Q. Mr. Trabue, describe as particularly as you can the appearance 
of Judge Wilkinson when he entered the bar-room. ' A. He walked 
two, three or four times across the room. He had his hand behin^, 
and stopped in the middle of the room, a little nearer the dining-room 
door, and seemed to face the corner where Mr. Redding was standing. 
He threw his head up and cast his eye at Mr. Redding, and then at the 
door, as if on the look out, and greatly excited. About that time, Mr. 
Redding being standing with his back to the counter, Mr. Murdaugh 
spoke to Mr. Redding. 

Q. What did you see Mr. Halbert do ? A. I saw Mr. Halbert do 
nothing but tell Holmes he had beaten the Doctor enough. He was 
wanting to ta,ke Holmes off the Doctor. 

§110. Q. Well, after that, did he do nothing? A. He or Holmes — 
one or both — took up a chair, following the Doctor to the door. 

Q. Did you hear Halbert say he had knocked down the Doctor? A. 
I heard Halbert say such things, and that when he had knocked down 
the Doctor, Holmes jumped on him ; but I am satisfied Halbert was 
only bragging, and that he did not do it. 

Q. Could Mr. Pearson have got hold of Judge Wilkinson's arm 
without your observation ? A, He could, when my attention was 
attracted to Mr. Redding and Murdaugh ; Mr. Pearson may have 
been nearer the Judge, and probably spoke to him in a whisper. I 
might not in that case have heard him, as there was a noise, and we 
were all under a little anxiety, expecting something would take place. 

CoL. Robertson: Was Mr. Redding out of the room when the 
Judge entered the second time? A. Yes; the Judge entered first, 
and in a few moments Mr. Redding, who, when he entered, crossed 
the Judge's path. 

Q. Did not a crowd rush in at Mr. Redding's heels? A. I could not 
say a crowd followed Mr. Redding in, but, as I thought, seven or eight 
men did. 

MR. henry OLDHAM CALLED. 

Q. Were you in the bar-room when the fighting was going on? A. 



84 THE LA W OF HOMICIDK 

Grofl»-examiDatioii of Mr. Oldham. 

No ; T was going in through the har-room door, when, I think it was 
Dr. Wilkinson, was rushing out, and cut me in the arm. and 1 knocked 
him down. Mr. Holmes then came to the passage with a raised chair, 
and struck at the Judge, breaking the chair against the <loor. The 
Judge ran to the stairs. Mr Holmes struck Mr. Murdaugh at the 
stairs with the chair. Mr. Murdaugh got up towards the head of the 
stairs and hallooed for his pistol. That put me in mind of my pistol, 
and I took it out and fired it at him. 

§ 111. Q. Where did you say you were cut? A. In the arm, as I 
attempted to enter the bar-room door. 

Q. Was there any concert for you to go to the Gait House that even- 
ing ? A. None at all. 

Q. Why did you knock the Doctor down ? A. Because he had cut 
me in the arm. 

• Q. Was there any provocation on your part to induce him to cut you ? 
A. No. I knew none of the gentlemen. Why he cut me in the arm 
I am unable to tell. I am confident he never saw me before. 

CfROSS-EXAMINED. 

Q. How long had you been in the Gait House then ? A. Three or 
foijr minutes — but I had been in the bar-room at first before it began.- 

Q. Name such of the persons as you saw there then. A. I saw Mr. 
Holmes, Mr. Rothwell and Mr. Halbert in the bar-room. When they 
came in they asked me to take some liquor, which 1 did. A gentle- 
man came and asked to see me, and I went away with him. We staid 
out some time, talking about boats, which he said he had lying at the 
fnouth of the Kentucky river. We were talking outside, when 1 could 
hear chairs rattling, and then on trying to go into the bar-room, 1 got 
^he cut in the arm. 

RE-CROSS-EXAMINED. 

Q. When were you first in the bar-room that evening? A. Before 
tsny fuss began at all there. 

Q. Did you not retnain to see the fuss? A. I went out at the time 

'of the fuss. 

Q. Were there not many people there and in the passages ? A. 
There appeared to be a good many, and some fuss in the passage. 

§112. Q. What sort of a knife were you cut with? A. I was cut 
With a dirk knife. 

Q Can you be positive who cut you? A. Dr. Wilkinson was the 
man that cut me, and I knocked him down for it. 

Q. Had you given him, by word or gesture, no cause for doing it? 
A. I had not. 

Q. Did you not go there to have a fight? A. No. T went there 
accidentally — it was on my way home. I fought on my own hook. 

Q. You shot at Murdaugh on your own hook ? A. At the head of 



TRIAL OF JUDGE WILKINSON ET AL. 85 



Examination of Mr. PeaiBon. 



the stairs, when he hallooed out for his pistol, I took the advantage to 
get out mine, and I fired it at him. 

Q. When the Doctor was coming out of the door was he not cut and 
biTzised and disabled ? A, I could not see by him whether he was or not 

Q. Did you tell all this at the examining court ? A. I stated the same 
there as here. 

Q. What colored handle had the knife which the Doctor cut you 
with ? A. I think it was a white handled knife. 

Q. Did you fire before you were stabbed ? A. No ; I was stabbed first 

Q. And you had your pistol prepared with two bullets? A. No; 
there were not two bullets ; but there was one bullet cut in three 
pieces. It had been two or three days loaded. 

Q. Well, you had other weapons ? A. I had a bowie-knife. 

Q. Was the pistol a rifled-barrel pistol ? A. Yes. 

Q. How came you to arm yourself thus ? A. I usually carry a bowie- 
knife and pistol about me since I belonged to the City Guard last 
summer. 

§ 113. Q. Of course you used your bowie-knife with effect that even- 
ing? A. I did not use it on that occasion. 

Q. You certainly displayed it? A. The button on the scabbard 
came off, and it slipped through my pantaloons. 

Q. Was there not blood on it? A. There could be no blood on it» 
but it had a red scabbard, which may have been' mistaken. 

Q. Did you not wipe blood off with your handkerchief ? A. I sua. 
confident I did not for there could be none on it. 

Q. Do you say you made no exhibition of it ? A. A gentleman at 
Zanones coffee house asked me to show him a bowie-knife, and I 
showed him mine — that is the only exhibition could be talked of. 

Q. Did you hear of the affair at Redding's ? A. Not until I went to 
the Gait House. I did not even hear of it till the Gait House affair 
commenced. I did not hear of it before I went into the bar-room. 

HR. PEARSON RE-GALLED. 

Q. {For Defense.) What is Mr. Jackson's general character? A. I 
have known Mr. Jackson as a carpenter for many years. He is in the 
habit of making boxes and cases for the dry goods merchants. I have 
formed a favorable opinion of him, and I know that is the opinion of 
several other merchants. What his private associations may be I do 
not know. 

Q. Have you ever heard of his veracity being called in question. A. 
1 have not. 

?114. Q. {For Prosecution.) Have you heard his character spoken 
<>f? A. I don't know that I have, except as to his capacity as a good 
workman. 



86 THE LA W OF HOMICIDE. 

Examination of Mr. Harris. 

Q. {For Defense.) From what you know of him would you credit 
him upon oath ? A. I could; I believe I could have confidence in his 
word. 

Q. What do you know of Mr. Oliver ? A. I have no acquaintance 
with Mr. Oliver, and have not heard his character spoken of. 

MR. MILLER RE-CALLED. 

Q. {For Defense.) State what you know of Mr. Jackson's character. 
A. I am very little acquainted with Mr. Jackson. As far as I know, 
I have considered him an industrious mechanic. I really have been 
favorably impressed with his general character, and am a good deal 
surprised to hear it doubted. 

Q. {For Prosecution.) How has your opinion been formed ? A. Upon 
appemrances. 

MR. JAMES M' DONALD CALLED. 

§115. Q. What is Mr. Jackson s general character? A. I have 
known Mr. Jackson for a few yean — that is I know him when I see 
him. So far as 1 know he is sober. I no rsr heard his veracity ques- 
tioned. I have merely known Mr. Jackson as I know other men pass- 
ing to and fro. 

Q. {For Prosecution.) Do you know much about Mr. Jacksofi? A, i 
know very little about him. 

Q. {For Defense.) If he had been a man of loose habits would you 
not have heard it? A. I should think so. 

Q. Do you know Mr. Oliver ? A. I have known him for ten or twelve 
years, but I know very little about him. I never heard anything against 
his veracity that I can think of 

Q. Do you know him to be a door-keeper at the theatre ? A. I sel- 
dom go to the theatre. I do not recollect ever seeing him there as a 
door-keeper. 

MR. ALFRED HARRIS RE-CALLED. 

Q. State what you know of Mr. Jackson's general character? A. I 
am acquainted with Mr. Jackson. I can not say a great deal about his 
general character. As far as concerned with me, it has been fair. 

Q. How is he spoken of by his neighbors? A. I have heard him 
spoken of in this way — that he is fond of conversation, and as a per- 
son that says more than he ought. 

Q. Would you credit him on his oath ? A. I can not say that I would 
not. T know very little about him. 

[It was understood that the evidence on both sides here closed.] 

It was then half-past eleven, and the Court decided that a recess till 
after dinner should be taken, and upon the re-sitting of the Court the 
arguments should commence in the order prescribed. 



TRIAL OF JUDGE WILKINSON ET AL 87 



Aiguments of Counsel. 



ARGUMENTS OF COUNSEL. 

§ 116. By one o'clock the court-house became crowded to excess, 
not less than a thousand well-dressed and respectable persons being 
present. The gallery upon which the bench is situated was appropri- 
ated to ladies. There were, probably, from one to two hundred ladies 
present, of whom three-fourths were distinguished for great beauty. 
Judge Bridges having arrived at the appointed hour, Judge Rowan ' 
suggested to the Court the desire of many citizens, that the hearing of 
the arguments might be adjourned to th^ adjacent church ; to which, 
if the Court approved, the jury no doubt would consent, for the accom- 
modation of the public and the ladies in particular. The Court con- 
ceived that no judicial proceeding would be proper anywhere, under 
present circumstances, but in the ordinary tribunal of the country, and 
although the mere delivery of arguments from the counsel was not 
necessary in the nature of a judicial act, yet some proceeding, or re- 
calling of evidence, might be requisite, which would embarrass such a 
departure from the usual course. To accommodate the ladies, the 
Court would order the galleries to be appropriated exclusively to their 
use. The gallery was accordingly cleared of gentlemen, and the ladies 
provided with seats. The jurors being called over and order com- 
manded, the Prosecuting Attorney, Mr. Bullock, opened the argument 
in the following address : 

THE ARGUMENT OP MR. BUIXOCK, THE PROSECUTING ATTORNEY. 

§ 117. Gentlemen of the Jury : • You have gratified me by the attention 
you have bestowed upon the examination of evidence in this cause, and I 
feel assured from that, of your honest intention to do your duty in 
weighing the evidence and deciding upon it as becomes you. Yours 
is, indeed, no ordinary duty, and I know you are aware of your obli- 
gation. I would not have your feelings excited on the one hand or 
the other of this prosecution ; but I would have you impressed with 
a proper conviction of the facts to enable you to do your duty between 
the Commonwealth and the accused. 

I, also, occupy a public situation here, to which the laws have assigned 
duties of no, ordinary trust. I am required not alone to see that the 
laws be vindicated, but that the innocent should be separated from the 
guilty, and protected from persecution. 

If guilt exist, it is my duty to present the evidence of it to you, 
together with the law applicable to the case; and if that evidence is so 
satisfactory as to bring conviction to your minds, you are required to 
decide according to the law and the facts. 

You, gentlemen, have taken an oath that you have no interest, 



88 THE LA W OF HOMICIDE. 



Argument of the Prosecutlqg Attorney. 



feeling or prejudice, one way or another; and it behooves you as honest 
and impartial jurors, to weigh well not only the evidence but the argu- 
ments for the Commonwealth as well as for the accused, and according 
to your solemn oath, a true verdict give. 

In the opening of this argument I shall not enter into the depths of 
the case. 1 shall merely lay before you the law in relation to the 
alleged offense, that you may be enabled to judge of its violation from 
the evidence of the facts. 

§118. There are three individuals arraigned before you for separate 
and distinct offenses : Edward C. Wilkinson is now on trial for the 
■ murder of John Roth well, and John Murdaugh and Benjamin R. 
Wilkinson for aiding, assisting and abetting. John Murdaugh is upon 
trial on another indictment for the murder of John Meeks; and the 
other two for aiding, assisting and abetting. You are to try both cases, 
for the evidence is applicable to both, and your verdict will apply to 
both. So far as your verdict and finding reach, it is immaterial whether 
you find one guilty of the killing and the others as accomplices, or the 
three together guilty, because, if you believe but one did the act, and that 
the others were accomplices, the guilt is the same in all, and it is 
immaterial which struck the blow that produced the death. It is also 
necessary to mention that if you believe one or two out of the three 
guilty, and the other innocent, you have the right to find your verdict 
against the guilty and to acquit the innocent. 

gll9. I make these observations that your attention may not be 
drawn from the main point — the vindication of the law and the appli- 
cation of the evidence. 

It has been proved to you that two men were killed in the city of 
Louisville; that blows were inflicted on them with deadly weapons, 
and that they died from the effects of those wounds. The laws of Ken. 
tucky afford protection to all her citizens. Two of these citizens have 
been slain, and your first inquiry is — who committed this crime against 
our laws? Three gentlemen, now before you, are charged with this 
murder. I need not lose time in endeavoring to prove to you that one 
or more of these gentlemen inflicted the blows which caused these 
deaths, because, from the evidence you are bound to believe that the 
Judge or Mr. Murdaugh inflicted them, and that each participated in 
the act of the other. The question is — have they been guilty of any 
crime which the laws of the land will reach ? and if they have, what 
that crime is designated. It is in the eye of the law homicide ; and 
homicide is either justifiable or punishable by law. The killing con- 
stitutes the homicide, and that has been proved; but it is for you to say 
whether that killing has been murder, manslaughter or justifiable hom- 
icide. Although these gentlemen are indicted for the major offense — 
murder — you may, if the evidence justify you, find them guilty of the 



TRIAL OF JUDGE WILKINSON ET AL. 89 

Aigument of the Prosecuting Attorney. 

minor offense — ^manslaughter; or, even if the excusable homicide is 
proven, you may acquit them. But, as they are charged with the com- 
mission of the crime of murder, it is necessary you should hear the 
law read as it exists in cases of homicide. In defining the law I shall 
endeavor not to set down aught in malice, neither shall I on the other 
hand aught extenuate. 

§ 120. Murder is one of the highest crimes known to our laws. It 
is defined by Sir William Blackstone, page 142 : " When a person of 
sound memory and discretion, unlawfully killeth any reasonable crea- 
ture in being, and under the King's peace [or, as in this case, in the 
peace of the Commonwealth of Kentucky], with malice aforethought, 
either express or implied. "(«) 

That a killing has been committed it would now be a waste of your 
time to prove; you have it already established by the evidence, and it 
is not denied. The only question you have to decide, in addition to 
that fact, is, whether this killing was, or was not, the result of malice. 
Malice aforethought does not only mean " a spirit of hatred and malev- 
olence to the deceased in particular, such as arises from former grudge 
or previous quarrels, and which is evidenced by lying in wait, etc. ;" 
this is express malice, but it is not the only kind of malice. " For the 
law meaneth by the term malice that the fact hath been attended with 
such circumstances as are the ordinary symptoms of a wicked, depraved 
and malignant spirit, and which carry in them plain indications of a 
heart regardless of social duty and fatally bent upon mischief" (See 
Foster, page 256, and Blackstone, page 199.) The constitution makes 
you, gentlemen of the jury, the arbiters of life and death. You are to 
make a solemn inquiry into the causes which deprived, by violence, your 
country of the life and services of one or more of its citizens. 

§ 121. In all cases of death by violence the law implies that it is done 
by malice until the contrary is proved. Such is the shield thrown by 
the law around human life, that it raises a presumption of malice in the 
consummation of violence. Should I succeed in satisfying you that a 
killing has been done where malice is proved by the evidence, of that 
amount known to the law, it is murder; and unless you can find in the 
circumstances proved to you that there are extenuating circumstances, 
you can not compromise the law by doing less than the duty which it 
demands of you. Sir Michael Foster, page 255, lays down the rule, 
"That in every charge of murder, the fact of killing being first proved, 
all the circumstances of accident, necessity, or infirmity, are to be sat- 
isfactorily proved by the prisoner; unless they arise out of the evidence 
produced against him, for the law presumeth the fact to have been 



(a)ISee poet g 492 of Part II, and g 606 of Part III. 



90 THE LA W OF HOMICIDE. 

Argumeut of the Proeecucing Attorney. 

founded in malice until the contrary appears." The law does not require 
in proof of malice, that there should have been a previous grudge, for it 
may arise at the moment of inflicting tlie deadly violence, or be inflicted 
upon persons, previous to the act, unknown to the slayer. On this occas- 
ion it is not necessary to prove that Judge Wilkinson or Mr. Murdaugh 
had ever known their unfortunate victims; if their act springs from 
"hearts regardless of social duty and fatally bent upon mischief" — ^and 
this is manifested in diflferent ways, from the manner of the assault, the 
weapon used, and the probability that death would result from the blow. 
For, in all all cases of homicide upon provocation, if it may be reasonably 
collected from the weapon used, or from any other circumstances, that 
the party intended to kill, or to do some great bodily harm, such hom- 
icide is murder. And right it should be ; for he who carries a weapon 
calculated to take life, shows he broods over blood, and that he thinks 
with levity ot taking the life of a fellow-being. 

Nature itself revolts at the idea of death, and a thrill of horror runs 
through every nerve at the thought of imbruing our hand in the life's 
blood of a fellow-being ; and he, therefore, who, with the impending 
glittering blade over an unarmed man, can strike with a deliberate 
intent to kill, is a monster — dead to the social ties, dead to the sympa- 
thies of our natures and no longer worthy of human regard, or to the 
protection of human laws. 

You ^ee, then, gentlemen, that it is not essential to the crime of mur- 
der that there should have been any previous grudge or quarrel, or even 
a previous acquaintance. But if you believe the killing was done with a 
heart fatally bent upon mischief, and fraught with malice— and you must 
judge of this from the manner of the blow, the nature of the weapon, 
and all the other circumstances of the case — then it is murder, and you 
must so find, let your feelings be how they may — yea, even though you 
write your verdict in tears. 

As I have said before, if you believe these gentlemen have been 
guilty of this crime, you are to consider whether any extenuating cir- 
cumstances are in proof, and in mercy you are bound to regard those 
extenuating circumstances ; but if you believe those circumstances are 
not of that weight which the law says is necessary to justify the taking 
of human life, you are not to be swayed from your duty by your 
feelings. 

g 122. Gentlemen, I am sorry to say that there has been thrown 
into this case a quantity of trash and chaff not recognized by the laws 
of evidence ; and this has been done, no doubt, with a view of pre- 
venting you from readily discovering in this trashy chaff, the grains 
of wheat — the facts upon which your decision must be made. I did not 
interrupt this course, because the counsel for the defense had the 
right to introduce their own testimony in the method which suited them, 



TRIAL OF JUBGE WILKINSON ET AL. 91 

Argument of the ProfiecutiDg Attomej. 

and I could not tell until the testimony for the accused was closed 
whether those declarations and opinions of others would be connected 
with other facts and circumstances so as to make them relevant and 
proper. Many of the witnesses have detailed to you what they thought 
— what others said — if not what others thought. This surely is not 
evidence ; yet I found that I could not afrrest such an improper course. 
All I can now do is to tell you that you have no right to give the least 
weight to that kind of evidence, for you are sworn to decide this cause 
not by the vague conjectures and opinions of others, nor even by your 
own, but by the lights of truth and sober reason. 

The counsel on the opposite side will endeavor to show you that 
there was a mob, or a concert of a mob, got up by Redding and his 
friends to assault these gentlemen at the Gait House. You will have 
the opinions of counsel on this point, but you must keep in mind that 
opinions are not evidence. Ascertain the facts from the proof, and con- 
sult your own consciences to make up your judgment. Recollect that 
you are here to judge the law and the facts; and that you are not to 
mingle up with them that which is not legitimate testimony. I can 
compare the defense in this case to nothing but a boiling cauldron, into 
which a vast quantity of. angry feelings and fermenting passions have 
been thrown ; and it must be your business, gentlemen, to filter the 
truth from the dregs and scum with which it is intermixed. You are 
to ascertain whether, when the affray oammenced and the fatal blows 
frere ^ven, iktaea wm^ daaa^gBt to these gentlemen of th^ own lives. 
That there was not seems to me clearly established. The wit ncaoe B 
tell you, one and all, that there were strange faces in the bar-room of 
the Gait House. Well ! what of that ? Is it an uncommon circum. 
stance that there should be strange faces in the bar-room of a public 
hotel, the most extensive and most frequented in the western country? 
Almost on all occasions, at every moment of the day, there are strange 
faces to be met with there. That bar-room is the resort of every 
stranger attracted by the celebrity of the house and having business to 
transact in Louisville or its vicinity. If anything can be based upon 
this circumstance, I should be glad to know what supposition the gen- 
tlemen for the defense can raise upon it. When Redding was in that 
bar-room getting the names of these Mississippi gentlemen, what 
demonstration was there of a contemplated assault by others? None? 
There is nothing in the whole case to warrant the assertion except the 
mere conjecture of some few individuals. Not a man produced here 
to testify the fact«, not a man who heard and saw the whole transac- 
tion, has sworn that Rothwell, Holmes, or Halbert, then said a word to 
Judge Wilkinson. How, then, could he infer that they were to be 
engaged in any concert ? When Judge Wilkinson went off after what 
passed between iledding and him, he was not suffered to go his way 



92 THE LA W OF' HOMICIDE. 



Argument of the Proeecutiiig Attorney. 



in peace? What reason could he have had to consider there was an 
individual, except Redding, who could have a particle of ill-will against 
him? Well, he left the bar-room, was met at the door into the pas- 
sage ^y ^^' Everett, and retired to his own room. In doing so he 
passed unmolested, unobstructed, and on reaching his appartment had 
time to detail to his companions, Mr. Murdaugh and Dr. Wilkinson, 
all that had occurred between him and Redding in the bar-room. 
Without waiting for their comments or reply, he demands pistols from 
Mr. Everett. What did he want with pistols if not for attack ? If he 
wanted them for defense, why did he not wait for them ? No, gentle- 
men, Judge Wilkinson and his companions, did not need pistols for 
their defense, or they would not have come down armed with their 
knives alone. They could not restrain themselves, so eager were they 
for the attack. They came down, and of what passed you are to be 
the judges. 

§123. I have satisfied you that there had been no concert — no 
scheme to assault these gentlemen. There is no proof of it, and it can 
only be inferred from conjecture; but are you to coi\|ecture? You are 
fCtt'bidden by the law. 

When Judge Wilkinson returned to the bar-room, he had no right 
to suppose that he would be even addressed, much less assaulted, by 
any other person than Redding. In the absence of all proof that there 
was any one desiring to attack him, who is there that even says he 
(Judge Wilkinson) was told that Redding' s friends had any design of 
that kind ? Did any witness for the defense, prodigal of long stories 
of his thinking, tell him there was such a design ? Not one. There is 
nothing in the whole case to justify the supposition. That some may 
have been there from curiosity is possible, but ceitainly none from 
design to assault. 

g 124. Well, after coming down, Judge Wilkinson entered the bar- 
room accompanied by Mr. Murdaugh and Dr. Wilkinson. The Judge, 
after pacing the room, stood firmly, and fixed his eye on Redding, while 
Murdaugh approached the latter, and, according to some of the wit- 
nesses, addressed him insultingly, at the moment throwing his knife 
open in a menacing manner. What immediately followed is known to 
you from the evidence. All have seen the subsequent transactions 
differently, yet they occurred in one way only. It is necessary to 
remark these conflicting accounts in order to arrive at the facts ; and 
it will also be necessary for you to select from the mass of evidence, the 
testimony of such men as yoii think have given their evidence without 
intent to pervert the truth ; those who witnessed the transaction with 
the greatest quantity of self-possession and the clearest observation. 
Not such men as those who started and got away to the outside of the 
windows, though they may be honest, yet evidently having acted under 



TRIAL OF JUDGE WILKINSON ET AL, 98 

AT^ment of the Prosecuting Attorney. 

alarm and trepidation sufficient to render them incapable of seeing 
calmly and dispassionately what occurred. It is natural to conclude 
that the excitement and alarm caused the different views taken of the 
transaction by different individuals. Some of these individuals who 
remained and retained their self-command, I know to be men who 
could look on and take in what occurred without much danger of mis- 
conception. I know Trabue and Montgomery to be such men, and I 
feel satisfied that Mr. Robert Pope, though not as well known to me, 
is of this number, if I may form an opinion from his manner of giving 
his testimony. I admit that most men are irtcapable of viewing coolly 
and deliberately the shedding of human blood : but that some men are 
more self-possessed under such circumstances than others will not be 
denied. It is surely more consonant to human sense to predicate our 
conviction upon the testimony of those who evince the most coolness 
Mad self-possession when their veracity is questioned. An additional 
reason why I attach great weight to Mr. Trabue's testimony is, that he 
expected the affray and was prepared to watch narrowly what was about 
to take place. He tells you that he had his eye fixed on Judge Wilk- 
inson and Mr. Redding at the moment his ear caught the words passed 
from a third person. He was watching these two that he might observe 
which would commence the expected conflict. Mr. Trabue's is the 
most consistent and rational account of what then occurred, and I 
adopt his view of it in preference to others, because I want a clear 
view only of the facts. Gentlemen, I seek not these men's conviction 
if they are innocent. It would be at variance with the trust reposed 
in me as the organ of government placed between the Commonwealth 
and the accused. But if your verdict must be against them, though 
you write it in tears, justice demands that it should be rendered faith- 
fully. What are the rational conclusions you ought to come to ? I will tell 
you my conviction on that point, grounded on the evidence of Trabue 
and Montgomery and corroborated by others. When Judge Wilkin- 
son had arrived in his bed-room ; had told his brother and Mr. Mur- 
daugh what had occurred between himself and Redding; and Mr. Ev- 
erett had left them — these gentlemen deliberately agreed to come down 
and see the contest out. They were Mississippians — they had shown 
their knives, at least two of them, and a third, a large bowie-knife, had 
been added — and they descended for the work of death. They knew 
of no hostile foes below but Redding, for they could not know of any 
oyfcher; there was no reason to believe they could meet with any others 
in the bar-room over whom they could crow and triumph, but Redding ; 
and they did crow and triumph over him ; for it is in proof that he 
truckled under, when Murdaugh said, " I understand, sir, you say, or it 
ifi reported, that I assaulted you in your own house with a bowie-knife. 
If you say so you are a damned liar." Redding did not stand up to 



94 THE LA W OP HOMICIDE, 



Argument of the ProsecutiDg Attorney. 



this like a man. He backed out by saying, " I do not say it was you, 
but one of the three did it." Is it like what a man backed by a mob 
would say ? Is this like what a man surrounded by a company of 
friends would say ? Gentlemen, it is impossible to believe it. 

§125. It is immaterial what part Bedding took in the afifray. The 
question is, what excuse those gentlemen had for taking the life of a 
fellow-creature. It is my duty to show you what the law says in refer- 
ence to killing and excuses for killing. I shall come to that presently. 
Murdaugh had his knife in his hand before any attempt at assault had 
been made on him. When Meeks approached him what, would any 
man expect but a blow ? What kind of blow did Murdaugh receive 
from Meeks ? Why nothing but a blow of a short cowhide over the 
head, and unfortunately for Murdaugh, the law will not excuse him for 
resenting a blow that could not have threatened his life, by taking a 
life for that blow. I promised to show you what the law says on this 
point : 

*' He that would excuse himself upon the foot of self-defense must 
show that before a mortal stroke was given he had declined farther 
combat and had retreated as far as he could with safety, and, also, that 
he killed his adversary through mere necessity and to avoid immediate 
death or great bodily harm." — Foster, page 277. (a) This is the law ; 
and it is not now necessary for me to go farther than to show you it is 
founded upon natural and immutable principles of justice. "A, being 
assaulted by B, returneth the blow, and a fight ensueth. A, before a 
mortal wound is given, declineth any further conflict, and retreateth as 
far as he can with safety; and then, in his own defense, killeth B; this 
is excusable self-defense, though A had given several blows, not mortal, 
before his retreat. But if the mortal stroke had been Jirst given it 
would have been manslaughter." — Foster, page 277. He must show 
that at the moment of the mortal blow, he gave it from necessity, to 
avoid his own death or great bodily harm. Here is another case : 
" The prisoner was indicted for the murder of his brother, and the 
case upon evidence appeared to be that the prisoner on the night the 
fact was committed, came home drunk. His father ordered him to go 
to bed, which he refused to do, whereupon a scuffle ensued between 
the father and son. The deceased, who was then in bed, hearing the 
disturbance, got up and fell upon the prisoner, threw him down, and 
beat him upon the ground, and there kept him down, so that he could 
not escape nor avoid the blows ; and as they were so striving, the pris- 
oner gave the deceased a wound with a penknife, of which he died. 
This, upon a special verdict, was, at a conference of all the Judges of 
England, ruled manslaughter— ;/(w there did not appear to he any inevitable 



(a) See post, § 474. Part II. 



TRIAL OF JUDGE WILKINSON ET AL. 95 

Aigument of the Prosecuting Attorney. 



necessity so as to excuse the killing in this manner.'^ — Foster, page 278. In 
all cases where a blow is given to produce death, unless to avoid death 
or great bodily harm, it is either murder or manslaughter. | 

§ J26. Now, unless there was absolute necessity that Murdaugh, to 
avoid death or great bodily harm from the blow inflicted by Meeks, 
gave that deadly blow which killed Meeks, after he had changed the 
knife from his right to his left hand ; and unless you believe that he 
could not himself escape death but by killing Meeks, you must believe 
him guilty of manslaughter at least, according to the law. The law 
discountenances the idea that because a man is a mechanic, you are not 
in an unavoidable scuffle to resort to fisticuffs, on account of any pre- 
sumed superiority of station ; but when your adversary assaults in that 
way, that you may draw a deadly weapon and kill your opponent, 
because the law can not excuse such unequal odds. What is there in 
this case to justify Murdaugh? Montgomery, whose breast was 
sprinkled with the spouting blood of Meeks, though at several feet dis- 
tance, tells you there was no blow when Meeks was stabbed. If Mur- 
daugh was struck with a stick or cane afterward, he is not to say that 
because of that subsequent blow or blows he is justified in having pre- 
viously inflicted death. As to what transpired when Rothwell was 
stabbed — you will recollect that Rothwell had three wounds. We are 
able to account for two of them by direct evidence ; for the other we 
account by circumstantial evidence. Two witnesses who saw the 
Judge's bowie-knife enter him, say the first stab was given in the right- 
hand corner of the bar-room as you face the fire-place. These two 
are Trabue and General Chambers. They say that when Rothwell was 
in the north-west corner, Judge Wilkinson rushed up and plunged his 
murderous knife into his back, towards the left side, at a time, too, when 
Rothwell was not offending him, and could not offend him, because his 
back was turned. A second time Judge Wilkinson stabbed Rothwell 
in nearly the same place, when Rothwell was in another part of the 
room. So that it is at least certain that two of the wounds inflicted 
upon Rothwell were inflicted by Judge Wilkinson. Let them say what 
they will about Meeks having struck Murdaugh, and that at the time 
any one else was offending Judge Wilkinson's brother, I say, and I say 
it here in the presence of His Honor, who will set me right if I am in 
error, that a man has no right to take a life in defense of his brother 
because merely he is his brother, though a right might exist if in 
defense of * his child or wife. There is no conclusive testimony that 
Rothwell was assaulting Dr. Wilkinson when stabbed by Judge Wil- 
kinson ; on the contrary, it is proved that Rothwell was endeavoring to 
rescue Dr. Wilkinson from Holmes. Now, as to the law of self-defense, 
we find it in page 273, under the head of "justifiable self-defense," etc., 



96 THE LA W OF HOMICIDE. 

Aigument of Col. Bobertflon. 

when a man comes with evident intent to commit felony, which he 
must be engaged in at the time. 

g 127. The other case is where in self-defense an adversary is killed. 
But there is no law to justify Judge Wilkinson in doing what he, did on 
the plea of saving his brother. 

In the slaying of Meeks by Murdaugh, I will ask — was there that 
absolute necessity for the taking of life, because he was struck over the 
head with a whip, which is recognized by the law ? They can not pro 
duce any law of England to show it, and I defy them to show any 
statute of Kentucky that warrants it. 

In order to justify you, gentlemen of the jury, in finding the three 
persons indicted guilty of the offenses charged, though only one or two 
committed the act, it must appear that there was an aiding or abetting, 
a concert of action. What did these three gentlemen come down to 
the bar-room for, if not to countenance each other, and aid each other 
in striking terror into those with whom they meditated a conflict? 
Why did they arm themselves with their knives and enter together, if 
they did not mean to stand by each other?. It was to show that they 
were united, unanimous, and mutually willing to aid and abet each 
other in their design. 

I did not intend to occupy so much of your time — depending upon 
a further development of this argument by Mr. Hardin to show how the 
prosecution will reconcile the events detailed in evidence. You will 
hear from the gentlemen opposite their view of the case for the defense. 
You will weigh the facts tvith the arguments on both sides, and I trust — 
I know — ^you will hold the scales of justice impartially. It is useless to 
talk of statutes for suppressing the use of bowie-knives or concealed 
weapons unldss jurors execute the laws fairly and fearlessly. If, in this 
instance, there has been a violation of that security for life guaranteed 
by our constitution, execute your duties, gentlemen, as law-abiding 
citizens. That you will do so conscientiously, fearlessly, and becom- 
ingly, I have every confidence ; and with this conviction, I confide the 
case to your hands. 

THE ARGUMENT OF COLONEL ROBERTSON. 

§ 128. Colonel Robertson then rose and addressed the Court and 
jury as follows: 

It has fallen to my lot, gentlemen of the jury, to follow the Attorney 
for the Commonwealth, and to open ,the defense on the part of the 
accused. In doing this I. take pleasure in according to the gentleman 
my profound acknowledgments for the just, fair and liberal ground on 
which he has placedthelawthat must control, as well the prosecution as 
the defense in this case, while at the same time I have to express my 
regret that he has permitted himself to draw deductions from the 



TRIAL OF JUDGE WILKINSON ET AL. 97 



Argument of Col. Robertson. 



evidence which I think can not be maintained. I do not know that 
I shall be able to present this caae to you in the aspect which properly 
belongs to it, nor do I know that my feeble state of health will allow 
me to proceed far with the argument which I propose to offer. Should 
I find myself unable to go on with the discussion, I will resume my seat, 
and leave the case in the hands of the distinguished gentlemen who 
are associated with me in the defense, and who, under any circum- 
stances, would be able to do far more justice to the accused than would 
fall within the range of my powers. For three months past I have 
been prevented by a local disease from engaging in argument at the 
bar, and this is the first occasion, during that tin:?.e, in which I have 
attempted to engage in forensic strife. 

§129. Gentlemen, I feel very sensibly the weight of responsibility 
which rests upon me, not because there is anything alarming in the case 
itself, but because the charge is a solemn one, presented in the most 
solemn form, and which, if true, might produce the most solemn con- 
sequences. The case, too, has been made to wear the most aggravated 
form, not only by an abuse of public feeling, for a time, about the city 
of Louisville, but by the indiscretion of the public prints, two of which, 
in the city, not only departed from invariable usage upon such occa- 
sions, but, unfortunately for the accused, these papers permitted them- 
selves to fall into the grossest errors, operating against the truth of the 
case, and against the accused, and which, to this day, have not been 
corrected, or in any way atoned for. Other papers at a distance copied 
from them, and thus has there been a most extensive circulation of 
facts which never existed, to the great injury of the accused. Under 
these circumstances, though the public mind has, in a great degree, 
corrected itself, by the lights which were thrown open before the 
examining court, yet we deemed it better to bring the cause to the con- 
sideration of twelve men, not only equal in all other respects to a jury 
to be selected in Louisville, but who should be entirely untainted by 
prejudice, and would be certain to render a verdict according to law 
and to eyidence. Such a jury, gentlemen, we think we have found in 
the county of Mercer; such a jury now sits before us, and to you is 
committed the fate of our clients. 

§ 130. If I were left to the exercise of my own judgment, I would 
willingly submit this cause to your determination without an argument , 
but, gentlemen, we have thought, upon consultation, that too much 
was at 9take, and that duty requires at our hands a discussion, such as 
may not only convince i/our minds, but which shall correct the errors 
that may have taken root in the public mind abroad and at home; for, 
we wish not only to acquit the accused, but that the acquittal shall 
restore that high character which belonged to them before this 

H.— 7 



98 THE LA W OF HOMICIDE. 

Argument of Col. Bobertaon. 



unfortunate occurrence, and which, as we conceive, has been,* in no 
degree, darkene<i by any part of their conduct. It is true that they 
regret, most sincerely, that tliey were placed in a condition which 
required them to take the hves of their fellow-men, or submit to their 
disgrace, and perhaps the loss of their own lives; but having once 
been placed in that situation, but one course was left to them, and they 
did not hesitate in taking that course. 

Gentlemen of the jury, I feel the most unqualified confidence in our 
ability to show you, in the course of this discussion, one of the clearest 
cases of self-defense that was ever presented to a court and jury to 
decide, and if, in doing so, I shall be compelled to speak harshly of 
some of the witnesses on the part of the Commonwealth, it must be 
remembered that these witnesses have placed themselves in a situation 
that makes it my duty to animadvert freely upon what they have said, 
and to disappoint them in that conviction which their very manner 
shows they are so eager to procure. 

§131. Our clients stand before you, gentlemen, charged with no 
mean, ignoble crime ; they stand before you in the highest and noblest 
attitude in which man can exhibit himself before his fellow-man ; they 
stand before you, upon proof , that they invaded not the rights of others, 
whilst at the same time, understanding their own rights, they defended 
them against the assaults of their assailants, even unto bloodshed and 
death, as by law they had a right to do. In presenting to you the view 
which I entertain of the case now before you, I shall not go into any 
laborious, deta-iled analysis of the testimony. Even if my state of health 
would allow me to do this, I should nevertheless decline it, because my 
honorable associates in the defense will do ample justice to that and 
every other branch of the subject. My object will be to present the 
case to you in somewhat of a general aspect, for, after all, it will be 
found that the great principles involved are but few, and these few are 
of well-settled law. I know that the able counsel on the part of the 
prosecution will endeavor to perplex you with almost countless cases 
from high authorities ; but when these cases are well examined, it will 
be found that they are perverted and misapplied ; and, in no degree, 
do they affect the right of self-defense, possessed by every individual 
in this country, and upon which we shall rest this cause. 

In the humble view which I shall endeavor to present to you of this 
ease, I shall call your attention to the authorities which seem to me to 
govern and control it, to state the evidence in a fair and candid man- 
ner; and then by a just application of the law to the testimony, 
endeavor to conduct you to rational and just conclusions. 

§132. I have said that we shall rest this cause upon the great prin- 
ciples of self-defense ; and I shall endeavor to confine myself to this 
ground as far as I can, or as far as may be consistent with a general and 



TRIAL OF JUDGE WILKINSON ET AL. 99 

Argument of Col. Robertson. 

somewhat systematic view of the law and evidence ; yet in doing this, 
I shall unavoidably be led into some necessary views of the law of 
homicide; noticing the degrees into which it has been divided, and 
explaining, wherever explanations may be required. In the case before 
you, gentlemen of the jury, the self-defense on which I shall rely, was 
not only against the attack of individuals, but these individuals, as I 
shall show by the evidence, had previously agreed to associate them- 
selves together as a band of lawless conspirators for the purpose of meet- 
ing at the Gait House in the course of the evening, and so to take 
revenge of the accused, by inflicting upon them the ignominious pun- 
ishment of public cow-hiding, or in the event of resistence, then to use 
weapons of death, with which the testimony shows they were provided. 
As I feei that I have no occasion to misstate the evidence, I shall not 
only endeavor to present it fairly, but should I not do so, I will be 
obliged to the counsel for the prosecution to set me right as soon as 
they may think me wrong upon this point. 

Intending to place the defense upon grounds of self-defense, and 
that self-defense being against the attack of a band of conspirators 
against the honor and perhaps the lives of the accused, I will, for my 
own convenience, and for the benefit of the counsel who may reply to 
me, state the authorities on which I shall mainly rely. They are few, 
but I think they are strong. 

§ 133. " If two or more come together to do an unlawful act against 
the King's peace, of which the probable consequence might be blood- 
shed, as to heat a man, to commit a riot, or to rob a park, and one of them 
kills a man, it is murder in them all, because of the unlawful act, the 
malitia prcecognita, or evil intended beforehand." — 4th Blackstone, page 
201, Chitty's edition. 

" But if several attack a person at once with deadly weapons, as may 
be supposed to have happened in Ford's case, though they wait till he 
be upon his guard, yet it seems (there being no compact to fight), that he 
would be justifiable in killing any of the assailants in his own defense ; 
because so unequal an attack resembles more a desire of assassina- 
tion than of combat." — East's Pleas of the Crown, vol. 1, page 276. 

" For no man is required by law to remain defenseless and suffer 
another to beat him as long as he pleases, without resistance, although 
it be evident that the other did not aim at his life, but he may lawfully 
exert so much force as is necessary to compel him to desist." — Same 
book, page 286. 

But who is to judge of the degree of force necessary to be applied to 
make the man who attacks desist? I answer, in the very nature of 
things, he who is attacked must be the judge, and so the law intended, 
and so it has been ruled, as may be seen from the following authority : 
" Yet, still," says East, speaking upon this very point, " if the party 



100 THE LA W OF HOMICIDE. 



Aigument of GoL Bobertaon. 



killing, had reasonable grounds for believing that the person slain had 
a felonious design against him, and under that supposition kill him, 
though it should afterward appear that there was no such design, it 
will be only manslaughter, or even misadventure, according to the 
degree of caution used, and the probable ground of such belief." — Same 
book, page 173. • 

§134. " For," (says the same author, speaking of unlawful combina- 
tions) " if the act or design be unlawful or premeditated, and death 
happen from any thing done in the prosecution of it, it is clearly 
murder in all who took part in the same transaction." — Same book, 
page 259. 

" He who voluntarily, knowingly and unlawfully, intends hurt to the 
person of another [as Redding and his party intended to the accused], 
though he intend not death, yet if death ensue, is guilty of murder, or 
manslaughter, according to circumstances. As if A, intending to beat 
B, happen to kill him, if done from pre^-conceived malice, or in cool 
blood upon revenge, it will be no alleviation that he did not intend all 
the mischief that followed." — Same book, page 266. 

The learned author, in continuation of his illustrations, by niles laid 
down, says : 

" The above rules govern all the cases where divers persons resolve 
generally to resist all opposers in the commission of any breach of the 
peace, and to execute it with violence, or in such a manner as naturally 
tends to raise tumults and affrays, as by a violent disseizin, with great 
numbers, or to heat a man, or rob a park, or standing in opposition to 
the sheriff's posse, for they must, at their penl, abide the merit of their 
actions who wilfully engage in such bold disturbances of the public 
peace. In such cases the law adopts the presumption of fact that they 
came with intent to oppose all who should hinder them in their design." 
*-^ame book, page 257. 

As Judge Wilkinson's case differs somewhat from the others, and as 
some authorities may be applicable to his case, which may not apply to 
the others, I will, at this time, introduce the following general princi- 
ple, immediately following the last quotation and in the same book. 

g 135. *' And in all such instances, whether the breach of the peace 
were sudden or premeditated, not only officers, but even private 
persons, may interfere to suppress the riot, giving notice of such their 
intention, and much more may they defend themselves; and if, in so 
doing, they kill any of the rioters, if they could not otherwise accom- 
plish their purpose, it will be justifiable ; and the killing any person so 
interfering by any of the rioters, would be murder in all who took part 
in the fact or abetted thereto." — Same book, page 257. 

As Judge Wilkinson's case will turn somewhat upon the right of 
third persons to interefere and prevent a felony, such, for instance, as 



TRIAL OF JUDGE WILKINSON ET AL. 101 

Argument of Col. Robertson. 

the killing of another, I will continue my authorities, that I may be 
saved trouble hereafter. Lord Hale, in speaking upon this right of 
third persons to interfere for the purpose of preventing a felony, puts 
this case, viz : 

" If A, B and C be walking in company together, and C assault B, 
who flies, and is in danger of being killed from C's pursuit unless 
present help be afforded, and A thereupon kill C in the defense of the 
Ufe of B, it seems that in this case of such inevitable danger of the 
life of B, the killing of C by A is in the nature of self-defense, but it 
must plainly appear by the circumstances of the case as the manner of 
assault, the weapons with which it was made, etc., that B's life was in 
imminent danger." — Lord Hale, page 484. 

I will continue my authorities — Blackstone, speaking of crimes com- 
mitted by violence, says, '* For the one uniform principle that runs 
through our own, and all other laws, seems to be this, that where a 
crime, in itself capital, is endeavored to be committed by force, it is 
lawful to repel that force by the death of the party attempting " — 4th 
Blackstone, Chitty's edition, page 134. 

§ 136. " Homicide in self-defense, or se defendendo^ upon a sudden 
affray, is also excusable rather than justifiable by the English law. 
This species of seif-defense must be distinguished from that just now 
mentioned, as calculated to hinder the perpetration of a capital crime, 
which is not only a matter of excuse, but of justification. But the self- 
defense of which we are now speaking,, is that whereby a man may 
protect himself from an assault or the like, in the course of a sudden 
broil, or quarrel, by killing him who assaults him, and this is what the 
law expresses by the word chance-medley, or, as some rather choose to 
write it, chxiud-medley, the former of which in its etymology signifies a 
caguxd afiray, the latter an affray in the heat of blood or passion ; both 
of them of pretty much the same import." — Blackstone, page 135, 
Chitty's edition. 

" Homicide, or the killing of any human creature, is of three kinds, 
justifiable, excusable and felonious. The first has no share of guilt at all; 
the second, very little, but the third is the highest crime against the 
law of nature, that man is capable of committing." — 4th vol. Black- 
stone, page 178, Chitty's edition. 

Murder is described or defined by Sir Edward Coke to be " when a 
person of sound memory and discretion, unlawfully killeth any reas- 
onable creature in being, and under the King's peace, with malice 
aforethought, either express or imj)lied." — 4th Blackstone, page 195, 
Chitty's edition. 

The statute of Kentucky which prescribes the punishment of per- 
sons convicted of manslaughter, contains this proviso: ^'Provided 
always, that nothing in this act contained, shall extend to any person 



102 THE LA W OF HOMICIDE. 

Argument of Col. fiobertaon. 

who, shall kill another in sdj-defensc, nor extend to any other who 
shall kill another by chance, in keeping or ^reserving the peace, so as 
the said manslaughter be not committed willingly, and under color of 
keeping the peace." — Morehead & Brown's Digest, page 1294. 

§ 1 37. Gentlemen of the jury, I believe you now have all the authorities 
to which I shall have occasion to advert in the course of the remarks I 
shall address to you, and I have given them to you drawn together in 
one view, under the hope that you will bear them in mind, and know 
how to apply them to every branch of the case, as such branch may be 
presented in the argument. 

Let us now see what is the testimony before you, and by a short 
process of analysis, you will be enabled to make such an application of 
the law to the testimony as can not fail to conduct you to just and 
rational conclusions. I repeat, gentlemen, that I do not propose to go 
into any strict and rigid examination of the testimony ; the labor will 
be more than my feeble condition will bear. I shall take little more 
than a passing view of its general character, for I verily believe that 
you already understand the whole case as well as you will be able to 
do after discussion ; at least so far as my argument will go. 

I do not intend to trouble you with any argument upon the scenes 
which have been described as having happened at Redding's own 
house, in the afternoon of the day on which this tragedy was played at 
the Gait House, because they are separate and distinct matters, occur- 
ring at diflferent times, at different places and with diflferent men. 
Rothwell and Meeks, for the killing of whom the accused are now 
arraigned before you, were neither at Redding's when the difficulty 
about the coat took* place, and what occurred there, can not have any 
legal connection with the Gait House affair. We might, indeed, have 
prevented the evidence relating to w^hat happened at Redding's from 
going to your consideration, and with that view might have submitted 
a successful motion to the Court. But we had other objects in view. 
We wished nothing concealed which might affect the characters of our 
clients, and we wished, moreover, to show the malice which animated 
and moved the lawless band of conspirators with which the accused 
afterward had to contend. So far as it may be necessary to show this 
violent and malicious feeling on the part of Redding and his company, 
I may probably have occasion to refer to portions of the testimony 
showing the things which happened at Redding's house, because the 
danger which surrounded the accused at the Gait House can only 
be known by first showing in what state of feeling this lawless 
band entered the house in which the tragical scenes were afterward 
exhibited. 

Gentlemen of the jury, whether you shall view the case as an indi- 
vidual conflict between the slaters and the slain ; whether you view it 



TRIAL OF JUDGE WILKINSON ET AL. 103 

Ai^ument of Col. Robertson. 

as an affray of the moment, without previous concert, or whether you 
view it as a previously and deliberately formed conspiracy, maliciously 
entered into by Redding and his party, for the unlawful purpose of 
beating and disgracing the accused, they (the accused) stand equally 
justified or excused. View it as you may, place it in every varied 
aspect, and it is still a case of self-defense ; strictly so, by the most 
rigid construction of law. 

§138. This right of self-defense is not a right derived from munici- 
pal law, it is not a thing that has been taught us, we have not learned 
it from books ; it is a principle of our nature, born with us, and has 
grown with us, in feeling and in strength. It is the most important 
right which belongs to man by the law of nature ; it is his birthright, 
of which human power can not deprive him, and which man when he 
entered into the social compact, reserved to himself and to posterity — 
municipal law is a consequence^ and not a cause, of the social compact. 
Before man entered into a state of society, each one judged of the 
wrongs which he supposed he had sustained, and he took redress in 
that mode and manner which inclination and strength enabled him to 
do; this state of things could not long endure, for the strong would 
soon gain possession of all that belonged to the weak ; and thus all the 
principles of right and justice were broken down and destroyed. To 
remedy this, a plan was conceived by individuals of forming what is 
called the social compact. This social compact was an agreement 
amongst all that the general affairs of mankind should be regulated by 
law-makers, chosen or appointed in such mode as might be from time 
to time prescribed by supreme authority. The great object in view, at 
the time of agreeing to this social compact, was to secure individuals 
in the exercise of certain great and inalienable rights which belong to 
man as his birth-right, and of which posterity could not be deprived. 
Amongst these inalienable rights will be found the right of every per- 
son to defend his person, his property, and his habitation. Hence we find 
that municipal law, in all civilized countries, is constantly throwing new 
guards around these rights. You will be told, no doubt, by the learned 
counsel for the prosecution, that when an individual is unlawfully 
assaulted, he must only apply as much force in resistance, as will pre- 
vent the contemplated injury. This authority I shall not deny, but 
insist that, in this resistance, the party assaulted is the only judge of the 
degree to which it shall be carried, and if he has good reason to believe 
that nothing but killing his assailant will save him from being wounded, 
maimed or killed, then he is authorized to slay his assailant, and in this 
position I think I am well sustained by some of the authorities already 
rea^d to you. You will be told thot it was the duty of the accused to 
retreat to the wall, as the books call it, before a mortal blow could be 
given. Gentlemen of the jury, all this is true as a general proposition, 



104 THE LA W OF HOMICIDE, 

Argument of Gol. Bobertoon. 

but it has itfi limitations and exceptions. If a mail is already against a 
wall he can retreat no further ; this is one exception. If he is in his 
own house and is assaulted with a felonious design, he need not retreat; 
this IS another exception ; and if he is so fiercely attacked that the delay 
in retreating would place him in imminent danger, then he need not 
retreat ; and this is another exception. Whilst, therefore, the general 
rule may be very good, it is liable to at least these three exceptions. 

§ 139 (a). In approaching the testimony in this case, we are struck 
with the remarkable fact that every witness on both sides, who speaks 
upon this point, proves clearly that the first blows were given by 
Meeks and Kothwell, and, that these blows were inflicted by them upon 
Murdaugh. Strange enough, but perhaps just enough, that they who 
raised the tempest should be the first victims of its fury. Johnson (a 
witness for the Commonwealth) is the only witness on either side who 
does not distinctly state that the first blows were given by Meeks and 
Rothwell, and Johnson goes no further than to say that he believes 
mutual blows were given about the same time by Murdaugh and his 
assailants. As I shall have occasion to notice the testimony of this 
witness (Johnson) in the course of my remarks, I will let him alone 
for the present, and proceed with the evidence somewhat in the order 
in which it was introduced, beginning with that of Mr. Redding, and 
before I shall have done with him, I think you will agree with me 
that, upon this occasion, he is totally without credit as a witness, what- 
ever may be his claim to general good character. One of the rules of 
evidence, gentlemen, is that a witness must stand indifferent between 
the parties to entitle him to credit with a jury. Another rule is, that 
he must be consistent in his statement, and another is, that if his testi- 
mony shall be falsified in any material part, the falsification shall attach 
to the whole, and destroy the whole ; and I propose to show that these 
rules all rest heavily upon this witness, and that he is not entitled to 
credit in anything he has ^^tated to you. In the first place, what is his 
position ? Why, he tells us himself, that he is under contract to the 
counsel he has employed (Mr. Hardin) to pay him one thousand 
dollars for his services in this cause, and although the witness does 
not state it himself, yet the contract must have been made under 
circumstances which amounted to a declaration on the part of 
Redding, that he wished the accused capitally punished, if Mr. 
Hardin could procure it to be done, whether they were guilty or 
not, when judged by the principles of law. Now, gentlemen, look at 
the witness and his situation, and say, if you can, that he stands 
indifferent between the Commonwealth and the accused. If the 
witness has so far become the avenger of blood, as to give to counsel 



(a). See part II, g 474 as to self-defense ; also gg 475, 476 to g 486, inclusive. 



TRIAL OF JUDGE WILKINSON ET AL. 105 

Ai^gument of Col. Robertson. 

distinguished for talents, the large fee of one thousand dollars, do you 
not believe that he will, when called on to give testimony in the same 
case, either say things, or suppress things, which go to stifle truth, and 
make out a verdict oi guilty against the accused ? None can doubt the 
truth of this proposition, and I will not impeach your understandings, 
gentlemen, by supposing that any one can doubt for a moment upon 
the point. He is, then, for this reason, unworthy of credit. But he is 
liable to successful impeachment as a witness upon another ground, 
stiU more fatal to his credibility. He has stated that he had no 
acquaintance with Meeks at the time of this unfortunate tragedy, and 
that he had never seen him until their meeting at the Gait House on 
the evening of the afiray. He was cautioned and put upon his guard 
upon cross-examination, and was plainly told that there existed testimony 
upon this point, which would be introduced ; still he obstinately per- 
sisted in this statement, notwithstanding the solemn oath which he 
had taken to tell the whole truth. The nwtivc of this departure from 
truth was plain and clear. He knew that a deliberate conspiracy, 
fonned in the evening of the fatal night, between himself, Meeks and 
others, would be attempted to be proven, and he hoped to escape from 
the proof of this deliberately formed conspiracy by establishing the fact 
that he was a stranger to Meeks. Now, let us see whether he was a 
stranger to Meeks or not. Nathaniel Jackson, a witness for the 
accused, states that sometime after the aifair at Redding's shop, he was 
going by, and hearing an unusually loud talking, he went in to see 
who they were, and what was the matter. When he got into the room 
he found Redding, Johnson, Meeks and others, talking about the 
Wikinsons and their conduct. Propositions were made by Johnson, 
and perhaps Meeks, also, to go and take satisfaction. To this Redding 
did not readily assent, upon which Meeks said, " I will take satisfac- 
tion, any how." 

§140. Here, then, is proof conclusive and complete, that Redding did 
know Meeks before their meeting at the Gait House on the night of the 
affray ; according to Jackson, Meeks was in Redding's house, where it 
is not likely he would have been if he and Redding were strangers to 
each other; Meeks seemed to take a deep interest in the concerns of 
Redding, which a stranger would not be likely to do, and they spoke 
and conversed with each other freely and familiarly, which, it seems to 
me, strangers would not be likely to do. Another witness, whose name 
I can not now call, also spoke of seeing Meeks and Redding together 
before the Gait House affray ; but this is enough for my purpose ; it is 
sufficient to show that Redding departed from the truth when he stated 
that he was a stranger to Meeks, and the consequence is, destruction 
of his whole testimony. This, however, is not the only palpable mis- 
statement which he has made. You will remember, gentlemen, how 



106 THE LAW OF HOMICIDE. 

AjHgument of Col. Robertson. 

unwilling the witness was to state what time intervened between the 
fight at his own house and the aftray at the Gait House. Ue evaded 
the question as long as he could and in every way that he could ; at 
length, being compelled to answer, he s^iid the time was about half an 
hour. In making this statement, the witness plainly acted in obedience 
to a corrupt motive. He had heard counsel and others say something 
about time enough intervening between fighting and killing, to allow 
the blood to cool and the passions to subside. He thought that if he 
could make it appear that he and his party went to take revenge before 
the passions had time to cool, that then he would be excused for the 
violation of law which he committed. But what says Redmond, Mont- 
gomery and others, who are witnesses for the Commonwealth ? Why, 
they all say that the fight at Bedding's took place between three and 
four o'clock, and Everett, another witness for the Commonwealth, 
states that it was six o'clock and after, when the affray at the Gait 
House took place. Thus does the witness stand falsified upon another 
part of his testimony, and under the influence of motives that can not 
be misunderstood. Having placed him in such an attitude, I have not 
thought it necessary to combat anything more that he has said ; before 
I dismiss him, however, I will take a little further notice of him. 

§ 141. Bear in mind, gentlemen, that this witness is the life and soul 
of this prosecution ; that it was he Who marshaled his forces and brought 
on the battle, after which he was seen no more till the battle was over. 
He no sooner saw the fight begin than he called reflection to his aid. 
He discovered all at once that " discretion was the better part of valor," 
and, agreeing with the poet, he said to himself, — 

» "He who is in battle slain, 

Will never rise to fight again ; 
But he who fights and runs away, 
May live to fight another day." 

So, off he moves, gets out of the way of danger, and no witness who 
has testified knows where he was until all danger had passed. So much 
for John W. Redding, the most important witness on the part of the 
Commonwealth, whose testimony I am sure you will cast to the winds 
as utterly unworthy of the slightest degree of credit. 

The next witness for the prosecution deemed by the counsel as of 
any value, is the celebrated William Johnson. The witness is proven 
to be one of the conspirators and whose feelings must be presumed to 
be against the accused. He is a butcher by trade, and in his testimony 
has dealt so much in technicalities, that he has surprised us all. 
.Enough has been shown by his manner and language to demonstrate 
his total unworthiness. This is the witness who thinks that simulta- 
neous blows were given by Murdaugh and Meeks, and he stands con- 
tradicted by the whole of the witnesses on the same side. This is the 



TRIAL OF JUDGE WILKINSON ET AL. 107 

Argumeat of Col. Robertson. 

witness who tfainks that Murdaugh returned the blows which he 
received from Meeks and from Rothwell, although it is admitted that 
Murdaugh had nothing with which such blows could have been 
returned. 

§ 142. It is true that a knife is proven to have been in one of his 
hands, and with this knife he inflicted upon Meeks, no doubt, the 
mortal wound which caused his death ; and in doing this he did noth- 
ing more than he 'was justified in doing, as well by natural as by 
municipal law. He did not retreat because it is in proof that he 
already stood with his back against a counter; he did not retreat 
because the blows came so fiercely upon him that delay might have 
cost him his life ; he did not retreat because he was in a hotel as a 
boarder, the proprietors of which were bound to protect him as much 
as he might have protected himself in his own house, and, in truth, he 
was substantially in his own house in the eye of the law, at full liberty 
to defend himself against the felonious attack of all the world. If 
these things be true, and they are all proven before you, then Mur- 
daugh' s case stands protected and fortified by all those exceptions 
against the necessity of retreating, which I hav« already brought to 
your view from high authorities. But even if the testimony for the 
Commonwealth had not made out the points which I have here stated, 
the evidence on the part of the accused would far more than supply 
the deficiency. Rally, Pearson, Brown, Sutherland, Chambers, and 
many others, all state that they saw Meeks strike Murdaugh twice 
with a cow-hide, and most of them state that they saw Rothwell strike 
twice with a stick, and surely this is enough to put to flight all doubts 
which Johnson^s statement may have caHsed. In such a situation, what 
was Murdaugh to do ? The counsel on the other side will tell you, 
perhaps, that Murdaugh ought to have opposed as much force as might 
be necessary to prevent the contemplated injury. Gentlemen of the 
jury, Murdaugh is a man weighing rather more than a hundred pounds, 
and Rothwell is proven to have weighed more than one hundred and 
eighty pounds, whilst Meeks is admitted to have been a much larger 
man than Murdaugh ; and now I will ask you to tell me what degree 
of force could Murdaugh have applied, sh%rt of death, to prevent the 
contemplated injury ? He could apply none, as every one must admit. 

§ 143. What, then, ought to have been done ? Would you have him 
stand and receive in humble submission, the disgraceful infliction of 
stripes with a whip? No, gentlemen, when such an exigency arises, a 
jury of Kentucky will not stop to inquire into the provisions of law ; they 
will, with one voice, command the assaulted man to preserve his honor 
and his character by slaying, if necessary, him who seeks to degrade 
him. Gentlemen, the best way to test this thing is to put yourselves 
in Murdaugh' s place, and decide, each of you for yourself, what you 



108 THE LA W OF HOMICIDE 

Argument of Col. Robertaom 

would do, and as you would answer for yourself, so you will answer for 
Murdaugh. Imagine to yourselves a son who should submit to be 
publicly horse-whipped and then return to you and make an humble 
complaint against the wrong doer. How would you receive him ? I 
know that I speak as well the sentiments of the father as the mother, 
when I say that such a son would find no favor at home from father, 
mother, brother nor sister. His disgrace would be eternal, he would 
be loathed and scorned by his fellow men, and a foot ball to all who 
might choose to make him so. Murdaugh violated no law. He was 
assailed by a lawless band. He had already a counter at his back and 
could retreat no further, and he was in his own house, his castle of 
defense. In this situation he relieved himself by slaying his enemy. 
The alternative was kill or be killed ; he chose to kill, and in that choice 
he stands justified by every principle of divine, natural and municipal 
law. The witness Johnson also states that he saw Judge Wilkinson 
stab Meeks, and in this he stands unsupported by every other witness 
in the cause. 

g 144. The whole testimony shows that whilst Murdaugh stabbed 
Meeks in one part of the room, Judge Wilkinson was in another part 
of the room, and could not have given the stab of which Johnson 
speaks. Let this witness then be viewed in his manner, his conduct, 
and his position as one of the lawless band, and I take it for granted 
that you will consider him as entitled to no credit whatever. Besides 
all this, he stands contradicted by Nathaniel Jackson, who states that 
he saw Meeks, Redding, and Johnson together in Beddings coffee- 
house on the evening before this affray at the Gait House took place, 
which statement is denied by Johnson, and the motive of denial is too 
plain to be concealed. Jackson stands as fair as any witness ever did, 
and can have no possible motive for saying any thing but the truth. 
So much for Johnson and his testimony ; let him then sink into ever- 
lasting oblivion. The next witness whom I shall notice is Henry Old- 
ham, another of the conspirators, whose testimony is stamped w^ith 
falsehood upon every part of it. He states that he happened accident- 
ally at the Gait House that evening, that he knew nothing of any 
contemplated affray, and tilat he was aimed with a pair of pistols and 
a bowie-knife ; that whilst in the passage, some body cut his arm with 
a knife ; that it was too dark to distinguish clearly, but he thinks that 
the person who cut him was Dr. Wilkinson, who held in his hand a white- 
handled knife; that nothing else occurred to him, and that when 
Murdaugh or Judge Wilkinson was going up stairs, he (the witness) 
deliberately pulled out a pistol, loaded with a ball, which was cut into 
three pieces, and fired at the person going up stairs, and Everett, as 
well as other witnesses prove, that two holes were afterward found at 
the head of the stairs, in the door-caee, in the direction which he fired. 



TRIAL OF JUDGE WILKINSON ET AL. 109 

Argument of C!oi. Robertson. 

Now, gentlemen, I ask you to look at this testimony and reflect upon 
it; and when you have done so, tell me what you think of an, indi- 
vidual who boldly acknowledges before a court and jury that he went 
to the Gait House on the evening of the aiFray, armed, as I have stated, 
without a motive, and that he endeavored to take the life of an honora- 
ble man who had done him no wrong, by firing a loaded pistol deliber- 
ately at him. Tell me, gentlemaA, what you think of such an 
animal. For, really, I can not class him with human beings. The 
witness who will make such an acknowledgement would not hesitate 
to swear to anything which might, in his judgment, induce you to find 
a verdict of guilty, and I feel well assured that his whole statement will 
be disregarded by you. 

§ 145. The witnesses, Craig and Redmond, who have been examined 
by the Commonwealth, are proven to be the workmen of Redding, and 
at the time of the affray at Redding' s house, were living with him. I 
take it for granted that, even if their testimony was material, you would 
consider and decide upon it with great care and caution ; neither of 
them, however, has said anything worthy of notice, and I therefore 
pass them over. Thomas A. McGrath, also, has been examined on the 
part of the Commonwealth. This witness is of very high respectability; 
and has made his statement, I have no doubt, with strict regard to 
truth. His statement, when examined, will be found very beneficial to 
the accused. He proves the abusive language used by Redding to 
Judge Wilkinson, and which was soon followed by a general fight. 
This abusive language on the part of Redding, was, no doubt, agreed 
upon by the conspirators as a signal when the attack was to be made, 
and we accordingly find that an attack upon Murdaugh was made 
nearly about the time of this abuse of the Judge by Redding. But, 
gentlemen, I do not mean to make any further remark upon the testi- 
mony of McGrath. I know him well. I am satisfied that he is entitled 
to the highest credit. I hope, therefore that you will believe every 
word that he has said, and wl^en you look at his statement you will 
find that he has said much more in favor of the accused, than against 
them. As to the remaining witnesses examined on the part of the 
prosecution, I deem it unnecessary to consume your time in noticing 
what they have said. Not, indeed, because they are not entitled 
(many of them), to high credit, but because they have not said anything 
which materially affects the case, either on the one side or the 
other. The seeming discrepancy between the statements of most of 
the witnesses, and the statements of Robert Pope and Daniel Trabue 
will be examined when I come to the case of Judge Wilkinson, and 
you will then see that in truth the difference between the witnesses is 
easily explained and reconciled. 

§146. I now come to the case of Dr. Wilkinson, who really is 



110 THE LA W OF HOMICIDE, 

Aiyumeot of CxA. Bobeitaon. 

presented before you under very extraordinary circumstances. He 
has been arraigned before this court, gentlemen, upon two bills of 
indictment found against him /or murder, by a grand jury of Jefferson 
county, and I am justified in saying that this finding on the part of 
the Jefferson grand jury was without any evidence whatever, and as lam 
informed, without even the statement which has been made to you by the 
witness, Henry Oldham. It was this most extraordinary finding, gentle- 
men, that caused you to be troubled with this cause, and by looking well 
at this fact, together with other things which have come to your knowl- 
edge, you will be able to decide how far we have acted prudently, in 
taking the case out of the hands of a Louisville jury. (Jonviction we did 
not fear, but a divided jury was what we deprecated. The testimony 
against Dr. Wilkinson, which has been given before you, is not entitled 
to a moment's consideration. It is given by Oldham, who, from his 
own showing, is entitled to no credit, who unblushingly states that he 
aimed a deliberate shot at an unoffending individual. Why, gentle- 
men, such a man deserved to be cut down by all who came near him : 
for, according to his own account of himself, he was an enemy to the 
human race, and went to the Gait House armed — prepared to kill 
whomsoever he might choose. But even this witness, bad as he is, does 
not state positively that he was cut by Dr. Wilkinson ; at first he stated 
that the passage was so dark that he could not distinguish who it was, 
but being more closely examined by the counsel for the prosecution, 
he ixioh the track very kindly, and was not only able to distinguish feat- 
ures, but was also able to discover that the man held in his hand a knife 
with a white handle, plthough the handle of the knife must have been 
covered by the hand that held it, and the whole testimony as to time, 
must convince you that it was nearly dark. But the most remarkable 
fact about this witness is, that nobody has proven where he was cut, 
of what character the wound was, nor whether blood was drawn or not. 
Certain it is that he appeared before the examining court in Louisville, 
two days after he states the cut to have been received by him, as a wit- 
ness, apparently as well as anybody, and never pretended to exhibit 
the wound. I dismiss him without further comment at this stage of 
the argument, intending to take further notice of him by and by, when 
I shall come to speak more fully than I have done of the conspiracy 
that was formed by this band of lawless men. As no other witness has 
said one word to inculpate Dr. Wilkinson, as all have proven how 
badly and how causelessly he was beaten, I can not think it necessary 
to say one word more in his defense. There can not be a living man 
who will doubt his perfect innocence. 

g 147. Having disposed of the cases of Murdaugh and Dr. Wilkinson, 
I now come to the case of Judge Wilkinson, and candor requires me to 
say that it differs somewhat from the other two. It involves new prin- 



TRIAL OF JVDGE WILKINSON ET AL. HI 

Aigumentof Col. Bobertaon. 

ciples of law, and though these principles are somewhat different from 
those on which I have heretofore relied, yet they are not more difficult 
to understand, explain and apply. The case of Judge Wilkinson, as 
one of the individuals against whom the conspirators proceeded with 
their unlawful design, is controlled and governed by the same law which 
control and govern the cases of Murdaugh and his brother, in its gen- 
eral aspect, but has a new and additional feature, not to be found in the 
other cases, and which new feature involves the inquiry, how far third 
persons are authorized to interfere to prevent a felony. The attorney for the 
Commonwealth has read to you from Foster, authority, showing, as he 
contends, in what degrees of natural and artificial relations in life, third 
persons may interfere, and he quotes the only passage to be found in 
the book directly upon the point. The passage declares that third per- 
sons may interfere to prevent the killing of those who bear the rela- 
tions to each other of husband and wife, father and son, and servant 
and master ; and these being all the degrees of relationship which are 
given by the author, it is contended by the attorney that no others are 
allowable. Upon this point I join issue with my worthy adversary. 

§ 148. To the authority itself, I yield all the obligation that can be 
desired ; the difference between the attorney and myself, ^is this : He 
contends that the cases put by Foster are a limitation of the principle, 
whilst I insist that they are given by way of illustration of the principle. 
I contend that those cases belong to a numerous class of cases, of which 
the cases put by Foster are but examples. Why should not the brother 
be permitted to save the life of his brother, against an attempt to kill 
him, as well as that the son may save the life of his father, or the 
husband the wife, or the servant the master ? Does not the same 
reasoning apply ? In a diminished degree, I admit, but is it not the same 
principle, resting upon the same reasoning, and springing from the same 
feeling ? Surely these views are sound, and when the authority is well 
examined, in connection with the context, I think that but one opinion 
ought to prevail. If I am wrong in this view, gentlemen, then I must 
say that the interpretation given to this authority, by the attorney for 
the Commonwealth, will prove in its practical operation that such a 
law is against public opinion, and the laws of nature, and consequently 
can not and ought not to be enforced. Is it seriously contended, gen- 
tlemen of the jury, that a brother must stand by and witness a ruffian 
attack upon his brother and do nothing to relieve him? Must a 
brother permit his brother to be killed when he has it amply in his 
power to prevent it? Shall a brother hesitate to take the life of one 
who makes an unprovoked and felonious attack upon his brother? 
God forbid that a jury of our country should ever be found willing to 
render a verdict of guilty against a brother who kills the violent assail- 
ant of a brother under circumstances portending death, or great bodily 



112 THE LA W OF HOMICIDE, 

Argument of Col. Bobertson. 

harm to such brother. I can not agree, gentlemen, that such is the 
law, and if I could so agree I should not hesitate to denounce such 
doctrines and implore you to do the same thing rather than break 
down the walls of society, and scatter to the winds the cement which 
binds us together. But, if there were doubts upon this subject, the 
authority before read to you from Lord Hale will put to flight those 
doubts, for, in that case, a stranger is authorized and justified in killing 
one who attempts to commit a felony upon a stranger ; and the reason- 
ing is, that since the Commonwealth must lose one of her citizens, it is 
better to lose the had citizen than the good one, for, the felonious attack 
proves the one to be bad, whilst the other must be considered as a 
good citizen. 

§ 149. With this exposition of the law, let us inquire into the case 
of Judge Wilkinson, who stands indicted for the killing of Rothwell, 
and I think you will agree with me in saying that he stands justified or 
excused by every principle* of natural and municipal law ; and here, 
gentlemen, I shall assume as true, what I shall presently demonstrate 
by the evidence, that Judge Wilkinson, whilst in the bar-room of the 
hotel at which he was boarding, found himself in the same room with 
a band of lawless conspirators, who had associated themselves together 
for the purpose of seeking out himself and his companions, Murdaugh 
and Dr. Wilkinson, and, after finding them, to degrade and disgrace 
them by a public horse-whipping, and in the event of resistance, to take 
their lives with weapons which they carried with them for the purpose, 
and in contemplation of that resistance which they expected to find. 
Gentlemen of the jury, I have now reached the point at which I con- 
sider the most important developments in this whole transaction are 
to be made, as far as they can be made by a comparison of the law and 
the evidence, one with the other. I have reached a point in the argu- 
ment where I shall endeavor to unveil to you, from the evidence, one 
of the boldest combinations of lawless men, for the purpose of uproot- 
ing all the great principles of society, that ever attempted to execute 
their plans in the face of any civilized community, and from the con- 
summation of which they were prevented only by the firm and 
chivalric spirit which animated and sustained the accused in their 
determination of self-defense. 

g 150. In forming their plans the conspirators acted with great 
caution. They were very sensible of the outrage which they had 
determined to perpetrate, and evidently feared the consequences which 
might arise, and they prepared themselves with deadly weapons to rush 
into extremes. They formed a combination consisting of seven men, 
most of whom are distinguished for their athletic power. These seven 
men we have identified with the conspiracy by testimony not to be 
questioned. Their names are John W. Redding, William Johnson, 



TRIAL OF JUDGE WILKINSON ET AL. Hg 



Argumeut of Col. Robertson. 



Meeks. Marshall Halbert, Henry Oldham, Bill Holmes and John Roth- 
well, four of whom have been proven to be very stout and powerful 
men. Their object was to attack, beat, disgrace or kill the three weak 
and feeble men who stand indicted before you, and whose strength you 
can now judge of, by your own view. The history is this — Redding 
supposed, by an affray which had taken place at his shop between 
three and four o'clock of Saturday, the 15th of December last, that he 
had been injured and aggrieved. Whether he judged rightly or not, I 
shall not pretend to decide, because for this supposed wrong he has 
indicted the accused in a separate proceeding, and instituted a civil 
action to recover damages ; these indictments and civil suits are now 
depending and undetermined, and have no connection whatever with 
the case before you. After the supposed ii\jury at his shop had taken 
place, Redding called around him his advisers, and, after consultation 
it was determined that Bill Hobnes and others should be applied to, that 
a strong band of desperadoes should be fcHTned, and that they would 
proceed to the Gait House that night and take revenge of the " Missis- 
sippians," to use the language of some of the witnesses. They, accord- 
ingly met at the Gait House just before dark, and proceeded to execute 
their unlawful design ; in what way, and with what success, you are 
informed by the testimony. But it may be said that I have stated the 
conspiracy without proving the facts. Gentlemen, I know I have, but 
I mean to take up the testimony and prove that what I have stated is 
true ; andf in doing this, I shall consume as little of your time as pos- 
sible, because I feel very sure that you see this branch of the cause in 
the same aspect that I do. 

§ 151. The first witness to whose statement upon this point I shall 
call your attention is that of Nathaniel Jackson. He states that h« 
was passing by Redding' s shop soon after the fight there, and that the 
loud talking inside of the house induced him to go in and see what 
was the matter. Upon entering the house, amongst others who were 
there he found the unfortunate Meeks, Johnson and Redding. Propo- 
sitions to recruit and enlist men to do the very thing attempted, were 
made by Johnson and Meeks to Redding, in presence of the witness 
which was not agreed upon whilst the witness remained in the house, 
but he left them in the house talking the matter over. In the course 
of the same evening the witness met William Johnson on the street, 
when Johnson unhesitatingly proposed to the witness that he should 
joirj a party who were going to the Gait House that night to see Red- 
ding righted. The witness declined it, and, with other things, said that 
he belonged to the church and such conduct would not be proper in 
him, whereupon Johnson said, " Chnrch, hell or heaven" he ought to go. 
The witness and Johnson separated at this point. Jackson also st-ates 
8— H. 



114 THE LA W OF HOMICIDE. 



Aigument of Cul. Bobertmn. 



that whilst he was at Reddingf s shop William Johnson said to those 
around him, " If Jack [meaning John W. Redding] will only say the 
word we will go and get Bill Holmes and others, and give them hell" 
meaning the accused. This is the first link in one chain of testimony 
upon the formation of the conspiracy, and I beg, gentlemen, that you 
will bear it in mind. Our next witness is E. R. Deering, who states 
that in the eyening of the day before the meeting at the Gait House 
he met with William Johnson at the end of the market house and 
Johnson either proposed to the witness "to go along with the party, 
or that he was going after Bill Holmes and others to go to the Gait 
IIou.se." 

1 152. No matter which, either will answer my purpose. The wit- 
ness said to Johnson that if the Mississippians had heard of their 
design, they would be gone before the party could get to the Gait 
House ; whereupon Johnson replied that *' Enough were already gone 
to the Cralt House to take care of the Mississippians, and if they 
attempted to go away, their hides would not hoM shucks.'' The witness then 
separated from Johnson. This is the second link in a chain of testimony 
upon this point. Our next and last witness upon this point is Alfred 
Harris ; he states that, " In the course of the same evening, Johnson 
applied to him to make one of the party who were going to the Gait 
House to see Redding righted." Redding himself acknowledges that 
he had gone to the jail that night just before dark, and, as he returned, 
he called at John Roth well's and procured Roth well to go with him to 
the Gait House, and that they did go there together. Now, gentlemen, 
I ask you to put these Ikcts together and decide for yourself whether 
this man William Johnson was not the active man who (under a pre- 
vious arrangement no doubt,) was busily engaged in getting as many 
individuals to engage in this lawless and bloody affair as he could pro- 
cure ? Continue your view and see who were at the Gait House. Why, 
you will find the very names that I have mentioned all ready to do the 
bloody work. Are you not satisfied, gentlemen, that Redding succeeded 
in enlisting these men for the very purpose which I have mentioned, 
and have I not redeemed my promise, to make good the statement I 
made from the testimony ? But these conspirators seem to think that 
they would be able to deceive the public by proving, as they have proven, 
that they arrived at the Gait House separately, and at different times, 
and by different routes. Why, gentlemen, this is precisely what they 
would do under such circumstances, and the fact of their seizing upon 
this point is proof that they had looked at it before, and that they 
meant to use it. if necessary, upon any trial that might take place. 

§153. It is the very thing which satisfies my mind that all things 
had been talked in due season, and this arrangement had been agreed 
upon between them for the very purpose which they now attempted 



TRIAL OF JUDGE WILKINSON ET AL. 116 

Argument of Col. Robertson. 

to use it. They, no doubt, agreed to meet at the Gait House by a par- 
ticular hour, but that they must go separately, at different times, and 
by different streets, so as to keep down suspicion. But they did not 
succeed even in this, for their own witness (Everett), a very observing 
and intelligent man, and one of the occupiers of the Gait House, tells 
you, amongst other things, that as soon as he saw these strange faces at 
the Gait House in such, numbers he became alarmed, and knew that 
something rash would happen ; and further states that " He was satis- 
fied that if the affair at Redding s had not taken place, the men whose 
presence alarmed him would not have been there." Now, gentlemen, 
look at these words, and the witness from whom they came. The 
witness is an intelligent and honorable man, and he appears for the 
prosecution. From his awn statement, what was his opinion of what 
he saw at the time he was looking at these men ? Why^ clearly and 
obviously, that he believed these men had assembled themselves 
together at the Gait House to beat and take revenge for what had 
happened at Redding's shop. He saw it in their very look, manner 
and language, and this can not be doubted. Well, gentlemen, if 
Everett saw this by merely looking at the men, could not the accused 
also see the same things? And if they did, ought they not to piit 
themselves in a proper attitude for defense?* Surely you will agree 
with me in saying they ought, and, accordingly, when Judge Wilkinson 
came down stairs after having left the bar-room, he brought with him 
an eflScient weapon of defense. We have had much difficulty in prov- 
ing what arms these conspirators had with them, and, all things 
considered, it is wonderful that we have been able to prove so much on 
that point. Yet, we have proven that Redding had a bowie or dirk- 
knife, which he borrowed that evening from Mr. Fulton. We have 
also proven that Oldham had a pair of pistols and a bowie-knife. And 
we have proven that nearly all had knives and whips, and that one 
had a sword cane. 

§154. Thus, gentlemen, have I shown to you that this unlawful 
combination was deliberately formed, and that they proceeded to exe- 
cute their unlawful purpose toith malice aforethought ; though, according to 
law it would be entirely immaterial whether the conspiracy was entered 
into before or after they arrived at the Gait House. Their guilt is as bad 
in one case as the other. I will now return to the point from which I 
digressed in order to prove the conspiracy. Judge Wilkinson found 
himself and his comrades in the same room with seven strong, stout men, 
who, he could not doubt, had come thereto beat, disgrace and kill him- 
self and his companions, and perilous as was his situation, he remained 
in a cool, collected state of mind and feeling. To use the language of one 
witness, he looked like a philosopher. He had been grossly abused by 
Redding, but all he said was, " Keep your hands off me, or I will kill you'' 



116 THE LA W OF HOMICIDE, 

• ^ 

Aigument of CoL Bobertaon. 

He remained in the room whilst blood and death were dealing out 
around him. One man was already dead, and his eye was attracted to 
a part of the room where Bome man was down and several large men 
were beating him, amongst whom was the unfortunate Rothwell. He 
soon discovered that the man who was down was his brother, and his 
death seemed inevitable. In a situation so full of difficulty, what was 
Judge Wilkinson to do ? He hunself was wounded in the shoulder and 
scarcely able to continue the fight. But what was he to do ? Must he 
look on and see his brother beaten to death, or must he interfere and 
save him by using the weapon which he held in his hand? Say, gen. 
tlemen, what was he to do? What would you and each of you have 
done, if placed in the same situation ? Gentlemen, I know what you 
would have done, because I know what you ought to have done ; you 
would have done as Judge Wilkinson did, slay the man who was felo- 
niously engaged in slaying your brother. This is what every brave 
and gallant man ought to do under such circumstances, and his justi- 
fication will be found in the law of nature, in the case from Hale, as 
well as the general principles of municipal law, as already stated, in 
the approbation of his own conscience and in the plaudits of mankind, 
in every civilized community. 

§155. I am now »very nearly done with the evidence; but 
the testimony of Daniel Trabue and Robert Pope, very respectable 
gentlemen, and witnesses for the Commonwealth, differing some- 
what from others in relation to the place in the room where Roth- 
well was stabbed, I think it proper to make a single remark upon their 
statements, merely to show that the fact is not material, be it one way 
or the other. These witnesses state that they saw Judge Wilkinson 
stab Rothwell in a place in the room different from that stated by the 
other witnesses. Be it so'; bu£ remenlber that General Chambers states 
that when the attack was made on Dr. Wilkinson, the fighting went 
around the room until Dr. Wilkinson fell in a particular corner, and 
therefore it is not material at what place in the room the fatal stab was 
given, so that it was given while the Doctor was suffering a course of 
alarming and apparently felonious beating. But these witnesses must 
be mistaken, because General Chambers, who was a very deliberate 
observer, and has given his testimony with great clearness and compo- 
sure, says that he saw Rothwell beating Dr. Wilkinson at the time with 
a large stick ; that the stick had somewhat lost the firm grip of his 
hand, and while he was adjusting it, in order to recover his grip and 
aim a more efficient blow, Judge Wilkinson gave him his stabs, which, 
perhaps, caused his death, according to the opinions of some, but 
according to the opinions of Doctors Knight and McDowell, did not 
cause the death of Rothwell. but that his death was produced by a small 
wound in the breast, which penetrated the lungs, and which was given 
by an instrument very different from the bowie-knife held by Judge 



TRIAL OF JUDGE WILKINSON ET AL, 117 

Argument of CoL Bobertoon. 

Wilkintson. These two doctors were called on after death to make 
post mortem examination. Besides, the whole current of testimony sus- 
tains General Chambers in his statement, therefore his statement ought 
to preponderate. 

f 156. Gentlemen of the jury, I am approaching the close of my 
argument, and shall have but little occasion to again refer to the testi- 
mony. If Judge Wilkinson had not relieved his brother as he did, 
better would it have been for him if he never had been born. He 
could not again have looked society in the face, nor would he after- 
ward have received the countenance of any honorable man. In this 
country public opinion controls and governs the conduct of all men, 
and we are forced to act in obedience to it, whatever law to the con- 
trary may exist We wish not only to acquit these honorable. men, but 
we wish, by the aid of your verdict, to return them to their State and 
to their friends brightened by the severe crucible through which they 
shall have passed. We wish them to carry back with them the pure 
and spotless characters by which their integrity and morality were 
shielded when they left their homes in December last. 

To John W. Redding may be ascribed the bloody tragedy which has 
been discussed. To him belongs the death of Rothwell and of Meeks. 
If he is a man of feeling, the residue of his days will be dark and 
gloomy. The ghost of Banquo did not more terribly haunt the imag- 
ination of Macbeth, than will the ghost of Rothwell haunt and follow 
him through the remaining part of his life. Nor will he be able to say 
to the bloody ghost of Rothwell what Macbeth said to the bloody ghost 
of Banquo, *' You can not shake your gory locks at me ; you can not 
say 'twas I that did it." The ghost of Rothwell will shake its gory 
locks at him, and will say that, though you did not do it with your own 
bands, you caused it to be done by the hands of others. Upon R^d- 
ding's head rests the blood of the murdered Meeks and Rothwell, and 
the water of oceans will never be able to wash out the deadly stain. 
Lot him repose under this mighty weight with the best grace he can. 
I shall never again disturb him with its recital. 

§157. Gentlemen of the jury, 1 have endeavored to show to you 
that this unlawful attack upon the accused, made by the conspirators 
at the Gait House on the night of the 1 5th December last, was the 
fruit of a deliberate and malicious combination formed for the purpose 
some three or four hours before it was attempted to be executed, and 
if 1 have succeeded in this, then 1 ask you to apply the law which I 
have already read from the highest authority. This law declares that 
an attack made by one of an unlawful combination of many, is an 
attack by all, and that if any one be killed, that all who were com- 
bined, though some might be in another room of the same house, shall 
be equally guilty of murder, and consequently if one or more of the 



118 THE LA W OF HOMICIDE. 



Argument of Ck>l. Robertson. 



conspirators be killed, such killing shall be excusable according to 
English law, d^nd justifiable as I conceive, according to the proviso from 
the law of Kentucky, which I have also read to you. Nor is this the 
only view which you are to take of this branch of the subject. The 
attack of one of the unlawful combination being an attack by all, it 
follows irresistably that all of those who shall be attacked, may resist 
it at the moment the attack is made, and that, therefore, as soon as 
Murdaugh and Dr. Wilkinson were assaulted; Judge Wilkinson, 
though he himself might not have been struck, might interfere and 
prevent the felony which was contemplated, by killing such of the con- 
spirators as were engaged in the unequal combat. This is the law 
according to the authorities read, and that Murdaugh and Pr. 
Wilkinson were violently assaulted in the beginning of the aflFray, is 
clearly proven to you by the Commonwealth's own testimony. But 
Judge Wilkinson had also been attacked before he gave the mortal 
wound to Rothwell, for it is proven by the testimony that he had a 
wound in the shoulder two and half inches long and of dangerous 
direction, and therefore he was doubly justified in killing those who 
were engaged in this violent and unlawful combination. 

§ 158. It is due to the accused, gentlemen of the jury, that I should 
say something more of them before I close. I have known these gen* 
tlemen and their fathers before them, almost from their infancy. I 
knew them in our mother state, Virginia. They grew up into man- 
hood without a blemish upon their characters; they carried with them 
to their adopted state (Mississippi) the fairest and best reputations, 
and they have maintained their standing there without a blemish as 
you are told by the testimony. A regard for peace, a profound respect 
for the laws, a determination to conduct themselves towards all as 
good members of society should do, seem to be traits of character 
strongly stamped upon their whole course of life as the best members 
of society could desire. To believe, therefore, with all this evidence of 
good character and moral integrity before us, that they would want- 
only have attacked a set of strangers whom they never had seen before, 
would be to reverse the qualities of all human nature, and knowing 
them as well as I do, I would not believe it though witnesses from 
Heaven should come and testify to the facts. But the facts proven even 
by mortals do not show them guilty of any thing but a determination 
to defend themselves. Judge Wilkinson had come to Kentucky at 
the time for the purpose of executing and consummating the most 
important and holy contract which man can enter into. On the Tues- 
day of this bloody tragedy he was to take to his bosom as his wife, one 
of the most lovely girls of Kentucky, and all the considerations which 
spring from such a prospect naturally prompted him to avoid all per- 
sonal dangers. 



TRIAL OF JUDGE WILKINSON ET AL. 119 

\ 

Aigument of Col. Robertson. 

J 159. His natural disposition and his delicate situation at the time, 
united in keeping him thoughtful of his own safety ; and it would be 
one of the most violent of all presumptions to suppose that at such a 
time and under such circumstances, he would be found violating the 
law, and hazarding his own existence. No, gentleman, such an opin- 
ion can not for a moment be entertained. Necessity alone prompted 
him to action, and however tragical may have been the consequences, 
that necessity is the only thing which he deplores. A necessity forced 
upon him by a band of violent, athletic and lawless men, who sought 
him in his own house, to degrade and disgrace him by public chastise- 
ment. There is no part of the United States where a man would be 
punished for such conduct, and least of all. is it to be expected at the 
hands of a Kentucky jury, composed of men whose fathers fought them- 
selves into their homes, and were distinguished by a spirit of chivalry 
which enabled them to subdue every foe, and surmount every danger. 
With you, the descendants of such gallant sires, may safely be entrusted 
this, and every other cause which involves the sacred principles of 
honor. 

Before I take my seat, I beg leave to say one word to the distin- 
guished gentleman who has been employed to aid in this prosecution. 
I regret, most sincerely, regret, to see the practice of hired counsel in 
criminal cases gaining ground in this Commonwealth. Under its influ- 
ence the heart becomes corroded and steeled against all the sympathies 
of our nature. The learned gentleman who is aiding in this prosecu- 
tion, is to receive one thousand dollars for his services, and from the 
very nature of his bargain, as it has been proven, he must have under- 
taken to convict, if he can, whether the accused be innocent or guilty. 
Three times have we met him, first at the examining court, next at the 
circuit court of Jefferson, and now before this court. Here the gen err 
ous and gallant Hector takes his last, his final stand, and his fate is 
victory or death. Three times has he been pursued around the walft 
of Troy, and as he can not now speak for himself, I will speak for him 
and will use his own words : 

^•Too long, oh, son of Peleas, Troy has viewed 
Her walls thrice circled, and her chief pursued. 
But now, some god within me bids me try 
Thine or my fate, I kill thee, or I die. 
Come, then, the glorious conflict let us try. 
Let the steel sparkle, and the javelin fly.*' 

« 

§160. But the gentleman will probably say that the beautiful quo- 
tation which I have made from the still more beautiful Iliad, is neither 
an apt nor an appropriate illustration, since in the combat between 
Hector and Achilles, Hector wa^ vanquished and slain. In answer to 



120 THE LA W OF HOMICIDE. 

Argument of CoL Bobertaoo. 

which I say, that, in those ancient days the gods were supposed to hold 
in tlieir hands the fate of men and of nations, and that they invariably 
decided according to the principles of right and justice. In more mod- 
ern times, gentlemen of the jury, you have been substituted for the 
gods; you hold in your hands the fate of my gallant and much injured 
friends, and, not less. just than the gods, you, too, will decide accord- 
ing to right and justice. Do this, as I know you will, and we shall be 
content 

The distinguished gentleman who aids in this prosecution, has fur- 
nished us with some proof of the corroding influence upon the human 
heart, caused by a long indulgence in prosecution for alleged crimes. 
I am sure that nature gave him a kind and generous disposition, and 
that he is still possessed of these amiable qualities. I do not doubt but 
he has so long lent his aid in prosecutions of this kind, that he has 
brought himself " to look on blood and carnage with composure." He 
will doubtless make, as he has heretofore made, a bold and mighty 
effort to convict the accused, though in my judgment such conviction 
would be against both the law and the evidence. Neither the shrieks 
nor the tears of the lovely Andromache, nor the groans and lamenta- 
tions of the aged Priam, can stay him in his fierce pursuit ; the wife 
and the father sink into nothingness when compared with the glitter- 
ing f^e that awaits his efforts ; he has bargained for conviction, and he 
goes for his bond. Give it to him, gentlemen. Tell him to take his pound 
of flesh, but tell him at the same time, that if in cutting it he spills one 
drop of blood, Shylock himself shall be the only victim of the law. 

You have now heard this bloody history, gentlemen, in the best form 
permitted by my feeble health ; and whether you take it into consider- 
ation upon the exclusive testimony of the Commonwealth, or whether 
you view the testimony on both sides, your minds must arrive at the 
same conclusion. In either case I know that your verdict will be, not 

guilty. 

Gentlemen of the jury, in conclusion, I will say that if it were nec- 
essary, I would invoke the lovely beauty by which we are surrounded,(a) 
to aid me in a cause so just and holy. I would ask them to indicate to 
you their feelings in favor (as I know they are), of my persecuted and 
much injured friends ; for, after all, we exercise our energies, and are 
stimulated to generous and noble deeds for the sake of woman, and 
when she commands we are bound to obey ; take woman from the world 
and the dark planet is left without a sun. 

Gentlemen, I have done. So far as T am concerned the case is with 
you, and if law, justice and evidence can favor us in the cause, we 
dread not your verdict, for we have all on our side. 



(o.) About two hundred ladies were present. ' 



TRIAL OF JUDOE WILKINSON ET AL. 121 

Coniments oq Coansel. 
COMMENTS OK COUNSEL. 

§161. [The Prosecuting Attorney, Mr. Bullock, who opened the 
argument, is a young man, apparently not thirty years of age, and much 
respected for his private worth, as well as his promising professional 
abilities. It will be observed in his speech that he is more remarkable 
for a plain and common sense method of statement than for any ambi- 
tious straining after display. The matter in hand, and the honest 
enforcement of the law, as he conceives its bearing, principally occupy 
his thoughts and nerve his discourse. His manner is not deficient of 
ardor, but an ill-controlled diffidence, and some little affectation to 
conceal its awkward effects in delivery, with an occasional hesitation 
in choosing an expression exactly suitable to his meaning, too often 
check that flow of language which is essential to graceful oratory. 
Considerable allowance should, however, be made for a young lawyer 
of limited experience in such weighty causes as that now in progress, 
and especially in the presence of distinguished orators,* such as seldom 
can be congregated on a trial of this kind 

Col. Robertson is, perhaps, over sixty years of age, and but for the 
effects of feeble health, would probably look much younger. His 
appearance in person and manners is that of a polished gentleman of 
the old school, when amongst the shining lights of the Old Dominion, 
(for the Colonel is a native of Virginia), ruffied shirts, gold headed cAnes 
and starched frills, so appropriately graced the studied suavity of court 
manners. The Colonel's oratory partakes of the same gentlemanly and 
studied propriety, consequently it flavors more of cold declamation than 
fervid eloquence. But it is by no means deficient of flowing language, 
point, perspicuity, and strength of argument. In matters of law and 
research, the Colonel displays considei*able industry, as it will be 
observed that in his speech of scarcely an hour, he touched all the points 
of argument subsequently adverted to by his coadjutors. 

§ 162. At the conclusion of Col. Robertson's speech, which occupied 
nearly an hour in the delivery, the Hon. S. S. Prentiss arose, as 
expressed by the writer in his correspondence from Ilarrodsburg dur- 
ing the trial, " greeted by aspirations from the sweetest lips in the world 
—the fair enchantresses who hold the magic wand over man's happi- 
ness in this sublunary sphere. He would, indeed, be less than mortal 
if he could plead the cause of mercy before that gallery of lovely 
beings without impassioned eloquence ; and gloriously did Mr. Prentiss 
redeem the anticipations of many a throbbing bosom in that galaxy of 
beauty, where, to be enshrined' and cherished but for a moment, even 
by the electric spark of eloquent communion, were a rich reward." 

As this passage from the correspondence alluded to, and that which 
follows have both gone the rounds of the press, from one corner of the 



122 THE LA W OF HOMICIDE. 



Argument of Hon. S. S. Prentira. 



Union to the other, it may be fairly inferred the estimate given of the 
' observed of all observers,' is appreciated as it was meant, and they 
may with propriety be placed on permanent record here. 

*' Those who have seen and heard Mr. Prentiss will not be easily sat- 
isfied with any vain attempt to depict his merits. Those who have not, 
will hardly have their anticipations realized by any thing short of the 
opportunity of judging for themselves. 1 must content myself with 
giving a mere outline of my own impressions. His height is under 
the middle size, and person not remarkable for anything striking ; and 
although his countenance is pleasing and intellectual, and the forma- 
tion of his head favorable to the belief that he possesses a phrenological 
development of every superior mental organ, yet wanting that eleva- 
tion which a commanding figure alone can give, he would probably pass 
without exciting more than ordinary attention, if no occasion presented 
itself of calling his powers of eloquence into action. When he speaks, 
if he always speaks as he did on this occasion, it is indeed no wonder 
if he demonstrates in his own person, that the highest order of human 
genius, is that which is gifted with transcendent eloquence. He spoke 
with all the ardor of unconquerable friendship under varied excite- 
ments, and with a depth of feeling and power of expression which 
would take eloquence scarcely less than his own to describe. When he 
spoke of the undoubting faithfulness with which his heart clung to his 
frielid, Judge Wilkinson, through good report and through evil report, 
of the bright land which gave them birth, of the beloved State of their 
adoption, and of the sad fatality which had induced that unhappy deed, 
that placed him at the bar, a pleader, and his friend before that tribu- 
nal as an imputed criminal — his whole frame thrilled with an emotion 
which radiated like animal magnetism to every bosom in that vast 
assembly. Mr. Prentiss's style of oratory appears to me impassioned, 
glowing, and occasionally highly figurative ; always lofty and refined, 
yet nervous, manly and powerful. He sometimes sports gracefully with 
sarcasm, but seems to delight more in the extremes of eulogy or denun- 
ciation, than in the consecutive impressment of argument."] 

THE ARGUMENT OF HON. S. S. PRENTISS. 

§163. In three or four minutes after Colonel Robertson had con- 
eluded, the Hon. S. S Prentiss arose and addressed the jury as follows : 

May it please Your Honor, and you, Gentlemen of the Jury : I rise to 
address you with mingled feelings of regret and pleasure. 

I regret the occasion, which has caused me thus accidentally and 
unexpectedly to appear before you, and' has compelled you to abandon, 
for the time, the peaceful and quiet vocations of private life, for the 
purpose of performing the most important and solemn duty which, in 
the relations of civilized society, devolves upon the citizen. 



TRIAL OF JUDGE WILKINSON ET AL. 128 



Ai^ument of Hon. & & Prentiss. 



I regret to behold a valued and cherished friend passing through 
one of the most terrible ordeals ever invented to try human feelings or 
test the human character ; an ordeal through which, I do not doubt, he 
will pass triumphantly and honorably, without leaving one blot or stain 
upon the fair fame that has been so long his rightful portion, but 
through which he can not pass unscathed in his sensibilities and feel- 
ings. The lightning scar will remain upon his heart, and public justice 
herself can not, even though by acclamation through your mouths she 
proclaims his innocence, ever heal the wounds inflicted by this fierce 
and unrelenting prosecution, urged on, as it has been, by the demons of 
revenge and avarice. 

Most of all do I regret the public excitement which has prevailed in 
relation to these defendants, the uncharitable pre-judgment which has 
forestalled the action of law, the inhospitable prejudice aroused against 
them because they are strangers, and the attempt which has been, and 
is still making, to mingle with the pure stream of justice, the foul, bit- 
ter, and turbid torrent of private vengeance. 

But I am also gratified ; gratified that the persecution under which 
my friends have labored, is about to cease ; that their characters as well 
as the cause of public justice will soon be vindicated ; that the murky 
cloud which has enveloped them will be dissipated, and the voice of 
slander and prejudice sink into silence before the clear, stern, ^truthful 
response of this solemn tribunal. 

§ 164. The defendants are particularly fortunate in being ^ried 
before such a tribunal. The bearing and character of His Honor who 
presides with so much dignity, give ample assurance that the law will 
be correctly and impartially laid down ; and, I trust I may be permitted 
to remark that I have never seen a jury in whose hands I would sooner 
entrust the cause ot my clients, while, at the same time, I am satisfied 
you will do full justice to the Commonwealth. 

I came before you an utter stranger, and yet I feel not as a stranger 
toward you. I have watched during the course of the examination 
the various emotions which the evidence was so well calculated to 
arouse in your bosoms, both as men and as Kentuckians ; and when I 
beheld the flush of honorable shame upon your cheeks, the sparkle of 
indignation in your eye, or the curl of scorn upon your lips as the foul 
conspiracy was developed, I felt that years could not make us better 
acquainted. I saw upon your faces the mystic sign which constitutes 
the bond of union among honest and honorable men, and I knew that 
I was about to address those whose feelings would respond to my own. 
I rejoiced that my clients were, in the fullest sense of the term, to be 
tried by a jury of their peer&. 



■■■■i^^^H^ '^ 



124 THE LA W OF HOMICIDE. 

Argument of Hon. S. S. Prentin. 

§ 165. Gentlemen of the jury, this is a case of no ordinary character 
and possesses no ordinary interest. Three of the most respectable 
citizens of the State of Mississippi stand before you indicted for the 
crime of murder, the highest offense known to the law of the land. 

The crime is charged to have been committed not in your own 
county, but in the city of Louisville, and there the indictment was 
found. The defendants during the past winter, applied to the Legis- 
lature for a change of venue and elected your county as the place at 
which they would prefer to have the question of their innocence or 
guilt investigated. 

This course, at first blush, may be calculated to raise in your minds 
some unfavorable impressions. You may naturally inquire why it was 
taken ; why they did not await their trial in the county in which the 
offense was charged to have been committed ; in fine, why they came 
here? I feel it my duty before entering into the merits of this case, 
to answer these questions and to obviate such impressions as I have 
alluded to, which, wjthout explanation, might very naturally exist 

In doing so it will be necessary to advert briefly to the history of the 
case. 

My clients have come before you for justice. They have fled to you 
even as to the horns of the altar, for protection. 

g 166. It is not unknown to you that upon the occurrence of the 
events, the character of which you are about to try, great tumult and 
excitement prevailed in the city of Louisville. Passion and prejudice 
poured poison into the public ear. Popular feeling was aroused into 
madness. It was with the utmost diflSculty that the strong arm of the 
constituted authorities wrenched the victims from the hands of an infu- 
riated mob. Even the thick walls of the prison hardly afforded protec- 
tion to the accused. Crouched and shivering upon the cold floor of their 
gloomy dungeon, they listened to the footsteps of the gathering crowds, 
and ever and anon, the winter wind that played melancholy music 
through the rusty grates was drowned by the fierce howling of the 
human wolves who prowled and bayed around their place of refuge 
greedy and thirsting for blood. 

Every breeze that swept over the city bore away slander and false- 
hood upon its wings. Even the public press, though I doubt not 
unwittingly, joined in the work of injustice. The misrepresentations 
of the prosecutor and his friends became the public history of the 
transaction, and from one end of the Union to the other these 
defendants wore held up to public gaze and public execration as foul, 
unmanly murderers, and that, too, before any judicial investigation 
whatever had occurred, or any opportunity been afforded them for 
saying a single word in their defense. 



TRIAL OF JUDGE WILKINSON ET AL. 125 



Argument of Hon. S. S. Prentiss. 



§ 167. I recollect well when I received the first information of the 
afiair. It was in some respectable newspaper, which professed to give a 
full account of the transaction, and set forth with horrible minuteness 
a column of disgusting particulars. 

Instantly, openly and unhesitatingly, I pronounced the. paragraph 
false, and tramped it under my heels. When rumor seemed to endorse 
and sustain the assertions of the public prints, I laughed her to scorn. 
I had known Judge Wilkinson long and well. I knew him to be 
incapable of the acts attributed to him, or of the crime with which he 
was charged. Not an instant did I falter or waver in my belief. I 
hurled back the charge as readily as if it had been made against myself. 
What! A man whom I had known for years as the very soul of honor 
and integrity, to be guilty, suddenly and without provocation, of a base 
and cowardly assassination ! One whose whole course of life had been 
governed and shaped by the highest moral principle ; whose feelings 
were familiar to me ; whose breast ever had a window in it for my 
inspection, and yet had never exhibited a cowardly thought or a dis- 
honorable sentiment ; that such a one, and at such an era in his life, 
too, should have leaped at a single bound the wide gulf which separates 
vice from virtue, and have plunged at once into the depths of crime 
and infamy ! Why, it was too monstrous for credence. It was too gross 
for credulity itself Had I believed it, I should have lost all confidence 
in my kind. I would no longer have trusted myself in society where 
80 slender a barrier divided good from evil. I should have become a 
man-hater, and, Timon-like, gone forth into the desert, that I might 
rail with freedom against my race. You may judge of my gratification 
in finding the real state of facts in the case responsive to my own 
opinion. 

§ 168. I am told, gentlemen, that during this popular excitement 
there were some whose standing and character might have authorized 
the expectation of a different course of conduct, who seemed to think 
it not amiss to exert their talents and influence in aggravating instead 
of assuaging the violent passions of the multitude. I am told that 
when the examination took place before the magistrates every bad 
passion, every ungenerous prejudice, was appealed to. The argument 
was addressed, not to the court, but to the populace. 

It was said that the unfortuate individuals who fell in the affray 
were mechanics, while the defendants were Missisdppians — aristocratic 
^lave holders — who looked upon a poor man as no better than a negro. 
They were called gentlemen in derision and contempt. Every instance 
of violence which has occurred in Mississippi for years past was 
brought up and arrayed with malignant pleasure, and these defend- 
ants made answerable for all the crimes which, however much to be 
regretted, are so common in a new and rapidly populating country. 



12e THE LA W OF HOMICIDE 

Aigument of Hon. 8. 8. Prentin. 

It was this course of conduct and this state of feeling which induced 
the change of venue. I have made these remarks because I fear that a 
similar spirit still actuates that portion of this prosecution which is 
conducted, not by the State, but private individuals. 

§ 169. I am not aware that the Commonwealth of Kentucky is incap- 
able of vindicating her violated laws, or unwilling to prosecute the per- 
petrators of crime. The district attorney has given ample proof that 
she is provided with officers fully capable of asserting her rights and 
protecting her citizens, and with the exception of one or two remarks, 
which fell from him inadvertently, I accord to his observations my 
most unqualified approbation. He has done equal justice to the State 
and the defendants; he has acquitted himself ably, honorably, and 
impartially. But, gentlemen, though the State is satisfied the prosecu- 
tor is not. Your laws have spoken through their constituted agent; 
now private vengeance and vindictive malice will claim to be heard. 
One of the ablest lawyers of your country, or of any country, has been 
employed to conduct the private part of this prosecution ; employed, not 
by the Commonwealth, but by the real murderer; him whose forehead 
I intend, before I am done, to brand with the mark of Cain — that in 
after life all may know and all may shun him. The money of the pros- 
ecutor has purchased the talent of the advocate, and the contract is, 
that blood shall be exchanged for gold. The leirned and distinguished 
gentleman to whom I allude, and who sits before me, may well excite 
the apprehension of the most innocent. If rumor speak truth he has 
character sufficient, even though without ability, and ability sufficient, 
even without character, to crush the victims of his purchased wrath. 

I said that with the exception of one or two remarks, I was pleased 
with the manly and honorable course of the Commonwealth's attorney. 
These remarks seemed to be more in the spirit of his colleague than in 
accordance with his own feelings. 

§170. I was sorry to hear him mention so pointedly, and dwell so 
long upon the fact that the defendants were Mississippians, as if that 
constituted an ingredient in their crime or furnished a proof of their 
guilt. K to be a Mississippian is an offense in my clients, I can not 
defend them; J am myself porticeps criminis. We are all guilty. With 
malice aforethought, we have left our own bright and beautiful homes, 
and sought that land, the name of which seems to arouse in the minds 
of the opposing counsel only images of horror. Truly the learned gen- 
tlemen are mistaken in us ; we are no cannibals nor savagas. I would 
that they would visit us and disabuse their minds of these unkind 
prejudices. They would find in that far country thousands of their own 
Kentuckians who have cast their lot by the monarch stream, in the 
enjoyment of whose rich gifts, though they forget not, they hardly 
regret the bright river upon whose banks they strayed in childhood. 



TRIAL OF JUDGE WILKINSON ET AL. 127 

Ai^m^it of Hon. S. S. Prentiss. 

No State has contributed more of her sons to Mississippi than Ken- 
tucky, nor do they suffer by being transplanted to that genial soil. 
Their native State may well be proud of them as they ever are of her. 

But I do injustice to you and to myself by dwelling upon this matter. 
Here in the heart of Kentucky my clients have sought and obtained 
an unprejudiced, impartial jury. You hold in your hands the balance 
of justice ; and I ask and expect that you will not permit the prosecu- 
tion to cast extraneous and improper weights into the scale, against the 
lives of the defendants. You constitute the mirror, whose office it in 
to reflect, in your verdict, the law and the evidence which have been 
submitted to you. Let no foul breath dim its pure surface and cause 
it to render back a broken and distorted image. Through you now 
flows the stream of public justice ; let it not become turbid by the 
trampling of unholy feet. Let not the learned counsel who conducts 
the private part of this prosecution act the necromancer with you, as he 
did with the populace in the city of Louisville, when he raised a 
tempest which his own wizard hand cojild not have controlled. 

§171. Well may he exclaim in reference to that act, like the foul spirit 

in Manfred : 

" I am the rider of the wind, 
The stirrer of the storm ; 
The hurricane I left behind 
Is yet with lightning warm." 

Aye, 80 it is still " with lightning warm." But you, gentlemen, will 
perform the humane office of a conductor, and convey this electric fluid 
safely to the earth. 

You will excuse these prefatory observations ; they are instigated by 
no doubt of you, but by a sense of duty to the defendants. I wish to 
obviate in advance, the attempts which I know will be made to excite 
against them improper and ungenerous prejudices. You have seen in 
the examination of one of the witnesses, Mr. Graham, this very day, a 
specimen of the kind of feeling which has existed elsewhere, and 
which I so earnestly deprecate. So enraged was he because the defend- 
ants had obtained an impartial jury, that he wished the whole Legisla- 
ture in that place not to be mentioned to ears polite, and that he might 
be the fireman ; and all on account of the law changing the venue. 
Now, though 1 doubt much whether this worthy gentleman will be 
gratified in his benevolent wishes in relation to the final destiny of the 
Senate and House of Representatives of this good Commonwealth, yet 
I can not but believe that his desires in regard to himself will be accomp- 
lished, and his ambitious aspirations fully realized in the ultimate 
enjoyment of that singular office which he so warmly covets. 

§172. Gentlemen of the jury — I ask for these defendants no sym- 
pathy, nor do they wish it. I ask for them only justice — such -justice 



128 THE LA W OF HOMICIDE. 

Aigument of Hon. S. S. Preotiss. 

alone as you would demand if you occupied their situation and they 
yours. They scorn to solicit that from your pity which they challenge 
from your sense of right. 1 should ill perform toward them the 
double duty which I have assumed, both of friend and advocate, did I 
treat their participation in this unfortunate transaction otherwise than 
candidly and frankly ; did I attempt to avoid responsibility by exciting 
commiseration. I know that sooner than permit deception and con- 
cealment in relation to their conduct, they would bare their necks to 
the loathsome fingers of the hangman, for to them the infamous cord 
has less of terror than falsehood and self-degradation. 
That these defendants took away the lives of the two individuals 

■ 

whose deaths are charged in the indictment, they do not deny. But 
they assert that they did not so voluntarily or maliciously ; that they 
committed the act from stern and imperative necessity ; from the 
promptings of the common instincts of nature ; by virtue of the broad 
and universal law of self-defense; and they deny that they have 
violated thereby the ordinances of either God or man. They admit the 
act, and justify it. 

§ 173. The ground of their defense is simple, and I wiil state it so 
that it can not be misapprehended. They assert, and I shall attempt 
from the evidence submitted to convince you that a conspiracy was 
formed by Mr. Redding, the prosecutor, and various other persons, 
among whom were the deceased, to inflict personal violence upon 
them ; that the conspirators, by preconcerted agreement, assembled at 
the Gait House, in the city of Louisville, and attempted to accomplish 
their object ; and that, in the necessary, proper, and legal defense of 
their lives and persons from such attempt, the defendants caused the 
deaths of two of the conspirators. After discussing this proposition, I 
shall submit another, which is, that even though a conspiracy on the 
part of the deceased and their companions, to inflict personal violence 
and bodily injury upon the defendants, did not exist, yet the defend- 
ants had reasonable ground to suppose the existence of such a con- 
spiracy, and to apprehend great bodily harm therefrom ; and that upon 
such reasonable apprehension they were justified in their action, upon 
the principle of self-defense, equally as if such conspiracy had in point 
of fact existed. («). 

The law applicable to these two propositions is simple, being, in fact, 
nothing more than a transcript from the law of nature. The principles 
governing and regulating the right of self-defense are substantially the 
same in the jurisprudence of all countries — at least all civilized ones. 
These principles have been read to you from the books by my learned 
and excellent friend Col. Robertson, and require no repetition. 

(a). Ab to self-defense mnd reasonable apprehension, see post H 474, 485, 486. 



TRIAL OF JUDGE WILKINSON ET AL. 129 

Argument of Hon. S. S. Prentiss. 

§ 174. That a man has a right to defend himself from great bodily 
harm, and to resist a conspiracy to inflict upon him personal violence 
if there is reasonable danger, even to the death of the assailant, will 
not, I presume, be disputed. That reasonable, well-grounded apprehen- 
sion, arising from the actions of others of immediate violence and 
injury, is a good and legal excuse for defensive action, proportionate to 
the apparent impending violence and sufficient to prevent it, I take to 
be equally indisputable. 
• By these plain rules and upon, these simple principles, let us pro- 
ceed to test the guilt or innocence of the defendants. 

First, then, as to the existence of the conspiracy. Before examining 
the direct evidence to this point, you will naturally inquire, was there 
any cause for this alleged conspiracy? Motive always precedes 
action. Was there any motive for it ? If we establish the existence of 
the seed, we shall feel less hesitation in being convinced of the pro- 
duction of the plant. Was there, then, any motive on the part of Mr. 
Redding and his friends for forming a combination to inflict personal 
violence upon the defendants? In answering this question it will be 
necessary to take notice of the evidence which has been given in 
relation to events that transpired at the shop of Mr. Redding at a 
period anterior to the transaction at the Gait House, and which, except 
for the clue they afford to the motive, and consequently to the subse- 
quent action of the parties, would have no bearing upon the case before 
you. You will take heed to remember that whatever of impropriety 
you may consider as attaching to the conduct of Judge Wilkinson and 
his friends during this part of the affair, must not be permitted to 
weigh in your verdict, inasmuch as that conduct is the subject of 
another indictment which is still pending in this court. 

§ 175. Judge Wilkinson visited Louisville for the purpose of making 
the preparations necessary for the celebration of his nuptials. The 
other two defendants had also their preparations to make, inasmuch 
as they were to act as his friends upon this interesting occasion. 
Dr. Wilkinson, a brother of the Judge, had ordered a suit of clothes 
of Mr. Redding, who follows the very respectable occupation of tailor, 
occasionally relieved and interspersed by the more agreeable pursuits 
of a coffee-house keeper. On the day but one preceding that fixed for 
the iharriage ceremonies, the Doctor, in company with his brother and 
friend, Murdaugh, proceeded to the shop of Mr. Redding for the pur- 
pose of obtaining the wedding garments. Upon trying on the coat it 
was found ill-made and of a most ungraceful fit. It hung loosely 
about his shoulders, and excited by its awkward construction the 
criticism and animadversion of his friends. Even the artificer did not 
presume to defend the work of his own hands, but simply contended 
9— H. 



130 THE LAW OF HOMICIDE, 

Aigument of Hon. S. S. PrentisB. 



that he could re-organize the garment and compel it, by his amend- 
ing skill, into fair and just proportions. From the evidence I presume 
no one will doubt that it was a shocking bad coat. Now, though under 
ordinary circumstances, the aptitude of a garment is not a matter of 
very vital importance in the economy of life, and ought not to become 
the subject of controversy, yet all will admit that there are occasions 
upon which a gentleman may pardonably indulge a somewhat fastidi- 
ous taste in relation to this matter. Doctor Wilkinson will certainly 
be excused, considering the attitude in which he stood for desiring a .. 
a well made and fashionable coat. 

§ 176. I confess 1 am not a vei'y good judge in concerns of this sort. 
I have had no experience on the subject, and my investigations in 
relation to it have been exceedingly limited. Under favor, however, 
and with due deference to the better judgment of the learned counsel 
on the other side, I give it as my decided opinion that a gentleman 
who is about to participate in a marriage ceremony is justified in refus- 
ing to wear a coat, which, by its loose construction and superabundant 
material, indicates, as in the case before us, a manifest want of good 
husbandry. 

Suffice it to say. Dr. Wilkinson and his friends did object to the 
garment, and Mr. Redding, after some altercation, consented to retain 
it. The pantaloons, which constituted a part of the suit, had been 
sent to the hotel, and the doctor was in the act of paying for them out 
of a $100 bill, which he had previously deposited with Mr. R., when 
the Judge remarked that he had better not pay for the pantaloons 
until he had first tried them on, as they might be found to fit no bet- 
ter than the coat. Mr. Redding, according to his own evidence, 
responded that ^' they had said too much already about the matter," 
to which the Judge, he says, replied that he did not come there to be 
insulted, and immediately seized the poker and struck him, upon which 
the Doctor and Mr. Murdaugh also fell on him with their knives 
drawn. Redding then seized his shears but did not succeed in cab- 
baging therewith any part of his assailants. He was ^ccessful, how- 
ever, in dragging the Judge into the street, where, after a slight scuffle, 
which resulted in no personal injury to any of the parties, they were 
separated. After the separation Redding offered, if they would lay 
down their knives, to fight them all. This kind proposition the 
defendants declined, but the Doctor returned into the shop, obtained 
his $100 note, and then the defendants retired from the place. 

g 177. Sucji, in substance, is Mr. Redding's own account of the 
transaction at his shop. The witness, Weaver, also proves the alterca- 
tion which occurred in relation to the fit of the coat and the' scuffle 
which ensued in consequence. He, however, avers that Redding, in a 
very insulting manner, told the Judge that he *' was more meddlesome 



TRIAL OF JUDGE WILKINSON ET AL. 131 



Aif^i^ent of Hon. S. S. Prentiss. 



than the other," and that he " was too d — d meddlesome," or words to 
that effect, which insulting language so excited the Judge that he 
seized the poker and commenced the assault. 

The other witness, Craig, Reading's journeyman, testifies, in substance, 
the same as Redding as to what passed in the shop-; corroborates his 
account of the altercation about the coat, and says that he considered 
Dp. Wilkinson, not as assisting in the affray, but as attempting to 
separate the parties. Some of the witnesses think that the Doctor 
attempted, in the street, to stab Redding as he was getting advantage 
of his brother. The evidence on this point, as well as in regard to the 
conduct of Murdaugh, is somewhat contradictory. In the view, how- 
ever, which I have taken of the case, the discrepancy is of little 
importance. 

It is clearly proven, take the evidence in any way, that Mr. Redding 
used insulting language toward Judge Wilkinson on account of the 
Judge's expression of an opinion in relation to the fit of his brother's 
coat. What was the exact language used, it is difficult to ascertain. 

§ 178. There were six persons in the room when the quarrel ensued 
—on the one side the prosecutor (Redding), his foreman (Craig), and 
the boy, (Weaver ); on the other, the three defendants. 

All the evidence on this point has been derived from the first party, 
and ought, consequently, to be taken with many grains of allowance. 
The prosecutor has given you his version of the affair, but his cunning 
has prevented the defendants from giving you theirs. Br. Wilkin- 
son, who was discharged by the examining magistrate, has been 
included in the indictment, one would judge, for the very purpose of 
precluding his testimony. No one can doubt that the conduct of 
Judge Wilkinson, however reprehensible, resulted from the abusive 
language and insulting demeanor of Mr. Redding. The happy facility 
with which he indulged, on a subsequent occasion, in the use of oppro- 
brious epithets, gives good reason to suppose that his remarks on the 
present were not very guarded. The expression deposed to by Weaver 
is, I presume, but a sample. " You are too d — d meddlesome," was 
the observation accompanied, no doubt, by the overbearing and bully-; 
ing manner which illustrated his conduct afterward, and which 
smacked more of his spiritual pursuit as the Ganymede of a coffee- 
house than of his gentle calling as a knight of the shears and thimble. 
He certainly did on this occasion, " sink the tailor," for tailors are 
proverbially polite and gentlemanly in their deportment. 

§179. I do not wish to be considered as justifying Judge Wilkinson 
or his friends in taking notice of the petulant and insolent conduct of 
Redding. I think they would have better consulted their character 
and feelings by treating him with contempt. I will go further, and 
candidly admit that I consider th^ir course reprehensible; that it 



132 THE LA W OF HOMICIDE. 

Aigumeiit of Hem. S. 8. Prentiss. 

resulted from passion and sudden excitement, and not from deliberate 
determination. They were themselves convinced of this in a moment, 
and left the ground, ashamed, as they still are, of their participation in 
the matter — Judge Wilkinson rebuking and leading away his young 
and more ardent friend, Murdaugh, who seemed to indicate some dis- 
position to accept the boastful challenge of Mr. Redding, that " He 
could, if they would lay down their knives, whip them all three." From 
all the evidence it is perfectly clear that, in the altercation, no personal 
injury resulted to any of the parties; that the defendants retired vol- 
untarily from the quarrel, while Mr. Redding retained the field, and 
with boastful taunts and insulting outcries, invited a renewal of the 
fight. The Mississippians were manifestly satisfied. Not so Mr. Red- 
ding; he was/' full of wrath and cabbage," boiling over with violence, 
and breathing defiance and vengeance against the retreating foe. He, 
doubtless, retired to his coffee-house and attempted to soothe his 
wounded feelings with some of the delightful beverages which it was 
occasionally his profitable province to dispense to others. Here his 
friends gathered around him; he recounted to them his manifold griev- 
ances; he grew warm in the recital; the two white-handled pocket- 
knives which had been drawn but not used in the affray, danced before 
his distempered imagination in the shape of trenchant and death- 
dealing blades. These little instruments of ordinary and general use, 
became, at once, bowie-knives, " in buckram." He believed, no doubt, 
and made his friends believe, that he was an injured man, and that 
some satisfaction was due to his insulted honor. I have presented this 
part of the case to you simply for the purpose of enabling you to 
judge of the subsequent action of the parties, and to indicate on which 
side a desire for vengeance, and a combination to obtain it were most 
likely to originate. Upon the conclusion of the first affray which party 
would you have suspected of a disposition to renew it ? Where could 
lie the motive on the part of Judge Wilkinson and his friends for 
additional violence? But who that is acquainted with the workings of 
human nature, or the indications of human feeling, will hesitate a 
moment in believing that revenge lurked in the bosom of Redding, and 
sought only a safe opportunity for development ? His conduct indi- 
cated a state of mind precisely fitted for the formation of a conspiracy, 
g 180. Having laid the foundation, I will now proceed to the erection 
of the superstructure. I will show first by the direct and then by the 
circumstantial proofs, the existence of this foul and cowardly conspir- 
acy. I will, however, here remark, that I doubt not the misrepresen- 
tations and falsehoods of Mr. Redding, in relation to the transaction, 
induced several of theper.sons implicated to join the combination, who, 
with a correct knowledge of the facts, would never have participated 
in the affair. 



TRIAL OF JUDGE WILKINSON ET AL. 183 

Ai^ument of Hon. S. S. Prentiss. 

First, then, as to the direct and positive evidence. Mr. Jackson says 
that immediately after the first affray he was pad^sing Mr. Bedding's, 
when his attention was attracted by loud talking in the store, which 
induced him to enter, where he found Redding, Johnson and Meeks. 
Johnson was expressing his opinion as to the course which should be 
pursued toward the Mississippians for their conduct, and said they 
"ought to go to the Gait House and flog them." " Jack," said he to 
Mr. Redding, "just say the word, and I'll go for Bill Holmes, and we'll 
give them hell," at the same time boasting in his own peculiar phrase- 
ology, that " he was as much manhood as was ever wrapped up in so 
much hide." Upon some hesitation being evinced at this proposition, 
Meeks said, " Let's go any how and we'll have a spree," 

Mr. Jackson further deposes that some time after, he was stopped by 
Johnson , on the street, who told him he was going after Holmes; that 
Jack Redding was a good man, and that he, Jackson, ought to go with 
them to the Gait House and see him righted. Jackson declined, alleg- 
ing as an excuse his religious character, and his desire to abstain from 
fighting, whereupon Johnson exclaimed in his ardent zeal for enlisting 
recruits, that •* Church, hell or bfeaven ought to be laid aside to right a 
friend." Jackson says he understood it distinctly, that it was a fight 
to which he was invited. 

§ 181. Mr. Jackson's testimony is entitled to credit. He did not par- 
ticipate in the affair, and he can have no inducement to speak falsely, for 
all his prejudices must naturally be enlisted on the side of the prosecu- 
tion. His character is sustained by unexceptionable testimony, and has 
been impugned by no one except the salamander gentleman, whose 
ambition seems to be to pursue in the next world that occupation which 
in this is principally monopolized by the descendants of Ham. 

The next direct evidence of the conspiracy is from Mr. Deering, 
whose character and testimony are both unimpeachable. He says he 
was passing down Market street on the evening of the affray, when he 
saw, near the market hous§, Johnson, in company with Holmes and 
others, and that they were discussing the subject of the quarrel between 
the Mississippians and Redding. This proves that Johnson was carry- 
ing into effect his proposition at Redding's store, viz.: " To go and get 
Bill Holmes and give them hell." He had already found Bill Holmes, 
and, we shall presently see, made all his arrangements for " giving them 
hell." 

§ 182. Mr. Beering says that soon after he met Mr. Johnson again, 
who inquired for Mr. Turner, the city marshal. Mr. Deering told him he 
would be too lat« with his officers, for the Mississippians would be gone ; 
to which Mr. Johnson responded, " there were enough gone there — that if 
they came down their hides would not hold shucks." What did this mean if 
it did not indicate that the conspiracy had already been formed, and a 



134 THE LA W OF HOMICIDE. 

Argument of Hon. S. 8. Prentin. 

portion of the conspirators assembled at the Gait House for the pur- 
pose of preventing the game from escaping and holding it at bay until 
the arrival of the rest of the hunters. They had gone, it seems, too, 
in sufficient numbers to *auth6rize the classical boast of Mr. Johnson, 
•* that if they [meaning the Mississippians] came down, their hides 
wouldn't hold shucks." 

There is one more witness whose testimony is positive to the point; 
it is Mr. Harris. He swears clearly and unequivocally, that Johnson 
met him on the evening of the affray, told him that the Mississippians 
had insulted Mr. Redding, and directly solicited him to go with 
Redding s friends to the Gait House and see him righted. Mr. Harris 
says he refused to go, whereupon Johnson exclaimed, " Are you a friend 
of Redding's?" thereby showing how strong was the feeling when even 
a mere refusal to participate in the violence was considered as proof that 
the man refusing was no friend of Redding's. 

§ 183. Such, gentlemen, is the positive proof of the conspiracy. It 
consists of the evidence of three disinterested and honest witnesses, 
two of whom were directly and strongly solicited to participate in the 
matter. The testimony of each of these witnesses corroborates that 
of the other' two. The facts sworn to have a natural order and con- 
nection. There is a verisimilitude about the whole story, which would 
not belong to either portion by itself. The testimony is entitled to 
much more weight than if it had been the recital of a single witness, 
for if you believe one of the witnesses you must give credit to all 
One of them swears that he heard Johnson, in Redding's shop, propose 
to Redding and his friends that he should get " Bill Holmes" and "give 
them hell." The next witness saw Johnson on the street immediately 
after, in company with " Bill Holmes," who seems to have been the 
Achilles of these myrmidons, explaining to him how his dear 
Patroclus (Redding), had been insulted by the hectoring Mississippians, 
and urging him to vengeance. Again the same witness met Johnson, 
and was informed by him that a portion of his banditti had already 
taken possession of the passes of the Gait House, and that if the Mis- 
sissippians appeared " their hides wouldn't hold shucks." The third 
witness swears to a positive solicitation from Johnson that he should 
join in the foray, and to the expression of strong indignation by this 
slayer of cattle upon his refusal to do so. 

g 184. Johnson was the " Malise" of the party, "the messenger of 
blood and brand" sent forth to summon the clansmen true. Too well 
did he perform his duty. He collected his friends and conducted them 
like beasts to the slaughter, while he himself found the "manhood," 
which, according to his boast, distended his hide, rapidly descending 
to his heels. But enough, for the present, of this vaporing worthy ; 
I shall pay my respects to him hereafter. 



TRIAL OF JUDGE WILKINSON ET AL. liB5 



Aigument of Hon. S. S. Prentiaa. 



I will now proceed, in pursuance of the plan I had prescribed, to 
sliow the existence of Xbe conspiracy by the circumstantiar evidence, 
which is, if |M»sibIe, more irrefragable than the direct testimony, but 
yet most beautifully illustrates and confirms it. I will exhibit to you 
IX chain of facts, linked together by a natural and necessary connection 
which 1 deiy even the strong arm of the opposing counsel to break. 
I will weave a cable upon whose unyieldmg strength the defense may 
safely Tely to ride out the storm of this furious prosecution. 

§ 185. Mr. Redding went to the Gait House after the affair at his 
shop for the purpose, as he avows, of obtaining the names of the Mis- 
sissippians that he might procure process against them from the civil 
authorities. On his way, as he confesses, he armed hiiYiself with a 
deadly weapon, which, however, I am bound in justice to say, he never 
had the courage to use. A number of individuals accompanied and 
followed him, whose manner and strange appearance excited universal 
attention even in the bar-room of the most frequented hotel in the 
western country. Their strange faces and strange actions excited 
general apprehension. Nearly every witness to the unfortunate catas- 
trophe, has deposed that he was struck with the "strange faces" con- 
gregated in the bar-room. The learned counsel on the other side has 
attempted to prove in the examination, and will, no doubt, insist in 
the argument, that that room is daily crowded with strangers from 
every part of the country ; that the excellence of the fare and the 
urbanity of its proprietors, invite to the Gait House a large portion of 
the traveling public, and that consequently it is nowise remarkable 
that strange faces should be observed in the bar-room. Though I 
admit the gentleman's premises, I deny his conclusion. Thatstrangers 
should frequent the Gait House is not wonderful ; they do it every day. 
and for that very reason strange faces, under ordinary circumstances, 
arouse neither remark nor attention. That the " strange faces " of Mr. 
Redding's friends should have excited remark and scrutiny, not only 
from the inmates of the house but from strangers themselves, is truly 
wonderful, and can be accounted for only by admitting that there was 
something very peculiar in their conduct and appearance. 

g 186. They went there prepared for pre-concerted action. Having 
a common object and a well arranged plan, a glance or a motion 
sufficed to convey intelligence from one to the other. Tell-tale 
consciousness spoke from each countenance. Their looks, unlike 
the mysterious brotherhood, gave up to the observer the very secret 
they wished thereby to conceal. There is a strange and subtle 
influence, a kind of mental sense by which we acquire intimation of 
men's intentions, even before they have ripened into word or action. 
It seems, on such occasions, as if information was conveyed to the 



186 THE LA W OF HOMICIDE, 



Argument of Hon. 8. 8. Prentiai. 



mind by a sort of natural magnetism, without the intervention of the 
senses. 

Thus, in this case, all the by-standers were impressed at once with 
the conviction that violence was intended by the strange men who had 
attracted their attention. These men, it is proven, were the friends 
and intimate companions of Redding. Most of them, though living in 
the city of Louisville, were not in the habit of going to the Gait 
House, and yet, by a singular coincidence, had all assembled there on 
this occasion. 

§ 1 87. They w,ere remarkably stout men, constituting the very elite 
of the thews and muscle of Louisville, and many of them noted for 
their prowess in the vulgar broils of the city. Why had they thus 
congregated on this occasion? Why their strange and suspicious 
demeanor? I will show you why. It will not be necessary to await 
the actual fight to become fully conversant with their purpose. It 
found vent in various shapes, but chiefly bubbled out in the unguarded 
remarks and almost involuntary expressions of the mora garrulous of 
the party. 

I shall be compelled, even at the risk of being tedious, to glance at 
the evidence of a number of the witnesses in showing you the circum- 
stances at the Gait House, which conclusively indicate the existence 
of the conspiracy. 

Mr. Everett, one of the proprietors of the Gait House, says he was 
admonished by his bar-keeper that a difficulty was about to arise, and 
he had better persuade Judge Wilkinson out of the bar-room. Accord- 
ingly he went in and took the Judge away, and gives as a reason that 
he was alarmed at the strange faces in the bar-room, and apprehended 
difficulty ; alarmed, not because the faces were those of strangers, but 
because of something in their appearance which indicated concert and 
threatened violence. 

g 188. Mr. Trabue was waiting in the room for supper and says he 
heard some one remark, " If the Mississippians had not gone up stairs 
they would have been badly treated," in connection with which 
remark Redding was pointed out to him. This, it seems, was after the 
Judge had retired at the solicitation of Mr. Everett. Now, who were 
to have treated the Mississippians badly, except Mr. Redding and his 
friends ? Who else had any pretense for so doing ? Can you doubt 
for a moment that the remark had reference to Mr. Redding's party ? 
It was probably made by one of them, but whether by one of them or 
a stranger, it equally indicated their violent determinations. Mr. 
Trabue also proves that after Judge Wilkinson retired, Mr. Redding 
also retired ; and when the Judge returned into the bar-room. Red- 
ding presently entered, followed, to use the language of Mr. Trabue, 
" by a right smart crowd " of his friends. Now, why did Redding thus 



TRIAL OF JUDGE WILKINSON ET AL. 137 

Aigument of Hon. S. fai. Prentias. 

go out and return with his gang at his heels ? Why were his move- 
ments thus regulated hy the motions of the Judge ? Wherefore was 
it that every one expected a difficulty ? 

Mr. Redding, according to his own story, went to the Gait House 
simply for the purpose of obtaining the names of the gentlemen who 
had insulted him. 

§ 189. He had accomplished his ostensible object. He had obtained 
the names, and more than that, had gratified his base appetite by 
abusing one of the gentlemen in the most indecent and disgusting 
manner. No rowdy who ever visited his coffee-hpuse could have 
excelled him in this, to the vulgar Tnind, sweet mode of vengeance. 
He had even driven the Judge from the room by the overwhelming 
torrent of his billingsgate epithets. To use an expression suited to 
his comprehension and feelings, he remained "cock of the walk." 
Yet he was not satisfied. He retired and watched the return of the 
Judge, and then emboldened by his previous impunity, followed with 
his cut-throat band to comptete the work of vengeance. 

But to proceed with the circumstantial evidence. Mr. Montgomery 
states that he was with Mr. Trabue at the Gait House when Redding 
came in after the names, and also when he came back just before the 
conflict ; heard him use very rough language, and, also, heard Halbert 
remark that there would be " rough work with the Mississippians." 
Now this fully corroborates the testimony of Mr. Trabue on the same 
point, who heard the remark but did recollect who made it. This 
Marshall Halbert is the man who boasted, after the affair was over, 
that he had knocked down one of the Mississippians with a chair 
while his back was towards him, and recounted many other feats of 
darinir to the astonishment of the listeners. I should judge him to be 
of the blood of honest Jack Falstaff, whose killing, as every body 
knows, was always by word of mouth, and whose deeds of desperate 
valor were so unfortunate as to find neither historian nor believer 
except himself. At all events Halbert, according to his own confession, 
was one of the conspirators, and I have no doubt performed his part 
in the affray as well as he knew how, and with much greater humanity 
than he pretends. In addition to the above remark of Halber't's, Mr. 
Montgomery states that he heard several persons say at a time wnen 
the defendants were not in the room, that they would beat the Mis- 
sissippians well. 

General Chambers, who lives opposite the Gait House and is in the 
daily habit of visiting it, says he went into the bar-room just before the 
affray, that he observed persons whom he was not in the habit of see- 
ing there, and that from their appearance and demeanor, his sus- 
picions were immediately aroused. 



138 THE LA W OF HOMICIDE. 



Argument of Hon. S. S. Prentte. 



§ 190. I attach great weight to the testimony of Gen. Chambers. 
His character for intelligence and observation needs no comment irom 
me ; and the fact that his suspicions were aroused must convince every 
one that cause for alarm existed. 

The next testimony to which I shall r«fer is that of Mr. Oliver. He 
says that he was acquainted with Mr. Meeks, and was taking a social 
glass with him on the evening of the affray, when Meeks started off, 
saying he must go to the Gait House (which was on the opposite side 
of the street), that he was bound to have a fight that night, and "by 
G — d he would have one." You will recollect that Meeks was one of 
the persons who collected around Redding immediately after the affiiir 
at the shop, and seconded Johnson's proposition to get Bill Holmes 
and " give them h — ^1,*' by saying ** ihey would go any how, and have a 
spree." Can you doubt for a moment that the observation made by 
this unfortunate man to Mr. Oliver, as just recited, had no relation to 
the previous arrangement with Johnson and others at Redding's shop? 
The remark of Meeks seems to me, taken in connection with his 
previous and subsequent conduct, almost conclusive of itself as to the 
existence of a conspiracy. I had almost forgotten to observe Mr. 
Oliver's statement that Meeks, before he started, tied a knot in the 
small end of a cow-hide which he carried, manifestly to prevent it from 
slipping out of his hand in the conflict which he so eagerly courted. 
His knife, by a sort of pious fraud, had been taken from him by Mr. 
Oliver, otherwise the result might have been very different. The 
prudent caution of Mr. Oliver in disarming him of this weapon, proves 
how strong must have been the indications of his violent disposition. 

§ 191. Mr. Reaugh says he was at the Gait House on the evening of the 
affray, and saw Redding in conversation with Rothwell and Halbert — 
he also saw Holmes and Johnson. Something in the demeanor of the 
party induced him to ask Johnson what was the matter. Johnson 
replied by relating the affair of the shop, upon which Reaugh observed, 
'If the Mississippians fall into the hands of these men they will fare rather 
rough." " Yos," replied the worthy butcher, " they would skin them 
quicker than I could skin a sheep." Mr. Reaugh states that he made 
the remark to Johnson because of the remarkable size and strength 
of the men to whom he alluded, the strange manner in which they had 
assembled, and the fact that he knew them to be friends of Redding, 
and that Redding had been in a quarrel with the Mississippians. 

Mr. Miller states that being a member of the grand jury, and having 
heard of the affray at Redding's, he went into a tin shop to inquire 
about the matter, when Mr. Halbert came in and boasted much of 
what he intended to do. Witness then went to the Gait House for 
supper, when he heard Redding abusing Judge Wilkinson and chal- 
lenging him for a fight. Witness advised Halbert to take Redding 



TRIAL OF JUDGE WILKINSON ET AL. 139 

Argument of Hod. 6. S. PreutlsA. 

away, observing that he, witness, was on the grand jury, had the 
names, and would have all the matter attended to. Some one, he 
thinks Johnson, then remarked that "if he did'nt leave the room, he'd 
see the finest sort of beef-steaks served up." Presently he heard the 
exclamation, near the counter, "There they are, all three of them,' 
and the crowd immediately clpsed in up>on the persons so indicated. 

Mr. Waggry also heard the remark about the " steaks," and then 
heard some one exclaim, *' We'll have a hell of a fight here just now." 
He also heard Mr. Miller advise Halbert to take Redding away. 

Mr. Brown swears that he heard Mr. Miller tell Mr. Redding he was 
not taking the proper course ; he should have the matter before the 
grand jury, whereupon some one said, *' Hush you, Billy Miller, if it 
comes to handicuffs the boys will settle it." The witness then became 
80 apprehensive of a fight that he left the room. 

J 192. Now, though Miller is not positive as to the person who made 
use of the expression about " serving up beef-steaks," yet no one, I 
take it, will hesitate as to his identity. Who but Johnson could speak 
in such rich and technical language ? Who but Johnson could boast 
of " having as much manhood as was ever wrapped in the same extent 
of hide " ? While, at the same time, he had so arranged it, that the 
" hides " of the Mississippians " would not hold shucks." Who but 
this unmitigated savage would talk of "skinning" a gentleman 
" quicker than I could skin a sheep ? " Why, he rubs his hands, licks 
his lips, and talks of serving up christians in the shape of " steaks,'' 
with as little compunction as you or I would exhibit in eating a rad- 
dish. The cannibal ! He should go, at once, to New Zealand and 
open his shambles there. His character would suit that country, and 
I doubt not he would obtain great custom, and find ample demand for 
his human "steaks." Why, gentlemen I should be afraid to buy meat 
out of his stall. He talks as if he supplied it by burking. I should 
expect some day to swallow an unbaptized infant in the disguise of a 
reeking pig, or to eat a fellow citizen, incog., in a "steak," Such a 
fellow should be looked to. But again. What meant the expression 
deposed to by Reaugh, " There they are, all three of them, now? " It 
was the signal for the conspirators to close in. It clearly proves a 
pre-concerted plan. No names were mentioned, and without a pre- 
vious understanding, the expression would have been nonsense. Most 
of the party did not know the Mississippians, hence it was necessary 
that some one should give intimation when they entered the room. 
The expression, " There they are," was the signal for the onset. What 
meant the expression sworn to by Waggry, " We'll have a hell of a 
fight here just now ?" 

What conclusion do you draw from the response made to Miller, 
when he advised Redding to bring the matter before the grand jury, 



140 THE LA W OF HOMICIDE. 

Argument of Hon. 8. S. PrentlaB. 



" Hush you, Billy Miller, and if it comes to handicuffs the boys will 
settle it?" If what comes to handicuffs? And who were the boys? 
Why, if the quarrel with the Mississippians comes to handicuffs. And 
as for the " boys," there was not a man present who did not know who 
they were, 

g 193. Redding was one of the " b<^8," and a very bad boy, too, 
Billy Holmes was another. Marshall Halbert was a perfect " broth of 
a boy,* and if his own story is entitled to credit, he must have been 
twins, for he acted the part of at least two in the fight. Bill Johnson 
was as much of a boy as ever was " wrapped up in the same amount of 
hide/' though his extraordinary modesty has induced him to deny the 
soft impeachment. The unfortunate Meeks and Rothwell were two 
of the "boys;" and last, though not least, comes Harry Oldham, the 
"Jack Horner ' of the party. He "sat in the corner" till the fight 
was nearly over, when he '* put in his thumb" and "pulled out," not "a 
plum," but a pistol, and ever since has been exclaiming, " What a brave 
• boy ' am I." 

Yes, gentlemen of the jury, these were the '*boys" whose strange 
appearance aroused the suspicions and excited the apprehensions of all. 

Permit me, now, to call your attention to the testimony of Mr. Don- 
ahue. It is clear and conclusive. He swears that on the evening of 
the affray, and just before it occurred, being in the bar-room of the 
Gait House, he heard Rothwell ask Redding " If they were there." 
Upon being answered in the negative he exclaimed, " Come, let us go 
up stairs and bring them down and give them hell." Rothwell was the 
brother-in-law of Redding, had been informed by Redding of his griev- 
ances, and had accompanied him to the Gralt House. Whom did he 
mean when he asked if " They were there ? " The Mississippians, 
undoubtedly. Whom did he propose to drag from their rooms and 
chastise? Of course the same persons for whom he had just inquired. 
Rothwell asked "If they were there." When the defendants came in, 
some one cried out " There they are, all three of them." These two 
expressions manifestly emanated from persons who understood each 
other and were engaged in pursuit of a common object. • 

If these remarks had not relation to some previously concerted plan 
of action, they would be unmeaning and foolish; but granting the 
existence of the conspiracy I have supposed, and every word is preg- 
nant with meaning, full of force, weight and effect. 

§194 Mr. Rally deposes to the caution given by Miller to Redding; 
also to the fact that Redding left the room when Judge Wilkinson had 
retired, and came back again immediately after the Judge had returned. 
He also saw Oldham after the affray was over, putting a pistol into his 
pocket and wiping with his handkerchief the blood from a double- 
edged dirk. 



TRIAL OF JUDGE WILKINSON ET AL. 141 

Argument Of Hon. S. S. Prentiai. 

Mr. Pearson says he went to thp Gait House just before supper, on 
the evening of the affray. As he stood behind the bar, one Capt. 
Rogers observed that there would be a fight. Presently, witness met 
Marshall H albert and told him he ought to stop it, meaning the fight. 
Halbert said "No, let it go on." This was before Redding had com- 
menced abusing Judge Wilkinson, and proves that the idea of a fight 
did not originate from that circumstance. The Judge came, and Red- 
ding abused him. He went out, and Redding followed. He returned, 
and presently so did Redding with a crowd at his heels. Seeing the 
crowd, and apprehending violence, Mr. Pearson was in the act of 
leading the Judge out of the room, when the crowd rushed upon 
Murdaugh. The affray commenced and the Judge stopped, refusing 
to leave the room until he saw his friends out of the difficulty. Need 
I ask you whether he was right in so doing ? 

Mr. Banks says he saw Redding just after the first affray, and asked 
him if he was hurt. He said no, but that " he would have satisfaction, " 
and that *' he could whip them all three." 

Dr. Graham says that after Judge Wilkinson had left the bar-room 
the first time, he heard some one observe, ** The d — d coward has run." 

Does not Mr. Oldham's testimony prove the conspiracy? I do not 
mean directly, but circumstantially. He says he was not present at 
the fight in the bar-room, and knew nothing of the affair, nor of the 
defendants. He says he was standing in the passage when the door 
opened, and he received a cut from Br. Wilkinson, whom he knocked 
down for his pains. 

§195. After fighting in the crowd awhile, he saw Murdaugh retreat- 
ing up stairs, and asking for a pistol, whereupon he was reminded of 
his own pistol, which he immediately drew and discharged at the 
young gentleman, giving him not the weapon, but its contents, to-wit, 
a bullet, split in three pieces. This worthy gentleman, who is certainly 

" as mild a mannered man 
As ever scuttled ship or cut a tliroat," 

swears positively that he did not know either of the defendants ; that 
he belonged to neither party in the affray, and that he fought, to use 
his own descriptive and unrivalled phraseology, entirely " upon his own 
hook." 

Surely Mr. Henry Oldham must be the knight-errant of the age, the 
Don Quixote of the west, the paragon of modern chivalry. He fights, 
not from base desire of vengeance, nor from sordid love of gold - not 
even from patriotism or friendship ; but from a higher and loftier sen- 
timent— frpm his pure, ardent, disinterested, unsophisticated love of 



142 THE LA W OF HOMICIDR 

Aigument of Hon. S. S. Prentiis. 

glorious strife. Like JoVs war-horse, he " smelleth the battle afar ofi^'* 

and to the sound of the trumpet he saith, " Hal ha ! " To him 

*' There's something of pride in the perilous honr, 
Whai'er be the shape in which death may lower. 
For fame is there to tell who bleeds, 
And honor's eye on daring deeds.'* 

J 196. You have heard, gentlemen, of the bright, warm isles which 
gem the oriental seas, and are kissed by the fiery sun of the tropics, 
where the clove, the cinnamon and the nutmeg grow ; where the torrid 
atmosphere is oppressed with a delicious, but fierce and intoxicating 
influence. There the spirit of man partakes of the same spicy quali- 
ties which distinguish the productions of the soil. Even as the rinds 
of their fruits split open with nature's rich excess, so do the human 
passions burst forth with an overwhelming violence and prodigality 
unknown till now in our cold, ungentle clime. There, in the islands 
of Java, Sumatra, the Malaccas, and others of the same latitude, cases 
similar to that of Mr. Henry Oldham are of frequent occurrence. In 
those countries it is called " running a muck." An individual becomes 
so full of fight that he can no longer contain it. Accordingly, he arms 
himself with a species of dagger, very similar to that from wlrich Mr. 
Oldham wiped the blood with his pocket handkerchief, and rushing 
into the public streets, wounds and slays indiscriminately among 
the crowd. It is true that this gallant exploit always results in the 
death of the person performing it, the people of the country entertain- 
ing a foolish notion that it is too dangerous and expensive a mode of 
cultivating national bravery. But in the present instance I trust this 
rule will be relaxed. Mr. Oldham is the only specimen we possess 
of this peculiar habit of the spice-islands, and he should be preserved 
as a curiosity. 

But, alas ! the age of chivalry has gone by, and in the performance 
of my duty I fear I shall have to exhibit some little defects in the 
character of Mr. Oldham, calculated in this censorious day to detract 
from his general merits. 

It is with great pain I feel constrained to say (for he is a sor^ of 
favorite of mine), that telling the truth is not one of his knightly 
accomplishments, and that his heroic conduct in the aflFray at the 
Gait ^ouse was nothing more nor less, according to his own story, than 
a downright cowardly attempt at assassination. 

g 197. First, as to his veracity. He says that he was cut, in the 
passage by Dr. Wilkinson, to whose identity he swears positively ; yet 
it is proven by half a dozen unimpeachable witnesses that the Doctor 
was, at that time, hors du combat^ beaten to a mummy — almost lifeless, 
and perfectly limber — while his knife had fallen from his relaxed and 
nerveless grasp upon the floor of the bar-room, where it was after- 
wards picked up. 



TRIAL OF JUDGE WILKINSON ET AL. I43 

Argument of Hon. S. S. Prentiaa. 

Yet Oldham swears, manfully, that it was the Doctor who cut him, 
though, when asked if his face was not bloody, ho replied that the 
passage was too dark to enable him to distinguish faces. If he could 
not see whether the face of the person who cut him was bruised or 
bloody, how dare he swear it was Dr. Wilkinson, whom he admits he 
had never seen before? 

Yet, though his vision was so dull in regard to this matter, it was 
almost supernaturally keen upon another. He swears that he was cut 
by a dirk knife, " with a white handle " Now in this dusky passage, where 
he could not see his assailant's face, how could he distinguish so accu- 
rately the character of the weapon, and more especially of the handle. 
The handle of such a knife as either of those exhibited would be 
entirely concealed in the grasp of the holder. But Mr. Oldham could 
see through the hand and swear to the color of the handle, even when 
he could not distinguish the color of the assailant's face. 

The prosecution seems to be afflicted with a monomania on the sub- 
ject of white-handled knives. The white-handles cause them greater 
terror, and excite more of their observation, than the blades. One 
woult be almost led to suppose, from the evidence, that the defendants 
held by the blades and fought with the handles. These white han- 
dles flash before their eyes like the bright inscription upon the dim 
steel of a Turkish cimeter. I hope, though with many misgivings, 
that none of them will ever die of a " white handle.*' 

But, to return to my subject, why in the name of all that is human 
or hnmane, did Oldham shoot at Murdaugh, whom he acknowledges he 
did not know, of whose connection with Dr. Wilkinson he was unac- 
quainted, and who had not attempted to do him the slightest injury ? 
According to his own account of the matter, he acted the part of a 
base and cowardly assassin. If he tells the truth, he is an assassinating 
villain. If he does not, he is a perjured villain. I leave him choice of 
these two horns of the dilemma, though I doubt not the latter is 
the one upon which he is destined to hang. I can not believe 
in the existence of such a monster as he would make himself out to 
be, and have offered his conduct to you as evidence of the existence of 
a conspiracy, and of his participation in it. It is better that he should 
have the excuse of having fought in Bedding's quarrel than no excuse 
at all. * 

§ 198. Gentlemen of the jury, I have now performed that portion 
of mv task which embraced the circumstantial evidence. Out of the 
mouths of fifteen different witnesses, most of them gentlemen of high 
character and undoubted veracity, I have exhibited to you an almost 
countless variety of circumstances, the occurrence of which, or any 
great portion of them, is absolutely incompatible with any other 



144 THE LA W OF HOMICIDE. 

Argument of Hon. S. S. Prentiss. 

hypothesis than that of the existence of the conspiracy, which I pro- 
posed at the outset to prove. 

Upon that hypothesis all these circumstances are easily explicable, 
and in perfect accordance with the ordinary principles of human 
action. » 

I have combined the scattered strands of evidence. I have finished 
the cable which I promised, and now challenge the opposing counsel 
to try their strength upon it. They may pick it into oakum, but I 
defy them to break it. 

There is one other argument in favor of the view that I have taken 
of the origin of this unfortunate affray, which may be properly intro- 
duced at this time, and with which I shall close this branch of the 
subject. 

g 199. It arises out of the respective characters and -positions in life 
of the two parties, and is, in my opinion, entitled to great weight. 
Who, judging of character and situation, was most likely to have 
sought and provoked the unfortunate conflict — Judge Wilkinson or 
Mr. Redding ? The conduct of the Judge, under the opprobrious epi- 
thets heaped upon him by Redding in the bar-room, suflficientljT indi- 
cates that, though he had previously given way to sudden passion, he 
was now cool, collected, and forbearing. His mind had recovered its 
balance, and he behaved on this occasion, as well as subsequently, with 
philosophical calmness. I doubt, gentlemen, whether any of you would 
have permitted Mr, Redding to have indulged, with impunity, in such 
unmeasured abuse. But the situation of the Judge was peculiar, and 
every inducement which could operate upon a gentleman warned him 
against participation in broils and battles. With buoyant feelings and 
pulse-quickening anticipations he had come more than a thousand 
miles, upon a pilgrimage to the shrine of beauty, not of blood — upon 
an errand of love, not of strife. He came to transplant one of Ken- 
tucky's fairest flowers to the warm gardens of the sunny South, there 
to bloom in beauty and in brightness. 

The marriage feast was spread ; the bridal wreath was woven, and 
many bounding hearts and sparkling eyes chided the lagging hours. 
The thoughts of the bridegroom dwelt not upon the ignoble contro- 
versy which, for an unguarded moment, had occupied his attention, 
but^xpon the bright and glorious future, whose rapturous visions were 
about to become enchanting realities. 

§ 200. Under such circumstances Judge Wilkinson could not have 
desired the conflict. Had the fires of hell blazed in his bosom, they 
must have been quenched for a while. The very fiend of discord 
would have been ashamed, fresh from a voluntary, vulgar, bloody 
quarrel, and reeking with its unsightly memorials, to have sought the 
gay wedding banquet. 



TRIAL OF JUDGE WILKINSON ET AL. 145 

Argument of Hon. S. S. Prentiss. 

You can not believe he coveted or courted the unfortunate affray, 
without, at the same time, considering him destitute, not only of all 
sentiment of delicacy and refinement, but every characteristic of a man. 
Does his previous character warrant such a conclusion ? He has, as has 
been shown to you in evidence, ever entertained the character of an 
honorable and upright gentleman. I see, 'by the sneer upon the lip of 
the adverse counsel that the term grates harshly upon his sensibilities. 
But, I repeat it, Judge Wilkinson has ever entert«'\ined the character 
of a gentleman, a character directly at war with the supposition that 
his conduct on this occasion resulted otherwise than from necessity. 
I mean by "a gentleman" not the broadcloth but the man; one who is 
above doing a mean, a cowardly, or a dishonest action, whatever may 
be the temptation ; one who forms his own standard of right and will 
not swerve from it ; who regards the opinions of the world much, but 
his own self-respect more. Such men are confined to no particular 
class of society, though, I fear, they do pot abound in any. I will save 
the learned counsel the trouble of translating hts sneer into language, 
by admitting that they, are to be found as readily among mechanics as 
elsewhere. 

§201. Such a man I believe Judge Wilkinson to be. Such has ever 
been his character, and he is entitled to the benefit of it on this occa- 
sion. It ought to have, and I know it will have very great weight with 
you. Good character always has been, and ever should be, a wall of 
strength around its possessor, and a seven-fold shield to him who 
bears it. (a) 

This is one of the advantages virtue has over vice — honorable over 
dishonorable conduct — an advantage which it is the very highest 
interest of society to cherish and enforce. In proportion to the excel- 
lence of a man's character, is^ and ever ought to be, the violence of the 
presumption that he has been guilty of crime. I appeal, then, to Judge 
Wilkinson's character, to prove that he could not have desired this 
unfortunate controversy ; that it is impossible he should have been 
guilty, under the circumstances which then surrounded him, of the 
crime of willful and malicious murder. What, on the other hand, was 
the condition of the conspirators? Redding had been going about 
from street to street, like Peter the Hermit, preaching up a crusade 
against the Mississippians. Johnson, like Tecumseh — but no, I wil^not 
assimilate him to that noble warrior — ^like an Indian runner, was 
threading each path in the city, inciting his tribe to dig up the toma- 
hawk, and drive it, not into the scalps, but the " steaks " of the foe. 
But I will not pursue this point at greater length. 

§ 202. I proposed, after arguing the position that there actually was 

(o) Po9t II 566, 567 of Part II. * 

H ,—10 



146 THE LA W OF HOMICIDE. 



Argument of Hon. S. S. PrentiflB. 



a conspiracy to chastise the defendants, and inflict upon them great 
bodily harm, to show, in the next place, that the defendants had good 
reason to believe such a conspiracy existed, whether in point of fact it 
did or not. Most of the arguments bearing upon this proposition have 
been already advanced in support of the other. These I will not 
repeat. There are one or two others worthy of notice. What could 
Judge Wilkinson have supposed from the conduct of Redding, but 
that he sought and provoked a difficulty ? What else could he con- 
clude from the unmitigated abuse which was heaped upon him, from 
the very sluices of vulgarity ? That the Judge apprehended violence 
is evident from the warning which he gave. He told Redding that he 
might say what he pleased, but not to lay his hands upon him ; if he 
did, he would kill him. He could not be supposed to know that Red- 
ding came only for the names. When Meeks stepped up to Murdaugh 
and struck him with his clubbed whip, while the crowd closed in 
around, what could Murdaugh reasonably expect but violence and 
bodily harm, resulting from preconcerted arrangement? Without 
going at length into an argument on this point, I take it for granted, 
no one will deny that the defendants had ample grounds for appre- 
hending the existence, on the part of Mr. Redding and his friends, of 
a conspiracy, to commit upon them personal violence. 

g 203. Let us now look a moment at the conduct of the defendants, 
at the Gait House, and see whether it transcended the bounds of right 
reason or prudence. When Murdaugh and the Doctor entered the 
room, the exclamation was made, by some one, loud enough for all to 
hear, " There they are — all three of them, now ; " upon which, accord- 
ing to nearly all the witnesses, Mr. Redding made the remark to Mur- 
daugh, "You are the man that drew the bowie-knife on me." 

You will recollect that Redding had just crossed Judge Wilkinson's 
path, and pla«ed himself with his back against the counter, manifestly 
with the object of bringing on the fight. Murdaugh, indignant at 
being publicly charged with having drawn a bowie-knife upon an 
unarmed man, replied, "that any one who said he had drawn a bowie- 
knife told a d d lie;" whereupon, instantly steps up Meeks, with 
his knotted cowhide, exclaiming, " You are the d d little rascal 
that did it," at the same time inflicting upon him a very severe blow. 
By* the bye, this assertion of Meeks proves that he had been at Red- 
ding's after the first affray, and heard a full account of it. It is urged 
against the Judge,that when Mr. Everett led him to his room, he asked 
for pistols. I think an argument may be drawn from this circumstance 
in his favor. His requisition for arms proves that he considered him- 
self and his friends in great personal danger. He manifestly required 
them not for offense, but for defense. Had he intended an attack, he 
would not have gone down to the bar-room without first obtaining the 



TRIAL OF JUDGE WILKINSON ET AL. 147 



Argument of Hon. S. S. Prentisni. 



weapons he desired. Men do not voluntarily attempt the lives of others 
without being well prepared. It is evident that Judge Wilkinson and 
his friends thought only of the protection of their own persons, for 
they went down stairs provided only with the ordinary weapons which 
they were accustomed to bear. Murdaugh and the Doctor had a 
pocket knife each, the same tliey had previously carried. They had 
added nothing to their armor, either offensive or defensive. The Judge, 
apprehensive of difficulty, had taken his bowie-knife, which, prob- 
ably, he had not previously worn. When, at the solicitation of Mr. 
Everett, he retired, he doubtless informed his friends of what had 
just transpired in the bar-room, and expressed his fears of vio- 
lence. This accounts for the readiness with which Murdaugh met 
the assault of the two powerful men who simultaneously rushed upon 
him. 

§ 204. The evidence is conclusive that Meeks commenced the 
attack, upon Murdaugh, by two rapid, violent blows of a cow-hide; 
accompanied by a heavy blow from a stick or cane from the hands of 
Rothwell. At the same time he seized the hand of Murdaugh, in 
which, prepared for defense, was an open knife ; but Murdaugh, with 
coolness and celerity, changed the weapon to his left hand, and used it 
according to the dictates both of law and common sense. The very 
first blow had driven him to the wall. The crowd closed around him ; 
he could not retreat, and was justified according to the strictest and 
most technical principles of even English jurisprudence, to take the 
life of the assailant. No man but a fool or a coward could have acted 
otherwise than he did. Was he not, according to the rule read by the 
District Attorney, in imminent danger of his life or of great bodily 
harm ? Let the unhealed wound upon his head respond. Let his hat, 
which has been exhibited to you, answer the question. Upon this you 
may perceive two incisions, which must have been caused by a sharp, 
cutting instrument. No obtuse weapon was capable of the effect. 
The blows were manifestly sufficient to have caused death, but for the 
intervention of the elastic material, upon which their principal force 
was expended. The part, then, taken by Murdaugh in the affray was 
clearly defensive and justifiable. It is not pretended that Dr. Wil- 
kinson took any other part in the affray than attempting to escape 
from its violence, unless you notice the evidence of Oldham, that he 
cut him as he fled from the room. He was beaten, first by Rothwell, 
then by Holmes, and, if you take their own statements, by those two 
worthies, Halbert and Oldham. He was crushed almost to atoms. He 
had not a chance even for self-defense. Rothwell had left Murdaugh, 
after striking him one blow, in charge of Meeks, and fell upon the 
Doctor. While beating the Doctor, he was stabbed by the Judge, near 
the dining-room door. The Doctor fled round the room, still followed 



148 THE LA W OF HOMICIDE, 

Argument of Hon. 8. S. PrentiaA. 

by Rothwell, who was again struck by the Judge, when upon the oppo- 
site side. The two blows paralyzed his powers ; when Holmes stepped 
in and so completely prostrated the Doctor, that he was compelled to 
hold him up with one hand while he beat him with the other. 

g 205. Neither offensive word or action, upon this occasion, on the 
part of Dr. Wilkinson, is proven or pretended. It is perfectly clear 
that he was beaten by Bedding's friends, simply because he was of the 
Mississippi party. I consider it highly disgraceful to the grand jury 
who found the bill that he was included in it. 

In reference to the part taken by Judge Wilkinson, it is proven 
beyond contradiction, by Mr. Pearson, a gentleman of undoubted 
veracity, that the Judge, at his solicitation, was in the act of leaving 
the room, as the affray commenced; when, witnessing the attack upon 
Murdaugh, he stopped, refusing to leave until he saw the result of the 
controversy, in which his friend was engaged. Standing in the corner 
of the room, he did not at first take part in the conflict; perceiving, 
doubtless, that Murdaugh was making good his own defense. 

Presently, however, he cast his eyes around and saw his brother 
trodden under foot, entirely powerless, and apparently either dead or 
in immediate danger from the fierce blows of Rothwell, who, as you 
have heard, was a man of tremendous physical power, and armed with 
a bludgeon, some say, a sword-cane. Then it was he thought it neces- 
sary to act ; and advancing through the crowd to the spot, he wounded 
the assailant who was crushing out his brother s life. Gen. Chambers 
swears positively that Rothwell was beating, with a stick, and with 
great severity, some one, whom the other witnesses identify as the 
Doctor, at the time he was stabbed near the dining room door. This 
produced a slight diversion in the Doctor's favor, who availed himself 
of it, by retreating, in a stooping posture, towards the passage door. 
Rothwell, however, pursued and beat him down, but was arrested in his 
violence by another blow from Judge Wilkinson, which, together with 
the puncture in his throat, received in all probability from a chance 
thrust of the sword cane n the hands of one of his own party, disabled 
him and caused his deatli. About this time Holmes was completing 
Rothwell's unfinished work, and the Doctor, hunted entire!^ around 
the room, fell, utterly exhausted, at the feet of his relentless pursuers. 
It is wonderful that he had strength enough to escape with Murdaugh 
and the Judge. 

§ 206. Such, briefly, were the parts enacted by these defenants, 
respectively, in this unfortunate affray — the result of which, none 
regret more than themselves. Considering the proof of the conspir- 
acy, and the knowledge, or even the reasonable apprehension on the 
part of the defendants, of its existence, as affording them ample justifi- 
cation for their participation in the matter, I have not thought it 



J 



TRIAL OF JUDGE WILKINSON ET AL. 149 

Argument of Hon. S. S. Prentiss. 

necessary to go into a minute analysis of the evidence on this branch 
of the subject, nor to attempt to reconcile those slight discrepancies 
which will always occur in the testimony of the most veracious wit- 
nesses, in giving an account of a transaction viewed from different 
positions and at different periods of time. 

The law of self-defense has always had, and ought to have, a more 
liberal construction in this country than in England. Men claim more 
of personal independence here ; of course they have more to defend. 
They claim more freedom and license in their actions toward each 
other, consequently there is greater reason for apprehending personal 
attack from an enemy. In this country men retain in their own hands 
a larger portion of their personal rights than in any other ; and one 
will be authorized to presume an intention to exercise and enforce 
them, upon grounds that, in other countries, would not excite the 
slightest suspicion. It is the apprehension of impending harm, and 
not its actual existence, which constitutes the justification for defen- 
sive action. If mine enemy point at me an unloaded pistol or a 
wooden gun, in a manner calculated to excite in my mind apprehen- 
sions of immediate, great bodily harm, I am justifiable in taking his 
life, though it turn out afterwaids that I was in no actual danger. 

§ 207. So, on the other hand, if I take the life of another, without 
being aware of any intended violence on his part, it will constitute no 
excuse for me to prove that he intended an attack upon me. 

The apprehension must be reasonable, and its reasonableness may 
depend upon a variety of circumstances— of time, place and manner, as 
well as of character. The same appearance of danger would authorize 
greater apprehension, and of course readier defensive action, at 
night than in the day time. An attack upon one in his own house 
would indicate greater violence, and excuse stronger opposing action, 
than an attack in the street, (a). 

Indications of violence from an individual of known desperate and 
dangerous character will justify defensive and preventive action, which 
would be inexcusable toward a notorious coward. A stranger may 
reasonably indulge from the appearance or threats of a mob, apprehen- 
sions that would be unpardonable in a citizen surrounded by his 
friends and neighbors. 

§ 208. Bearing these observations in mind, let us look at the situa- 
tion of the defendants. They were attacked at their hotel, which, for 
the time being, was their house. They were strangers, and a fierce mob 
had gathered around them, indicating, both by word and deed, the 
most violent intentions. They were three small, weak men, without 
friends — for even the proprietor of the house, who should have pro- 
tected them, had become alarmed and left them to their fate. Their 

(c). As to reasonable apprehension, aeepoff, §474 to g486. 



150 THE LA W OF HOMICIDE. 



Ai^gument of Hon. S. S. Prentiss. 



enemies were, comparatively, giants — dangerous in apperance and des- 
perate in action. Was there not ample ground for the most fearful 
apprehensions? 

But the District Attorney says they are not entitled to the benefit of 
the law of self-defense, because they came down to supper, and thus 
placed themselves, voluntarily, within reach of the danger. According 
to his view of the case, they should have remained in their chamber, in 
a state of siege, without the right to sally forth even for provisions, while 
the enemy, cutting oflf their supplies, would, doubtless, soon have 
starved them into surrender. But it seems there was a private entrance 
to the supper table, and they should have skulked in through that. No 
one but a craven coward, unworthy of the privileges of a man, would 
have followed such a course. The ordinary entrance to supper was 
through the bar-room. They had a right to pass this way. No law for- 
bade it. Every principle of independence and self-respect prompted 
it. And through that bar-room I would have gone, as they did, though 
the floor had been fresh sown with the fabled dragon's teeth and 
bristling with its crop of armed men. 

§ 209. I care not whether the assailing party had deadly weapons or 
not, though I will bye and bye show they had, and used them, too. 
But the true question is, whether the defendants had not good reason 
for believing them armed and every way prepared for a desperate con- 
flict. I have shown already that Dr. Wilkinson and Murdaugh did not 
transcend the most technical principle laid down by the Common- 
wealth's attorney ; not even that which requires a man to run to the 
wall before he can be permitted to defend himself— a principle, which, 
in practice, is exploded in England, and never did obtain in this coun- 
try at all. But, says the learned attorney, Judge Wilkinson interfered, 
and took part, before he was himself attacked; he had no right to 
anticipate the attack upon himself; he had no right to defend his 
friend; he had no right to protect his brother's life. Now, I differ 
from the worthy counsel on all these points ; I think he had a right to 
prevent, by anticipating it, violence upon his person ; he had a right to 
defend his friend, and it was his sacred duty to defend his brother's 
life. 

Judge Wilkinson was the most obnoxious of the party ; his friends 
were already overpowered ; he could not expect to escape ; and in a 
moment the whole force of the bandit gang would have been turned 
upon him. 

§ 210. The principles of self-defense, which pervade all animated 
nature, and act toward life the same part that is performed by the 
external mechanism of the eye toward the delicate sense of vision, 
affording it, on the approach of danger, at the same time, warning and 
protection, do not require that action shall be withheld till it can be 



TRIAL OF JUDGE WILKINSON ET AL. 151 

Aigoment of Hon. S. S. Prentiss. 

of no avail. When the rattlesnake gives warning of his fatal purpose, 
the wary traveler waits not for the poisonous blow, but plants upon his 
head his armed heel, and crushes out, at once, "his venom and his 
strength." When the hunter hears the rustling in the jungle, and 
beholds the large green eyes of the spotted tiger glaring upon him, he 
waits not for the deadly spring, but sends at once through the brain 
of his crouching enemy the swift and leaden death. 

If war were declared against your country by an insulting foe, would 
you wait till your sleeping cities were wakened by the terrible music 
of the bursting bomb? till your green fields were trampled by the 
hoofs of the invader and made red with the blood of your brethren ? 
No ! you would send forth fleets and armies — you would unloose upon 
the broad ocean your keen falcons — and the thunder of your guns 
would arouse stern echoes along the hostile coast. Yet this would be 
but national defense, and authorized by the same great principle of 
self-protection, which applies no less to individuals than to nations. 

§ 211. But Judge Wilkinson had no right to interfere in defense of 
his brother; so says the Commonwealth's attorney. Go, gentlemen, 
and ask your mothers and sisters whether that be law. I refer you to 
no musty tomes, but to the living volumes of nature. What ! a man 
not permitted to defend his brother against conspirators? against 
assassins, who are crushing out the very life of their bruised and pow- 
erless victim ? Why, he who would shape his conduct by such a prin- 
ciple does not deserve to have a brother or a friend. To fight for self 
is but the result of an honest instinct, which we have in common with 
the brutes. 

To defend those who are dear to us, is the highest exercise of the 
principle of self-defense. It 'nourishes all the noblest social qualities, 
and constitutes the germ of patriotism itself. 

Why is the step of the Kentuckian free as that of the bounding 
deer; firm, manly and confident as that of the McGregor when his 
foot was on the heather of his native hills, and his eye on the peak of 
Ben Lomond? It is because he feels independent and proud; inde- 
pendent in the knowledge of his rights, and proud in the generous 
consciousness of ability and courage to defend them, not only in 
his own person, but in the persons of those who are dear to him. 

§ 212. It was riot the blood that would desert a brother or a friend 
which swelled the hearts of your fathers in the " olden time," when, in 
defense of those they loved, they sought the red savage through all the 
fastnesses of his native forest. It was not such blood that was poured 
out, free as a gushing torrent, upon the dark banks of the melancholy 
Raisin, when all Kentucky manned her warrior sires. They were as 
bold and true as ever fought beneath a plume. The Roncesvalles pass, 



152 THE LA W OF HOMICIDE. 



Argument of Hon. S S. Prentias. 



when fell before the opposing lance the harnessed chivalry of Spain, 
looked not upon a braver or a better band. 

Kentucky has no law which precludes a man from defending him- 
self, his brother, or his friend. Better for Judge Wilkinson had he 
never been born, than that he should have failed in his duty on this 
occasion. Had he acted otherwise than he did, he would have been 
ruined in his own estimation, and blasted in the opinion of the world. 
And young Murdaugh, too ; he has a mother, who is looking even now 
from her window, anxiously watching for her son's return — ^but better, 
both for her and him, that he should have been borne a bloody corpse 
to her arms, than that he should have carried to her, unavenged, the 
degrading marks of the accursed whip. 

But there was danger, as well as degradation. Their lives were in 
imminent hazard. Look at the cuts in Murdaugh's hat and upon his 
head, the stab received by the Judge, and the wounds inflicted upon 
the Doctor. Besides the overwhelming superiority in number and 
strength, the conspirators had very greatly the advantage in weapons. 
We have proven the exhibition and use, by them, of knives, dirks, a 
sword-cane and a pistol, without counting the bludgeons, which, in the 
hands of such men, are weapons little less deadly than the others. 

g 213. Need I dwell longer upon this point? Need I say that the 
defendants are no murderers? that they acted in self-defense, and took 
life from necessity, not from malice ? 

But there is a murderer — ^and, strange to say, his name appears upon 
the indictment, not as criminal, but as prosecutor. His garments are 
wet with the blood of those upon whose deaths you hold this solemn 
inquest. Yonder he sits, allaying for a moment the hunger of that 
fierce vulture, conscience, by casting before it the food of pretended 
regret, and false, but apparent eagerness for justice. He hopes to 
appease the manes of his slaughtered victims — victims to his falsehood 
and treachery — ^by sacrificing upon their graves a hecatomb of inno- 
cent men. By base misrepresentations of the conduct of the defend- 
ants, he induced his imprudent friends to attempt a vindication of his 
pretended wrongs, by violence and bloodshed. His clansmen gathered 
at his call, and followed him for vengeance ; but when the fight began, 
and the keen weapons clashed in the sharp conflict — where was this 
wordy warrior? Aye, "Where was Roderick then?" No "blast upon 
his bugle horn " encouraged his companions as they were laying down 
their lives in his quarrel ; no gleam of his dagger indicated a desire to 
avenge their fall — with treacherous cowardice he left them to their 
fate, and all his vaunted courage ended in ignominious flight. 

§ 214. Sad and gloomy is the path that lies before him. You will 
in a few moments dash, un tasted, from his lips the sweet cup oi 
revenge ; to quaff whose intoxicating contents he has paid a price that 



TRIAL OF JUDGE WILKINSON ET AL. 153 



Argument of Hon. S. S. Prentiss. 



would have purchased the goblet of the Egyptian queen. I behold 
gathering around him, thick and fast, dark and corroding cares. That 
face, which looks so ruddy, and even now is flushed with shame and 
conscious guilt, will from this day grow pale, until the craven blood 
shall refuse to visit his haggard cheek. In his broken and distorted 
sleep, his dreams will be more fearful than those of the " false, per- 
jured Clarence ; " and around his waking pillow, in the deep hour of 
night, will flit the ghosts of Rothwell and Meeks, shrieking their curses 
in his shrinking ear. 

Upon his head rests not only all the blood shed in this unfortunate 
strife, but also the soul-killing crime of perjury ; for, surely as he lives, 
did the words of craft and falsehood fall from his lips, ere they were 
hardly loosened from the Holy volume. But I dismiss him, and do 
consign him to the furies — trusting, in all charity, that the terrible 
punishment he must suffer from the scorpion-lash of a guilty consci- 
ence will be considered in his last account. 

Johnson and Oldham, too, are murderers at heart. But I shall make 
to them no appeal. There is no chord in their bosoms which can render 
back music to the touch of feeling. They have both perjured them- 
selves. The former cut up the truth as coolly as if he had been carv- 
ing meat in his own stall. The latter, on the contrary, was no longer 
the bold and hot-blooded knight, but the shrinking, pale-faced wit- 
ness. Cowering beneath your stern and indignant gaze, marked you 
not how "his coward lip did from its color fly," and how his quailing 
eye sought from floor to rafter protection from each honest glance ? 

§215. It seems to me that the finger of Providence is visible in the 
protection of the defendants. Had this affair occurred at Mr. Redding' s 
coffee-house, instead of at the Gait House, nothing could have saved 
them. Their lives would have been sworn away, without remorse, by 
Redding and his gang. All that saved them from sacrifice was the 
accidental presence of gentlemen, whose testimony can not be doubted, 
and who have given an honest and true account of the transaction. 

Gentlemen of the jury, I shall detain you no longer. It was, in fact, 
a matter of supererogation for me to address you at all, after the lucid 
and powerful exposition of the case which has been given by my 
respected friend. Colonel Robertson. It was doubly so, when it 
is considered that I am to be succeeded by a gentleman (Judge 
Rowan), who, better, perhaps, than any other man living, can give you, 
in his profound learning and experience, a just interpretfition of the 
laws of your State ; and in his own person a noble illustration of that 
proud and generous character which is a part of the birthright of a 
Kentuckian. 

It is true, I had hoped, when the evidence was closed, that the Com- 
monwealth's attorney might have found it in accordance with his duty 



164 THE LA W OF HOMICIDE, 



Ai^ument of Mr. ThompBon. 



and his feelings to liave entered, at once, a nolle prosequi. Could the 
genius of "Old Kentucky" have spoken, such would have been her 
mandate. Blushing with shame at the inhospitable conduct of a por- 
tion of her sons she would have hastened to make reparation. 

§ 216. Gentlemen, let her sentiments be spoken by you. Let your 
verdict take character from the noble State which you in part repre- 
sent. Without leaving your box, announce to the world that here the 
defense of one's own person is no crime, and the protection of a 
brother's life is the subject of approbation, rather than of punishment. 

Gentlemen of the jury, I return you my most profound and sincere 
thanks for the kindness with which you have listened to me, a stranger, 
pleading the cause of strangers. Your generous and indulgent treat- 
ment I shall ever remember with the most grateful emotions. 

In full confidence that you, by your sense of humanity and justice, 
will supply the many defects in my feeble advocacy, I now resign into 
your hands the fate of my clients. As you shall do unto them, so 
under like circumstances may it be done unto you. 

§217. [Mr. Prentiss, during the delivery of his address, had been 
repeatedly interrupted by bursts of applause from the assembled 
auditory, and when he sat down was greeted with irrepressible cheers. 
In a few minutes after order had been restored, Mr. Thompson arose 
and addressed the court and jury as follows :] 

THE ARGUMENT OF MR. THOMPSON. 

May it please the Court — Gentlemen of the Jury: I know you are already 
wearied by the lengthened protraction of this cause. I am also aware 
of the high and great claims and unqualified ability of the gentleman 
[Mr. Prentiss] who has preceded me. By retracing I can not hope to 
strengthen the positions assumed by him ; and so well has he swept the 
field, but little remains for a gleaner. The mature experience, the dis- 
tinguished and well-deserved reputation of the gentleman [Mr. 
Rowan] who will conclude the defense, also admonish me of the pro- 
priety of taxing your patience as lightly as consistent with a succinct 
statement of the law, and brief commentary upon the evidence in the 
cause. 

When all that has been alleged against the defendants, in argument, 
has been so ably answered, I assure* you that nothing but a sense of 
duty and a compliance with the wishes of the- acccused would induce 
me to address you. The defendants come before you, gentlemen, not 
as in ordinary cases. Among the wise provisions and wholesome cus- 
toms of the common law it was ordained that the triers should be of 
the visne or neighborhood. Jurors, thus selected, were presumed, from 
their acquaintance with the parties, and their knowledge of character, 
to be better prepared to adjudicate justly upon those arraigned for a 



TJtfAJj OF JUDGE WILKINSON ET AL. 155 

ATgdBMDt of Mr. ThompsoQ. 



violation of the laws where the offense ^iws committed, and there 
only, could the party be tried. His character tMud reputation might 
shield him from suspicion and prejudice — the whole tenor of his 
life — ^the uniform purity of his conduct, would often of themselves, 
among his neighbors and acquaintances^ refute any imputation of 
crime. 

The trial by compurgation is not known to our laws ; but the testi- 
mony of an upright life, and an unblemished character, is a more con- 
vincing, and less suspicious proof of innocence, than the compurga- 
tional oath of friends, too partial, perhaps, and too confiding. The 
moral force of that good name, and the countenance of those steadfast 
friends, which would encircle and protect the defendants at home, 
they have not here. But, gentlemen, they are not only strangers, far 
from home and friends, they are also arraigned, and upon trial before 
you, not of the visne or county, where the offense is alleged to have 
been committed. By a change of venue, this cause has b^en translated 
to another county, because, where the offense was committed, the 
defendants have been driven from the temple of justice by prejudices 
unwarranted by the facts, fomented by the newspapers, and sedulously 
circulated and impressed upon the public mind by those who origin- 
ated, and upon whose skirts rests the blood of the unfortunate catas- 
trophe, in the tragic events of which the accused are implicated. 

§ 218. The defendants. Dr. Wilkinson, Murdaugh and Judge Wil- 
kinson, are now put upon their trial upon two distinct and separate 
indictments. The first charges Judge Wilkinson with the murder of 
John Rothwell, and charges Dr. Wilkinson and Murdaugh as princi- 
pals in the first degree, as being present, aiding, abetting, and assisting 
him in the murder. The second charges Murdaugh with being guilty 
of the murder of Alexander Meeks, and charges Judge Wilkinson and 
Dr. Wilkinson as principals in the first degree, present, aiding, assisting 
and abetting h^m in the murder. As you have learned from the testi- 
mony, the same, and but the one fc^l and unfortunate affair at the Gait 
House, in Louisville, is the foundation of these two distinct and separate 
indictments. By the examining court, who»e duty and province 
it is, if, wpon inquiry, it deems a party brought before it so 
far culpable as to merit a stricter examination, to send him on to the Cir- 
cuit Court for further trial, Dr. W'ilkinson was discharged. No benefi- 
cial purpose in attaining justice; no requirement of law demanded 
this double proceeding by distinct indictments. To the Doctor's con- 
duct, the color of crime did not so far affix itself, but that the Mayor 
of Louisville, promptly, against the tide of public sentiment, dismissed 
him from further prosecution, as one in whom he found no fault. So 
inapprehensible was the Doctor, in the opinion and judgment of that 
officer of the law, a trial before a jury of his country was deemed not 



156 THE LA W OF HOMICIDE. 



Argument of Mr. Thompson. 



proper. I have not been able to perceive, nor do I now perceive, the 
propriety of including the Doctor in these indictments. In the affraj^ 
at the tailor's shop, which is unconnected in point of fact, and in legal 
contemplation, is separated from and independent of the transaction 
at the Gait House, the Doctor not only committed no violence, but 
one of the witnesses tells you he attempted to separate the parties. 
Opportunity, with safety to himself, the provocation of seeing his 
brother insulted on his account, and then overpowered, would surely 
have been a sufficiently exciting cause for that wantonness and malev- 
olence of heart with which he is now charged, if in trutti (a) " fatally 
bent on mischief and regardless of social duty," he thirsted for blood. 
He then, as afterwards, had with him his pocket-knife; anger and per- 
sonal altercation first, and then actual conflict between Bedding and 
his brother, were transpiring in his presence ; on his own account he 
spoke not an offensive word, he struck no blow. The harshest inter- 
pretation that can be given to his actions is, that it is doubtful whether 
he would have assisted his brother, or separated the combatants. 

g 219. In the affray at the Gait House, not a solitary witness proves 
that he offensively participated in the affair ; there is no evidence that 
he did, or even offered to do violence to his assailants, unless you are 
disposed to credit the statements of Oldham. What credence shmild 
be given to the testimony of that faith-worthy conspirator, what reli- 
ance can be placed on the oath of that volunteer in the fight, your 
knowledge of human character and the discretion of the gentleman 
you have already witnessed, will enable you readily to determine. To 
Bedding and company the Doctor gave not the slightest cause of 
offense; he knew none of them except Bedding; was a stranger, pass- 
ing through Louisville from Mississippi to Bardstown, and was found, 
much like a " certain man on his way from Jerusalem to Jericho, who 
fell among thieves and robbers, who stript him, beat him, and leaving 
him for dead, departed." Upon his entrance into the public bar-room 
at the Gait House, he was suddenly, unarmed, struck down senseless. 
He had assaulted no man, provoked no one, insulted nobody; he had not 
even uttered a syllable. The enormity of getting hungry, and coming 
down stairs to supper, when supper was ready, is the only crime he is 
proved to have perpetrated. For this offense he was assailed, bruised 
until he was livid, and not only beaten there until he was senseless, 
but now here again is he struck dumb by being joined in these indict- 
ments. His power of utterance is suppressed, and his tongue torn out 
by the roots, that he may not divulge the foul deeds of that night. By 
a ruse de guerre it may well suit the prosecutor to stifle the utterance 
and suppress the testimony of the adverse party. The accused are not 
permitted, by any of themselves, to give a narration of the matter; no 

(a) Seepof^, §500. 



TRIAL OF JUDGE WILKINSON ET AL. 157 

Argument of Mr. Thompeon. 

one acquainted with all of them, was present to remember their words, 
watch their movements, feel their danger, and now detail the circum- 
stances of necessity under which they acted. 

Eedding and his party, the assailants then, the prosecutor and wit- 
nesses here, can, without contradiction, save from casual visitors at the 
house, or accidental lookers-on, give what complexion they please to 
the cause. Why has Dr. Wilkinson, after his discharge, been include<l 
in these indictments ? Why has his evidence been stifled — his power 
of utterance in behalf of his brother and Murdaugh choked ? It can 
not be pretended that he even deserves to be tried. Why, then, not 
permit him to be heard as a witness? A vision from one of the adverse 
party, might much elucidate the matter. He has been included in the 
indictments because those of neither side present were persons from 
all parts of the Union, itinerant, unknown, their attendance as wit- 

a 

nesses doubtful, flurried by the suddenness of the afikir, their testimony 
composed from want of acquaintance with the parties, the ignorance 
or indifference of lookers-on — all these circumstances forbade a hope 
that the proper acts and parts could be assigned to the proper individ- 
uals. Dr. Wilkinson out of the way, the combined oaths of the con- 
spirators, they hoped, would give color and cast to the case. The forms 
of law have been perverted to subserve the purposes of this prosecu- 
tion by implicating the Doctor. Explanation from an opponent, or the 
possibility of contradiction, save from some one accidentally present, 
being cut off, they hoped by concerted swearing to accomplish what 
they so signally failed to effect by their combined attack. The Doctor 
is now inculpated, not because he is guilty, but because it suits the pur- 
poses of the prosecution that he shall not be heard as a witness. 

§220. I will here, gentlemen, briefly advert to the law of homicide 
in self-defense, and its bearing upon the facts in the cause so far as 
Murdaugh is concerned : 

" Section 14. And not only he who on* an assault retreats to a wall, 
or some such streight beyond which he can go no further, before he 
kills the other, is judged by the law, to act upon unavoidable necessity ; 
but also he who, being assaulted in such a manner and such a place that 
he can not go back, without manifestly endangering his life, kills the 
other without retreating." 1 Hawkins, p. c. p. 113. (a) 

The right of self-defense, as settled by the law, is — first, that rule of 
action that is instinctively implanted in the human breast by the wis- 
dom of Providence for our preservation ; it is only so far modified by 
the benignity of the law, and of enlightened reason as to require that, 
from " tenderness of shedding a brother's blood/' the assailed party 
shall 80 far recede and avoid conflict as his personal safety, or the vio- 
lence of the assault, will permit. The rule of the civil law, that " qui 

(o) See post '§§ 477, 478, 479. 



158 THE LA W OF HOMICIDK 

Argument of Mr. Thompson. 

cum aliter tueri se non possunt, damni culpam dederint innoxii sunt" is also 
the English common law, contained in the latter portion of that sec- 
tion of Blackstone's Commentaries read to you by the attorney for 
the Commonwealth ; the party assaulted must not factitiously, but 
really retreat as far as he can ; or, " so far as the fierceness of the 
assault will permit him, for it may be so fierce as not to allow him to 
yield a step without manifest danger of his life, or bodily harm, then, 
in his defense, he may kill his assailant instantly, and this is the doc- 
trine of universal justice as well as of municipal law," 4 B. C, p. 185, 

g 221. The same doctrine, that where the fierceness of the assault 
forbids, or no opportunity is afforded to retreat with safety to the 
assaulted party, is the law as laid down by Hale (1 H. P. C, p. 482), 
and in the clear and lucid language of ^v. Justice Parker, of Massa- 
chusetts, in the case of the Commonwealth against Thomas O. Selfridge, 
" When the attack upon him [the assailed party] is so sudden, fierce, 
and violent as that retreat would not diminish, but increase his danger, 
he may instantly kill his adversary without retreating at all." {b) 

If Murdaugh was attacked at such time and in such place, and so 
fiercely that to save his life, or protect himself from great bodily harm, 
it was necessary to slay his assailant, the law adjudges him only guilty 
of homicide, excusable, se defendendo. "Where the necessity is unavoid- 
able, urgent, imposed upon the party against his will, neither reason 
nor law require him to do what his safety and personal security forbid 
he should attempt to do. The law being as I have laid it down, and as 
may be read from those works of unquestioned authority, I now ask 
you to collate and apply the facts touching Murdaugh' s conduct to 
the law so understood. 

The scope of action, and the line of duty, as permitted and demarked 
by the principles of law to an assailed party, have not been transcended 
by him by color of and under pretext of the right of self-defense, in 
this instance, as I understand the testimony. 

g 222. Murdaugh had no acquaintance with Meeks, did not know 
him, and had never before seen him ; being a lodger at the Gait House, 
at the usual hour he came down from his room for supper. He came 
down with his coarse overcoat on, a serious encumbrance to a person 
about to engage in a combat; a garment of which any one med- 
itating battle would have divested himself. Murdaugh is a small and 
feeble man, and had he expected danger to himself, or purposed a hos- 
tile collision with any one, he would have been more efficiently armed. 
A pocket-knife was the only weapon about his person. Had he delib- 
erated an attack he would certainly have divested himself of his heavy 
coat, and armed himself with pistols, or some more effective armor than 
a common pocket-knife. 

ib) See post g 483 as to Selfridge case. 



TRIAL OF JUDGE WILKINSON ET AL. 159 

Argument of Mr. Thompson. 

The proprietor of the Gait House, Mr. Everett, informs you that 
the time of his coming to the bar-room was in the evening about the 
time it is usual for the inmates of the house to assemble for supper 
You are also told that it is customary, and that about the time of, and 
just before supper is announced, the boarders, sojourners and others, 
congregate in the bar-room, adjoining the dining-room. When others 
assembled, and were preparing for supper, Murdaugh also, encumbered 
with an overcoat, and almost unarmed, came into the public bar-room. 

§ 223. The tavern, for the time being, was his house, and he was 
entitled to all the privileges thereof, so long as he demeaned himself 
with propriety, and paid charges. Which of the party commenced the 
conversation is settled by Redding himself, who, although he recollects 
no concert or conspiracy, nevertheless informs you that the altercation, in 
words, commenced by his accosting Murdaugh and saying, " You are 
the man that struck me," or, " You are the man that drew your bowie- 
knife at my shop," or words to that effect. To this charge against 
him, falsely made in allusion to what had transpired at the shop in the 
evening, Murdaugh emphatically responded that " the asserter (who- 
ever he was), of such a charge was a d — d liar." To be calumniated to 
your face, and falsely taxed with an offense (if offense there was), pro- 
voked just such a response as such a charge deserves from a free, 
fearless man. The affair at the shop would never, in all probability, 
have been revived, or even so much as alluded to by the defendants. 
Time had intervened for the passions to cool and for reason to inter- 
pose, but in an irritating manner the former quarrel is called up. 
When Murdaugh asseverated that he was not the individual who gave 
the blow or drew the bowie-knife at the shop, Meeks, with the murder 
of whom he is especially charged, seized him, saying, " You are the 
d— d little rascal:' When the conversation commenced, Raily, Trabue 
and others tell you, the crowd commenced gathering around them; to 
many of those in the room they were partially obscured. This gather- 
ing around him by total strangers was simultaneous with the revival 
of the previous quarrel, his position near the counter of the bar-room 
prevented his receding. As they advanced, Graham and Trabue tell 
you, he warned them off, and that warning, earnest as it was, passed 
unheeded. Now surrounded, retreat impracticable, a former quarrel 
revived, his warning unheeded, his knife-hand uplifted, as a menacing 
signal not to advance, seized by an unknown arm with an oath of vio- 
lence, what was he to do? Meeks, in wanton drunkenness, had 
avowed, "that he was bound to have a fight that night." Oliver had, 
in friendship, taken him off, and by a sort of pious fraud had obtained 
his knife under the pretense of paring his nails with it. Yet, ill-fated 
as if demented and doomed, he had returned, and at the same instant 
with laying violent hands on Murdaugh, Montgomery and others 



160 THE LA W OF HOMICIDE. 

Argument of Mr. Thompeon. 

inform you, he struck him with a whip or cow-skin, and other blows 
at the same instant were inflicted by others. What, I ask you, was he 
to do? Every man feels in his own bosom as testifying consciousness, 
that under such circumstances the right of defense would justify, the 
law of self-preservation would impel him to act as the laws of his 
nature prompt him, and the laws of the land justify him in acting. 
The vilest worm that crawls on the earth, if trodden upon, will turn 
against the heel that crushes it. The meekest and meanest of ani- 
mals, when hunted down to death, in desperation will turn on its pur- 
suers ; it is an instinct of nature impressed on animal organization by 
an all-wise Providence. Situated as Murdaugh was, to defend himself 
was but to act in obedience to a law of his nature ; above the control 
of human laws, implanted in the constitution of his nature for good 
purposes, the love of self-preservation would predominate if even for- 
bidden by positive municipal regulations, when assailed, overpowered 
and beaten down almost to the very jaws of death. To strike for your 
life or security of your person is an instinct inherent in your nature 
by the laws of heaven. It is an involuntary, spontaneous effort of 
your animal organization. It is the inspiration of God Almighty him- 
self upon the human heart, to rebel and contend against destruction. 
§ 224. Impelled by extreme necessity, under great impending peril 
of life, Murdaugh did stab Meeks, and of that wound he died. 
Although the calamitous occurrence is to be regretted, who can doubt 
the necessity of the act ? A left hand thrust, with a pocket-knife, 
by a feeble and partially disabled man in defending his person 
against dangers, and himself from degradation against a supe- 
rior in strength, aided by numbers, caused the death of Meeks. 
It, gentlemen, is unnecessary for me to recapitulate the testimony, or 
array the facts, to prove what is perfectly evident, that Meeks' death 
was the result of a necessity, that he causelessly, wantonly, and with- 
out provocation, imposed on a stranger, to him unknown, and who in 
deed or by words, had never offered him injury. The manner of the 
attack — the weapon used by Meeks (peril and necessity apart) — gave 
higher provocation than a brave man will tamely endure. Should 
Murdaugh, when stricken with a cow-skin, have submitted? Should 
he have whined and begged as a negro slave when lashed ? Should 
the finger of scorn be pointed at him as a coward, disgraced by the 
whip? The jests of the rude, the taunts of the vulgar, would mark 
him for insult and mockery had he not fought. The very girls, even, 
at church and on gala days, would have pointed to him as the chival- 
rous young gentleman of the striped jacket had he tamely submitted. 
There is not a man on that jury, who deserves the name of a man, that 
would passively submit to personal degradation by personal chastise- 
ment. The whelks of the cow-skin would bleed and blister, fret and 



TRIAL OF JUDGE WILKINSON ET AL. 161 

Argument of Mr. Thompson. 

forever fester upon his memory, long after all traces of the lash were 
cured on his back. The life of the aggressor could alone atone for the 
indignity. 

§ 225. As the accusation is more gravely urged against Judge Wilk- 
inson than the other defendants, I will now advert to his conduct. 
Suits to obtain personal satisfaction for assaults and batteries they 
never committed are pending against the Doctor and Murdaugh for the 
affair at the shop. An indictment is also pending against them for that 
violation of the public peace. The attempt to amerce the Doctor, and 
hold him pecuniarily responsible for an injury he never committed, is 
alike to those indictments against him for the murder of men he never 
before in his dream had thought of, much less of violence towards 
them. This prosecution is, perhaps, on the ground that he was the 
Judge's brother. Murdaugh, too, shares in all this legal persecution ; 
first, because he is in bad company ; and, secondly, because, se defendendo, 
he slew a man so vfle that the prosecution would discredit and render 
infamous the only man (Oliver), who seems disposed to recognize him as 
an acquaintance. The violation of the public peace at the shop is an 
injury that another jury will pass upon, and by their verdict avenge the 
insulted majesty of the law. Another jury will mete out to the prose- 
cutor satisfaction for the injury received on that occasion. You are 
now, gentlemen, called on in the name and on behalf of the Common- 
wealth to convict Judge Wilkinson of the murder of John Rothwell, a 
worthier and less offending man in the affray than Meeks, as it is insisted, 
and because, however excusable the other defendants mav be, the 
Juige, at least, as the* Commonwealth's attorney contends, did not act 
in necessary self-defense. 

§ 226. In addition to the authorities already alluded to relative to 
the doctrine of self-defense, the following positions upon the law of 
homicide, are, I believe, sustained by reason, and deducible from the 
text and reasonings of standard authors. When a retreat would not 
diminish, but increase the danger of a person under the imperious 
necessity of exercising his right of self-defense, he may, without 
retreating, oppose force to force, and even pursue his adversary unto 
death, if his own preservation require it, and such killing is justifiable. 
[See Fos. C. L., p. 273; 1 Crim. Law, p. 80.] The right of self-defense 
is not confined to the party endangered — it is not only an individual, 
but a social right ; it embraces the principal civil and natuK.l relations. 
Husband and wife, pareiit and child, master and child, not only may, 
but in duty are bound to protect one another, and holds good between 
citizen and citizen in the spirit of the law, according to the reciprocal 
duties they owe one another. A servant, or any other person^ when a 
H.— 11 



162 THE LA W OF HOMICIDE. 

Aigument of Mr. Thompson. 

felony is attempted, may interpose and justifiably slay the aggressor. (a) 
A person in possession of a tavern-room, although no injury be intended 
him, may, against burglars and incendiaries, oppose such force as may 
be requisite to prevent the felony. To protect against murder, rob- 
bery or enormous bodily harm servants of the party attacked, or 
inmates of the house about to be robbed, may justifiably take the life 
of the assailant or robber. [See Archbold, p. 121 ; Foster, p. 273-4.] 

§227. I quote, almost literally, from the best law-writers — these 
cases are but examples to illustrate rules. The law is more palpably 
embodied and distinctly presented to the understanding, when exem- 
plified by a case, than when presented as an abstract rule of action 
without reference to circumstances. Homicide is justifiable, or excusa- 
ble, when committed upon compulsion, and ex necessitate, because the 
party does it not from choice as a free agent, but his action on the mat- 
ter is constrained, his volition controlled by external circumstances ; 
the concurrence of his will to the deed is absent ; when there is no 
freedom of action, no voluntary assent of the mind, there is no moral, and 
should be no legal, accountability. When it is practicable with safety, 
the law, to eschew the shedding of blood, requires the party should 
retreat in cases of mutual conflict. But this requirement is only when 
it is consistent with his safety, and if his safety requires it, he may be 
stationary or advance with as much propriety as recede. How flight 
would have affected the Judge's personal security is now a matter of 
pure speculation. If, for his own personal safety, he was constrained to 
act as he did, or if in the exercise of a social, not a selfish privilege and 
duty, he succored his brother and Murdaugh, to preserve their lives or 
protect them from great bodily harm, he, in law, is excusable. Society 
and mutual companionship justify such interference, as is happily illus- 
trated by the case of the three men walking in a field, and one is 
assailed, the others may interpose to prevent a felony being committed, 
and may interpose to any extent to make their interposition effective, 
as you have already learned from the case so aptly quoted by Colonel 
Robertson. The reason of the law is this: The life of a citizen is, in its 
contemplation, dear, his person sacred. Against assaults, injury, or 
destruction, he may defend them to the last extremity, if the exigency 
of the occasion demands it; that right is not altogether personal 
to him, but it is a social right; and it is not only the right of any per- 
son to interfere to prevent the perpetration of a felony, but such inter- 
ference to intercept the commission of a crime is enjoined as a positive 
duty. 

g 228. The natural relationship between the Judge and his brother, 
the mutual ties of friendship between him and Murdaugh, his duty as 
a citizen, justified him in interfering in the conflict to defend them. 

{a) See post % 412. 



TRIAL OF JUDGE WILKINSON ET AL. 163 



Argument of Mr. Thompson. 



By the spirit of the law for the purpose of defense, he is identified with 
them ; their necessity and justification is his ; their right of self-defense 
is transferred to him, or is, rather, common to all. If the Judg^ has not 
malignantly transcended the degree of violent interposition necessary to 
save his brother and friend's life, he has but fulfilled his duty as a citizen. 
I do not desire to be understood that officious meddling in broils is 
countenanced by law, nor do I mean to assume the position that where 
combatants are struggling in an aflray to prevent mischief, or keep the 
peace, extreme violence is proper ; no such licentious latitude of action 
is even permitted to those engaged in the conflict. I limit the right 
by the wholesome restrictions imposed on wilful, wanton killing in other 
cases. Before I call your attention to the evidence, I will merely advert 
to another principle of law, which is sound in doctrine and applicable 
to this case. In treating of justifiable homicide in the due advance- 
ment of public justice, and in allusion to what killing is justifiable for 
that purpose, the opinion is intimated as correct by the author. 1 Haw- 
kins P. C, 107: "The killing of dangerous rioters by any private 
person who can not otherwise suppress them or defend themselves from 
them [is lawful,] inasmuch as every private person seems to be author- 
ized by the law to arm himself for the purpose aforesaid." This doctrine 
seems so near akin to lawful killing in the execution of public justice 
by hanging, or in the arrest of felons who can not be apprehended alive 
by those who pursue them, that I can not question its correctness. 
The law, to maintain itself and be respected, must tolerate the means 
to suppress rebellious contempts of its authority, and such means should 
be proportioned to the exigency of the occasion, and consistent with 
the safety of the orderly and law-abiding citizen. Rioters, assembled 
in force, like rebels against the government, when they condemn the 
supremacy of the law and spurn its commands, should be regarded as 
outlaws and traitors. The law surely can not cherish any such suicidal 
and disorganizing principles as a favorable regard for those who have 
forfeited all claim to be within the pale of its protection by their dis- 
respect for its principles and the institutions of their country. 

§ 229. Without a labored analysis of the' testimony, the prominent 
facts are few and substantially as I shall recall them to your minds. I 
have but little to say of the scuffle in the evening at the shop ; the 
occurrence itself is quite impertinent to the matters now in issue, as I 
conceive. The defendants were staying at the Gait House in Louis- 
ville. Judge Wilkinson was to be married in a few days, at Bardstown, 
in the interior of the State. 

Whilst in Louisville the wedding day being just at hand, it was 
thought by them that the operatives of one shop could not in time 
finish the necessary equipments in the way of dress. The Judge and 
Mardaugh applied to Davie, one of the witnesses, to make their clothes. 



164 THE LA W OF HOMICIDE, 

Argument of Mr. Thompaoo. 

Dr. Wilkinson engaged Redding to construct for him a coat to wear 
to his brother's wedding. Dr. Wilkinson, to insure promptness and 
satisfy any misgivings Mr. Redding might entertain of him, a stranger, 
deposited with him a one hundred dollar Mississippi note. The 
money was appreciating; the Doctor did not wish to lose the 
exchange in converting it into Kentucky money just at that time, nor 
did he desire to incur a possible suspicion on the part of Mr. Redding 
that the garments would not be paid for. The Judge and Murdaugh 
obtained their clothes and went to Redding's shop with the Doctor, 
accompanying him as is usual with comrades in strange places. The 
fit of the Doctor's coat did not please him — alteration was suggested. 
The Doctor was for throwing the coat on Redding' s hands as an article 
he was not bound to receive. Some chaffering took place. The 
hundred dollars was not surrendered, and that was the whole cause of 
the difficulty. Redding retained the money and insisted that the coat 
was, or could be, made to fit as such an article of dress ought. The 
Judge, who was in the room, gave his opinion of the coat. It is 
probable Redding was not apprised that he was a brother of the 
Doctor's. He spoke so harshly and insultingly that the Judge rose 
from the stove where he was sitting, and struck Redding with the 
little iron rod used for stirring coal. The Judge may have been too 
hasty, but insulted by being told he. was a meddling busy-body, or 
substantially that, as you no doubt recollect the testimony, did no 
more than almost any one might be provoked to do. A scuffle ensued 
in which neither the Judge nor Redding, nor any one else, was hurt. 
The parties got from the shop into the street; were separated, and 
departed, whenf Just as soon as Doctor Wilkinson got his money. 
Had the money been surrendered as it should, there would iiave been 
no difficulty. But for the occurrences happening since, the affair at 
the shop would have passed off, as it was in reality, a slight casual 
fracas not worthy of notice. The attempt to swell it into an important 
fight is ridiculous and the expression of my opinion about the $100 is 
the most aid I can give you in your deliberations upon that mass of 
immaterial testimony /rom*^Ae shop and about the shop. 

§ 230. After the parties separated, the Wilkinsons and Murdaugh 
go to their boarding house, ashamed of what had happened I have no 
doubt, or rather not thinking of it at all in the preparations making 
for their trip to Bardstown. Not so with the other party in the quar- 
rel. Menacing speeches and hostile movements characterise their 
deportment. 

In Redding's coffee house adjoining his shop, Meeks, Johnson and 
his friends are seen. The affray which had taken place is talked of 
and discoursed, and the proposals and propriety of going to the Gait 
House to give the Mississippians " hell " is mentioned. Warrants in 



TRIAL OF JVDGE WILKINSON ET AL. 166 

Argument of Mr. ThompaoA. 



blank against the defendants were offered Redding ; those, however, he 
did not accept, to insert the names when ascertained. Bedding, how- 
ever, must go to the Gait House to procure the names. The pacific 
Johnson, Bedding's legal adviser, had made the proposal to give them 
"hell." Upon this "steak cutter" immortal celebrity has been con- 
ferred by the roasting he has received at the hands of the gentleman 
[Mr. Prentiss] who preceded me. Meeks gets his knife ready, is under 
the persuasion — yes, a sort of religious obligation rests upon his con 
science, that he is bound to have a fight that night He seemed, how. 
ever, to have loaned his knife, and gotten in its stead a cow-skin. 01 d~ 
ham who goes around for any chance is up in blood for a fight " on his 
own hook." At the ingathering, Rothwell, Bedding's brother-in-law, 
and Holmes, congregate with others. The concert of action, the hos- 
tile intentions, the conspiracy to inflict grievous injury on the defend- 
ants, is so obvious from the testimony, and has been so clearly enforced 
and happily commented on by others, [Col. Bobertson and Mr. Prentiss] 
that I will not fatigue you with its repetition. When the combined 
forces had convened according to the plan of concert, allow me, gentle, 
men of the jury, to ask your marked attention to the manner of con- 
ducting the battle. Several hours had elapsed since the skirmish at 
the shop. The names had been obtained ; Bedding awaited, it is said, 
the coming of a peace officer to serve the process. 

§231. The names when procured, like the rejected blank process* 
did not satisfy him — staying for the marshal of the city or other peace 
oflScer at that place, an hour or more getting a memorandum of their 
names, are but flimsy afterthoughts to cloak another arrangement 
Redding and his friends, picked men of herculean strength and stature, 
are aeciderUally in the bar-room about the time the boarders and lodgers 
at the house assembled to catch the news or be ready for supper. Judge 
Wilkinson, who I venture had scarcely thought of the battle of the 
shop, came into the public room alone. If Bedding did not recognize 
the Judge, and if curious about his identity, why did he not address 
his inquiry to some third person ? Why address himself to the man 
he had fought with only about four hours before ? As if ignorant, why 
insultingly inquire of him, " Are you the gentleman that struck me in 
my shop?" The Judge very calmly and readily replied, " I am." This 
conversation thus commenced, and the torrent of vile abuse from Bed- 
ding instantly following, I take it, was intended to provoke an assault 
from Judge Wilkinson. 

§232. Had he resented by an attack the opprobrious epithets so 
lavishly bestowed upon him, Bedding and company, as the assaulted 
party, would have shielded themselves under it, as a legal justifica- 
tion, to have inflicted upon him a most grievous battery. This 
finesse to bring on the fight failed, and Judge Wilkinson returned 



166 THE LA W OF HOMICIDE, 

Aigument of Mr. ThompsoD. 

to his room. Great forbearance had been exercised by Judge Wilkinson. 
He claimed to be protected from insult and violence, and requested 
of the proprietor of the house (Mr. Everett), to furnish him with pistols 
at his room. No anns were brought to him, and after remaining in his 
room about a quarter of an hour he again came down to the bar-room. 
In the diagram shown you to point out the localities of the house, you 
recollect in descending the stairs, just at the foot, there is a window 
overlooking the bar-room. Time for Redding to depart had intervened 
since the recent quarrel, and in passing the window by the stairway, if 
Judge Wilkinson had thought of it and passed into the public room, he 
would not have discovered Redding there. The witness. Rally, informs 
you that when Judge Wilkinson, at Everett's instance, returned to his 
room, Redding and some of his friends also left the public room and 
went into the entry or across the passage into the reading room. The 
Judge came into the room in company with the other defendants, or 
they were immediately in his rear. Up to this time no intimation had 
ever been given to the defendants that Meeks or Rothwell were enemies. 
Redding was the only one of the conspirators personally known to them. 
The existence of such conspiracy they were as ignorant of as they were 
of the individuals who composed it. The Judge, it is true, was armed 
with a bowie-knife, but Murdaugh and the Doctor were not equipped 
for fight. Redding again came into the room — he had been foiled in his 
effort to 'bring on a fight by the patient forbearance of the Judge. 
During the interval the Judge was up stairs, it is more probable that 
Redding left the public room to re-arrange his plan of attack, than for 
any other purpose. Whether Judge Wilkinson's knowledge of the 
topography of the house would have enabled him to sneak to supper by 
the way back of the bar-room designated in the diagram, we do not 
know. The premonition he had already received, would have induced 
a prudent man to arm himself; he came into the bar-room the usual 
route to the supper table. His right to wear arms for his defense is as 
unquestionable as his privilege to come into the room. About the time 
Redding' s re-entry into the room, Mr. Pearson, just when Murdaugh 
was attacked and the remarks were made which I will presently attend 
to, accosted Judge Wilkinson, to whom he had been passingly intro- 
duced the previous summer, and told him it would be better to leave 
the room. 

This suggestion from Pearson he acceded to, and was about leaving 
when the quarrel and fight arrested his attention and checked his exit 
from the room. The admonition from Pearson and the testimony from 
the other witnesses are repleJte with proof, that however secret to the 
defendants, it was apparent to others they were to be attacked. The 
remark made in their absence up stairs, the mysterious presence of 
unusual personages about the house — fighters all — ^but too clearly fore- 



TRIAL OF JUDGE WILKINSON ET AL. 167 



Argument of Mr. Thompson. 



told the impending danger. At the shop Murdaugh had displayed 
hastiness of temper; he was young; with him a fight might be pro- 
voked; he would possibly answer their purpose. The Judge had been 
insulted but declined battle. Just before Murdaugh was angered by a 
provoking falsehood, as to his drawing his knife, etc., at the shop, Red- 
ding is heard to say, " These are the three men," or, " Here are the three 
men." Mark the words; they are of ominous import. To whom were 
they addressed? The words, "The one whom I shall kiss is he," did not 
more significantly mark the object of treason, than Redding pointed out 
the defendants. When the conversation commenced, the conspirators 
at the signal, like Cflesar's assassins when the petition for the recall of 
Metellus from exile was presented to him in the senate chamber of 
Rome, gathered around the intended victim. 

The murmurs that in whisper had presaged the storm, the growling 
muttering broke into open violence. Thfe onset is made upon Mur- 
daugh in one part of the room, as we have before stated. At the same 
instant tl\e Doctor is stricken down. Proximity to Pearson, an esteemed 
citizen of Louisville, perhaps saved the Judge, About the time Mur- 
daugh stabbed Meeks, from the testimony of Greneral Chambers and 
Montgomery, you can not but be satisfied that Rothwell with his cane 
or bludgeon, was also inflicting violence on him, then reeling and 
almost bound to the floor by severe blows on the head. The severity 
of the blows is evident from the scars left, and Meeks could not and 
did not inflict them. At this crisis the Judge did inflict with his bowie- 
knife a wound upon Rothwell in the side or back. Murdaugh, extri- 
cated, seems to have gotten from the room, and in that part of it where 
Holmes had the Doctor down prostrated and lifeless, Rothwell hard by, 
is again stabbed by the Judge. As soon as disengaged, the defendants 
retreat to their room upstairs. When Rothwell received the second 
stab a futile attempt is made to show, and Johnson swears he was per- 
forming the office of pacificator. He was one of the conspirators, was 
present, engaged in the fight, had come to the Gait House for the pur- 
pose of abetting the lawless violence, and it would be as miraculous 
if any such instantaneous revulsion of purpose seized him as it is won- 
derful that no one present heard the pacific expression, " Peace ! for 
God's sake, peace!" about the time of the second stab, except this redoubt- 
able and veritable Billy Johnson. 

§ 233. This sketch of fancy is no doubt of a piece with much of the 
testimony of the conspirators in relation to the matter. Pride of char- 
acter, if any they have, tempts them to extenuate their conduct for 
their own exculpation. Chagrined by defeat, burning for vengeance, 
they testify with all the feelings a party could in his own cause. Their 
account of the occurrence should be discarded, because others present 
were disinterested lookers-on, whose recollections are not warped by 



168 THE LA W OF HOMICIDE, 



Aigument of Mr. Thompson. 



bitter prejudices. .The testimony of persons not of the party, is every 
way less exceptioniible, less suspicious, and more satisfactory. In scan- 
ning the testimony of various witnesses to the same occurrence, enlight- 
ened reason teaches the propriety of not rejecting what one testifies, 
because another did not see or hear the same thing. That you did not 
see, or, do not know what I have seen or what I know, is no reason 
even to doubt the details of facts I may make. When within the 
range of human probability a credible witness attests the existence of 
a fact, it outweighs the negative testimony of the whole world. What 
you know to be true is not the less so because others do not know it. 
Now, rejecting altogether the testimony of the conspirators, or in char- 
ity permitting it to prevail, when not contradicted by the unenlisted 
lookers-on, the brief narration of the matter up to the stabbing of 
Rothwell is a succint history of facts. To reconcile apparent clashings, 
or rather to fill up omissions in detail which may seem to occur, apply 
the rule just suggested, and you may \fell credit and reconcile all 
that those gentlemen have testified to. What Trabue saw may have 
escaped the observation of Graham or Raily, and so of others. The 
testimony of one can not be impugned because another did not see or 
may not recollect what he sees. Of the wounds inflicted by the Judge, 
and wound inflicted in the breast by an unknown hand, Rothwell 
died. By collateral remarks foreign to the cause I am unwilling to 
detain you. The severity of the conflict is too well attested by the 
death of two, and wounds of others of the assailants. The peril of 
the conflict to the defendants is too well attested by the still visible 
marks of violence on their persons. The brutal and merciless beating 
inflicted on the Doctor, the attempt not only to chastise, but to take 
the life of Murdaugh, as manifested by the cuts with a deadly weapon, 
through his hat, the assassin stab the Judge received when the com- 
bat was being declined, by returning to his room, a retreat itself by 
the brave men, too clearly proves that enormous bodily harm and impend- 
ing hazard of life had placed the defendants in the attitude justifiable 
of self-defense. By the joinder of the defendants in the indictments, 
they are identified in the proceedings as one individual. If for the 
purpose of accusation, the crime of one is the crime of all, the right 
of defense should be deemed the right of all to defend. 

g 234. Are good citizens to stand by and let a lawless band of ruffian 
conspirators slaughter them one by one ? Must each run as far as he 
can, and, if overtaken, ^A< if he can ? The prosecuting attorney (Mr. 
Bullock), seems to insist that, unnecessarily, in their malice. Judge 
Wilkinson stabbed an unoffending man in the back, and thereby caused 
his death. The nature of the offense is not affected by the part of the 
body the blow may happen fortuitously to alight upon. That the blows 
were inflicted maliciously, or even willingly, except so far as constrained 



TRIAL OF JUDGE WILKINSON ET AL. 169 

Ai^ument of Mr. Thompson. 

assent of the mind constitutes such willingness, can not be believed. 
Suppose, gentlemen of the jury, any three of you were to go to th6 
State of Mississippi, and land at Vicksburg or Natchez. Whilst tem- 
porarily at a tavern in one of those places, before proceeding to the 
interior on your business, you have a difficulty with citizens of the place 
and kill two of them. When the news reached your friends here in 
Kentucky, a thousand miles from the scene, would they not be willing 
* to swear that necessity, and necessity alone, induced you to kill stran- 
gers you never before saw; men, too, with whom neither from business, 
nor acquaintance, you had ever before had intercourse ? Judge Wilk- 
inson, with his brother and friend, had come to Kentucky on an embassy 
of love. So near the consummation of his nuptials, he would not 
desire the comliness of his person nor the integrity of his attendants to 
be soiled by a fight. At such a time, distant, far distant from his thoughts, 
would be meditations upon bloodshed and murder. Asa visitor to our 
State he was entitled to our hospitality. We do not, as the wandering 
Arabs of the desert, seize and prey upon the confiding traveler. Surely 
we are too civilized to regard all strangers as enemies, and like the pirati- 
cal barbarians of Northern Europe in the dark ages, consider as lawful 
booty all who unfortunately or accidentally are cast upon our shores ? 
To our State, as the abode of hospitality, Judge Wilkinson had come to 
contract the tenderestof human relations with one of the daughters of 
your land. A distinguished citizen of his own State, and known 
throughout the Union as a valued and honored citizen, a pacific man, 
at such a time, is it consistent with reason to believe that he would, 
but by constraint, have involved himself in so disagreeable a difficulty ? 
After the rencounter at the shop, and Judge Wilkinson had had time 
to bethink himself of the propriety, the flurry of feeling had subsided, 
and he seems, when accosted by Redding at the Gait House to have 
sternly resolved on no further difficulty. Quietly he submitted to the 
foulest tirade of abuse Redding could heap upon him. As far as for- 
bearance is a virtue, he displayed it in an eminent degree. His inflex- 
ible purpose not to have a difficulty was not changed by the villification 
and gasconading of Redding. 

§235. The language and the deportment of the Judge, his retiring, 
the motives of action that would influence any man circumstanced as 
he was, evidences how studiously and consistently with self-respect he 
avoided a conflict. Now, permit me to ask you, when at last a fight 
was forced upon the defendants, what should Judge Wilkinson have 
done ? Ought he to have stood calmly by, until at leisure they were 
all lynched or slain in detail ? Should he, if practicable, have run until 
caught, and then have fought? No! No!! As a true man against 
them, lawless rioters, he had a right to defend his companion and 
brother. A mob arrayed in numbers, with force, were inflicting igno' 



170 THE LA W OF HOMICIDE. 

Argument of Hon. Benjamin Hardin. 



minious and grievous hurt upon his companion and friend. Men 
whom he had never wronged, unmerciful in their wanton riotous ness, 
of superior brutal force, were mangling Murdaugh with bludgeons, and 
instruments of death were savagely playing about his person. The 
Doctor, his brother, whom he loved with a brother's heart, was over- 
powered, down-trodden. They were crushing the life from his body 
as he lay prostrate on the floor. Ought the Jjidge to have refrained 
from interfering ? Who could refrain ? Does reason or law require 
any such degree of high and impracticable philosophy as apathy and 
indifference under such circumstances ? He that would not rescue a 
friend or a brother never deserved the fidelity of the one or the affec- 
tion of the other. Had the Doctor or Murdaugh been murdered and 
the Judge had not interfered, a voice of execration against his faithless- 
ness and cowardice would have rung over the whole State that could 
only have been equaled by the deep-toned denunciation that would 
have resounded through the length of the land, if the mob, unharmed, 
had succeeded in their bloody and murderous purpose. The rev- 
olutionary and disorganizing proceedings of mobs in New York, in 
Mississippi, and at other points in a few years past, have tarnished the 
fair character of our country. These lawless conspirators have imprinted 
on the escutcheon of our State the first foul blotch of lynchism. Con- 
temners of the law, signally foiled by the resistance of their victims, in 
the name of the law they now ask you to perform an act of vengeance 
for them. Rebuke them from this place; repudiate their claim to 
be avenged, through your instrumentality, on men whose lives they 
have attempted by violence, whose characters they have traduced^ 
whose liberty they have infringed by incarceration in a common felon's 
jail, and whom they would now doom to felon's graves. By your ver- 
dict proclaim to the world that our State, in by-gone times known as 
the " dark and bloody ground," is now a land of civilization, where 
peace and good order in society are respected and the laws revered. 
Gentlemen, any inaccuracy of statement as to the evidence I have fallen 
into, your memories will correct. The further defense to be made by 
an older and abler advocate, will more than supply all omission on my 
part. As to myself, the fate of the defendants is in your hands. I 
thank you for your polite attention. 

ARGUMENT OF HON. BENJAMIN HARDIN. 

§ 236. [At forty minutes past two o'clock, Mr. Benjamin Hardin 
commenced his address, and spoke for two hours and a half, which, 
with the similar space of time occupied by him next morning in con- 
clusion, made a speech of five hours on the whole. It will be obvious 
that it would be quite beyond the limits of this publication to publish 
every thing uttered by any one speaker in five hours. A person can 
read through an ordinary novel in that space, and generally, a fluent 



TRIAL OF JUDGE WILKINSON ET AL. 171 

I I. I 11 , , ■■ 

Aitpument of Hon. Benjamin Hardin. 

speaker says more in a given time than can be read, so that a little 
reflection must convince any one that a speech of five hours alone 
would fill the whole of this pamphlet. In reporting Mr. Hardin's 
speech, therefore, it has been found necessary to compress it into a 
fifth or sixth of the space it would properly occupy. In doing so, 
much is gained and iiMich lost by the reader. Condensation in the 
argument is gained, but many of the graces of oratorial ornament and 
wit must necessarily be sacrificed. The object of this publication 
being, however, to place facts, and the reaswiing upon them before the 
public, it is conceived that object will be attained hy the compression 
of the longest speeches without any serious disadvantage.] 

Mr. Hardin : I shall, gentlemen, very humbly and very cordially 
congratulate you upon having this case brought so near a close. It 
has already been protracted beyond the usual limits of criminal trials 
by the extraordinary ingenuity and uncommon array of talent enlisted 
on the occasion. The gentlemen on the opposite side have felicitated 
you upon the pdUeness of yowr patience; and, among others, I, too, 
return you my thanks for your attention. 

§ 237. I little expected when I engaged in this cause in Louisville 
last winter, that I should ever have to address you on the subject. 
Although I have been fifty years practicing at the Kentucky bar, this 
is the first time I have ever had to address a jury in this place, and I 
can not help feeling that I am as much a stranger here as any gentle- 
man who has addressed you. I shall, however, in speaking to you, 
apply myself to an exposition of the facts and of the law bearing 
upon them, and whatever may be your feelings, you will, I am sure, 
keep in mind that you are bound to exercise your reason, and that 
you owe a duty of no ordinary responsibility to yourselves, your 
characters, and your country. That duty is a sacred trust reposed in 
you which you can not weigh lightly without iryury to yourselves as 
well as wrong to others. >ior must you surrender up your reason to 
your passions and allow yourselves to be carried away by the shouts of 
applause from a fashionable audience, as if you were in a theater where 
a Junius Brutus Booth and a Miss Ellen Tree exhibit the practiced arts 
of controlling the feelings, and successfully eliciting the noisy plaudits 
of excitemeiit. This is not a theater — this trial is not a farce — nor are 
you seated on those benches for amusement. This, gentlemen, is a 
solemn court of justice — a solemn tribunal in which your Judge, pre- 
siding with becoming dignity, represents the majesty of the law, and 
in which you are expected to deliberate with becoming gravity upon 
circumstances of awful import. The appalling death of two fellow- 
creatures is the occasion of your being here assembled, and the guilt 
or innocence of those at whose hands they fell, is the object of your 
solemn investigation. 



172 THE LA W OF HOMICIDE. 



Argument of Hon. Benjamin Hudin. 



g 238. • Even though I knew I should have to address a jury of 
strangers, and an assemblage to whom I am personally unknown, I 
little anticipated that I should have to make a speech to any other 
audience than that usually to be found in our halls of justice. But 
my friend Col. Robertson, whose youth and warmth in that way, urge . 
him to precedence, has taken me by surprise, and placed before me a 
gallery of beauty and fashion, which might well deprive me of my 
presence of mind, if I were not fortified with less of the ardor of youth 
in my veins than himself^ and were I not less practiced in those graces 
of person and manners which he can so successfully play off to woo 
and win their fascinating smiles. 

By law, and in conformity with the original institutions upon which 
all law is founded, this trial was to have taken place where the occasion 
of it occurred — in the county of Jefferson. The Legislature, in its 
wisdom, has thought fit to change the venue from Jefferson to Mercer 
county ; but why, I am unable to say. For, even Colonel Robertson, 
the very able counsel for the defense, has admitted that, although for 
a time great excitement existed in Louisville, yet, after the investiga- 
tion at the examining court, that excitement was altogether allayed. 
In this country experience has always taught us that ifhen a change 
of venue is sought, the object is not to obtain justice, but to evade it. 
The obje-ct is to thwart and embarrass the prosecution, and multiply 
the chances of eluding the responsibility of the law. (a). How is this 
effected ? Is it not by a removal to some place esteemed favorable to 
the accused, by a removal so distant from the scene of action, that the 
expense and inconvenience render it probable but few of the witnesses 
can attend ; by a removal to where witnesses of a character dubious, 
if not infamous where known, may find credit because they are 
unknown. Here we are some seventy or eighty miles from the stage 
on which this tragedy was acted, yet we are asked why we did not 
bring the stick and the cow-hide, and Bill Holmes the pilot, as if we 
would l>e afraid to produce them were they within our reach. I would 
ask the opposite side, in my turn, why gentlemen have brought us 
eighty miles from the scene where we could have elicited the truth in 
every particular ? I listened yesterday with great pleasure to Colonel 
Robertson, whose speech was very good, and evinced as much of the 
fire of youth as the flowers of rhetoric ; but I can not say it was much 
calculated to convince the understanding that the "worse can be 
made to appear the better cause." 

§239. I also listened with great pleasure to Mr. Prentiss, who 
addressed you yesterday, and in part to-day, and I must say that, 

(a). At this day it is not considered proper for counsel to animadvert upon the fact that 
the defendant has changed the venue. In general, the Judge will interpose to prevent such 
discussion, as irrelevant and unfair. It is to be observed that throughout this case a good 
deal of latitude is taken by counsel on both aides. 



TRIAL OF JUDGE WILKINSON ET AL. 173 



Ai^ument of Hon. Benjamin Hardin. 



although there were in his speech some things which I could not 
approve, and many deductions which I could not admit, yet, on the 
whole, it was an oratorical effort which I could not help admiring. I 
am even disposed to go farther, and to say that I am utterly astonished 
that such forensic powers, and so ably wielded, did not prove less abor- 
tive — but I must attribute the feebleness of the effect, more to the 
weakness of the cause, than to the want of genius in the advocate. 
However, Mr. Prentiss really astonished me with one proposition he 
laid down with respect to the common law of this country, that every 
man is to judge for himself where the point of dan^r lies, that entitles 
him to disable another, or to kill him, lest he might, in turn, by possi- 
bility, become the killed ; so that, in fact, if it were so, the point of dan^ 
ger never could be defined by law, because what a brave man would 
consider no danger at all, a timid man would consider the point of dan- 
ger bristling with a thousand deaths. Was there ever such a monstrous 
doctrine recognized by the laws of any community ! 

[Here Mr. Prentiss interrupted Mr. Hardin, to say that he had only 
urged that what might be considered by a man, from apparent circum- 
stances, the point of danger, where resistance was necessary for his own 
preservation, would in the law be grounds for justifiable homicide.] {a) 

§210. Mr. Hardin: I will come to that in due time. The dilemma 
can not be removed, that the same point, according to this doctrine, is, 
and is not, the point for the resistance contemplated by the law. No, 
gentlemen ; the law recognizes no such absurdities. The law was laid 
down yesterday correctly by the District Attorney, that when the kill- 
ing of a man has taken place, it is a murder m the eyes of the law, and 
must be pronounced by the law to be a murder, till the contrary is 
shown. What, then, becomes of this new doctrine, unknown to the law, 
that the slayer and not the law, is to judge and presume the justifica- 
tion ? The law itself says, all killing of one man by another is murder. 
The slayer, according to Mr. Prentiss, says, "Oh, no, I killed my man 
because I fancied he would kill me — it is not murder, it is justifiable 
homicide!" Yet, the law again says, if a sheriff, who hangs a man by 
lawful authority and in doing so commits only a justifiable homicide, 
should, even for the best of motives, instead of hanging the man, as 
bound to do, chop his head off with a sword, though death must neces- 
sarily follow either way, yet is he guilty of murder, and liable to the 
punishment, for the killing contrary to the prescribed mode of his 
duty. 

(a) One without fault, if attacked by another, may kill his assailant, if the circumstances 
be such as to furnish reasonable ground for apprehending a design to take his life, or do him 
great bodily harm, and that the danger is imminent; though, in point of fact, there was no 
design to do him bodily harm, nor danger that it would be done. Shorter v. The People^ 2 N* 
Y. 193; Pattersm v. The People, 46 N. Y. 625; See PeopU v. Laniby 54 N. Y. 342; People v, 
AvMin, 1 Park 154 ; Ptt5>fe v. CWe, 4 Park 35 ; Pfomer v. People, lb. 558 ; UM v. People, 5 Park 
410. 



174 THE LA W OF HOMICIDE. 



Argument of Hon. Benjamin Hardin. 



J 241, There are certain maxims of law laid down in the books 
which are never disputed, because they are founded upon reason and 
just principles; such, for instance, as these: If A kill B from neces- 
sity, to save his own life, the danger being undeniable, it is excusable 
homicide. If A kill B in a sudden heat of quarrel, it is manslaughter. 
If A kill B without what in law is called a competent provocation, it is 
murder. If a man fire a pistol ball into that crowd and kill a man, 
though it were his bosom friend against whom, personally, he could 
have no previous malice, it is murder, though he did not intend that 
death. It is murder in the eye of the law, because the recklessness of 
human life implied in the rashness of the act, shows that general 
malice to mankind, which is equally dangerous to the community as 
any private malice could be. I will read you the law upon the subject 
of words in a quarrel being no provocation sufficient to justify assault. 
[Here Mr. Hardin read the well known text that words are no provo- 
cation in law.] All killing is murder unless an excuse is shown, but 
words are no excuse, because they never bring a killing below the 
crime of murder; neither are indecent and contemptuous actions justi- 
fication, according to Eaymond and Blackstone. Here is a maxim in 
point : If there is a previous quarrel between A and B, and some 
time after, in consequence of the previous quarrel, they fight, — then 
nothing connected with the previous quarrel justifies a killing, and it 
can not be excused unless it clearly appear that B in killing A had to 
do so to save his own life. See Hale's Pleas of the Crown, 452, ** If 
there be malice between A and B," etc. 

g 242. The application must be made to the fight at the tailor's shop, 
and this answers the question why we have introduced evidence in 
proof of the first affray. There is one principle of law to which I may 
as well now call your attention as at any other time. 

When men act together, and by consent, it is no matter who gives 
the wound causing death — they are all guilty in the eye of the law of 
the offense, whatever it may be. [404.] 

And in relation to that sort of wound — if a man receive a wound not 
of a dangerous nature, but by gangrene, or consequent fever, death 
ensue, it is murder or manslaughter, as the case may be, as much as if 
the wound itself had been mortal at the instant. 

Mr. Prentiss labored a position, and labored it ably, I admit, but Mr. 
Bullock had previously combatted its application successfully. The 
position is advanced upon the well known quotation from Lord Hale: 

" If A, B and C be walking in company together, and C assault B, 
who flies, and is in danger of being killed from C's pursuit, unless 
present help be afforded, and A thereupon kill C in defense of the life 
of B, it seems that in this case of such inevitable danger of the life of 
B, the killing of C by A is in the nature of self-defense ; but it must 



TRIAL OF JUDGE WILKINSON ET AL. 175 



Argument of Hon. Benjamin Ha^in. 



plainly appear by the circumstances of the case as the manner of 
assault, the weapons with which it was made, etc., that B's life was in 
imminent danger." 

A man seeing another kill a third person, may kill the man about to 
commit the felony, but then it is at his peril he does it, and he is 
responsible to the law for his interference. Upon this text, if you are 
to acquit Judge Wilkinson, it must be apparent that when the stabbing 
took place there must have been manifest danger to his brother's life; 
there must have been an apparent — ^an absolute necessity. To show 
that there was no such necessity, and to place before you in a clear 
view the leading features of the facts, I will now claim your attention 
to the review I shall make of them. 

Mr. Redding keeps what is called a merchant tailor s shop on Main 
street, in Louisville. His store is not far below the Gait House, on the 
opposite side. 

§ 243. These three gentlemen now arraigned before you, are 
residents of the State of Mississippi, and formerly, as I am informed, 
were residents of the state of Virginia, and, for aught I know, of the 
same county, town, or village. They came to Kentucky early in 
December, for what, is of no import that I can see, although it is made 
to cut a conspicuous figure here as a favor conferred on Kentucky — a 
contemplated marriage at Bardstown. They arrived at the Gait House. 
Where Judge Wilkinson had his clothes made up, if he had any pre- 
pared for the occasion, is not shown. Where Mr. Murdaugh had his 
made, if any, is not shown. But it is shown that Dr. Wilkinson was to 
have clothes made at Mr. Redding' s. They were made with great 
punctuality, and the Doctor came to Redding' s store at the appointed 
time. He tried on the new coat and seemed well pleased with it. So 
satisfied was he with the coat that he wore it on the spot, and left a 
$100 bank bill on account of payment, requesting Mr. Redding would 
hold over the bank bill, which was of a Mississippi bank, till some 
expected change for the better would take place in the rates of dis- 
count. Dr. Wilkinson then went away, wearing the coat, and desiring 
the other things to be sent to the Gait House. As I now come to 
where it will be necessary for me to mention the names of witnesses, 
I beg it to be understood that I do not mean to avail myself of the 
example set by the opposite side. I will not shelter myself behind my 
professional duty, to vilify an unfortunate witness, disarmed of his self- 
defense — unfortunate, because of his inability to make any reply in the 
same public court in which he is maligned. Younger gentlemen at the 
bar than I am, may indulge in the practice, and, perhaps, the rashness 
of youth and inexperience may excuse what wisdom and manliness could 
not justify. No character, however spotless — no reputation, however 
unstained before — can escape the sullying hand Wantonly raised to 



176 THE LA W OF HOMICIDE. 

Argument of Hon. Benjamin Hardin. 

tarnish it, where there is no immediate opportunity of wiping away 
that which corrodes while it damps the lustre. 

g 244. When Dr. Wilkinson returned to Redding*s store, accompa- 
nied by his brother and Mr. Murdaugh, some objection was made to 
the collar of the coat. It was no serious objection, we may suppose, 
for we hear from Mr. Prentiss, himself, " the expectancy and rose of the 
fair State," that he, perhaps, would not have been quite so fastidious. 
Perhaps, some young fellow, like my friend, Colonel Robertson, " the 
glass of fashion, and the mould of form," might have been a little 
squeiimish ; but, for myself, every one knows I am not particular. I 
never should have knocked down a tailor with an iron poker because 
there was a shade of fashion lacking in the collar of my brother's coat. 
The whole thing, I admit, is a matter of taste, the poker included. 

But there was, however, some objection to the fashion of the coat^ 
and that objection was thought grave enough to enlist the triple wisdom 
of a dignified judge of the land, an eminent doctor of a distant State, 
and a sage member of the Mississippi bar. Yes, with this formidable 
array of judicial wisdom, pharmaceutic skill and legal research, these 
three gentlemen came to a little store in Louisville, to fight a poor 
tailor ! And all about an unfashionable twist in the collar of a coat. 

To be sure they came from the Eldorado of the South, with their 
thousands of bales of cotton condensed into their pockets. They were 
perfect magnets of attraction, for the secret of their loadstone lay wrapt 
up in their Mississippi bank notes. Hotel-keepers were bowing to them 
on all hands, tradesmen and store-keepers honored the pavement they 
trod, and as to tailors, I am ready to believe they became f)erfectly fas- 
cinated with them. Nay, I even make no doubt that the keepers of 
watering establishments and medical springs, submitted to the soft 
impeachment, aftd became devoted to their interests. It is the nec- 
essary consequence of the influence of cotton bales . 

§ 245. Here was this hard-working tailor, ever on the watch for good 
customers, bowing to them as assiduously, if not more assiduously, than 
the hotel-keepers, or spring doctors — taking back his coat, I have no 
doubt, with tears in his eyes ; but is it reasonable to suppose that, fas- 
cinated as he was, by the ability of such customers to pay, he would be 
so blind to his own interests as to give unprovoked quarrel to such 
customers ? However backward he may have been from prudence and 
circumstances, it seems there was no want of readiness to carry mat 
ters with a high hand on the part of those with whom he was dealing. 

Judge Wilkinson is sitting on a stool at the stove, and when he sees 
his brother about to pay for the pantaloons and vest, he interferes, 
without being called upon to do so, and opposes the payment for these 
things, upon which the tailor very naturally asks him what business he 
has to interfere. The Judge, without telling him that he was the 



TRIAL OF JUDGE WILKINSON ET AL. 177 



Ai:giiiuent of Hon. Benjamin Hardin. 



Doctor's brother, which Redding did not know, and that as such he had 
a right to advise him, jumps up, snatches an iron poker, with which a 
man could be knocked down as readily as with a crow-bar, and for the 
small provocation of a tailor saying, " You make yourself a little too 
busy in the matter," ignorant that he was addressing a dignified judge, 
the Judge aims a deadly blow at his head, which, if not fortunately 
warded off, might have involved consequences to which I must not 
advert. What does this prove ? If it proves nothing else, does it not 
show plainly that Judge Wilkinson is not quite as mild and forbearing 
in his disposition as his friend, Mr. Prentiss, would have you to believe. 
Did Judge Wilkinson's conduct show that it was his belief men's pas- 
sions should be subject to the control of law, if not of reason ? that he 
was in principle a respecter of the law in this instance? 

§ 246. I know it will be argued that there is a wider latitude given 
to the restraints of law in the Southern than in the Northern States, 
and a false assumption is built upon this circumstance, that the free 
use of personal liberty to avenge private quarrels gives greater bravery 
to a people?. But I have read, I have witnessed, and I believe that the 
people of New England, a section of this great republic, where you can 
get no man to fight duels, and where every man throws himself under 
the protection of law for the redress of his private wrongs, when they 
have been called into the field for the protection of their country, have 
shown the brightest examples in modern history of personal bravery 
and national valor. Show me where men have been more prompt to 
rush upon the bayonets of their country's invaders than the heroes of 
New England. Sir, courage and bravery belong to the respecters of the 
law which protects every man's rights in a civilized community. Cli- 
mate,'in a country of such vast extent as this, may have its influence 
on men, as it is known to have on the inferior race of animals. You 
may meet the lion, distinguished for his courage and his power, in the 
Barbary States, where, conscious of his strength, you may pass him 
unmolested, if you are not the aggressor. As you descend to the more 
southerly latitudes, you meet the leopard and the panther, with whom 
treachery and ferocity are the substitutes for courage ; and when you 
pass the equator you meet the hyena, the emblem of uncompromising 
cruelty, and without a redeeming quality. Men may in like manner 
be affected by climate; and he who on the iron-bound coast of the 
frozen North, or on the arid rocks of New Plymouth, would illustrate 
every noble virtue of his nature, not less distinguished for his piety 
than his patriotism, for his endurance than his courage, and for his 
generosity than his bravery, when transplanted to the enervating 
regions of the South may become different and degenerated, trusting • 
H .—12 



178 THE LA W OF HOMICIDE, 

ArgumeDt of Hon. Benjamin Hardin. 



more to his interests than his patriotism, to advantage than to courage, 
and to concealed weapons than to bravery. 

g 247. But to resume my review of the evidence. Judge Wilkinson, 
so remarkable for his mildness and forbearance, as a sample of these 
(qualities, aims a blow, as I have said before, at the tailor's head, which 
probably would have killed him had he not warded off the blow with 
his arm in a manner to give great offense to Mr. Prentiss, who can not 
see the propriety of a tailor grappling with a judge to prevent a repeti- 
tion of blows that might break his head. The little tailor, however, 
did grapple with the Judge, and, dragging him to the side door, he falls 
with his adversary out on the pavement. The tailor, though small, 
being strong and active, turned the Judge under, and as he did so 
Murdaugh hallooed out, " Kill the damned rascal," a conmiand which 
the Doctor was about to obey, and when he was within a couple of 
inches of plunging his dirk into the tailor's heart, Mr. Redmond caught 
the Doctor's arm. But for that interference it would have been the 
last of Bedding's career. Mr. Murdaugh had hallooed out to the 
Doctor, " Kill the damned rascal !" and in the next breath, " Part them! 
Part them!" This is easily accounted for. When he saw that Red- 
<ling, by Redmond's interference, had gained the advantage, he per- 
ceived that the tables were turned, and fearful of the consequences, 
became as impatient to have them parted as he had before been anxious 
to have the tailor killed. Well, they are parted; and when they 
get up, Dr. Wilkinson still has his knife drawn; Mr. Murdaugh has 
his knife drawn, and the Judge has his favorite weapon, the poker. 
The little tailor's courage, notwithstanding this formidable array, is up, 
and he steps forth, a David before Goliah, and offers to fight the whole 
three of them if they will lay asider their weapons. This, I think, 
however, was a mere brag with the poker-players, for I do not believe he 
could have done it. Five witnesses swear that both Dr. Wilkinson and 
Mr. Murdaugh had out their knives. Several concur that Dr. Wilkin- 
son re-entered the store with his knife drawn, demanding his $100 bank 
bill. All agree that he got it, and many agree that when he and his 
companions left for the Gait House, two went away exhibiting 
their knives, and one rejoicing in the poker. The knives, to be sure, 
have been identified as white-handled knives. Mr. Prentiss, in that able 
speech which you have all heard and admired, and which, it must be 
admitted, like a West India tornado, swept through this house carrying 
everything before it, even to the reason of many who heard it, seemed 
to think that we had some particular fancy for the handles of the knives, 
because they were white handles. He thought we dwelt uncommonly 
on the whiteness of the handles, till like spectres they were continually 
flitting before our visions. With all this poetical or forensic coloring 
we have nothing to do ; we only identified them, and the gentleman 



TRIAL OF JUDGE WILKINSON ET AL. 179 

Argument of Hon. Benjamin Hardin. 

has failed to contradict us by proving that they were black, green 
or red. 

§ 248. We have now, gentlemen, traced a small portion of this affair 
at the tailor's shop. In what occurred there immediately after what 
has been mentioned, we find the following facts established : Mr. Red- 
ding swears that he was advised to bnforce the law against these gen- 
tlemen. The principal oflScer of police, the city marshal, is usually to 
be found about the Mayor's office or jail, from the peculiar nature of 
his duties. Mr. Redding proves that he and Johnson went toward 
the Mayoi^s office and looked for the marshal at Hy man's and Vacaro's 
coffee houses. Not finding him there, they went on to the Mayor's 
office. They applied at the Mayor's office to Mr. Pollard, Clerk of the 
City Court, and told him that one of the gentlemen was named Wilkin- 
son, and that the names of the others they did not know. They were 
told by Mr. Pollard that they should have the names; or, if they wished, 
they might have a blank warrant to be filled up with the names when 
ascertained. This Redding declined upon being told that if he could 
meet the marshal he could arrest the parties without a warrant. Red- 
ding and Johnson proceeeded to the jail in search of the marshal. Not 
finding him there, Redding returns by Market street, at the corner of 
which he met Rothwell, near his residence. As he tells Roth well, his 
brother-in-law, the nature of the affair, Rothwell goes along with him. 
And here I must remark, that to come down to Market street from the 
jail 18 the shortest way, though my friend. Col. Robertson, thinks that 
a man may go round by Jefferson street a few hundred yards out of his 
road by the way of a short cut. But Redding being but a plain man 
not given to sophisticated deductions, believes the nearest road is the 
shortest cut and took the shortest cut by Market street, where he met 
Rothwell, as I have said, and told him what had occurred. He did not 
ask his brother-in-law to go with him, but his brother-in-law did think 
proper to accompany him. There was no Bill Holmes — no Marshall 
Halbert — no Billy Johnson — no one but Rothwell accompanying Red- 
ding. Mr. Graham swears that there was no one with Redding but 
Rothwell, when he met them near the Gait House. Where was this 
terrible array of giants and Patagonians of which we have heard so 
much? Why, no where to be sure; the gentlemen have only drawn 
largely on their imhginations. As Sheridan once said of Dundass, they 
are yidebted to their imaginations for their facts, though I will not go 
so far as to say of my sprightly friend Col. Robertson, or my bril- 
• liant friend Mr. Prentiss, that either is indebted to his memory for 
his wit. 

§ 249. Jackson swears, indeed, that he heard propositions made of 
going to the Gait House to give the Mississippians a beating; yet Graham 
swears Jackson would always lie a little. This Jackson, whom we have 



180 THE LA W OF HOMICIDK 



Argument of Hon. Ben|amiD Haxdin. 



shown to be unworthy of credit, swears to that being a fact which is 
contradicted by Redding, by Johnson, and by Craig, whose credibility 
is unimpeached and unimpeachable. But it seems Mr. Prentiss takes 
peculiar exceptions to Bill Johnson, because he uses strange figures of 
speech and low and outlandish tropes and metaphors. Well, the gen- 
tleman ought not to blame poor Johnson for imitating his betters in 
the arts and graces of oratory. I suppose he has been reading the 
newspapers in which the reported speeches of the most eminent mem- 
bers of Congress are recorded, and he finds one distinguished gentle- 
man charges a party with being like a greasy pack of card^ all spotted 
and marked and shuffled together. Another young aspirant compares 
the Secretary of the Treasury, a dignitary old enoUgh to be his father, 
to a she-bear, running through cane-breaks and dropping her cubs at 
every step ; and yet Johnson is blamed for his figures, if he ever used 
them, of •' hides full of^hucks," and " skinning of sheep." I thought Mr. 
Prentiss, who so lately returned from Congress, would have admired 
Bill Johnson for being so apt a scholar, like that classic personage, Zip 
Coon, in picking up the new and approved style of tropes and 
metaphors now so fashionable in the places which he himself has made 
resound with the aptness of his illustrations. 

Gentlemen, I had got to this place in the affair at the Gait House, 
where Redding and Rothwell were seen unaccompanied by any one 
entering that hotel. Mr. Redding says when he went inJto the bar- 
room he looked over the register and called for the names. Scarcely 
had he got them when Judge Wilkinson entered and stepped up to 
the counter to take a drink of water. Redding addressed him thus: 
" Sir, I believe you are the gentleman who struck me with the poker in 
my own house this evening." If Judge. Wilkinson was sorry for his 
imprudence, why did he not then say it was in a hasty moment and 
upon reflection, he felt that he was wrong ? Could Redding have 
resisted the ingenuousness of such an answer to his inquiry ? Could 
he have harbored for a moment longer any irritation for an acknow- 
ledged injury ? But what did Judge Wilkinson say or do? Why, he 
heaped insult upon injury by an aristocratic allusion to the tailor's 
profession. " I will not," he replied, " fight or quarrel vnth a man of 
your prof easion !' Now, although T agree with Mr. Prentiss that there is 
nothing disgraceful in a profession, and I think the poet has expressed 
himself with scarcely less felicity than Mr. Prentiss on the subject: 

" Honor and shame from no conditions rise ; 
Act well your part, there all the honor lies." 

And as Burns says, 

" The heart's ai the part, ai 
That's right or wrang ;" 

yet, we can not help imbibing with our literature, and our sentiments 



TRIAL OF JUDGE WILKINSON ET AL, 181 



Argument of Hon. Benjamin Hardin. 



many trifling prejudices from the mother country where aristocratic 
pretensions have too successfully attached disgraceful notions to certain 
pursuits of industry, and among these, the profession most sneered at 
by the would-be wits of the last century, is that of a tailor. And 
although a nian of that profession here may justly feel that he is as 
respectable, and follows as respectable a calling as any other man, yet 
when he thinks those old sneers are leveled at him as an insult, he 
naturally resents it with the indignation of an honest and industrious 
and free citizen, not bound by a servility unknown to us, to succumb 
to him who dares to utter it 

§ 250. There is, I fear, a principle growing up amongst us inimical 
to our republican institutions — a principle of classification favorable to 
aristocratic distinctions. We have our bankers, lawyers, and doctors, 
arrogating one rank in our society; the statesmen, heads of depart- 
ments and officials, another. Our mechanics and those who toil by the 
sweat of their brow to produce our riches, are cast into the shade ; and 
knowing as they do, that such an attempt, however noiselessly it is 
made, still exists palpably, is it any wonder they should be sensitive to 
every whisper that is breathed to mark the invidious distinctions ? An 
apparent unimportant word may wound deeper than rough language. 
Call a man a knave, and he may forget it; but call him a fool, and he 
never forgives you. Call a young lady a coquette, and she may pardon 
you; but tell her she is ugly, and she will never abide you the longest 
day she lives. Tell a tailor he is a botch, and he may not even get 
angry with you ; but sneer at him about his goose and his profession, 
and you insult him, though the words in themselves are harmless. It 
is the allusion to prejudices that have existed which carries the poison 
of insult in its barb. Sir, we must not disguise the fact that there is a 
line of demarkation drawn by the proud and arrogant between them- 
selves and those who live by the sweat of their brow ; between the 
comparatively idle, who live but to cons^une, and the industrious, who 
work but to produce, between the drones of the hive and the laboring 
bees. And to which, pray, is the country in its strength, prosperity and 
wealth, indebted for its teeming productiveness? To which for her 
energy, enterprise, protection, genuine patriotism and celerity in 
national or municipal times of danger ? Go to Louisville when a por- 
tion of the city is enveloped in flames, and you will see a thousand 
mechanics rushing into the devouring element for the protection of 
property, while the lawyer and the judge, and the haughty aristocrat 
walk about as spectators with their hands in their pockets. The 
mechanics compose the moving power and labor-working machine upon 
whose industry we all feed and fatten. Their labors are the wealth of 
the country, and when we oease to honor and cherish them, we poison 
the springs of our own invigorating prosperity, and cut off the sources 



182 THE LA W OF HOMICIDE. 

Aigument of Hon. Benjamin Hardin. 

of our own enjoyments. Do we treat them with gratitude when we 
taunt them with epithets, which they esteem derogatory or insulting ? 
Are we to treat them thus in the halcyon days of peace, and when the 
thunder cloud of war gathers around our course, with a monstrous 
pusillanimity, fling ourselves into their arms as our only hope and 
rescue? Has not the history of our country shown, and will it' not 
show again, that when the storm of invasion ravages our coasts, our 
safety is to he found alone in the strong sinew and ready arm of our 
lahoring population? Where, then, are your bowie-knife-and-pistol 
gentry, your duelists and your despisers of the man wbo lives by the 
sweat of his brow ? Sir, they will be found cowering and lurking 
where they may snuff the battle afar off, and hide their once lofty 
heads in ignoble safety. But I will not consume your time with recitals 
which may be found in every page of our history. I shall return to 
the evidence in the case before you. 

§ 251. Mr. Everett is told by Mr. Sneed that there is likely to be 
some difficulty. Mr. Everett goes into the bar and by some indications 
to the Judge, meets him in the passage and takes him to his room 
where they find Dr. Wilkinson and Mr. Murdaugh. Judge Wilkinson 
relates to them what had happened The Judge having made this 
relation, asks Everett to provide him with pistols. Why ? For what 
did he want them ? Was any one attacking them there or likely to do 
it ? They were safe in their room. They could only want pistols for 
the purpose of descending and making the attack themselves. But 
Everett is asked to provide pistols. He said he would try, and with 
that avowed purpose, left them. He had not been gone fifteen 
minutes, in the opinion of some — in the opinion of others scarcely ten, 
when Judge Wilkinson, with this lower-country tooth-pick, [taking up 
the bowie-knife] not trusting this time to the more merciful weapon 
with which he had been practicing, the tailor's poker; with this lower- 
country tooth-pick he started down prepared to use it. Did he know 
Rothwell ? Did he know any but Redding? No man had accosted him 
but Redding. Why, then, did he come down with this terrible imple- 
ment of murder ? Why, sir, just exactly for this reason, that he had 
been mortified at the result of what happened at Redding's store. The 
judge of the land had been turned over by a tailor. He had been 
bearded and abused by a tailor, and he provided himself with his bowie- 
knife and went down to have another deal with that tailor/ 

Mr. Prentiss seems to think the Judge had a right to go down to his 
supper. Why, so he had ; but he had a right to wait for the bell to 
ring. He had no right to eat his supper before it was served up — no 
right to take his bowie-knife down to the kitchen and terrify the cooks 
to allow him to devour the supper while it was cooking. And had the 
supper been ready, there were table-knives wherewith to carve his 



TRIAL OF JUDGE WILKINSON ET AL. 183 



Argument of Hon. BenjMuin Hardin. 



meat, and he had no right to carve it with a bowie-knife. But the sup. 
per was hardly cooking when he went down. The bell had to be rung 
over the private passage up stairs before it was rung below, and when 
rung below the folding doors had to be thrown open. But the bell had 
rung nowhere and Judge Wilkinson, Dr. Wilkinson and Mr. Mur- 
daugh came down before any bells were rung; therefore it was not to 
supper they came down. W hich table had Judge Wilkinson been in 
the habit of going to? the large table or the ladies' table? There is no 
proof that he and his companions boarded at the large table ; and it is 
known that many gentlemen as familiar with the house as they had 
been, prefer the private or ladies' table. We have every reason to 
believe that was the table at which they boarded. The entrance to the 
room where that table is kept is not through the bar-room. One 
entrance to the large dining room, is, indeed, through the waiting room, 
and there is a bar in that waiting room, at which many gentlemen who 
are not pleaders, become suitors, make motions, and put in their pleas. 
I sometimes make my appearance at that bar, but I am not summoned 
by the attachment of the bottles. I go to hear the politics of the day — 
for, although I have long^sincciquit the field,. I caii not^be cured of the 
curiosity to know what wrangling is going on among the little juntas in 
every village as well as among -the mighty ones of Congress. 

§252. When these three gentlemen got into the bar-room, Mr. Red- 
ding was at the counter; Mr. McGrath was inside of it; Mr. Reaugh 
was at the fire. Some say Mr. Redding came in immediately after the 
Judge. You must expect that out of twenty witness no two will agree 
in all the facts ; but in a transaction like this, where several fights were 
going on — where in eveiy corner a man was bleeding, or dying or suf- 
fering — that no two men could see everything or anything alike, is to 
be expected. But, gentlemen, by collecting all the evidence together, 
contrasting, comparing, and justifying one by another, we can arrive at 
the facts of the case clearly and beyond the probability of doubt. We 
can arrive at them with as much certainty as we can at any other set of 
facts. And from this manner of collating the facts, I am enabled to 
present them to you without fear of contradiction. 

§ 253. One of these facts is that Judge Wilkinson walked across the 
bar-room, some twenty-five feet, when he came in. Mr. Trabue, a man 
whose evidence is to be depended upon, seems assured that when Judge 
Wilkinson came in, he walked three or four times across the room, and 
then stood awhile with his eye fixed upon Mr. Redding, his foot 
advanced, and his right hand behind in his coat pocket, and, I make no 
doubt, with his hand grasping the handle of this very bowie-knife. At 
that moment Mr. Mupdaugh went up to Redding. I will not say, with 
one of their own witnesses, that in going up to him, he rattled like a 
viper; but as he went up he addressed Redding, saying, "I understand 



184 THE LA W OF HOMICIDE. 

Ai^umentof Hon. BeDJamin Hardin. 

that you say I drew a bowie-knife on you in your shop this evening? 
If you say so you are a damned rascal, or, liar!" And as be said so, he 
opened his knife and elevated it, as one said, or held it down, accord- 
ing to another. Yes, he accosted Redding in the most insulting terms 
and threw open bis knife at the same time. Is there any witness who 
has said Redding accosted him in an angry manner ? One person said 
of the knife — " Lord, how it gleamed in the candle-light !" 

The most warlike nation the world ever saw, was Sparta. When the 
Spartans prepared for battle, they polished their arms to glisten in the 
sun. They washed their clothes clean, combed their long black hair, 
and sang the song of battle. I have no doubt, Mr. Murdaugh, if in the 
ranks, would have done the same. I make no doubt he would be the 
last to run. I make no doubt he would have been amongst the fore- 
most to make his gleaming blade glisten in the sun. The highest 
evidence of a man's dexterity and intent to use his weapons, is 
the high polish he gives them, and the high state of preservation in 
which he keeps them for use. Of Murdaugh' s dexterity in the use 
of his knife in the work of death, we have unfortunately too much 
proof; of his disposition to use it, we have the evidence of the high 
order in which he kept it for use, even to that state of Spartan polish, 
which made it gleam in the candle-light, as the sword of the Spartan 
would glisten in the sun. 

§ 254. We are told Meeks was determined for a fight ; yet Oliver, 
whose friendship for these gentlemen seems of the most ardent and 
disinterested kind, gives up to Meeks his knife, after having so easily 
obtained possession of it on the small pretense of picking his nails. He 
had been invited by Oliver to drink at a " saloon " opposite the Gait 
House. They dignify these establishments now-a-days by the high- 
sounding title of " saloons;" but when you enter one of them you find 
it the vilest groggery in the world. These dignified groggeries exist to a 
shameful extent in Louisville, and why? Because the politicians of 
Louisville are too busy with their unimportant bickerings, or too truck- 
ling to put them down. They are the strongholds of the voting 
interests of Louisville ; and the truckling politicians, who are ready to 
sacrifice every principle for the triumph of party, court the coffee house 
keepers, and bend in supplication for their election to the inmates of 
the groggeries. Even the municipal government is either influenced by 
paltry mercenary motives in its avidity for the revenue of licenses, or 
it has not the nerve or public spirit to grapple with the monster. Talk 
of our constitution being the greatest, the purest, and the most efficient 
on the face of the earth ! Yet, here is an evidence of its working in a 
duplicate government. The most destructive "of vicfes, because the 
parent of most, is licensed, encouraged, fostered, pandered to, by poli- 
ticians, and through their truckling, by the very local government 



TBIAL OF JUDGE WILKINSON ET AL. 185 

Argument of Hon. Benjamin Hardin. 

itself, as if the misery and debasement of the community were more 
tbe end and aim of their rule than the encouragement of virtue, 
iodastry, sobriety and rational enjoyment. 

5255. We learn that Meeks was unknown to many; a slender, 
small, and weakly man, with a bit of a cow-hide, the lash of which some 
one says was knotted. From what we learn of this cow-hide, I verily 
believe it would take at least five hundred knocks of it to kill a man — 
and I doubt if he could be well killed, after all, even with five hundred 
knocks of it. Meeks, unfortunately for himself, stepped up to Mur- 
daugh, and said, *' Yes, you are the d — d little rascal who did it." , In 
reply to this, the very first lunge Murdaugh made at him severed a 
vital artery and caused his instant death. I am no physician, and 
know not technically what effect the cutting of that artery may have; 
but 1 believe it to be as deadly as if the brains were blown out, or the 
heart pierced. A man stabbed through the heart no longer lives or 
breathes, but he may stand a minute. Meeks fell, and in attempting to 
resume his feet, as he leaned on a chair, pitched forward upon his face, 
and when examined, he was dead. 

When did Roth well strike Murdaugh ? Not till Meeks was killed. 
Then, it is proven, Roth well struck with a cane, and Murdaugh was 
beaten back, and at that instant the tide of battle rolled on to the 
right corner as you face the fire, and then Rothwell was seen losing his 
grip of the cane in his right hand, and he was seen endeavoring to 
resume his grasp of it. General Chambers thinks it was Dr. Wilk- 
inson whom Rothwell was beating at in the right-hand corner, but 
every one else says it was Murdaugh, and it is of course evident the 
General is mistaken. Every one of the witnesses swears that Rothwell 
was engaged with Murdaugh in the right-hand corner, while Holmes 
was engaged with Dr. Wilkinson in the left-hand corner. Let us 
now consider the wounds received by Rothwell. Dr. McDowell says 
the puncture in Rothwell' s chest might be made with this knife carried 
by Murdaugh. The skin by its elasticity might yield without having 
an orifice as large as the blade, afterward apparent. 

§256. Who gave Rothwell that wound? Why, Murdaugh, and no- 
body else. This accounts for Rothwell losing the grip of his stick or 
cane. The moment this knife penetrated his chest on the right side, 
that moment his arm became paralyzed, and he could not hold his cane. 
He caught at it, but he did not use it after. Just then. Judge Wilkin- 
son came up behind with his bowie-knife in his hand, and General 
Chambers says he saw him make a lunge at Rothwell and stab him in 
the back. If two men are engaged in a fight, one with a dirk-knife 
like this, and the other with a stick, in the name of God let another 
with such a bowie-knife as this stand off; but if he must interfere on 
behalf of him who has the deadly weapon, and against him who has 



1 86 THE LA W OF HOMICIDE, 



Argument of Hon. Benjamin Hardin. 



not a deadly weapon, let him do the work of death, front to front — ^let 
him stab in the breast and not in the back. But, to come up behind 
and to stab him in the back, who is already overmatched by his oppo- 
nent in point of weapons, evinces a disposition which I shall not trust 
myself to dwell upon or to portray. Ossian, speaking of Cairbar's 
treachery, says: — 

" Cairbar shrinks before Oscar's sword ! he crequ in darknea behind a tUme^he lifts the 
spear in secret— he pierces my Oscar's side !" 

By this time Dr. Wilkinson was down in the left-hand corner and 
Holmes over him. The fact is. Holmes was the only man that knocked 
the Doctor up against Trabue, though Halbert boasted of having done 
it. It was only a boast in Halbert, for I believe he goes over his 
foughten-fields more at the fireside than on the battle-ground. In the 
language of Dryden, speaking of Alexand.er: — 

" The King grew vain ; 
Fought all his battles o'er again, 
And thrice he routed all his foes, and thrice he slew the slain." 

[It was now five o'clock; and Mr. Hardin requested an adjournment, 
as it would probably take him two hours more to conclude his argu- 
ment. To this the Court assented, and an adjournment was made to 
half-past seven next morning.] 



FIFTH DAY. 

Friday, March 16th, 1839. 

§ 257. [The Court resumed the trial at a quarter before 8 o'clock. 
Early as the hour was, there could not have been less than from one 
to two hundred ladies in the gallery, and upwards of a thousand men in 
the arena of the court. After the jury-call and reading of the minutes, 
the Court required Mr. Hardin to resume his argument. Mr. H. com- 
menced at 8 o'clock and spoke without intermission for upwards of 
two hours.] 

Mr. Hardin: Gentlemen of the jury, I would endeavor to resume 
the few remarks on the evidence which I offered yesterday, as near 
the precise place where 1 left off as possible, if I did not know that in 
the present case such particularity is not so requisite as in the case 
cited by John Randolph, who once told of a man that was so precise 
that he could, if interrupted and called off in the middle of his dinner 
by the sound of a horn, on resuming .his seat some hours after upon 
re-sounding the horn, take up his dinner exactly at the identical bite 
where he had left off. I am not quite so particular, and shall probably 
recapitulate some of the evidence I have already gone over. 

§ 258. Yesterday evening I endeavored to give you the law and the 
£EkCts of the case as nea,rly as possible, as far as I went. I shall now 



TRIAL OF JUDGE WILKINSON ET AL. 187 



Argument of Hon. Benjamin Hardin. 



repeat that you are not to take as facts all that may be sworn in a 
cause. Although witnesses may be men of undoubted integrity and 
veracity, yet all they state are not facts. They are fallible beings, and 
likely to misconceive and misinterpret facts without any intention of 
doing so. We are to ascertain the facts from the mass of evidence, and 
judge of each witness's competency by contrasting his evidence with 
that of others, and when it agrees with all or the majority of wit- 
nesses, we may safely infer he is right. I endeavored yesterday to 
examine the facts that occurred at the tailor's shop, for the pyr- 
po»e of showing the ill blood fomented in these gentlemen's hearts 
agumst Eedding. I then showed that they acted in concert, and pro- 
vided themselves with what weapons they could, not being able to get 
all they wanted ; and how, upon a small occasion, they were prepared 
to use these weapons. Indeed, there seems to be no witness as to what 
occurred when Judge Wilkinson remained in consultation with his 
companions in his bed-room. 

[Here Mr. Hardin made a short recapitulation of the statement he 
had gone over before, so nearly alike in substance that it is conceived 
unnecessary here to repeat it. However, some of these points elicited 
observations from Mr. Hardin, new or important, which it may be 
necessary to give. The repetition, therefore, of such points of evi- 
dence will be excused.] 

We may judge of the shifts the defense is driven to, when it is forced 
to rest upon such witnesses as Oliver, a man whom no one in Louisville 
would listen to ; and Jackson, the Pharisee, who talks of religion with- 
out a spark of it in his heart, and who is discredited by men who, as 
witnesses, are unimpeached. 

§ 259. If Judge Wilkinson, Dr. Wilkinson and Mr. Murdaugh were 
known to be frequenters of the bar before meal times, why has it not 
been proven by one of their witnesses? That not being proven, I 
have a right to assume that it could not be done, because it was not 
the fact. 

Next I have to ask, why these gentlemen came into the bar-room 
provided with arms ? Could it be with any other design than to run 
Redding out of the room ? Were they going into a room where they 
commonly resorted? It is evident they were not. Did they go there 
on their way to supper ? It is evident they did not, for supper was not 
near being ready. 

What disposition for eating a supper merely, does it show in Judge 
Wilkinson to pace the room three or four times and then fin tlie eye 
of destruction on Redding, while his purpose kindles and he grasps his 
bowie-knife behind in his pocket? What more eagerness for supper 
does Murdaugh exhibit in going straight up to Redding, rattling like a 
viper and insulting him with being a liar ? Sir, I care not if a man go 



188 THE LA W OF HOMICIDE. 

Argument of Hon. Benjamin Hardin. 

into any crowd and before an angry word is used to him, he goes up 
to as meek a man as Job himself, and says to him, " You are a damned 
liar or rascal," and flings open his blade to inflict mortal injury, as his 
words indicate, if the person so accosted strike his insulter, it is not 
surely any great wonder. And yet Redding did not strike a blow. 
Mr. Murdaugh may say, *' I kept within what I thought was the safe 
side of the law — I approached with my drawn knife — insulted the 
person to draw on the attack from him, that I might have some excuse 
for using my knife in the manner in which I came to use it at any 
rate." If any man come up and call you a damned liar, or a rascal 
and spring open his knife in the attitude of striking, should you strike 
or slay such an assailant, would you not be excusable? But Col. Rob- 
ertson attributes to an act of this kind nothing but a manifestation of 
innocence and high spirit. The Colonel is really a gallant man, and 
judges of others by the fire and chivalry raging in his own breast. 
You must not laugh, gentlemen, for if you could look upon the 
volcanic mountain, though you would see its head capped with snow, 
you would find its bosom like his, rumbling with fire, smoke, and brim- 
stone. In former times, the highest honor known to a Roman soldier 
was to have saved a man in battle, but here it is argued that if a 
young aspirant to fame pinks and kills his man, he is to be sent home 
to his parents in honor, crowned with the chaplets of victory. Nay, it 
is believed, if Bonaparte in his youthful prime, in his Italian campaigns, 
had had Murdaugh by his side he would have confided to his ready 
and unerring arm the execution of many a hardy adventure. Col. 
Robertson may say what he pleases, but I say it was Murdaugh com- 
menced the assault, and that all fighting done by him was in the 
wrong. All fighting done on his account was in the wrong, because he 
had commenced in the w^rong. 

§260. Well, gentlemen, as I remarked to you yesterday, when I 
stopped, for I am now returned once more to that point, Murdaugh had 
given the first provocation, had killed his man, had stabbed another to 
the death, when Judge Wilkinson stepped up and gave Rothwell a 
stab in the back, while engaged with and probably receiving the stab 
in his chest from Murdaugh. Yes, gentlemen, a third man comes up 
and lunges this beautiful little weapon into Rothwell's side, and starts 
back ! Sir, if men are engaged with deadly weapons, part them if you 
can; but do not come up behind them and lunge a bowie-knife into 
the vitals of one, and then come into a public court and demand of a 
jury not only to acquit you but to do it with shouts of, " Glory, glory, 
go, go ! " And yet, gentlemen, this is the polite invitation given to you 
by Mr. Prentiss, to acquit such a man with acclamation. When 
engaged with a man who has only a cane no bigger than his thumb, his 
opponent gives that man a deadly stab in the chest which paralyzes his 



TRIAL OF JUDGE WILKINSON ET AL. 189 

Argument of Hon. Benjamin Hardin. 

arm — ^a third person, Judge Wilkinson for instance, comes up behind 
and stabs the paralyzed man in the back, it is, no doubt, high time for 
you to be called upon to mark your approval of the deed by shouts of 
acclamation. Mr. Prentiss by way of winning your favor with compli- 
mentary allusions, thinks Kentucky should no longer be called the 
"bloody ground," because the river Raisin has carried oif the palm in feats 
of human butchery. But 1 think the Mississippi gentlemen, of Vicks- 
burg, have bidden fair of late to obtain for that part of Louisiana opposite 
their city, the palm of being the " dark and bloody ground." I suppose 
in the far-famed Menifee duel with rifles, if some one had stepped up 
and lunged a bowie-knife into the vitals of one of the combatants, the 
shouts of acclamation that would have arisen in that quarter of the 
world would have resounded to the uttermost ends of the earth. 

Dr. Wilkinson, by this time, became engaged with Holmes. Holmes 
is a stout and large man; but his size has been greatly exagger- 
ated. Like the Patagonians, the first discoverers thought them ten 
feet in height ; the next voyagers only eight, and the next but six. I 
recollect reading of Captain Smith, that when he first explored the 
interior of this country, on his return he represented the inhabitants 
as all Goliahs, six cubits and a span in height. Yet, subsequently, more 
matter-of-fact men found they were only miserable and cowering 
Indians of ordinary dimensions. In this manner appearances are 
magnified. 

§261. We are asked why Holmes is not here? We echo to the 
other side, "Why Holmes is not here?" Our answer is, because he 
was not to be had, being a pilot down the river and not within the 
control of the State's Attorney or any process issuing from him. 

§262. Mr. Trabue proves that Holmes knocked Dr. Wilkinson 
against him, and that Holmes followed up his blow and knocked the 
Doctor down. Another witness proves that Dr. Wilkinson had his 
knife in his hand on the floor, and Redding proves that he found the 
knife on the floor and it had blood on it. • We have, then, evidence that 
all three were using their knives for the shedding of blood. Sir, among 
other appeals made to you for acquitting them, you are told, as a set- 
'Ofl^, that there is no state in the Union on which you are more depend- 
ent than that of Mississippi. They take their cotton South and receive 
either through shipping agents, or drafts direct, their money for it 
from the merchants of Great Britain. True, Kentucky gets some of 
these dollars from the Mississippians for what they think better than 
their money, or produce, or they would not buy it. We, in the rounds 
of trade, pay these dollars, or what represents them, to the Liverpool 
merchants for merchandise that we think better than the money. The 
Liverpool merchants in the next turn of the wheel, pay the same 
dollars back to the Mississippians for their raw cotton, and the Missis- 



190 THE LA W OF HOMICIDE, 



Aliment of Hon. BeQjamin Hardin. 



sippians are nothing loth to take our produce again for the same 
dollars. And after several twists of this kind, when we get them back 
and recognize one of them as an old acquaintance, we may say, " How do 
you do, friend dollar, I am very glad to see the face of an old acquain^ 
ance ; step into my pocket and warm yourself; I always give shelter to 
a traveling friend." We are proverbially a hospitable people, and never 
refuse a night's lodging to a dollar, or its liberty to travel further next 
day upon leaving us an equivalent for what we lent it. But to be 
serious, are we not all dependent on each other ? I know this, and 
can not admit that we owe more to Mississippi than Mississippi owes to 
Kentucky; and why there should in this case be made any parade 
about our indebtedness to that state, not founded in reality, is for you, 
gentlemen, to weigh. 

§ 263. To resume the facts of this case, what does Judge Wilkinson 
do ? He stabs Holmes in the arm ; but he is not indicted for that He 
stabs Rothwell when he is engaged with Murdaugh in the right-hand 
corner ; and again, when in the left-hand corner, standing over Holmes, 
and trying to get him off his own brother. Rothwell had been dis- 
abled by two stabs. Judge Wilkinson, standing at the dining-room 
door, when Rothwell was saying nothing except in mercy trying to 
persuade Holmes to spare Dr. Wilkinson, comes across the* room to 
the opposite door, finds Rothwell's back turned to him, and then 
makes the last, the second thrust of the bowie-knife into his 
victim's back. Mr. Robert Pope says, " I saw Rothwell's back 
to Judge Wilkinson, when the Judge stabbed him — up to the very 
handle." I ask you, gentlemen, I speak to you not in language 
other than the broad and naked truth — is there any witness denies 
this? Every one who knows Robert Pope, knows that he would not 
state what he did not know to be the fact. We know that each 
and all of these wounds contributed to Rothwell's death. The last 
stab is given by Judge Wilkinson to Rothwell ; Dr. Wilkinson and 
Murdaugh retreat out into the passage, and fight their way to the foot 
of the stairs, I care not what was done there; it was done after the 
oflFense previously committed. Suppose Oldham had shot one of them, 
and not missed as he did ; suppose Murdaugh had been knocked down ;* 
and suppose Judge Wilkinson received blows in the passage ; does it 
lighten the offense previously committed ? I care not what took place, 
when a man has killed another. When making his escape, I care not 
how many guns are fired at him, how many rocks thrown, because it 
alters not his previous offense. 

g 264. If there is any evidence that any one in the bar-room laid a 
hand on Judge Wilkinson, who has proved it ? Is it not plain, that 
any bruises or injuries he did receive, were received in the passage? 

Mr. Prentiss said he was willing to stack arms with the Kentuckians. 



TRIAL OF JUDGE WILKINSON ET AL. 191 

Argument of Hon. Benjamin Hardin. 

What arms had they ? They had a cow-hide whip. We hear of a 
cane, which he thinks may be conjured into a sword cane. Mr. 
Holmes, indeed, had his fists, but he could not stack them. We are 
told that Oldham had arms by a witness who viewed the scene from 
the outside of a window, like one of the venerable birds perched on a 
dry limb eyeing the slaughter with a prospective instinct — one of those 
remarkable birds, renowned alike for their gravity and great stillness. 
We have heard a good deal said, and well said, if true, about Oldham. 
That he was unsteady — that he cast his eye to his counsel for relief 
Yet we really saw nothing in his conduct to warrant his being tjalled 
perjurer, scoundrel, coward and rascal ; and here I must remark that 
this very talented young gentleman, Mr. Prentiss, in using such 
epithets to a witness without even a shadow of justness in the applica- 
tion, warranted me in saying that though I admired some passages in 
his speech, yet others 1 should feel bound to denounce as unworthy 
alike of his profession and of his character. 

§ 265. No man in this State can boast a prouder ancestry than that very 
Oldham, whom it has been attempted to brand as odious and infamous. 
They have been among the earliest settlers and most esteemed of 
our citizens — trusted with command in our army, and venerated on 
the judicial bench. And has a man sprung from such an honored 
stock no pride in upholding his name — no feeling to rouse his indigna- 
tion when epithets, as gross as they are groundless, are poured out to 
tarnish his reputation for the paltry purpose of influencing a jury to 
discredit his testimony, and to warp their judgments from the straight- 
forward path of truth and justice ? 

What proof has Mr. Prentiss to sustain the course he has taken? 
Sir, there is not a shade of proof The gentleman is indebted to the 
fertility of his fancy, and his best friends must regret that he has not, 
in this instance, cultivated that productive soil for some more praise- 
worthy object than an ignoble and disgraceful crop of baneful, destruct- 
ive and loathsome weeds. Does the gentleman think he is one of 
the angels appointed to pour out the vials of wrath ? Has he not 
indulged in pouring out gratuitously his vials of wrath on Mr. Redding, 
who could not escape. Redding is stigmatized as a murderer, to be 
haunted by the ghosts of the slain at his nightly couch. Yet what was 
his offense ? He raised his arm to ward off the blow of an iron poker 
aimed at him by Judge Wilkinson. He had profaned a judge's person 
on this trifling provocation by seizing him, dragging him to the door, 
and turning him under ! "Oh ! you scoundrel," would Mr. Prentiss 
exclaim, "why did you do that?" He had retorted upon Judge Wilk- 
inson when taunted by him about his profession r and, worse than all, 
he did not, when the killing was going on, stay in some convenient 
place to be killed. " Why did you not, you coward, rascal, murderer, 



192 THE LA W OF HOMICIDE. 



Argument of Hon. Benjamin Hardin. 



perjurer, and so forth, turn your back to be stabbed with safety 1 Why 
did you not stand up with your face to the breeze when the sirocco 
swept along, carrying death on its pinions? Why did you fall on your 
face, and let the pestilential blast pass over you ? Why did you not 
breath till it was gone ? You, and your friends, have offended us by 
your want of submission, and now you aggravate your offense by com- 
ing here to testify against us." 

§266. Really, it is astonishing they are yet alive 1 But it will 
be more astonishing, perhaps, when it is told that they will return to 
Loui»ville, and there stand, in point of reputation, just as they stood 
before these slanders were concocted, digested, and spewed upon them. 
It will turn out that they are yet unpolluted and unscathed. The same 
protecting Providence which carried the Israelites through the Red 
Sea will protect even these persecuted and wrOnged few. 

Gentlemen, I have endeavored to trace facts as far as I have gone 
with minuteness, and having presented these facts to you, it is for you 
to determine whether they do not establish these conclusions. When 
the fight occurred in the bar-room, it 'was brought on by these gentle- 
men intentionally. If they brought it on did they fight in their own 
defense, or because they had drawn the conflict on themselves ? Could 
Meeks have inflicted death with a cow-hide, or Rothwell with a walking- 
stick, so as io render the killing of them necessary or justifiable accord- 
ing to the true spirit of the law ? 

But here there is a proposition of law advanced by Mr. Prentiss, 
which I must combat. He says the law recognizes that the point of 
resistance unto death, begins where a man himself believes the point 
of danger ought to be fixed. Then we have no law at all — we may 
burn up our law books — this revokes all they contain on the sub- 
ject of homicide. There are two men engaged in a quarrel; one as 
brave as Ccesar— the other as timid as a hare; one kills the other, when 
the quarrel has arrived at a certain point. The brave man, if he were 
a Marshal Ney in courage, is to be hanged, because he had no fear of 
his life when he killed his adversary. If the timid man is the survivor, 
he is to be acquitted with acclamation, because of his cowardice, which 
made him imagine danger where there was none. Thus cowardice and 
rashness are to be rewarded and cherished, and bravery and forbear- 
ance punished with an ignominious death. Is it possible, you, an intel- 
ligent jury, can be imposed upon by such sophistry ? Is there so low 
an estimate of your understandings as to suppose it? 

g 267. A is tried and acquitted, because he is a base coward, and 
apprehends danger at a point where there was no danger at all. B is 
tried for precisely a similar homicide in every particular, and because 
he is not quite as big a coward as A, but apprehends some danger, 
is to be found guilty, and sent to the penitentiary for a term of years 



TRIA L OF JUDGE WILKINSON ET AL. 193 

Argument of Hon. Benjamin Hardin. 

*■ 

proportionate in duration to his- lack of cowardice as contrasted with A. 
C, for precisely a similar homicide, because he is incapable of fear, is 
to be convicted of murder, and straight-way hanged ! , 

[Here Mr. Preptiss interrupted Mr. Hardin, and explained, in sub- 
stance, as before.] 

It makes no difference; the same principle is involved. 

I knew that I should have to, combat this very principle, the moment 
I saw the hack driving into town with a head peeping out of the win. 
dow, which head I knew belonged to the shoulders of a certain gen- 
tleman from Mississippi. When I was in Vicksburg, I asked a gen- 
tleman how it was that Mr. Prentiss defended so successfully so many 
notorious murderers, who really merited the gallows? "Oh," said he, 
*' he has hit upon a principle which he calls law, that charms every jury 
to which it is addressed." I asked the gentleman to repeat the magic 
words to me. He did so. It was the very principle I have been com- 
bating. It is possible that as the gentleman afflicted with this chronic 
principle, which he belches up with so much advantage to himself and 
relief to others, is now in the neighborhood of Medical Springs, esteemed 
80 potent by Mississippians, he may resuscitate by a few drinks of the 
charming water, a sophism which I have shown to be no longer tenable 
by any one who values what is healthy and sound, above that which is 
merely delusive. 

§268. Sir, the principle of self-defense does not warrant a man in 
killing under the name of self-defense, if he is himself in fault by being 
^ie aggressor. 

Is the principle of self-defense among nations to be carried into effect 
as justly applicable to the right of self-defense among individuals? In 
national controversy, the law of nations, an imaginary code of mutual 
convenience, is referred to, according to the custom of the country, but 
in a conflict between individuals, there is a defined law, which must be 
the redresser. A nation with right and justice on her side, may be con- 
quered by another nation in the wrong, and can not sue for or obtain 
redress from the wrong-doer ; but an individual, in a community, may 
be wronged by another, and can obtain redress, because he has the law 
common to both, and a superior power to appeal to. Therefore, there 
can be no dependent analogy between the laws of nations, and the 
laws of individual communities. There was some crude idea thrown 
out yesterday that the laws of Great Britain ought not to be enforced 
here. We are not to be told at this day that we have any other com- 
mon law than that derived from the common law of England. The 
very principles of our statutory laws are dictated by the genius of 
English common and statutory law, with the exception of such local 
differences as require local application of principles. If the gentlenian 
could take from us the right to apply the law of England where it 
13— H. 



194 THE LA W OF HOMICIDE. 

Argument of Hon. Benjamin Hardin. 

would be in point for us, we could by reciprocity, deprive them of ar^y 
they might most rely upon. Where then, is the advantage of raising 
such an objection? But it is quite unnecessary to dwell on this point. 

g 269. I shall now advert to the peculiar necessity enforced upon us 
of becoming a law-abiding people, if we preserve any regard for our 
present form of government and constitution. In empires, monarchies, 
and kingly governments, armies are formed to keep the people in 
order; but in a republic, what could preserve the social compact, but 
the law ? The moment you dissolve or dispense with the law, that 
moment you dissolve all national constitution. Every government, 
and most especially a republican government, is bound to protect each 
citizen in his property, reputation and life. How can a republican 
government do it, but by and through the law rigidly and justly 
administered ? Whenever you dispense with the law, you allow men 
to arm themselves, and to become their own avengers, independent 
of, and above all law. When they are not only permitted to do so, but 
to return home as innocent men, what is the effect ? Every man will 
arm himself, and like the turbulent and licensed armed mobs at the 
fall of the Roman Republic, brutal violence will reign instead of law; 
all government will be dissolved, and anarchy and confusion will pave 
the way to usurpation and tyranny. You must venerate the law, if 
you. would not see such a state of things. If you do not, A and B will 
arm themselves, like the Turk, up to the throat, and kill whom they 
please out of mere wantonness and sport. 

If you go into the Northern States, it is a rare thing if you can find 
a man in ten thousand with a deadly weapon on his person. Go into 
other States that shall be nameless, and you will hear of them as often 
as of corn-shuckings in an Indian Summer. Go further South — to Arkan- 
sas or Mississippi, for instance, and though you would be a peaceable 
man, shuddering at the name of a *' tooth-pick" in the North, itt these 
States you may arm yourself to the teeth, and track your steps in blood 
with impunity. Why is this, but from the relaxation of the laws that 
are elsewhere enforced and obeyed. 

§ 270. I was down the river lately, and it was pointed out to me 
where the Black Hawk had blown up and killed her scores ; to another 
place where the General Brown had blown up and killed her hundreds; 
to one spot on the shore where two gentlemen blew each other's 
brains out with rifles; to another, where the widow somebody's over- 
seer was butchered; to another, where the keeper of a wood-yard was 
shot for asking pay for his wood; to another, where an aged gen- 
tleman had his guts ripped out for protecting his slave from cruel treat- 
ment. "Great God!" cried I, at last, "take me back! take me back to 
where there is more law though less money " — for I could not stand the 



TRIAL OF JUDGE WILKINSON ET AL. 195 

Argument of Hon. Benjamin Hardin. 

.horrid recital any longer — when every jutting point or retiring bend 
bore the landmark of assassination, and irresponsible murder. 

Why does the law call for punishment ? Surely it is not in venge- 
ance for the past* but to deter others from the too frequent and free use 
of deadly weapons, whether in Kentucky, Louisiana, Mississippi or 
Arkansas. Is it to be left to the vitiated taste of the brutal few to give 
tone to the mind of a community in setting up the code of the bowie- 
knife against the common law ? It was but the other day that in the 
Legislature of Arkansas, a member on the floor was a little disorderly, 
and the speaker, to keep quietness, stepped down, brandishing his bowie- 
knife, to silence the ardor of the unruly member, which be did, effect- 
ually ; for, of all the ways in the world of putting down a young and 
aspiring politician, whose tongue will keep wagging in spite of his teeth, 
your bowie-knife is, 1 admit, the most effectual. And the speaker, on this 
occasion, bent upon having silence, silenced the offender, not only then, 
but for all time to come. To be sure, he went through the form of a 
court of inquiry, but a life is only a small matter there, and he was 
acquitted according to the laws of that State. 

§ 271. Coming events cast their shadows before, and here we have 
one symptom of that downfall of our own glorious Republic, which has 
been so often predicted, but which has been reserved for the present 
generation to consummate. The symptom is to be found in the flash 
of those deadly weapons carried about and used with such unerring 
fatality by our legislative sages and judicial dignitaries. As if the next 
should come froni high places, too, we have a fatal symptom of our 
downfall furnished by the corruption of those in office, who share in 
or connive at the grossest defalcation — the widest system of public 
plunder, even in our monetary defalcations, ever known in any govern- 
ment. 

Why should we deceive ourselves with the vain hope that our Republic 
will boast greater permanency than that of Rome, when we are 
fast falling into the very track, step by step, which leads to the preci- 
pice over which she plunged headlong. That once magnificent 
mistress of the world marched up the hill of fame and glory with 
irresistible strides, till she reached the summit and looked around upon 
the hundred nations in her rule. But, at last, satiated with prosperity, 
she begian to repose supinely upon her laurels, and she permitted 
herself gradually to relax that discipline and good order, which had 
been to her not only her shield and buckler, but her bond of union. 
The people were permitted to fight in twos and threes at first with 
impUnity. They became accustomed to it, and then fought without 
interruption in gangs; bye and bye, mobs fought with mobs; and 
finally the whole people became arrayed against each other in regular 
armies, till they had to retire to the plains of Pharsalia, where the doom 
of the greatest republic the world had ever known was sealed forever. 



196 THE LA W OF HOMICIDE. 



Argument of Hon. Benjamin Hardin. 



g 272. Are we not relaxing the laws — which leads to anarchy, and, 
from personal violence to popular usurpation ? Are we not relaxing 
our financial vigilance, — which leads to corruption at the fountain 
\iead, and from private peculation to public defalcation ? Is there no 
symptom in all this of a great crisis ? I tell you again and again, when 
you can lay your hands on great delinquents, make ihem an example ; 
when you can gra^ great defaulters, punish them ; then will you more 
easily check pernicious discords, and restore to its proper tension and 
tone the harmonizing power of your laws and your government. 
Whenever you see men wearing bowie-knives and daggers — hunt them 
down as you would bears and their cubs, from whom you can expect 
nothing but iiyury. The whole State of Kentucky looks to you this 
day for justice, for this is an awful investigation concerning the loss 
of two of her citizens. Two of our fellow-citizens have been murdered, 
and these gentlemen are here to answer for it. Some of the best blood 
of the country has been spilled as if in the pen of slaughtered hogs; 
but because the relatives of one of these butchered men employ coun- 
sel to aid the prosecution in developing the truth, and guarding against 
the deluflions of sophistry from the greatest array of talent the country 
can boast, or that wealth unbounded can procure, to elude the punish- 
ment due to the oflFended laws you are told to take but a one-sided 
view of the evidence, and to decide at any rate against the paid advo- 
cate. I have not asked these gentlemen what they are to be paid for 
eluding justice, because I did not consider that a sort of evidence 
which ought to influence your verdict. 

Gentlemen, one question is, are we to tolerate this bowie-knife 
system under the false pretense of self-defense ? I say, let your verdict 
act like the ax laid to the root of the tree, and many a prayer will 
bless you for your timely check of its growth. Many a woman is 
made a mourning widow, many a child made a pitiable orphan, and 
many a father childless by the use of this accursed weapon. You have 
it in your power to prevent the recurrence of such scenes. 

§ 273. We have had an exhibition here in miniature of those Ro- 
man scenes which prepared the public mind for the downfall of that 
great people. There was a vast amphitheater where the Roman people 
could be crowded together, and in the presence of some hundred 
thousand persons of both sexes, a man would be brought into the 
arena, and a ferocious tiger turned in upon him. He might, or he 
might not, possess skill or courage to meet the formidable beast and 
evade the deadly spring ; but, if not so fortunate, when the tearing of 
his vitals was seen, and the craunching of his bones heard, the solitary 
shriek of the victim's wife, as it arose upon the air, would instantly be 
drowned by the acclamations and thunders of applause bestowed upon 
the ferocious beast, prolonged by its renewed efforts to suck the blood, 



TRIAL OF JUDGE WILKINSON ET AL. 197 

Argument of Hon. Benjamin Hardin. 

tear the flesh, and grind the bones of its prey. As we have no amphi- 
• theater, a hall of justice is made to answer for a miniature arena; and 
afi we can not have tigers, nor men who will submit to be their victims, 
we have forensic gladiators, and witnesses whose private feelings and 
characters may be wounded, lacerated, and tortured to the infinite 
delight and encouraging shouts and plaudits of a fashionable auditory, 
while the victim is helpless and gloomy in his unmerited prostration. 
Yes, it is all for the amusement of enlightened minds, and it is 
intended, perhaps, for the, edification of the rising generation. But, I 
protest, I can not yet perceive that it is any more for the honor of the 
applauders, than it is necessary for the good of the country, that these 
gentlemen should be honored and glorified for their dexterity in the 
use of the bowie-knife and dirk. In the time of public danger, or for- 
eign invasion, is it these bowie-knife gentry, these pistol men in private 
life, that mount the breach and face the danger ? Are they the brother 
Jonathans that face John Bull and eye him and his scarlet coats with 
defiance ? Where are they then ? Why, like the gnats and mosqui- 
toes, who glisten in the sunshine and the calm, but when the storm 
rages, and the thunder growls, and the lightning flashes, and the earth 
is rocked to its center, they are stowed away from the danger ; though 
they are sure to emerge from their hiding-place to annoy with their 
stings when the succeeding calm and sunshine invite them out once 
more. Brave men may be voluptuous and effeminate in private life, but 
in the hour of danger, they put on a new nature. But these fighters 
in time of peace, clothe themselves in the skin of the lamb in time of 
war. Sardanapalus, who sat all the while with his women and eunuchs 
in times of peace, spinning and knitting, and telling long stories no 
doubt, and sometimes wearing petticoats to make himself more effem- 
inate, when conspired against by Belesis and Arsaces, gave up his 
voluptuousness, and at the head of his army gained three renowned 
battles ; and though beaten apd besieged at last in the city of Ninus, 
to disappoint his enemies, burned himself, his eunuchs and his concu- 
bines, with his palace and all his treasures. Alexander the Great, who 
was kind, courteous, familiar, and confiding with his ofiScers in private 
life, when leading the Macedonians, moved to battle like a pillar of 
fire, irresistible in his might. When the great Frederick led on his 
brave Prussians, they fought and fell and fought and fell, as long 
as any were left. And thus men imbibe the spirit of their chief. If 
led by a brave man, they are brave; if led by a coward, they are 
poltroons, and if led by the bowie-knife-and-pistol gentry, I make no 
doubt they would be either assassins, or nothing better than mosquitoes, 
to be dispersed by the very first report of the cannon. Even at home, 
in our own rural districts, we see the influence of leading men on 
whole neighborhoods. Let a virtuous and enlightened man, whom all 



198 THE LA W OF HOMICIDE. 



Argument of Hon. Judge Bowan. 



will look up to as a pattern, settle in your neighborhood, and every- 
one will partake of his good influence. 

§ 274. Why was it that Nelson, in his death, did more for the glory 
of his country than ever he did in his life ? Because he ascended to 
heaven in the arms of victory, like Elijah, who tasted not of death. 

Let us never dream of selecting for our leaders or our examples, 
those who have so little moral courage as so trust to bowie-knives and 
pistols for the preservation of their manhood, instead of to their 
blameless conduct in peace and bravery in war. 

Gentlemen, I beg of you in the name of Him who sits upon the 
cloud and rides upon the storm, mete out the measure of justice to 
these men, and vindicate the honor of Mercer county. But do not 
stigmatise your county by doing, as Mr. Prentiss would have you to do, 
by shouting "Glory! glory! go, ye righteous; go to your homes, in 
honor and in innocence." Whatever you may do, I shall content 
myself with the conviction that in my professional capacity, I, at least, 
have done my duty. 

I have been deputed by the widowed mother of the murdered Roth- 
well, and at the instance of his mourning sisters, to implore your 
justice. I have closed my mission. Between you and your country— 
between you and your God, I leave their cause. 

[Concluded at ten o'clock.] 

ARGUMENT OF HON. JUDGE ROWAN. 

§ 275. Gentlemen of the Jury : I solicit your already jaded patience, I will 
not say for a short time, for I know not how long it may employ me to 
make the appropriate comments upon the facts, the law, and the argu- 
ments of counsel in this case. I will promise you, however, not to be 
unnecessarily tedious. I have, in the patience and attention you have 
already displayed, a pledge that you will bear with me for at least a 
moderate length of time. My unfortunate clients (confidmg alike m 
their own conscious innocence and your intelligence and unbiased state 
of feeling), were willing that you might have decided their case with- 
out argument, but their will did not prevail. The Commonwealths 
attorney, Mr. Bullock (in whom I am proud to find the son of honored 
parents, whose friendship T enjoyed in days past), has evinced an entire 
competency to the duties of the -station with which he has been 
recently honored, and which, permit me to say, he honors by the com- 
mendable candor and high talents with which he performs his 

official duties. 

I regret that I can not speak in the same commendatory terms of the 
candor of his aged and very highly talented adjunct. That gentleman 
represents the vengeful feelings of the very near relations of the ill-fated 



TRIAL OF JUDGE WILKINSON ET AL. 199 



Argument of Hon. Judge Rowan. 



Rothwell and Meeks, by whom he has been employed to convict, if 
possible, the accused. He has just closed a philippic of four hours 
against them, as remarkable for vigor of intellect, as for vehemence and 
impassioned zeal. He implores you, with great earnestness, to check 
(by a verdict of conviction in this case) the habit of wearing arms, and 
especially bowie-knives, which has, as he says, latterly so much prevailed 
and multiplied assassinations throughout our country. He considers 
the frequency of these melancholy incidents as infallible evidence of 
the growing degeneracy of public morals, indicating the rapid decline 
and eventual subversion of our free institutions. 

§276. It is the corruption of the people, he tells you, that saps 
the foundation of a free government, and he refers to the history 
of Greece and Rome to confirm and illustrate his doctrine. He asserts 
that he has set, and that all good men ought to set their faces against 
the degeneracy of the times. 

Gentlemen of the jury, I concur with him in the belief that corrup- 
tion is the great destroyer of friee governments, but do not believe with 
him that its prevalence is so alarmingly evinced by the incidents to vvYdch. 
he has so glowingly referred. While corruption displays itself upon 
the surface only of the body politic, it is, like boils on the surface of 
the natural body, but an evidence of the exertion of the recuperative 
energies to throw off the pucant matter. 

§ 277. The right of the people to carry arms is little less than identic 
with their freedom. Without arms, they can not vindicate their freedom. 
Without the right to possess and wear them, they will very soon be 
without the spirit to use them, even in defense of their liberty. I feel 
no apprehension for the liberty of my country from that source. I fear 
nothing from the carrying of bowie-knives ; brave men do no< fear them, 
and cowards seldom use them. It is wrong to reason against the use 
of any good thing, from its occasional, or even frequent, misuse. While 
our institutions are pure, and especially our courts of justice, we have 
nothing to fear ; they will vindicate the just use, and punish the misuse 
of bowie-knives, or any other arms which our free citizens may choose 
to wear. But I can refer him to an instance of the growing degeneracy 
of morals, more recent, and greatly more alarming, than any, or than 
all the instances he has named. The recent instance, to which I allude, 
of the alarming degeneracy in the public mind and morals, is the com- 
posure, and even complacency, with which we have listened in the 
temple of justice, to the mercenary ebullitions, and sanguinary efforts, 
of the gentleman himself. It is in proof that he has received from 
Mr. Redding, the brother-in-law of the unfortunate Rothwell, a fee of 
one thousand dollars to convict, if possible, the accused. 

§278. He has not appeared in this case as the Commonwealth's 
attorney, nor under any appointment by the government, but as hired 



200 THE LA W OF HOMICIDE. 

_ _ - I- -|-rii -Ti- -r- *- • r-i- -ii _ m. 

Argument of Hon. Judge Bowan. 

counsel — hired, too, by the incensed witness, Redding, upon whose tes- 
timony, mainly, it was hoped and desired by both to produce the con- 
viction and ignominious death of the accused. Gentlemen of the jury 
bear with me for a few moments while I, also, attempt to repress corrup- 
tion ]iy denying it the right of access to the forum and to the sanctuary 
of justice. Let me tear from its face the illusive and imposing mask 
under which it hopes to win its Vay to your favor and exert a bad 
influence upon your judgement and your feelings. I shall attempt to 
convince you that his appearance in this case, against the accused, is in 
contravention of the law of the land and the moral sentiment of all 
civilized communities — reprobated as well by the social sympathies of 
our hearts, as by the precepts of our holy religion. 

And first, of the legality of the gentleman's posture in this case. 
Our constitution guarantees to every man, a/air and impartial trial by a 
jury of his peers, and proclaims that no man can be deprived of his 
life, liberty, or property, unless by the judgment of his peers or the law 
of the land ; by the law of the land, we understand, as well the pro- 
tective as the punctory laws of our code. The punctory part relates 
to offenses and their punishment. The guilty are punished, and the 
innocent are protected. In ascertaining and punishing guilt, the laws 
are construed and applied to the case of the accused by the function- 
aries of the government. In the making of laws, there are no hired\e^s- 
lators — they are all elected by the people — so, in the enforcing of the 
laws, there are no hired prosecutors, ^]udges, jurors or sheriffs. I mean 
hired by individuals. They are all appointed and paid by the govern- 
ment. The machinery of judicial proceedings is altogether official. The 
agents are all official. There is no clubbing of official powers with that of 
any other individual, to bear down, oppress, or destroy another indi- 
vidual. The government, instead of assisting individuals to oppress, 
restrains them from oppressing each other. 

g 279. The government acts toward every man upon the presump- 
tion that he is innocent, until his guilt be ascertained by official agency 
according to the laws of the land. This presumption, that every man 
is innocent until his guilt be fairly and legally proven, is the most 
essential element in the corporate structure of civil society, one, with- 
out which its parts could not cohere nor exist for a single day — it is 
not the only cement, but the very basis of the civil union. It is the 
postulate, without which the jurist, the moralist, and the divine would 
plead, write, or preach in vain ; without this presumption, war, anarchy 
and rapine would usurp the places of law, order and justice ; upon it 
the whole fabric of civil society stands poised, widening out like an 
inverted cone, until it embraced those morals and manners, and those 
sympathies and charities of the heart, together with those radiations of 
mind, which embellish, and sweeten human life. It is a presumption 



TRIAL OF JUDGE WILKINSON ET AL. 201 



Aigumeni of Hon. Judge Rowan. 



which no man can conti;avene without poisoning the fountains of 
human happiness, and thereby proclaiming himself an enemy to man- 
kind. This principle .is necessary, not only in the nascent state of 
society, as its basis, but in every moment of its existence, in every act 
of its progress — neither law, morals, nor religion, could live without it. 
In consonance with this great principle, the officers of the Government 
all proceed in reference to the accused. He stands in the box, shielded, 
as with the fabled segis of Minerva, by this presumption, until his guilt 
is proven, beyond a reasonable doubt, and fairly proved. The Com- 
monwealth's attorney, the judge, the sheriffs, act upon it. Their oaths 
for official fidelity require them to do so. They have no motive to act 
otherwise; they represent the Commonwealth, and she is as much 
bound to protect the innocent as to punish the guilty. It gives me 
pleasure to say that the Commonwealth's attorney (Mr. Bullock) has 
discharged his duty, fairly, faithfully and ably. He has acted upon the 
presumption, which I have been urging, that the accused should be 
considered innocent throughout the whole progress of their trial, and 
until its conclusion should evince the contrary. The distinguished 
counsel, who represents the avenger of blood in this case, has, with his 
usual ability, and with somewhat unusual zeal, displayed great devotion 
to the interests and inclinations of his client. 

§280. He was bound by his undertaking to have the accused 
convicted and executed, unless they should be able to prove themselves 
innocent. His duty and his energies were to destroy them, guilty or 
innocent. The duty of the Commonwealth's attorney was to suppose 
them innocent until their guilt should be ascertained — the duty of the 
former gentleman was to suppose them guilty until their innocence 
should be evinced by a verdict of acquittal. The gentlemen drew, as 
you will perceive, their motives- from directly opposite sources. They 
acted from different motives, and have thereby subjected the accused 
to a cross-fire throughout the whole proceeding, and such must always 
be the case when hired counsel are permitted to appear against the 
accused. The appearance of the gentleman in this case violates the 
rights of the accused, and especially their great right to be presumed 
innocent, and profanes the sacredness of the temple of justice, and all 
the sacred usages and forms of proceeding. It corrupts the streams of 
justice in their very fountains. It introduces and consecrates the 
sanguinary and long exploded claims of the next of kin to the slain. 
Gentlemen of the jury, according to the rude and barbarous usage of 
^an in his aboriginal state, the next of kin had a right to kill the slayer 
0^ his father, brother, etc., without regard to the character of the 
decision — without inquiring whether it had been inflicted justifiably, 
excusably, by misfortune, or of malignant design. This practice pre- 
vailed even in our day among the Indians of North America, and 



202 THE LA W OF HOMICIDE. 



Argument of Hon. Judge Bowan. 



perhaps still prevails in many of their tribes. It crept into the codes of 
many semi-civilized nations as they advanced from barbarism. To weed 
out this vengeful and sanguinary principle, and l^o protect all but delib- 
erate murderers, from its impassioned and baneful effects, the great 
law-giver of the Jews directed a competent number of cities of refuge 
to be erected, and so distributed throughout Judea, as to yield to the 
unfortunate homicide, the requisite security from the next of kin to 
the slain. 

g 281. The same principle insinuated itself into the code of England, 
but as she has advanced in civilization she wisely and humanely tamed 
and rendered it harmless in the shape of a civil action, denominated 
an appeal of murder, which she permitted the next of kin to institute 
against the homicide ; and she humanely encumbered the action with 
such technicalities, and subjected it to such delays in its progress, as 
rendered it harmless to the accused, by affording time for the subsi- 
dence of the bad passions of the avenger ; while she, in the meantime, 
proceeded to give the accused a fair and impartal trial by a jury of his 
peers. But in the appearance and efforts of the hired counsel in crim- 
inal cases, we behold the re-appearance of that odious and exploded 
principle, in a more aggravated form than it was ever displayed among 
the barbarians, the Jews, or the Anglo-Saxons. With them, the 
unfortunate homicide had to fear only the aroused passion of the 
avenger. It would subside. It might, possibly, be mitigated or 
appeased ; at most, none but the next of kin was to be dreaded — none 
other dare act; but where counsel are hired by the accused, when his 
vengeance is at its highest (and it is always in that state of feeling that 
he employs counsel), his feelings are transferred into those of counsel, 
and set (to use a figure from dyeing) more or less unfadingly, by the 
size or quantum of the fee. 

g 282. There the accused had the passion of revenge onlt/ to fear — 
here he has to encounter that passion, combined with the passion of 
avarice, the most sordid of our nature. But if the avenger might 
lawfully employ the talented gentleman who represents him, and not 
the Commonwealth, in that case, might he not have employed any 
given number of our most distinguished lawyers and advocates, and at 
once overwhelm the accused by their combined talents, eloquence and 
weight of character. The limits of his vengeful efforts are not to be 
found in the law, but in his purse. The security of the accused is no 
longer to be found in the laws and the institutions of the Government, 
but in his own wealth and the poverty of the avenger. Guilt or inno- 
cence, upon this principle, is to be decided not by the constitution and 
laws of the land, but by the comparative wealth or poverty of the 
avenger and the accused ; and . thus, instead of appealing to Heaven, 
for a decision of guilt or innocence, as in days of yore in the trial by 



TRIAL OF JUDGE WILKINSON ET AL. 203 

Argument of Hon. Judge Rowan. 

battle, between the avenger and the accused, we shall have the questian 
decided by a conflict of their purses. And thus our beautiful system 
of criminal jurisprudence will be so subverted and degraded that the 
liberty and life of the accused will depend, not upon his innocence, 
but whether he, or the avenger, can bid highest — the one to preserve, 
and the other destroy it, by the instrumentality of hired lawyers^ 
who, in competition with each other, for employment, will be seen 
hovering about the avenger and the accused, ready to be employed by 
either, and soliciting employment from both, regardless of the merits 
of the case, and regardful only of the amount of the fee which may be 
obtained. Gentlemen, I leave you to contemplate the moral degrada- 
tion, the wide-spread corruption, which would follow the practice if it 
were to prevail, which I am resisting as unfair and unlawful. 

§ 283. The venerable gentleman has told you that he and myself 
practiced law together and abreast for near half a century. It is true, 
and for the first twenty-five years of that period, he like myself 
declined all applications to appear against the lives of our fellow men. 
His first departure from that course was, as he tells us, in the case of 
the Commonwealth vs. Smith, charged with the killing of Dr. Brown. 
That was a long time ago, and I am sorry to tell you that he has been 
at it ever since, and seems determined to keep at it. I take much 
pleasure and feel some pride in being able to say that I never have 
taken a fee or appeared as a lawyer against the life or liberty of my 
fellow man and that no amount of fee could, at any period of my life, have 
tempted me to do so. I refused a fee of one thousand dollars to do so 
when I was not worth that many cents. Apart from its being unfair and 
unlawful, as I verily believe it to be, I do. and always have, reprobated 
the practice, because of its tendency to indurate the heart and deprave 
the moral feeling. But I am now contending that it is unlawful; and 
further to illustrate this point, let me suppose that Redding had given 
to the Judge, the Commonwealth's attorney, and the sheriff^ and even to 
you, gentlemen of the jury, the one thousand dollars which he has given 
to his talented* lawyer in this case (I beg pardon of the Judge, the Com- 
monwealth's attorney, the sheriff, and of you, gentlemen, for the supposi- 
tion — I make it only for the argument), to animate them, as he would 
term it, in the just performance of their official duties. To the sheriff, 
that he might summon an impartial jury , who would convict the accused; 
to the Judge to decide most justly and impartially against the accused 
every question of law, which might arise in the progress of the case; 
to the Commonwealth's attorney, that he might invert the presump- 
tion of law as to the innocence of the accused^ and urge, with ardor and 
zeal, their conviction; and to the jury, that they might evince their 
love of justice by promptly rendering a verdict of conviction. What 
would be the public opinion of such conduct in reference to him and 



s 

204 THE LA W OF HOMICIDE. 

Argument of Hon. Judge Bowan. 



those ofl&cers who had received his money ? Would not all mankind 
reprobate it, and fasten shame and degradation upon all concerned in a 
transaction so corrupt? They certainly would. But let us inquire 
why they would do so. 

§ 284. Would it not be because of the influence of the money upon 
the fate of the accused ? The mere passage of one thousand dollars, 
or ten times that sum, by transmission, from one hand or pocket to 
another is, in itself, and, apart from its effect and influence, a matter 
entirely immaterial and indifferent. It is then not in its naked matter 
of fact aspect, but in the effect and influence of those matters of fact, 
that the public reprobate it. 

The odious effect of money so distributed consists in the pollution 
which it inflicts upon the pure streams of justice, to the prejudice of 
the accused. The pith of its effect is in its unfairness toward them. 
Now, if the trial of the accused can only he fair, when all the proceed- 
ings against them are legal, and all the actings official, apart and free from 
9\\ force but that of the law, and all motives to action but those of official 
duty, and if they are entitled by the constitution to a fair and impartial 
trial, we can be at no loss to see why the effect or influence of money 
exerted against the accused should be deprecated by them, and repro- 
bated by all honest men. Money, therefore, can not be given by the 
avenger to the Commonwealth's attorney (nor to any of the judicial 
officers), because of its unfair influence against the accused. 

g 285. Now, what is the difference in point of effect, that is, fairness 
and impartiality, between giving the one thousand dollars to the Com- 
monwealth's attorney and giving it to the very talented and very expe- 
rienced lawyer to whom it was given, and to whom you have listened 
for more than four hours. By giving that sum to the former, its effect, 
under the odious denomination of corruption, would have, been let 
into the prosecution — by giving it to the latter, its effect, aggravated by 
an alien and unofficial volume of mind united with experience, sagacity, 
and weight of character, has been brought into the case, and their con- 
dition thereby rendered worse than if the one thousand dollars had 
been given by Redding to the Commonwealth's attorney. It is, gen- 
tlemen, in the contemplation of sober reason, unfair, and, therefore 
unlawful, that the effect and influence of this one thousand dollars 
should be thrown into the scales against them. It is corruption to an 
undefined extent — I say undefined extent, because, though we can ascer- 
tain the amount of the money, we can not ascertain precisely the degree 
of unfairness it produces— but as any, the least degree of it, is excluded by 
the laws of criminal procedure, we can, with confidence say that the 
influence of the one-thousand-dollar fee, most gratuitously and saga- 
ciously exerted by the hired lawyer against the accused, is palpably 
unfair. 



TRIAL OF JUDGE WILKINSON ET AL. 205 

Argument of Hon. Judge Rowan. 



g 286. There is, gentlemen of the jury, in the human heart an inher- 
ent love of fairness, which, when unbiased by passion, it is sure to 
display whenever occasions for its display are presented. It pervades 
all ranks and grades of mankind. It is evinced in all their settled 
modes of contest— when a fight occurs among the multitude, you will 
hear the exclamation of " fair play " from the mouths of all who are 
not engaged in it ; and very many, in every crowd, are ready to main- 
tain fairness at all hazards. Hence the popular apothegm, " Fair play is 
a jewel." Pugilism and dueling have their rules of fair play. The 
sports of the people, as well as their fights, have some settled rules of 
fairness, and even war between nations has its laws of fairness ; these 
rules of fairness are legibly and indelibly written upon the human 
heart, and we perceive them intuitively ; we feel their force in every 
fibre of our frame, in every pulsation our blood; they are venerated 
everywhere, and in reference to every subject. 

§287. Gentlemen of the jury, to give you some idea of the degree 
in which this principle was cherished by our rude ancestors, when the 
accused had a right to wage battle with his accuser, let me refer you to 
the rules of fairness by which the combat was regulated and conducted, 
and mark that even in this mode of trial, the accused was presumed to 
be innocent until convicted — that is, until vanquished by the accuser. 
You will find the rules to which I allude in the second volume of 
Montesque's Spirit of Laws, commencing at page 201 ; but I shall read 
only two or three of the rules, from page 203: "Before the combat, the 
magistrates ordered three bans to be published. By the first, the 
relations of the parties were commanded to retire. By the second the 
people were warned to be silent ; and the third prohibited the giving 
of any assistance to either of the parties, under severe penalties — nay, 
even on pain of death, if, by this assistance, either of the parties should 
happen to be vanquished." Observe, gentlemen, that the relations 
were to retire. Do you ask me why ? Surely lest influenced by the 
feelings of kindred ties, some of them might assist *heir relative, and 
therein violate the principles of fairness. The crowd were to be silent. 
Why silent ? lest by their hisses or their plaudits they might animate the 
one or depress the other, or exert a distracting influence upon either. 
Now, let me ask you, does the attitude of the gentleman, and his one- 
thousand-dollar power, exerted against the accused, quadrate with this 
rule? What rule of fairness, within the verge of human conception, 
justifies his position here, and his exertions against them ? Does he 
know how much the assistance, given by him to the accuser, may con- 
duce to the vanquishment of the accused? Does he feel conscious 
that if by this assistance of the Commonwealth (the accusing party), he 
shall conduce to the conviction of the other party, he incurs, under the 
spirit of this last rule, the penalty of death ? 



206 THE LA W OF HOMICIDE, 

Argument of Hon. Judge Kowau. 

I 288. Gentlemen of the jury, such was the mode, and such the prin- 
ciples of fairness, observed by our ancestors in trying such a case as the 
one in which we are now engaged — a mode upon which we look back 
with reprobation ; but our reprobation of it is greatly mitigated by the 
luster of the moral jewelry which lingers about it; and think you, gen- 
tlemen of the jury, that the wise and more civilized statesmen and 
jurists, who rejected that barbarous mode of trial and substituted the 
mode which we are now pursuing, rejected with it those principles of 
fairness which constituted all that was attractive and valuable about it ? 

Think you that they interred the jewelry with the body of the 
defunct mode ? No, gentlemen — they transferred those jewels to our 
code; their splendor gilds and sets off its symmetry. It is that very 
splendor which is now being dimmed, that symmetry which is now 
being marred, by the unfairness of the mercenary and unauthorized 
cttbrts of the representative of the avenger of blood. By the theory 
of criminal trial with us the accused are placed in the custody of the 
law, protected from all extraneous force, and subjected only to that of 
its own power, exerted through its own responsible and unprejudiced 
official agents, throughout every stage of the proceeding, from the 
inception of the trial to its Jinale. Even after conviction and sentence 
pronounced, the execution must be done by the proper officer and in 
the manner prescribed by law. 

§ 289. If the proper officer vary the manner prescribed, as by hang- 
ing one sentenced to be beheaded, or by beheading one sentenced to 
be hanged, he is guilty of murder; and if one that is not an officer 
execute the culprit, even according to the manner prescribed in the 
sentence, he is guilty of murder. (See this law in Hale's Pleas of the 
Crown, Ist vol., p. 501.) Strange that a man ascertained to be guilty 
and doomed to death should be protected by the law from all unofficial 
assaults, and that the same law should allow the life of a man presumed 
to be innocent to be assailed by the hired representative of the avenger 
of blood, even in the very temple of justice I By our constitution and 
laws the accused are allowed to defend themselves against official assail- 
ment, and even furnished with the means of doing so; they shall be 
heard by their counsel, and if they are unable to employ counsel, coun- 
sel shall be assigned them by the court; they shall be confronted by 
the witnesses against them -they shall have compulsory process to 
compel the attendance of witnesses in their behalf. The jury, the 
judge, the sheriff and the Commonwealth's attorney shall be unbiased- 
all shall be unbiased — and yet the hired counsel of the avenger, and he 
alone, is to be irresponsible, and may aim his poisoned arrows with impu- 
nity, nay, lawfully as he would have it, at the hearts of the accused — he is 
to be the only licensed homicide in the whole judicial coterie — he alone 
among all in the court-house may, perfaSj aut ne/as, kill the accused iC he 



TRIAL OF JXTBGE WILKINSON ET AL. 207 

Argument of Hon. Judge Rowan. 



can with impunity. Can the law, I would ask you, gentlemen of the jury, 
license such a procedure against the accused? Ought it to do so? 
Would it be fair that it should ? No, gi^ntlemen, no ; it neither is, nor 
ought to be the law. It ia a vicious and foul excrescence, which, like 
mistletoe upon the oak, deforms and distempers the trunk upon which 
it fastens itself. 

g 290. It is an erroneous notion, that when a man has a license to 
practice law he may annoy and harrass whom he pleases, in his profes- 
sional character. No man has a right in virtue of his law-license to 
harrass one man by assailing him with even a civil suit, in the name of 
another, without a warrant of attorney from that other. (See Monroe's 
Rep. 189.) Then let me ask the gentleman where is his warrant of 
attorney to prosecute in this case — he has no authority from the Govern- 
ment, which alone could give it. The commission of the Common- 
wealth's attorney is his authority to prosecute, but the gentleman 
has no authority whatever. The judge can not give it; he can confer 
the power only in the absence of the Commonwealth's 'attorney, and 
then only according to the provisions of the Act of Assembly in that 
case provided. But if he could confer the power, he can not decently 
appoint a man who had taken a fee of one thousand dollars to convict 
the accused, if possible, guilty or innocent. He would be bound in 
honor to appoint some disinterested gentleman of the profession, 
whose weight of character would be a pledge to the accused, and to the 
community, that he would conduct the prosecution fairly and justly. 

Now, I ask if it be reasonable to suppose that the law which denies 
to the licensed lawyer the had privilege of annoying his neighbor in a 
civil action, without warrant of attorney from the plaintiff, would 
allow him without a warrant of attorney from the Government or from 
any authoritative power whatever, to obtrude himself into a prosecu- 
tion and exert all the powers of his mind not merely to annoy or har- 
rass, but to destroy the life of the accused? 

J 291. Can it be believed that the law would guard the citizens so 
scrupulously, in reference to their property/, against the avarice of the 
bar, and leave their lives a prey to that cormorant passion ? 

There is no statutory inhibition against such a course, by a hired 
lawyer against the life of his fellows — and only because the inhibition 
was to be found in the statutes penned by the finger of Heaven upon 
the human heart. The Legislature could not suppose that gentlemen 
of the bar would give in to a practice so obviously contrary to the laws 
of nature — a practice reprobated alike by the unvitiated feelings of the 
human heart and the spirit of Christianity. Grotius, p. 421, after 
having commended nations for giving commissions to their national 
vessels, authorizing them to destroy pirates, commends, also, the practice 
of appointing by commission, prosecutors of crime, ' when not any 



208 THE LA W OF HOMICIDE. 

Aif^ament of Hon. Judge Rowan. 

one, who has a mind to it, is allowed to he a prosecutor, hut only some 
particular men, who are appointed by public authority. That so no man 
may contrihute toward the effusion of his neighbors blood, hut only he 
who is ohliged to it by his office. Agreeahle to this is that canon of 
the Council of Elibous: " If any believer be an informer ^ and another by 
his information be either proscribed or put to deaths we have thought fit 
to forbid him the sacrament, even to the last." Gentlemen of the 
jury, comment upon this passage is unnecessary. It speaks the lan- 
guage of humanity, as well as of Christianity* Its import applies to 
the prosecution of the life of one man by another, who has no commis- 
sion from his Government to do so. Here the talented gentleman who 
is hired to prosecute pretends to no such authority. The circumstance 
that the accused are strangers, from a sister State, should (if nothing 
else could), have restrained him. Gentlemen, the word "stranger" 
addresses the ear of every generous and benevolent man, and more, 
especially of every Christian, in a tone of peculiar emphasis. It is a 
word of con^crated import — consecrated by the Founder of our most 
holy religion. He enjoined upon all His followers sympathy for, and 
courtesy toward, strangers — " I was a stranger and ye took me not in," 
etc. Gentlemen of the jury, I set out with telling you that it was in 
the first place unlawful for a lawyer to appear for money against the 
life of his fellow man ; and second, that it was immoral for him to do 
so. I have been laboring (and I hope not without effect) to prove the 
first point, viz., the unlawfulness of the act. I have, to some extent, 
in discussing it, anticipated the second ; but it was unavoidable, for 
the laws are rules of moral duty, though they do not embrace defense, 
and enforce the mjoer/cc^ obligations of morality, such as charity, benev- 
olence, gratitude, etc. They enjoin only the duties of perfect obligation, 
g 292. I contend that the counsel who is now hired to convict his 
fellow men, in a capital case, violates in the very act of being so hired, all 
the imperfect obligations of morality; and if his efforts produce convic- 
tion, he violates the most important of all the rules of perfect moral 
obligation. " Thou sJialt not commit murder,'' is the rule to which I 
allude; and I urge that there are more modes than one of committing 
that crime. A man's life may be destroyed by false swearing, or by 
erroneous and impassioned pleading, as well as by the stiletto ; and 
the man who deliberately destroys life, by false swearing or by errone- 
ous and impassioned pleading, is not less guilty at the bar of conscience 
than the man who deliberately perpetrated the same deed by the 
dagger. The accused are prosecuted for murder ; suppose them to be 
innocent, and suppose that by the efforts of the hired counsel they 
shall be convicted and executed — would he not be guilty, in a moral 
point of view, and at the bar of conscience, of the very crime he had 
imputed to them? You must answer in the affirmative — and he (but 



TRIAL OF JUDGE WILKINSON ET AL. 209 

Argument of Hon. Judge Rowan. 

for the illusion into which he seems to have fallen upon this subject), 
would be constrained to answer, as David did to the prophet, " that 
man is surely guilty," etc. — and might it not, in the words of Nathan, 
be replied, " thou art the man.'' I wish I could disenchant and redeem 
his mind from the illusion in which the sorceries of avarice have 
enthralled it. I wish I could convince him and the few among our 
lawyers, who, influenced by his example (and the example of one or 
two other lawyers of distinction), have been seduced into the practice 
of receiving fees to assail the lives of their fellow men; but I almost 
deipair — the habit with him has become too inveterate ; yet, in the 
hope of restraining the younger members of the bar from a practice 
which detracts so much from their professional, and (according to my 
notion), so much degrades their personal character, I will pursue the 
subject — for it is in this view, mainly, that I have devoted so much 
attention to it. I will not deny, however, that I had the further view 
of endeavoring to convince you, gentlemen of the jury, that you ought 
to distinguish between the efforts of Mr. Bullock, the accredited organ 
of the Government, and those of the gentleman who has (influenced 
by a thousand-dollar fee) obtruded himself into this prosecution ; and 
to regard those of the one as a stream emanating from the pure foun- 
tain of public justice, but a little discolored by the excitement from 
which even official posture is unable to redeem our frail nature. Those 
of the other as a turbid and muddy stream of large volume emanating 
from the foetid marshes of exuberant avarice, betraying its source by 
the noxious effluvia which it emits in its course. The one as the foun- 
tain of health and of life to the innocent ; the other, as the Bohan 
Upas, destroying indiscriminately by its poisonous breath all whom 
chance or accident shall have thrown within its grasp. 

§ 293. But, dropping the figurative, let me discuss further, in plain 
prose, the moral position of the lawyer who appears for fee against the 
life of his fellow man. He is employed to devote all his talents and 
attainments, to the destruction of the accused ; that is the object at which 
the avenger of blood aims. To achieve that object he gives the one thou- 
sand dollars ; for that sum the lawyer engages to take the life of the 
accused, if by the weight of his character and force of his talents he caii 
possibly do it; if the death of the accused could have been effected 
justly, by the operation of the laws and the agency of the public func- 
tionaries, then the one thousand dollars would not have been given; the 
purpose of the avenger would have been attained without so large an 
expenditure on his part. It was then to destroy th^ accused, guilty or 
innocent, that the counsel was engaged. The engagement must have 
been either to convict or acquit the accused. But the avenger would not 
have given one thousand dollars to counsel to procure their acquittal. 
It must, then, have been given to destroy them — to take their lives, and 
14— H. 



210 THE LA W OF HOMICIDE. 

Argument of Hon. Judge Rowan. 

it must have been received by the lawyer to effect the purpose for which 
it was given, namely, to take the lives of the accused, or, to convict 
them, which is identic with taking their lives. 

Gentlemen of the jury, if this is the fair conclusion, and I feel so 
sure that it is that it can not be resisted, then, I would ask you, I 
would ask casuists, I would even ask the venerable and distinguished 
lawyer himself, to tell me what is the difference of the moral guilt 
between taking a mans life for Ms money, and taking mjoney to take his lifeJ 
I declare, solemnly, that if there be a difference in the moral guilt I have 
not brains to comprehend or perceive that difference. I can readily 
perceive, that in reference to the exterior aspect of the two cases, the 
former would seem to have the advantage of the latter, in the fact that 
with it are associated a boldness and daring of which the latter is 
entirely destitute. The highwayman in taking the life of another for 
his money hazards his own life. He may himself be slain, and if he 
should not he may be apprehended, convicted, and expire on the 
gallows. 

g 294. He incurs the hazard of all these events. There is in chivalry, 
a charm, a fascination, 1 had almost said a witchery, which gilds, and 
to some small extent mitigates crime itself But in the latter case 
there is not one mitigating, not one redeeming trait. The hired law- 
yer knows before he contracts to take the lives of the accused, that 
they are not only without arms, but bound hand and foot by the cords 
of the law ; aye, and dumb too. He has nothing to fear from them. 
He has but to compound with his own conscience, and without any 
hazard whatever, fall to work upon his victims. But . still it would 
seem to me that the heart of the lawyer thus engaged, must become 
strangely callous to enable him to proceed in the work of death, with 
the levity and sportiveness with which it has been conducted in this 
case. And yet the gentleman tells us, and quotes Burns in affi^-mation 
of the sentiment, that " the heart is ai, the part ai, that is right or 
wrong." Does the gentleman expect us to take as a,/ac-simile of a right 
heart, the feelings and sentiments which he has displayed throughout 
the management of this case? It is not by such sentiments and feel- 
ings that the Scottish Bard illustrates his conception of a heart that's 
right ; let me refer the gentleman to the following delicious morceau 
upon the subject of the heart from the same poet: 

•* The sacred low of wcel placed love, 
Luxuriously indulge it, 
But never tempt the illicit rove 
Tho' nothing shou'd divulge if ; 
I waive the quantum of the sin 
The hazard of concealing, 
But ah, it hardens all within 
And petrifies the feeling. " 

§295. Here we see how the heart is hardened, and the feelings jpe^r(^i 



TRIAL OF JUDGE WILKINSON ET AL. 211 

Argument of Hon. Judge Rowan. 

by indulging a passion less sordid than avarice. Burns thus shows how 
the heart may be rendered wrong. Let me refer the gentleman to 
another poet, who, like Burns, ministered at the altar of nature. He 
thus instructs us how to keep the heart aright ai : 

** Be thine the feeling of the mind, 
That wakes at honor's, friendship's, call, 
Benevolence, that unconfined — 
Extends her liberal hand to all ; 
By sympathy's untutored voice 
He taught her social laws to keep ; 
Bejoice, if human heart rejoice, 
And weep if human eye shall weep. 
Who feels for others' woes, 
Shall feel each selfish sorrow less, 
His breast, who happiness bestows 
Reflected happiness shall bless." 

Which, gentlemen of the jury, is the right heart, the one displayed 
by the lawyer, who permits himself to be employed to degrade and 
destroy the accused, or the one portrayed and recommended by the 
poet just quoted? I will not insult you by affecting not to know what 
your answer will be, or rather what it is. I should ask your pardon 
for having asked you the question. The precepts of the poets of 
nature, like those of the Gospel, in reference to the feelings of the 
heart, are but principles of fitness resulting from the nature of man, 
and his social relations. Human life is at best but a tissue of hopes 
and fears, of cross-purposes and inquietudes, of alternated sickness 
and health, of sorrows and joys, and the reciprocation of kind offices 
and sympathies of the heart by men in their social condition, alleviate 
the sorrows, mitigate the woes and increase and heighten the joys of 
each. Man is not a solitary animal — he can not live alone ; his organic 
bias and natural aptitudes are all social ; but with them all, witheut 
the fine sensibilities of the heart, society would be a curse to him, for 
without them there would be no conscience — and without conscience 
there could be no virtue, and without virtue there could be no 
happiness. 

§ 296. Hence, those who permit inordinate avarice, or the extreme 
of any other passion, to petrify their hearts and harden their feelings, 
are warring with the purposes of nature, in reference to the social 
condition of man — ^man's long state of infantile imbecility and help- 
lessness, and his dependence, during all that time, upon the sympathies 
of the heart for existence and sustenance, indicate the high estimate 
which nature places upon them. Infancy is the period of the heart's 
pupilage in the divine science of sympathy. Our first lessons are 
received in the nursery ; they fall from the lips of maternal aflfection 
upon our infant hearts, as gently as the dews of heaven descend upon 



212 THE LA W OF HOMICIDE. 



Argument of Koa. Judge Rowan. 



the tender grass. It is thus the virtues are planted in the heart, and 
take root, and grow in its sensibilities — it is here, in the nursery, that 
valor, too, the associate and protector of his sister virtues, gerpiinates 
and unfolds its nascent energies — stern and vigorous, bold and daring 
as it becomes, it is like the other virtues, the offspring of weak but 
lovely woman. By a wise arrangement of nature, the ladies are made 
to grow, and to admire it, because they constantly need its protecting 
influence. They respect it in their husbands, and cultivate it in their 
sons. The little boy, but just emerged from his cradle into his first 
pantaloons, while he listens to the tale of female distress, or injured 
innocence from the lips of his fond mother, feels the germ of valor 
glow in his bosom, and distends his little chest, and while she tells him 
that the fair damsel was rescued from brutal violence by some chivalrous 
knight, struts across the floor in steps of measured pride, and pants to 
be a man, that he also may signalize himself by deeds of valor and 
benignity. The "mother rejoices to see in the flashing eyes of her 
lovely boy the scintillations of his father's spirit — ^a spirit in the full 
and protecting radiance of which, and the blessing of heaven, she and 
her little ones have thus far rested securely. 

g 297. Gentlemen of the jury, it is thus the heart is trained, and its 
sympathies and feelings schooled in each successive generation to the 
performance of the social duties and the practice of the virtues. Yes, 
gentlemen, it is from the physical weakness of woman, that man de- 
rives his moral strength ; and shall her lessons be s^t at naught, and 
contemned with impunity ? Will not the gentlemen who receive 
money to destroy the lives of their fellow men be signally rebuked by 
public sentiment? Will not the ladies take cognizance of the subject, 
and place their withering veto upon a practice so repugnant to all their 
feelings and inculcations ? The venerable gentleman ha4s humorously, 
wittily, and even prettily, protested against a change of venue in this 
case, from the jury to the assemblage of beauty, taste, arid intelligence, 
with which this trial is honored, and the bench of the judge adorned— 
and assigns, as a reason for this protest, first, that the venue has been 
once changed and can not be changed again. And, secondly, that he 
would not be at home before that fair tribunal, by reason of the want, 
en his part, of imposing personal presence, and the aptitudes, manners, 
and attractions, suited to such an assemblage. This little sally on his 
part, was intended for the ladies, and designed to divert their attention 
from the repulsive posture which he occupied, and to conceal its moral 
deformity from their view. I tell the ladies that every question 
involving morals belongs in an emphatic manner to them, let the law 
of the case be decided as it may by courts of law — the morale of it 
must, directly or indirectly, be finally settled by their tribunal in its 
appellate character. But I have occupied too much of your attention 



TRIAL OF JUDGE WILKINSON ET AL 213 

Argument of Hon. Judge Rowan. 

upon this preliminary point, and perhaps have been too divergent and 
difTusive in the discussion of It. But, impressed as I am with its 
importance to the profession of the law and to the community, I could 
not pretermit it. 

g 298. What I have said is not in any spirit of unkindness toward 
the venerable and very talented gentleman who has heen employed 
by the avenger against the lives of the accused. I have no unkind 
feeling toward him. I claim no right to rebuke him personally. I 
have no motive to do so ; but I have a right to reprobate the practice, 
and I regret I can not do it in the abstract My observations are 
intended to be applied, not to him personally, but to the practice 
personified by him. It is true, and pity it is 'tis true, that he is not the 
only distinguished lawyer in the Union who has permitted himself to 
be employed against the lives of his fellow men. A few, and I am 
glad to say very few, others, have lent the sanction of their talents and 
weight of character, to this odious and inhuman practice. I feel 
concerned that it should be put down, and regret that our courts have 
permitted it. , The judge should denounce it as unlawful and unfair, 
and refuse to permit it. The prosecuting attorney should feel himself 
disparaged by any attempt to associate with him a lawyer hired, not 
to represent the Government, but the revengeful spirit of the avenger 
of blood. He should feel that he is the organ of the law, ministering 
at the altar of justice, and to maintain the sanctity of his position and 
his own competency, he should exclaim to the mercenary represent- 
atives of the avenger, ^^procul — O procul estate prop hani" and such I am 
sure would have been the course of the prosecuting attorney in this 
instance, had he not felt restrained by that diffidence which is insepar- 
able fVom youthful talents, in the inception of its official course. But 
let me tell that young gentleman that the competency which he has 
displayed in the management of this case will leave him without 
apology or excuse should he, hereafter, submit to the like intrusion. 

g 299. Gentlemen of the jury, you must have perceived that I 
commenced with the topic with which Mr. Hardin closed. He would 
have you convict and sacrifice the accused for the purpose of putting 
down, if for nothing else, the practice of wearing bowie-knives, and 
thereby checking the torrent of corruption which, as he would have 
you believe, emanates from that practice, and threatens the subversion 
of our free institutions. I would have you believe that the practice 
of taking money to take the lives of his fellow men in our courts 
of justice, as he does professionally, is greatly more unseemly and 
corrupting in its tendencies, than that of wearing bowie-knives ; that 
the latter is a matter of constitutional right, while the former violates 
the constitution and laws of the land, and every precept of Christian 
morals. You have heard us both, and will judge between us. What 



214 THE LA W OF HOMICIDE. 



Argument of Hon. Judge Bowan. 



I have said, however, upon this point, is intended by me rather as a 
kind of nuncupative legacy to the junior members of the bar, many 
of whom are attending this trial, and are the sons of my old friends, 
than for your consideration as jurors in this case. 

§ 300. I would say to them, that their license to practice law invests 
them with no powers to violate the social duties ; that by becoming 
lawyers they have not ceased to be men ; that the high and honorable 
profession which they have chosen imposes upon them increased obli- 
gations to cherish and promote those feelings of the heart upon which 
the virtues, and of course the happiness of mankind, so generally 
depend; that every political community consists of an indefinite 
number of domiciliary communities, the number of which are united 
to each other by the ties of affection, not similated, but natural, ema- 
nating from the heart — the relations of the members of the political 
body are artifical — that the artificial ought not, indeed, can not, absorb 
or extinguish the natural. In the family circle the virtues and charities 
which exalt, embellish and adorn our nature, are reared under the 
fostering care of maternal kindness, moistened and bedewed from 
the sacred fount of the maternal siorge, as I have already told you. 
That in their sacred domiciliary circles, the hearts of all are recipro- 
cally united to that of each other, by ties which though of gossamer 
texture, are stronger than hempen cords ; and that whenever a citizen 
is destroyed, a husband, a father, a son or a brother, is torn from this 
family cluster by a disruption of all the ligaments which bound their 
hearts together; that the heart of each bleeds with agony, and that 
of the mother is broken. 

Now if there is any meaning in the divine precept " Do unto others 
as you woukl that they should do unto you," how can any lawyer who 
is a husband, father, son, or brother (and every lawyer must come 
under some one or other of these denominations), reconcile it to him- 
self to take a fee to take the life of a man sustaining the relations I 
have mentioned, and thus incur not only the moral guilt of homicide, 
but with it that of inflicting in many instances widowhood and 
orphanage, and agony of feeling in every instance upon some circle of 
domiciliary affection; for every man (I repeat) belongs to a circle of 
that kind. I would say, therefore, in conclusion upon this point, to 
every junior of the profession, touch not, handle not the price of such 
complicated cruelty — degrade not your profession, harden not your 
feelings by an act so revolting and remorseless. 

§301. I will not, gentlemen of the jury, apologize to you for having 
detained you upon this preliminary point so long — a point not involved 
in the cause you are sworn to try, but yet, as I think, of sufficient 
importance to the community to plead in its importance my excuse for 
the time I have directed to it. The question in issue, and the only 



TRIAL OF JUDGE WILKINSON ET AL. 21b 

Argument of Hon. Judge Rowan. 

question, is, were the accused placed under the necessity, by the con- 
duct of the unfortunate Roth well, Meeks, and others, of taking the 
lives of those two misguided men in defense of their own ? Gentle- 
men, the moment the testimony was closed on the part of the Common- 
wealth, I perceived distinctly from your countenances that you had, 
even upon thsit ex parte and adverse testimony, decided the question in 
favor of the accused. T have perceived, also, that up to the moment 
when I arose to address you, your decision remained unshaken, unal- 
tered, and. therefore, it was that I lingered so long on the threshold 
of the real subject of your inquiry; my clients, I knew, would 
excuse me ; they felt no apprehension ; they had obtained all they 
desired — an enlightened, an impartial jury ; their acquittal, they knew, 
would follow, of course. But if the case had needed the utmost and 
the ablest discussion, they saw and heard the efforts in their behalf of 
my friend, Colonel Robertson, an aged, experienced, and talented law- 
yer; of young Mr. Thompson, whose display in this case may be 
considered by his friends as a pleasing presage and sure pledge of his 
future professional eminence ; and they must have been delighted, as 
you, and I, and all around us were, with the sunshine luster shed upon 
the law and facts of this case by the transcendent genius of their friend 
and fellow-Mississippian, Mr. Prentiss. I must, however, more because 
it is expected of me than needed by the case, re-touch some of the 
topics which they analyzed so well and discussed so ably. But I do it 
with my intellectual vision dimmed by the reflected light of the genius 
which has beamed upon them, as our ocular vision is sometimes blinded 
for a time by the strongly reflected rays of the sun. Indeed, were it 
not that Mr. Hardin (of whose posture in this prosecution I have dis- 
coursed you), has given some distorted views of the testimony, and 
the facts, and in some degree misconstrued, as I think, the law, I would 
not have said a word to you upon the main subject, believing, as I have 
already told you, that your verdict had been, long since, virtually formed 
in their favor, and that so far as speaking might be thought necessary, 
more had been said, and better said, than anything I could say. 

Gentlemen of the jury, let me, before I make any comments, exhibit 
a condensed view of the leading facts of the case. They are, that 
Judge Wilkinson, with his two friends, was at the Gait House in Louis- 
ville, on his way to Bardstown to marry Miss Crozier, an accomplished 
young lady of that place, whose affection and consent he had previously 
won. The day fixed for the marriage was the Tuesday next succeeding 
the day of the catastrophe which gave rise to this prosecution ; his 
brother, Dr. Wilkinson, and his young friend, Mr. Murdaugh, had 
come with him as friends on this occasion, and they remained in Louis 
ville a few days to replenish and fit their wardrobe for it ; in the doing 
of which, they became acquainted with the witness, Mr. Redding, a 



216 THE LA W OF HOMICIDE. 

Axgument of Hon. Judge Bowan. 

— ■ - _■---- _■ — — 

tailor of that place. He made a coat for the Doctor — it did not fit him 
— a dispute arose between him and Judge Wilkinson upon that sub- 
ject — some blows were exchanged — ^they separated — the Judge, his 
brother, and friend, went to their lodgings at the Gait House. This 
happened about 4 o'clock, p. m., on the day of the catastrophe. Red- 
ding was much enraged at what he supposed was the ill-treatment he 
had received from the Judge, who had snatched up a poker and aimed 
a blow at his head with it, which, as he warded it oflf, took Qf^oci without 
hurt or injury of any kind upon his arm. 

g 302. Redding went to the Mayor's office to obtain process against 
the three, for the Doctor and Murdaugh had, during the scuffle between 
him and the Judge, drawn tlieir Spanish knives. The clerk of the 
court told him that he could not issue process until furnished with their 
names — he promised the clerk that he would get the names and return. 
He, and his unfortunate brother-in-law, Rothwell, went together in the 
evening about dark, or a little before, to the bar-room of the Gait 
House, to obtain the names (as he says), of the Mississippians. Having 
obtained them upon a slip of paper from Mr. Everett, he remained in 
the bar-room for some fifteen or twenty minutes, when Judge Wilkinson 
entered, whereupon, Redding accosted him, by asking him if he was 
not the man, or gentleman, who had struck him with a poker, and 
commenced abusing him in a most vituperative manner — calling him 
rascal, liar, scoundrel, coward, poor pitiful Mississippi judge, and 
stating that he could whip them all three, if they would lay aside their 
weapons, and go into a room or the street. The Judge replied, only, 
that he would have nothing to do with a man of his profession — that 
if he laid his hand upon him he would kill him, and after listening for 
some time, as he walked backward and forward across the room, to the 
foul abuse of Redding, retired, accompanied by Mr. Everett, to his own 
room, on the second floor. After remaining in his room for about fifteen 
minutes, they came down into the bar-room to be in readiness for supper, 
which was nearly ready. When the Judge retired. Redding exclaimed, 
"The damned coward has fled," and when the Judge returned to the 
bar-room with the Doctor and Murdaugh on their way to supper. 
Redding having retired during the Judge's absence, immediately 
entered the bar-room after them, and exclaimed in a high voice, " They 
are all three here now'' and accosted Murdaugh, saying, " You are the 
gentleman who drew a knife, or a bowie-knife, upon me at my shop 
to-day." Murdaugh replied, " Whoever says 1 drew a bowie-knife upon 
you, is a damned liar," and displayed in his right hand a white-handled 
Spanish dirk knife telling him to stand off, and swearing that he would 
kill the first man that laid his hands upon him; whereupon, Meeks 
seized the wrist of his knife-hand, exclaiming, " You are the damned little 
rascal I" Striking him over the head with the butt-end of a cow-hide 



TRIAL OF JUDGE WILKINSON ET AL. 217 

^ ■ I II. ■ - ■ m^ 

Arjunicnt of Hon. Judge Bowan. 

• 

when several persons rushed up, and-Rothwell struck him over the 
head with a hickory club, and cut his head badly. Murdaugh took the 
knife into his left hand and stabbed with it at Meeks, who retreated, 
striking Murdaugh with the cow-hide — Murdaugh stuck to Meeks, 
although stricken and pressed by others, until his right hand, extricated 
from the grasp of Meeks, had gained the knife, and with it he gave the 
fatal stab to Meeks. During this time, Dr. Wilkinson was knocked 
down and beaten by Holmes and others, almost to a jelly ; Judge Wilk- 
inson had also been struck, and stabbed with a narrow-bladed knife, or 
a sword cane, which some one of the friends of Redding used on the 
occasion. While the Doctor lay helpless and nearly lifeless on the floor 
in another part of the room, Rothwell joined those who were beating 
him, and commenced upon him with his hickory club. While beating 
him, the Judge to relieve, or rather save his brother, stabbed Rothwell 
with a bowie-knife in two places, one stab in the side, and the other 
more toward his, back than front. He also, with the same knife, 
stabbed Holmes through the arm. The Judge having relieved his 
brother, retreated (keeping him and Murdaugh before hitn), through 
the passage and up stairs to his room, keeping between the mob and 
them, and protecting them and himself by brandishing his bowie-knife. 
They were pursued to the stair case and struck with chairs, and as they 
ascended, shot at by Oldham. Redding disappeared as soon as the 
affray commenced, and was not seen until it closed. The accused were 
unknown to any of those who assaulted them — had never seen nor 
conversed with any of them. The friends of Redding, who had, all 
except Rothwell (who accompanied Redding), dropped in at the Gait 
House seasonably, were Holmes, Halbert, Oldham, Johnson, Meeks, 
etc. The first five were among the stoutest men in the Valley of the 
Mississippi. 

Redding was armed with a dirk, which he had borrowed on that 
evening on his way to the Gait House ; Rothwell had a large seasoned 
hickory stick, Oldham had a loaded pistol and a bowie-knife, Meeks a 
cow-hide with a knot tied upon the small end of it, and a Spanish knife — 
the knife, however, was surrendered to Oliver, his friend, before the 
onset. After Judge Wilkinson had left Redding and retired to his 
room, these men assembled in the passage, and Rothwell proposed that 
they should go to the Judge's room, take out " the damned rascals and 
give them hell^ Mr. Everett, one of the proprietors of the house, left 
the bar, in which he was, when the rush was made by these men upon 
the Mississippians (which was instantly upon the annunciation by 
Redding that they were all three present), under the full conviction 
that a scene was to ensue, which he had no inclination to witness. 

§ 303. Gentlemen of the jury, these are the leading facts which have 



218 THE LA W OF HOMICIDE. 

Aif^iuent of Hon. Judge Rowan. 

been proved in this case. I have omitted many incidental and subor- 
dinate facts, to avoid consuming your time by a tedious repetition. 
They have been stated with accuracy, and commented upon with ability, 
by my associate predecessors in the defense. 

Now, we allege, first, that there was a regularly formed concertion 
between Redding and his associates to beat and degrade the defendants, 
if not to destroy them; and, secondly, whether such conspiracy had, or 
had not been formed, the accused were placed under the necessity, by 
the conduct of Roth well and Meeks of destroying them, to save their 
own lives, and so were justifiable by the law of nature, and the 
laws of the land, in doing the acts with which they are charged in these 
indictments. 

And, gentlemen, first of the conspiracy. You find that Redding was 
much enraged by the affair at his shop ; that he was further inflamed 
by Johnson, the butcher, who spoke to him of the insult he had 
received, in aggravated terms, vaunted of his own manhood by declar- 
ing that " he was as good a piece of stuff as ever was wrapped up in so 
much AtV;i^,"'and declared that they would get Bill Holmes and his party 
and give them the devil. Redding at the instant declined the pro- 
posal, but declared that he would have satisfaction. Ho and Johnson 
left the shop and went together to the mayor's office, when Redding 
applied for process, and promised to return with their names and obtain 
the process. Here Johnson and Redding separated. The latter went 
to the shop of his brother-in-law, the unfortunate Rothwell, took him 
along with him, and returned (by what route we can not know exactly), 
to his own shop, which is but a short distance from the Gait House. 
Where Johnson went we do not know ; the next place we meet with 
him is at the head of the market-house, in company with Bill Holmes, 
Halbeit, etc. The same coterie is afterward, late in the evening, seen 
on Main street, near the Gait House ; these men are all at the Gait 
House and unite in making the attack on the Mississippians. 

§ 304. Now, gentlemen of the jury, weigh these facts, ponder upon 
them, and ask yourselves if they could all be the result of accident. 
Mark that Redding declared he would have satisfaction. Johnson and 
Meeks urged him to it and prescribed the mode, which was ultimately 
adopted, to get Bill Holmes and his party to drub or lynch them. Did 
Redding pursue the plan of obtaining satisfaction which he had pro- 
posed ? Did he, when Everett gave him the names of the Mississippians, 
return to the mayor's office, as he had promised the clerk ? On the 
contrary, did he not linger at the bar until Judge Wilkinson came in, 
which was some time? And after he had seen the Judge, and vented 
his venom upon him, did he then, after the Judge had retired to his 
room, return to the clerk and sue out the process in furtherance of his 
ostensible purpose ? No, gentlemen ; and why did he not ? Evidently 



TRIAL OF JUDGE WILKINSON ET AL 219 

Argument of Hon. Judge Rowan. 

either his proposition to seek satisfaction at law was " a mere 
pretense, to cover the confi|>iracy proposed by Johnson, namely, to get 
Bill Holmes and his party and give them hell,'* or, if h^e was ainoere iM 
his proposition, he was led to abandon it and adopt that of Johnson ; 
that it was his primary or ultimate design can not be doubted, for Bill 
Holmes and his party were there and united with Redding and his 
party in making the onset. Meeks, Johnson and Rothwell were of 
Bedding's party. How came they all to meet at the Gait House that 
evening, and about the same time of the evening — ^and what is remark- 
able, animated by the same spirit, a spirit of hostility toward the 
Mississippians ? How came they all to understand the watch-word 
pronounced by Redding upon their entering the bar-room? For you 
remember that the moment they entered he exclaimed, " The^ are all 
three here now " — and instantly the rush was made. Mark, gentlemen, 
their malicious design was against the Mississippians, and they were 
three. The words all^ three and now are to be construed in reference 
to the interview which had taken place between the Judge and Redding 
about fifteen minutes before. Then there was but one ; the three are 
here now. Their vengeance would not be slaked, their purpose to punish 
and degrade aU would not have been accomplished by action then ; but 
now, as they are all three present, their purpose may be effected. Mark, 
too, gentlemen of the jury, that Redding was the only man of the 
conspiracy who knew the Mississippians personally. They had con- 
spired to act upon the men who had insulted Redding; but they did 
not know them. Medding did ; no other man in the house could have 
given the signal but Redding. They alone of all the men in the house 
could understand the signal. How could they understand it unless by 
previous concert. Messrs. Redding and Johnson, therefore, are not to 
be believed when they swear that there was no conspiracy against the 
Mississippians, no concert to do violence to them on that evening, and that 
illustrate most forcibly the proposition cited by Mr. Hardin, and to 
which I agree, namely, it is not always that which is sworn that is 
evidence — what they have sworn in relation to this matter is most 
emphatically not evidence of the proposition to which they depose. 

§ 305. Their condition is certainly a very unenviable one. The 
lawless conspiracy which they formed to destroy the accused resulted 
in the death of two of the co-conspirators ; and to avoid the imputation 
of the moral guilt of the murder of their friends they are obliged to 
deny the conspiracy, upon oath, notwithstanding they can not flatter 
themselves that there is in existence one honest man who can believe 
them — alas for the frailty of human nature. 

There is, gentlemen, fortunately for the interests and happiness of 
mankind, an impress upon truth which we discern, as it were, by intui- 
tion. Man is a rational being — he acts from motive, and when he ain s 



220 THE LA W OF HOMICIDE, 



Argument of Hon. Jadge Bowui. 



at any end, whether good or bad, he selects and adapts the means to 
the end. The means to be suitable must be homogeneous, otherwise 
instead of promoting his design they will neutralize their force by 
antagonism and fail in their efficiency. A good purpose is promoted 
by good means — a bad purpose by bad means. Here we may learn 
the purpose of the agent from the complexion of the means he has 
employed to achieve it, and hence we can ascertain the character of 
the means from the known character of the purpose. Therefore, 
when a witness swears positively against the inference which every 
rational mind would draw from established or known facts, he is not 
to be believed. The known or established facts can not lie. When 
those faets consist of acts done by men, as the agents were rational, 
we can infer their motives from their acts — and if the acts were 
simultaneous and concurrent, by agents living remote from each other, 
and pursuing different avocations, we can, we must, infer that they 
agreed or concerted to act together and at the same time, though they 
should all swear positively to the contrary. In the moral as in the 
physical world, homogeneous matter alone coalesces. Now, it was 
quite unnatural that Bill Holmes should have left his beat and with 
his party gone to the Gait House to beat and degrade three Missis- 
sippians who had never wronged him in word or deed, whom he did 
not know, and of whom he had never heard. 

g 306. It was equally so in relation to all the others except Redding, 
who alone knew them, and had, or supposed he had, cause of complaint 
against them. Holmes and the others must, therefore, have been 
informed of the grievance of Redding, and must have agreed upon the 
time, place and manner of avenging it, by their joint agency ; therefore, 
what the two witnesses have sworn is negatived by the unvarying laws 
of nature, as displayed in the agency of man. What they have deposed 
upon this matter not only lacks the congruity and symmetry of truth, 
but is stamped with the unglossed impress of a vile and execrable 
counterfeit. Yes, gentlemen, if every man concerned in that nefarious 
transaction were to swear that there was no concert, no conspiracy, 
they would not under the state of facts disclosed in this case, they 
could not be believed. You have heard the law read from Foster (page 
256), relative to the killing of a conspirator by the person conspired 
against. If the conspiracy be not to take his life, but only to beat him, 
he may lawfully kill the conspirators. It is not, as in the case of an 
assault by an individual, necessary that the person assaulted should flee 
to a wall, or have no mode left of saving himself from death or great 
bodily harm before he may lawfully kill the assailant, but he may slay 
the conspirators upon the first assault, and without retreating — so 
abhorred by the law is a conspiracy. One reason of this abhorrence is 
evident — in a conspiracy many are united against one^ or a/ew;, and no 



TRIAL OF JUDGE WILKINSON ET AL. 221 

« 

Argument of Hon. Judge Rowan. 

calculation can safely be made upon forbearance or retreat. There is, 
too, unfairness as well as wickedness in combination for such unlawful 
purpose. 

§ 307. Gentlemen, obvious and plain as the conspiracy in that case 
must appear from the facts to which I have referred you, and the proof 
direct of several witnesses on the part of the defense, Mr. Hardin 
has the modesty to deny it and to urge upon you that it can not have 
existed without the knowledge of Redding and Johnson {par nobile 
fratrum)^ and that, as they have sworn it did not exist, therefore there 
was no conspiracy — that I have attempted to show you is a non sequitur 
In the same spirit of modest assurance, that gentleman, as if unwilling 
that the case should be without a conspiracy, furnishes you with one, 
the coinage of his own fruitful fancy. He tells you that when Judge 
Wilkinson got to his room, after his interview with Redding, he related 
to his brother and Murdaugh the abuse which he had received from 
Redding, and forthwith formed a conspiracy with them to descend to 
the bar-room and murder Rothwell and Meeks, or perhaps Redding. 
The gentleman did not give personal specification to the infant of his 
brain. Why, Mr. Hardin, do you think this conspiracy was formed by 
those gentlemen ? Because they told Mr. Everett to send them up 
pistols, and because they came down armed, the Judge with a bowie- 
knife and each of the others with a Spanish dirk-knife — and because 
instead of entering the dining-room by a private door they chose to pass 
to supper through the bar-room, and through the large folding doors 
that were labeled " dining-room door " — and because they came down to 
supper two or three minutes before the supper-bell was about to be rung. 

Gentlemen, let me request your attention for a moment to Mr. H.'s 
conspiracy. Mark, gentlemen, that he relies upon inference in support 
of his proposition ; he does not pretend to have any proof of it as a 
distinctive fact. Now, an inference to be availing must be rational. 
They wanted pistols, therefore they meditated an attack. Upon whom 
was the attack meditated ? Not against Mr. Redding — the Judge alone 
had, only fifteen minutes before, awed him, and might have killed him 
had he been so inclined ; not upon Bill Holmes and his party combined 
with Redding and his friends. It is unreasonable to suppose that three 
feeble men, strangers in a strange country, should conspire to kill some 
eight or ten of the stoutest men in the land, and that, too, without any 
assignable motive. With the exception of Redding they were all 
strangers. Again, those men. Holmes, etc., were there either as con- 
spirators with Redding or they were not. If as conspirators, then the 
pistols were necessary for defense ; if they were not, then in that char- 
acter they were not wanted to assail them, and I have shown that they 
were not wanted to assail Redding ; that purpose would have been 
absurd -and foolish; besides, he was not assailed. Then they were wanted 



222 THE LA W OF HOMICIDE. 



Aiipiment of Hon. Judge Rowan. 



for defense against the real conspirators, Holmes, Rothwell, etc., and the 
demand of them is an additional proof of the real conspiracy by 
Redding, Holmes, etc., against them. It is proved that the Judge, as 
well as everybody in the room, had inferred from the appearance, 
manner and conduct of those men, that they had assembled to inflict 
violence upon the three Mississippians. 

g 308. But, gentlemen of the jury, is it reasonable to suppose that 
these three gentlemen, strangers from a distant State, one of them to be 
married within four or five days, would form a conspiracy to assault 
some eight or ten giant Kentuckians. They have been proved to be 
intelligent, well-bred gentlemen, of pacific habits. One of them has 
been a Judge of the Superior Court in the State of his residence, and, 
of course, a conservator, not a breaker, of the peace, and a member of 
the Legislature, and to be now a commissioner, appointed by his State, 
to negotiate for her a loan in Europe. I repeat the question : Is it 
reasonable to suppose that such men, under any circumstances, and 
especially under such as I have named, would form such a conspiracy ? 
Gentlemen, when the excitement was raging in Louisville upon this 
unhappy subject, I asked Mr. Coleman Daniel, a very respectable, 
honest and wealthy mechanic of that city, if he, also, was excited against 
the strangers. He replied, " No, sir ; it would be hard to persuade me 
that an intelligent gentleman, who had come all the way from the State 
of Mississippi to this State to be married, would, upon the eve of his 
marriage, of choice, and without a necessity for it, get into such a 
scrape." Your answer will be like his. You will say with him, that 
no man of common sense, and still less a well-bred gentleman, would 
willingly present himself at the altar of Hymen with his eyes blackened 
and his face lacerated and bruised. 

§ 309. When a man is about to be married his mind is far otherwise 
disposed ; his feelings are joyous and pacific, attuned by his prospects 
to purposes of happiness, harmony and peace — hot to jars, tumults and 
broils. Virtue enlarges her empire in his soul, by presenting new topics 
of thought and new subjects of aspiration. He feels that his nature is 
undergoing an ameliorating process, and anticipates from the event to 
which his heart is devoted ten thousand felicities, all of which will 
perhaps never be realized — but I am too old to recollect much about 
this matter — I will barely say that the anticipated pleasures of the 
lover are not realized only because they are too sublimated for the 
matter of fact condition of even the happiest state of matrimonial life 
— and the matrimonial is the only happy condition of life. It can not 
therefore be believed for a moment that Judge Wilkinson would sacri- 
fice all his prospects of matrimonial bliss to a scheme so wild, so 
visionary, so sanguinary, and so impracticable; the very nature of such 
a conspiracy as Mr. Hardin ascribes to the three Mississippians is too 



TRIAL OF JUDGE WILKINSON ET AL. 223 



Aliment of Hon. Judge Rowan. 



absurd to be entertained seriously by even that gentleman himself. 
He, notwithstanding, still persists in urging it upon you, and as an 
additional proof of it he urges their having chosen to pass through the 
bar-room to supper. Here, gentlemen, Mr. Hardin expatiated at great 
length upon the structure of the Gralt House — its public and private 
ways, its high-ways and by-ways, its dining and supping as well as its 
culinary regulations, and especially called your attention to a private 
entrance into the dining-room through which the Judge, the Doctor and 
Murdaugh might have passed to supper in sa/eti/, and would, as he 
contends, have done so if they had not formed a conspiracy in their 
room before they left it to kill Rothwell and Meeks, etc. He does not 
seem to understand the principle upon which mobs are formed — that it 
is a principle of cowardice which aims to effect its bad purpose without 
hazieird or exposure to personal danger. It confides in numbers for 
security, and therefore all mobs are of several against one or of mani/ 
against a few. A mob of one against several is a solecism, and a mob of 
three against a dozen is equally absurd ; and in this case the absurdity is 
aggravated by the consideration, that the three men were of frail 
physical structure and entire strangers. Again, such a combination 
must have had for its principle of cohesion and action the most 
determined courage in each, and, of course, must have been a natural 
affinity between brave spirits, for the purpose, not of assault, but of 
mutual defense. Mr. Hardin's conspiracy is destitute of all the essential 
ingredients necessary to its formation — ^it is without soul and body both. 

§ 310. There was neither cowardice nor number there — the elements 
of such an existence as he fancies were absent. Gentlemen, I repeat 
emphatically, that cowardice is the element and basis of all deliberate 
mobs — that they originate in and emanate from a principle of coward- 
ice—hence, brave meh as members of a mob or conspiracy, not relying 
upon their own firm spirits, but infected by the principle of their union, 
play the dastard, and, hence, the man who shall be assailed by a mob 
must, if he hopes to escape its danger, meet and defy it. He must, to 
save his life, expose it ; he must beard and conquer the danger — he 
need not hope to soothe it by addressing its reason, — it has none ; it is 
all passion, and passion never listens to reason. An appeal to its 
magnanimity would be equally unavailing. It is a coward and has no 
generosity or magnanimity. Flight inspirits it and increases the 
danger. I repeat, then, that his only hope is in defying it. I speak, 
gentlemen, not only from observation through life, but from experience 
in the early part of my life. 

Now what is to be rationally inferred from the facts upon which Mr. 
Hardin relies as the basis of his concluding argument in favor of his 
alleged conspiracy? Why, evidently, that the Judge and his two 
friends had strong reasons to believe that a mob had assembled in the 



224 THE LA W OF HOMICIDE. 

Argument of Hon. Judge Bowan. 

bar-room to assault, abuse, and degrade, if not destroy them. What 
were they to do ? Were they to take council from fear and remain in 
their room supperless, or slip down the stairs quietly, and silently, and 
creep to supper through the private door to the dining room, of which 
Mr. Hardin speaks, or say to themselves and each other," We will arm 
ourselves with pistols, if we can get them, and if we can not get pistols, 
we will arm ourselves with the knives which we have worn in travel- 
ing, and we will go to our supper as usual, and by the usual way — the 
way pointed out to strangers by the index upon the door.*' What less 
could they say, what less ought they to have said ? What other course 
could they have taken and retain their own self-respect, and the respect 
of honorable men ? There is no proof that they knew of this private 
access to the supper-table, even if they had been capable of skulking 
through it. Mr. Hardin may have known it, for he tells you that he 
spends half his time at that house, and it would seem from the very 
detailed account he has given of the culinary and table regulations, 
that his powers of explanation had been whetted by his gastronomic 
impulses. But I will suppose, for the sake of argument, that they 
knew of this private way and door to the supper room ; what then ? 
Had they not a right to go along the public way — to enter the supper 
room by the public door? And if they had a right to do so, you can 
not infer criminality from the exercise of their right. But, gentlemen, 
I contend that they could not, as men of honor, under these circum- 
stances, have gone to supper by any other way. 

§ 311. When Judge Wilkinson left the bar-room only fifteen 
minutes before. Redding exclaimed, " See, the damned coward has fled." 
What would have been said by Bedding and his co-conspirators if they 
had remained in their room or glided stealthily from it to the supper- 
room by the private way ? What would the community have said, and 
more particularly the people of Mississippi ? How could they have 
returned to their own State ? And which is of more importance than 
all other considerations, what would their own consciences have said 
to them ? The reproaches of their fellow men they could avoid, to 
some extent, by retirement and seclusion. But they could have no 
refuge from themselves. But gentlemen, there was another obligation 
stronger, if possible, than any, than all I have mentioned, upon Judge 
Wilkinson, to take the course through the bar-room to the public door 
of the supper-room. It is in proof that he was to be married on the 
Tuesday following, to a beautiful and accomplished young lady. Could 
he, if he had skulked, have dared to present himself to her, and to her 
venerable mother, the widow of a gentleman of known gallantry, and 
the sister of Gen. Hynes, who is the pink of valor — whose fame is 
identified with that of Jackson, Adair, and the other heroes of the 



TRIAL OF JUDGE WILKINSON ET AL. 225 

Argument of Hon. Judge Bowan. 



victory at New Orleans, and next in splendor of fame to the two I 
have named. 

I repeat, how could he have dared to form a marriage connection 
with such a lady, and such a family. If, having acted otherwise than 
he did act, he had dared to present himself, he would have been rejected 
with scorn and contempt. I speak from a long and intimate acquaint- 
ance with the family. Gentlemen, had he hesitated (and I am proud 
to believe he did not), all these considerations would have presented 
themselves to his mind, and his soul would have rebuked him for his 
hesitancy. There was but one course for them to pursue. There was 
but one sentiment which could animate them. That course was the 
pathway of honor. That sentiment is (with them and all honorable 
mem, that others aie as much bound to /ear and avoid us as we them. There 
is, there can be, no obligation on one man to fear another. 

§ 312. Men politically equal — equals in right and duties — ought not 
in the moral, as equals in the natural world can not control or detrude 
each other from their positions ; and, therefore, equals ought not to fear 
each other. Conscious of this, a sensible man will not annoy another, 
and a brave man will not submit to annoyance. This sentiment is very 
pithily inculc&ted by Fingal, upon his grandson, Oscar: " Nev6r search 
thou for battle^ my son, nor shun it when it comes." Gentlemen, can you 
think of a consideration which would have (I w^ill not say justified) 
palliated the conduct of Judge Wilkinson and his friends had they 
acted con formal ly to the philosophy of Mr. Hardin. This part, and 
indeed every part of the case, I would very willingly submit to the 
decision of the ladies. 

§ 313. They admire men who can protect them, and of course detest 
cowards. It is as I have said in another part of the case, their high 
prerogative, to give law to the world, upon the subject of character. 
They ordained in the infancy of the world that valor was the sine qua 
non of excellence in the character of man. That ordinance has 
continued, and will continue unreversed till the end of time. To that 
ordinance in all its import,- the accused conformed throughout the 
complicated scene we have been examining. Away then with the rules 
of action which Mr. Hardin has been prescribing for the accused, 
under the circumstances of this case. They had learned other lessons. 
They consulted nature, and obeyed her oracular responses. They had 
been taught to assert and vindicate their own rights, while they scrupu- 
lously observed the rights of others, and abstained from violating 
them ; that they could not consistently with self-respect, be deterred 
from exercising their own rights, more than they could consistently 
with honor, and honesty, violate the rights of others. These responses 
of nature were embodied in the ordinance which I have just told you 
was enacted bv the ladies in olden time, or rather when time was very 
H.— 15 



226 THE LAW OF HOMICIDE. 

Afgument of Hon. Judge Bowan. 

young. Conformably to that ordinance, the accused came as they had 
usually done, to their supper, through the bar-room. They acted, as I 
have no doubt they agreed, or conspired (if Mr. Hardin likes the 
word), to do, before they left the room. That was to meddle with 
nobody, but to defend themselves to the utmost against any and every 
assault that might be made upon them. And, gentlemen, they 
meddled with nobody — they assailed nobody — ^but they were assailed, 
and they did defend themselves bravely, nobly, efficiently. I might 
here ask, why those men remained so long in the bar-room, if there 
was no concert among them, to make the assault which was so nohly 
arrested. But upon the subject of the conspiracy, I have said enough, 
perhaps too much. 

Gentlemen, Mr. Hardin tells you that he has lately returned from 
the State of Mississippi, and from the graphic and glowing description 
he has given you of the battle scenes he stumbled upon, in a short 
excursion which he made from Vicksburg into the country, one 
would be almost tempted to believe that a horror of dirks, pistols, 
and bowie-knives had seized upon his feelings and distempered his 
imagination. Hence he can see nothing commendable in the character 
of the people of that State. He portrays them as irritable, vindictive, 
and sanguinary — ^as a lordly people who look down with contempt 
iipon mechanics and the laboring classes of mankind. He kindly 
supposes in their behalf, that the climate in which they Uve may 
produce these obnoxious biases of character. 

§314. If they are attributable to the climate, it is unphilosophic to 
complain of them, for it was settled in the case of Nebuchadnezzer that 
the heavens must rule. But do the facts, as he has represented them, 
exist in reality, or are they the offspring of his own heated fancy in 
this case ? He must allow me to suppose them factitious. I, too, visited 
that State more than once, and continued long enough to . become 
acquainted, to some extent, with the people, their manners, habits, and 
customs. On my last visit, which was about three years ago, I spent 
near a month at the seat of government during the session of the Leg- 
islature. During that time I saw and became acquainted with many 
of her citizens, and among others with Judge Wilkinson, and Mr. 
Prentiss, the gentleman, with the witchery of whose eloquence and 
power of argument we have just been delighted, instructed and, let me 
add, convinced. They were both members, and leading members, of 
the Legislature. I saw nothing of the ferocious or, sanguinary about 
the people of that State. They treated me with the utmost civility and 
politeness, and with marked hospitality. The members of the Legis- 
lature, and many of the respectable citizens who were on a visit to the 
capital, overlooking all political party distinctions, united in pressing 
upon the distinguished stranger (as they were pleased to denominate 



TRIAL OF JUDGE WILKINSON ET AL, 227 

Argument of Hon. Judge Rowan. 

me), from Kentucky a most splendid public dinner. Gentlemen, I have 
been much concerned through life in legislation, and, of course, my 
acquaintance with political men, legislators and others has been exten- 
sive, and I can say that I never in my life saw a more respectable, 
orderly and intelligent legislative assembly convened, either in my own 
or any other State ; nor did I ever see a more intelligent, polite, hos- 
pitable and high-minded people than the people of that State. They 
detest knaves and cowards, and are prompt to fraternize with honorable 
men — to support, assist and uphold men of that character, without 
inquiry into their vocations — ^mechanics, agriculturists, or laborers, 
makes no diflference with them. 

§ 315. If he be honest and honorable in his transactions, and indus- 
trious and temperate in his habits, whether poor or rich, it makes no 
difference. If poor, they enable him to become rich. Gentlemen, the 
people of Kentucky should be the very last to make or sanction such 
imputations against the people of Mississippi; for all Kenti^ckians of 
good character who have gone to that Starte (and very many have gone), 
have been kindly received, and when they needed, generously assisted 
with loans, both of money and credit, whereby they have become rich. 
They went there, most of them, mechanics or laborers ; they are now 
rich planters. 

The gentleman says, they look down upon poor mechanics — it is true 
they do so, but it is to discern their merit ; and if they possess it, to 
lift them up — to elevate, support, and sustain them in their exaltation. 
But the other day they looked down upon Mr. Henderson, a shoe- 
maker, saw his merit, and elevated him to a seat in the United States 
Senate. But that is not the only inst:\nce. They looked downupon Mr. 
Premiss, who had traveled from the far East, and was engaged in 
teaching school among them — an obscure pedagogue — no, I can not say 
he was obscure, he could not be obscure anywhere — the eruptive flashes 
of his great mind, like those of ^Etna, threw a blaze of light around 
him, which attracted (or rather exacted), their gaze and admiration. 
They sent him as their representative to the Congress of the United 
States. Mr. Prentiss must pardon me for thus going into his private 
history — I was myself an humble pedagogue. The difference in our 
condition is, that in my case the people of Kentucky honored me; in his, 
the people of Mississippi honored themselves. They looked down upon 
Judge Wilkinson — they discerned his talents and his worth, and elected 
him to the Legislature, elevated him to the bench, and conferred upon him 
the commission to negotiate a loan in Europe for the purpose of internal 
improvement, as you have heard from the proof in the cause. 
Instances are innumerable — I will not go into detail. But they carry 
bowie-knives, and the blade of a bowie-knife is so long, and so broad, 
and the edge is so sharp, and it has such a terrific glitter, that they 



228 THE LA W OF HOMICIDE, 

Argument of Hon. Judge Bovan. 

must be a bloody-minded, hot-headed people. Besides, they fight the 
most desperate duels. Gentlemen, arms of some kind are worn more 
or less in all countries. 

§ 316. They are in all countries used by the coward to assassinate, 
and by the brave for defense against assassins. If you want to put 
down the use of bowie-knives, extinguish robbers and assassins, and 
the use will fall of itself. But as long as good men may be assailed in 
their persons or property, by dishonest and dastardly men, the latter 
must be allowed the appropriate means of defense ; and the arms for 
defense can not be considered appropriate unless they are at least equal 
in efficiency to those of the assailants. But the wearing of arms, 
whether bowie-knives, pistols, or whatever else, does not at all alter the 
rights of the citizens. For assault they should not be wanted ; for 
defense, when occasion requires, they are of great value. The right 
of self-defense remains, under all circumstances, the same. It is a 
primary element of our identity. Nature gave it— art can not take it 
away. As derived from nature, it is limited to the use of no particular 
species of arms, and embraces every species. It is limited only by the 
obligation of benevolence on the part of the assailed, toward the 
assailant; and benevolence does not require him to love his fellow man 
more than himself A man's right of self><lefen8e does not result from 
the degree of criminality in the one who assails him. It is personal, 
inherent, and inseparably united with his own exchisive individuality — a 
person may in many instances exert this right to the destruction of an 
innocent man. A madman, for instance, who is incapable of crime, but 
capable physically of destroying a man, maybe slain justifiably , in the 
exertion of this right — so may a somnambulist, under the same circum- 
stances. In the case of a shipwreck, when two of the passengers are 
struggling for a plank, which will sustain but one of them ; the one 
may justifiably kill the other to save his own life. This, gentlemen, is 
the law of nature, in relation to all animal existences, and the munici- 
pal law, in relation to man. (See Grotius, p. 25.) 

§ 317. Then, gentlemen, why this denunciation of bowie-knives and 
pistols, for it can make no odds, if the killing was done justijiahly, 
whether it was done with the one or the other, or with a simple jack- 
knife. The question is not whether either, or what weapon was used; 
but whether with or without weapons, the killing was justified, or 
excused by the law. All that has been said, therefore, by Mr. Hardin 
upon the subject of carrying and employing arms, is foreign to this 
case. It must have been intended ad captandum, or rather ad exitandum. 
Equally foreign to the case is all that he has said about Mississippi,^ and 
the Mississippians — whether the killing was done by a citizen of Ken- 
tucky, or by citizens of any other State. The question still is, was the 
killing criminal or innocenti That it was innocent in these geatlemen 



TBIAL OF JUDGE WILKINSON ET AL, 229 

Aigument of Hon. Judge Bowan. 

because necessary to protect themselves from a band of conspirators — 
from a mob — we have urged, and I am now insisting. 

But, gentlemen, as Mr. Hardin has spoken so much at large upon 
the depraving consequences of the habit of carrying arms, let me give 
you my opinion upon that subject I am now an old man — I was in 
this country when every man carried his rifle and his tomahawk, and 
his knife, wherever he went. He carried his arms to defend himself 
against the Indians, whose incursions were constantly apprehended — 
and during all that time there were no homicides — no man killed by 
his fellow — no man apprehended danger from his fellow man. How 
happened this? The rifle, the tomahawk, and the scalping-knife, were, 
at least, as formidable instruments of death, and as depraving as the 
bowie-knife and pistol ; yet it never entered the mind of any one that 
men were more depraved or niore ferocious by the practice of carry- 
ing arms. The true reason is, that there was not then in Kentucky a 
single coward. The men, aye, and women too, were all brave — a 
coward could not remain in Kentucky. The danger from the Indians 
was too continuous, imminent and proximate. He could not breast it. 
He could not bear the scorn and derision of the men and of the 
women, and children too, and had to leave the country. 

§ 318. After the Indian war had closed — which was in 1794— the 
people of Kentucky laid aside their arms. People from every quarter 
rushed in crowds into Kentucky, and jars and bickerings resulted for 
a time, from the intercourse of people of different habits. They were 
settled, mostly, by an appeal to the prowess of pugilism. There were 
some suits of slander, and of assault and battery. Kentuckians 
gradually amalgamated with the immigrants, and we got along very 
well for many years — among the professional men there was occasion- 
ally a duel. There were no homicides, no assassinations, until the 
Legislature of Kentucky, in an evil hour, influenced, unconsciously, by 
a mistaken policy, enacted what is generally denominated the " anti- 
dueling law." That law required every officer in the State, civil and 
miltary, from a constable up to the governor, including members of 
the Legislature, and lawyers, and from a sergeant to a major-general, to 
swear solemnly that he would neither give nor accept a challenge to 
fight with any deadly weapon, within or out of the State of Kentucky. 
It was a law most evidently for the benefit of cowards, who, without 
the oath, would never have fought nor accepted a challenge to fight a 
duel; but who, by the administration of the oath, were palmed upon 
the community, and upon themselves too, as men of spirit. Before 
the passage of this law, a man who might chance to be irritated with 
another, would, before he published a libel or slander against him, 
pause and reflect, that if he persisted he would be challenged, and 
miMi either ^A^ or be disgraced, and would wisely desist. He knew 



230 THE LA W OF HOMICIDE. 



Argument of Hon. Judge Rowan. 



that the same consequence would follow from any personal violence to 
which his irritation might prompt him, and the effect was the same. 
But upon the passage of this law, dastards, when they had taken the 
oath, or aspired to offices which they could not fill,without taking the oath, 
filled their bosoms with dirks and their pockets with pistols, annoyed 
society with the insolence of mock heroism, insulted their brave com- 
petitors, and when about to be chastised, retreated to the waUy and 
killed the gentlemen they had wantonly insulted, a la mode Mr. Hardin's 
law. The vicious and depraved portion of the people having been thus 
licensed to wear arms, the remaining portion were constrained to wear 
them in self-defense. 

§ 319. The consequence is, that the community has been very much 
annoyed, and vulgarized by the short-sighted policy of the Legislature. 
Sirs, the pistol was in the times I speak of, and had been for ages 
throughout the civilized world, not only the most effectual polisher of 
manners and morals, but a most efficient, though sad, peacemaker. 
It held all who aspired to be gentlemen, and were of course amenable 
to its tribunal, under a strong recognizance for their good behavior. 
It is a tribunal instituted by nature, as an auxiliary, to the political 
institutions of society. It was a misdirected humanity which 
influenced Kentucky, and the States of the Union who, following her 
example, have attempted to suppress it. The object was to prevent 
the efiusion of blood. The effect has been to increase it tenfold. Just 
as the legislation to repress gaming by fines and penalties, has increased 
it one hundred fold, when a short act, making all sums fairli/ won, 
recoverable by law, would have diminished the evil, and' improved the 
morals of the people. 

Do not mistake me, gentlemen, as to dueling; I am no advocate for 
it. I would not sanction it by law, but I would reluctantly connive 
at it as an evil less, greatly less, than that legion of evils which 
supply its place. As I prefer a high and honorable to a low and 
degraded spirit — fair, open, manly and honorable conflict to dastardly 
and cruel assassination, so I would leave it, as England and all wise 
nations have it, by reluctant connivance. Perhaps my notions upon 
these subjects are erroneous, but they are my deliberate views, and I do 
not wish to conceal them. Every duel is a lesson, more or less 
impressive, as it shall eventuate in favor of good morals and polished 
manners; and although the fall of one or both of the combatants must 
inflict pain and sorrow upon their immediate connections, yet the effect 
is wonderfully beneficial to the community in every view, and strength- 
ening to virtue. The price paid by the community is very great, but 
the purchase is inestimaWy valuable. The good effects of this lament 
able practice can not be obtained at a less price, nor in any other known 
mode ; nor can it be suppressed by human legislation. 



TRIAL OF JUDGE WILKINSON ET AL. 231 



Ai^ument of Hon. Judge Bowan. 



§320. But, gentlemen, to return to the case from which I have been 
diverted by Mr. Hardin's discursiveness. I trust that you have been 
satisfied that the accused were assailed by a band of conspirators, and 
that they were justifiable by the law of the land in acting as they did, 
and leave that part of the subject with you. 

Mr. Hardin's conspiracy, on the part of the defendants, is too 
unfeasible and preposterous to require further notice than has been 
wasted upon it. Indeed, it is unworthy of the attention it has received. 
I therefore dismiss it also, and will now consider the case of the defend- 
ants (for argument's sake), as though there had been a conspiracy 
against them, upon the insulated ground of self-defense. I will suppose 
that they entered the bar-room, on their way, and by the public way, like 
other citizens and boarders, to the supper table ; that immediately upon 
their entry they were assailed, respectively, as it has been proven 
they were. 

The question is, was Mr. Murdaugh justifiable in taking the life of 
Meeks, and was Judge Wilkinson justifiable in taking the life of 
Rothwell? — for, against the Doctor there is no proof The proof in 
reference to what Roth'well was doing when he was stabbM by the 
Judge, is not entirely free from apparent discrepancy. Mr. Pope says 
he (Rothwell), was standing close to where Dr. Wilkinson was lying on 
the floor, under the blows of Holmes and others ; that he was apparently 
leaning over the prostrate Doctor, when he was stabbed by the Judge; 
Mr. Hardin would have you believe that his proximity to the Doctor, 
and his stooping position over him, were produced by his endeavoring 
to pull Hdlmes off the Doctor and release him. But Pope tells you 
that he was among the first to assail Murdaugh with his club. In that 
he displayed no amicable, or pacific disposition toward the Doctor, for 
it is evident from all the testimony, that his feeling toward Murdaugh, 
may be fairly taken as the sample of his feeling toward each of the 
others. 

§321. He did not attempt to rescue Murdaugh from the rush that 
was made upon him; on the contrary, he struck him with his cudgel. 
It was not, therefore, to release the Doctor from the giant grasp of 
Holmes, that he was leaning over him. For what then, gentlemen, let 
me ask you, was he standing stooped over him? General Chambers 
gives the answer. He had struck the Doctor with his hickory stick, 
and was balancing it in his hand to repeat the blow, when the Judge 
stabbed him. General Chambers did not speak of his stooping, yet he 
may have been, and probably was stooping, as Mr. Pope states, and the 
General not have noticed it. Pope may not have noticed the stick in 
his hand and the stroke inflicted with it upon the Doctor just before ho 
was making the effort to readjust his grasp of it for another blow. To 
strike the Doctor, who was lying on the floor under Holmes, he must 



232 THE LA W OF HOMICIDE. 

Argument of Hon. Judge Bowan. 

have stooped, to avoid striking Holmes. Pope saw him standing near 
the prostrate Doctor, but did not see him strike, nor did he notice the 
stick in his hand. General Chambers saw him in the same position 
(with the exception of the stoop), strike at. the Doctor, and preparing 
to strike him again — they both saw the stabs inflicted. The testimony, 
then, of both the gentlemen is correct, and may be easily reconciled. 
They both saw the same transaction, but did not both see all of it. 
And the testimony of each, instead of contradicting, corroborates that 
of the other. Much took place in the scene, which was not seen by 
anybody, and much of what was seen, was seen imperfectly, amid the 
turmoil and confusion, and apprehension which the affair produced — 
somo things were, .seen by one and not by another— and some important 
facts were not seen by any. Mr. Raily who was a stranger to all the 
parties, saw some man striking with a sword-cane — who struck, or who 
was struck with it, he did not know, but he saw the scabbard end of 
the cane faU off and leave the sword bare. No other witness saw that. 
Judge Wilkinson was stabbed in the back obliquely, between the 
shoulders, to the depth of three inches, with an instrument narrower in 
the blade than any weapon known to be employed on that occasion 
unless it were the sword-cane. The wound, according to the opinion 
of Dr. McDowel, who examined it, looked as if it might have been 
made with such a sword — such too, was the character of a wound which 
Rothwell had received in his breast, and nobody knows how, or from 
whom he received it; and which, according to the testimony of the 
doctors, was the immediate cause of his death. Judge Wilkinson, too, 
received several blows, as was apparent from contusions on his face and 
head ; and yet, with what weapon, or by whom inflicted, nobody knows 
but he or they who inflicted them. I mention these facts, gentlemen, 
to show you that as much occurred which was not seen at cdl, so, of 
what was seen, many parts might have escaped observation or been 
seen very imperfectly. All the witnesses, however, saw that the Doctor 
was knocked down and beaten most unmercifully. Oldham claims the 
credit of knocking him down — Holmes is proved by all who saw the 
transaction, to have been upon him and engaged in beating him, 
assisted by Rothwell, when the latter was stabbed by the Judge. 

g 322. Halbert claims the credit of having contributed several blows. 
You see what a giant Oldham is, and it is proved that Halbert and 
Holmes were larger, and Rothwell as large as he, and all of them at 
least as stout — can you hesitate to believe that the Doctor must have 
perished under their violence, if the Judge had not come to his rescue 
at the very moment when he stabbed Rothwell? Holmes was also 
stabbed with a bowie-knife through the right arm — the Judge only used 
a knife of that kind on that evening, and, therefore, must have 
stabbed Holmes, though nobody saw him stabbed, or knew who stabbed 



TRIAL OF JUDGE WILKINSON ET AL. 233 

Argament of Hon. Judge Rowan. 

him. By the use of his bowie-knife upon Rothwell and Holmes, he 
saved the life of his brother, and in all probability his own life and that 
of Murdaugh. 

It is very probable, that,« infuriated by the death of Meeks, they 
would, with the aid of their maddened associates, have killed the 
Judge and Murdaugh, as well as the Doctor. 

But it is contended by the counsel for the prosecution, first, that the 
Doctor's life was not in danger; and, secondly, that if it was, the Judge 
could not lawfully kill the assailants to save his life. Upon the first of 
these points, I will not detain you. It is a matter, upon which you 
have heard the evidence, which all converges to prove, that his life 
was in imminent danger, and that it was only saved, as I have stated, 
by the seasonable and intrepid interposition of the Judge. He had 
been already beaten to a mummy, and was, at the instant of his rescue, 
being farther beaten by the cudgel of Rothwell, and the box-like 
knuckles of Holmes. 

The second is a matter of law upon which I did not suppose there 
could have existed a doubt in the mind of any lawyer, nor, indeed, of 
any human being of properly organized midriff; for it seems to me 
that nature proclaims in the unvitiated feelings of every man's heart 
what the law is upon this subject — the lecture given by the father 
to hia sons, and illustrated by the bundle of rods in the spelling-book 
of Old Dilworth, inculcates the true law upon this subject. But, 
gentlemen of the jury, let me call your attention to the law of England, 
and of this country, and of all communities, barbarous as well as civil- 
ized, upon the same point; for it is a law of nature, and, of course, 
universal. In Blackstone, 21 n. p. 184, speaking of the right of self- 
defense, that author states that "they can not, therefore, exercise this 
right of preventive defense, but in sudden and violent cases, when 
certain and immediate sufering would be the consequence of waiting for 
the assistance of the law;'' and having in the next page laid it down as 
a law of universal justice, ** that a man, when the attack is so fierce that 
he can not retreat without manifest danger of his life, or enormous bodily 
harm, may, in his defense, kill the assailant instantly ^ In page 186, he 
states that, "under this excuse of self-defense," referring to what I 
have read, ^^ t\ie principal civil and natural relations are comprehended; 
therefore, master and servant, parent and child, husband and wife, 
killing an assailant in the necessary defense of each other respectively, 
are excused, the act of the relation assisting being construed the same 
as the act of the party himself" Now, I ask if the relation of brother 
with brother is not a natural relation? If it is, then it is comprehended 
in the law I have just read to you from Blackstone. The counsel for 
the prosecution seem to think because this relation is not specifically 



234 THE LA W OF HOMICIDE. 



Argument of Hoo. Jadge Bowan. 



named by Biackstone that it is not within the principles laid down by 
him. They have erred (they will pardon me), in construing his words. 

§323. There are but two kinds of relationship which can exist 
among mankind. The first is the natural; the second, political or civil. 
The author illustrates the last, viz., the civil, first, by the example of 
master and servant ; and the natural, by the examples of parent and 
child, husband and wife. He does not pretend to enumerate all the 
relations of either kind, but gives examples, <me of the civil, and two of 
the natural. They outrage nature by giving to the artificial relation of 
master and servant the ascendancy over the natural and endearing 
relation of brothers and sisters with each other. I say they outrage 
nature; for what man in his senses can believe that the servant is 
under greater and stronger obligations to defend the master, and the 
master the servant, than a brother is under to defend his brother or 
his sister? Feeling, it would seem to me, decides the question at 
once by intuition ; but upon the suj)position (for argument), that ray 
interpretation of Biackstone is wrong, still the gentleman will have 
gained nothing, for the relation of brother with brother is at least a 
civil relation. A brother, in the absence of other heritable relations, 
can, under the law of the land, inherit the estate of his deceased 
brother. But I go farther, and assert that the relation of citizen to 
citizen is a civil relation, within the meaning of Biackstone, and a mere 
citizen may, to save the life of his fellow citizen, slay the man who 
assails it. And I will add to authority of Biackstone that of Lord 
Hale. That great and good judge, in the first volume of his Pleas of 
the Crown, at page 484, speaks thus upon this point: 

§ 324. " If A, B and C be of company together and walking the field, 
C assaults B, who flies, C pursues him, and is in danger to kill Iiim, 
unless present help. A thereupon kills C in defense of the life of B. It 
seems that in this case of such inevitable danger of the life of B, this 
occision of C, by A, is in the nature of se defendendo,'^ etxj. And again, 
the author in the same page proceeds, " If A be traveling, and B come 
to rob him, if C fall into the company, he may kill B in defense of A, 
and, therefore, much more if he come to kill him, and such his intention 
be apparent. For in such case of a felony attempted, as well as of a 
felony committed, every man is thus far an officer, that at least his kill- 
ing of the atiempter, in case of necessity puts him in the condition of se 
defendendo, in defending his neighbor." So you see, gentlemen of the 
jury, that the counsel for the prose6ution have misconceived or mis- 
represented the law. I hope they misconceived it. Let me refer 
you to a law from recollection, not under the denomination of a hw, 
hwiafable. I read it when a boy in Dilworth's spelling-book: "Two 
friends" (I quote from memory), "setting out on a journey together, 
agreed, in case of any danger, .to stand by and assist each other. They 



TJRIAL OF JUDGE WILKINSON ET AL. 235 

Argument of Hon. Judge Rowan. 

were assailed by a large bear. One fled and climbed a tree. The 
other, riot being able to escape, nor, alone, to defend himself, fell down 
and pretended to be dead. The bear came up and smelled him, and 
from his silence and motionless posture, supposing him to be really 
dead, wallted off and left him unharmed. When the bear had dis- 
appeared, his companion descended from the tree and asked him what 
the bear had whispered in his ear, he replied that the bear had cau- 
tioned him against confiding (through the balance of his life), in the 
promises of a/a/5^/n€»c/." This fable inculcates the same principle of 
natural and municipal law, which is promulgated in the passages from 
Blackstone and Hale, which I have just read to you, namely, that you 
may justifiably, nay, that you ought to defend the life of your fellow- 
citizen by taking the life of him who* attempts to destroy it. Hence. 
I argue, that it was not only the right, but the duty, of each of these 
three gentlemen, who were friends in their own State, and in their 
travel to this State, to defend the life of each other by taking the life 
of those who assailed it. 

§325. Suppose they had traveled by the old route from the place of 
their residence to this State, and had been assailed by the same persons, 
with the same violence and ferocity, at an intermediate tavern, instead 
of at the Gait House. To make the case stronger, suppose that tavern 
had been in the wilderness, within the Indian territory, where there 
was neither government nor laws, might not the Judge in that case have 
defended the lives of his friends and associates ? They will perhaps 
yield that he might, because of the absence of legal protection. I 
reply that if he might on that account, his right to do so, must be 
derived from the law of nature, and government leaves all her citizens 
in the full possession of the natural right of self-protection, where she 
can not or does not protect them. Well, at the Gait House they were 
as unprotected by the laws as they would have been in the case 
supposed; therefore, both by the municipal law and the laws of 
nature, the Judge had a right to kill Rothwell to save Dr. Wilkinson 
from great bodily harm, or the loss of his life, even if he had been 
unconnected with him by the ties of brotherhood ; and, therefore, 
each might have destroyed the assailant of the life of the others. And 
if the party assailing them were acting upon concert between them- 
selves for that purpose, each of the assailed might, the moment one 
was assailed, have killed as many of the conspirators as he could, and 
he would have been justified by law in doing so. But I have spoken 
of the conspiracy, and am considering the cases, as though none had 
been formed. When the person assaulted honestly believes that his life 
is endangered by the assault, he may kill the assailant. The law to 
that effect has been read by Col. Robertson and stated by Mr. Prentiss. 
Mr. Hardin scouts at this statement of the law, and ascribes to the 



236 THE LA W OF HOMICIDE. 



Argument of Hon. Judge Rowan. 



inexperience of the young man, as he is pleased to style him, his 
erroneous notion of the law. Gentlemen, you find it both in words 
and import as Col. Robertson read and as Mr. Prentiss has stated it. 

§ 326. It could not in the nature of things be otherwise ; the man 
assailed has not time under the pressure of the assault, to consult 
others as to the degree of danger to his life resulting from any partioular 
stage of the assault, or degree of its violence. No one else could judge 
so well, no one so much interested in judging correctly as himself; he 
might lose his life by intermitting his defensive energies, while be 
sought the opinion of others — his Jife was committed by nature to his 
own protection, to the protection of his own mind and muscles, and not 
to the opinion of others. And man, I repeat, in the absence of the 
protection of the law continues, in this respect, in the condition in 
which nature placed him. It is upon the honest, not feigned belief of 
danger to his life, or of great bodily harm that he may destroy his 
assailant. Mr. Hardin says, it will not do that the assailed honestly 
believe the danger to be present and urgent, it must be really so. Let 
me suppose a case. A and B quarrel, high words pass, A swears that 
he will kill B, draws a pistol from his pocket, and presents it cocked 
to his breast; B instantly thereupon draws his pistol, and shoots A 
through the heart, and upon examination it turns out that the pistol 
of A was emptj^ when he drew it and presented it to the breast of B. 
In this case it is evident that B was in no real danger from the pistol of 
A. Shall B be condemned and executed for the murder of A because 
his life was in no real danger, or shall he be acquitted upon the ground, 
that he believed his life to be in danger, from the pistol of A, and there- 
fore justifiable in killing him under that belief? Can any man, even 
Mr. Hardin, entertain a doubt upon this case? Mr. Prentiss, therefore, 
stated the law as it really is, and as it nmst from the necessity of our 
nature, always continue to be. 

§327. Men are not equal in moral and physical courage ; a timid 
and a brave man would destroy their assailants upon diflferent degrees 
of danger, the former upon less imminent danger than the latter, but 
each upon an honest belief of its threatening imminence, upon an honest 
belief that his life was in danger; shall the one expiate the weakness of 
his nerves upon the gallows, while the other is justified, and applauded? 
Each was under the same obligation to preserve his life, and each 
exercised honestly all the faculties with which the great author of life 
liad endowed him. The doctrine of Mr. Hardin is at war with the 
nature of man,' and the principles of his social condition. Then if 
Judge Wilkinson believed honestly that his brother was in danger of 
great bodily harm, or of losing his life from the assaults made upon 
him, he had a right to kill the assailants, even if the danger were not 
as imminent as he supposed it to be — ^for a person who kills the 



TRIAL OF JUDGE WILKINSON ET AL. 287 

Argument of Hon. Judge Bowan. 

assailant of his relation, stands in contemplation of law, in the place, 
the assailed would have stood himself, had he killed the assailant. But 
why talk of the belief of danger in this case, when there is no reason- 
able man who has heard the testimony can doubt of its reality ? The 
Doctor had already, when rescued by the Judge, suffered enormous 
bodily harm. He had been deprived of the power of self-defense, and 
was falling an easy victim to the violence which Holmes, Rothwell and 
Halbert were inflicting upon him. Rothwell had struck him with the 
club, as Gtjneral Chambers proves, and was stamping him with his feet, 
as Mr. Pearson proves, when the Judge stabbed him. But Mr. 
Hardin thinks he should be punished for stabbing him in the back. 
The gentleman has high notions of chivalry, and is shocked at its violation 
in this instance by the Judge. He forgets that this assault was not 
commenced in a chivalric spirit, nor upon any principle of fairness 
known to chivalric men. 

§328. When the Judge came to the relief of his brother, that 
brother one and alone, was under the fists, feet and clubs of three of the 
largest and stoutest men in the State ; and yet Mr. Hardin will have it 
that the Judge should have waited until the three had killed his 
brother, and until it was convenient for Rothwell thereafter to present 
his breast. Or, perhaps, according to Mr. Hardin's notion of gallantry, 
the Judge should have asked him to present his breast, that he might 
approach him a la mode. If such be his taste, he may consider the first 
thrust to have been an efficient request to that effect ; and the second 
to have been made when he had, according to the intimation of the 
first, turned towards the Judge, to inquire into its meaning. But a 
sufficient excuse to the cavilings of Mr. Hardin upon the point of mob- 
oeratic chivalry is that the Judge was inexperienced in broils, knew 
nothing of either their practice or theory, that .his education and habits 
of life were anti-pugilistic. He had neither muscular aptitudes nor 
mental aspirations for distinction in that line, and if he had possessed 
all the excellence in chivalry of which Mr. Hardin can conceive, the 
occasion did not afford an apt theater for the display of it. And, again, 
he was acting under the spur of relentless necessity, which left him no 
choice of modes of action, no leisure for the observance of etiquette. 
He had but one purpose, and that was to save the life of his brother. 
That object he achieved with the greatest possible economy of the blood 
of the aggressors. He might justifiably have slain with his bowie-knife 
many others, and it is wonderful, under the circumstances, that he did 
not. It is evident, from the proof, that he did not aim to hurt any 
but Rothwell and Holmes, and it is equally evident from the proof 
that by killing one and wounding the other he saved the life of the 
Doctor, and very probably his own life, and that of Murdangh. 
§329. Gentlemen, I have not called your attention to the proof 



238 THE LA W OF HOMICTDK 



Argument of Hon. Judge Bowan. 



in detail — I shall not attempt to collate and analyze it. That task has 
been performed ably and eloquently by the gentlemen whom I follow 
on the same side. You must have perceived the artifices by which Mr. 
Hardin attempted to evade and blunt the force of the testimony of 
many of the witnesses on the side of the defense. You could not fail 
to observe, and I hope with indignance, his attempt to disparage those 
of our witnesses whose testimony he could not twist to his purpose. 
Let me call your recollection to the instance of Dr. Graham, a gentle- 
man of known integrity and high standing in your county. - 

g 330. The testimony of that witness satisfied everybody who 
heard it that the accused were assailed ferociously, and placed under 
the necessity of acting as they did. How did Mr. Hardin dispose of 
it? Why, by telling you that he is the owner of the Greenville and 
Harrodsburgh Springs; that the Mississippians spend their money 
freely, and that it is a great object with the Doctor to conciliate them 
and get their custom. Mr. Raily, who is as respectable a man as any 
in the community, and as respect-ably connected as any man in Vir- 
ginia or Kentucky, whose father was full cousin to Thomas Jefferson, 
and whose high intelligence was evinced by the clear manner in which 
he gave his testimony, is branded by Mr. Hardin with cowardice, 
because, as he told you, he ascended when the affray commenced to 
the sill of one of the windows upon which, being an entire stranger, he 
stood and looked on. Mr. Hardin derided that act of prudence as an 
act of embarrassed timidity, and compared him standing there to a 
turkey-buzzard perched on the top of an old dead tree. General Cham- 
bers, whom he knew to be an honorable, intelligent and upright man, 
and one wh# would not be very patient under any disparagement, he 
prudently passed. In the same way he passed Mr. Pearson, a gentle- 
man of cultivated mind and manners, and of unimpeachable integrity. 
And then, again, he selected Mr. Trabue as a man of such iron nerves 
that he could look upon blood and carnage with the composure of a 
stoic, and urged you to regard him and Mr. Pope as the only witnesses 
who were composed enough to observe calmly and accurately the 
actings and doings of those concerned in the horrific scene, and thereby 
intimating, by implication, that Montgomery, Chambers, Graham, 
Pearson and others, were so embarrassed and confused by their fears 
as to be incapable, for the time, of correct observation. 

I barely mention these things to show you that his zeal to convict 
the accused displays itself vindictively, in some way or other, toward 
all the witnesses whose testimony thwarts his main purpose. 

I fear none of the testimony, and wish you to consider it all, and give 
credit to as much of it as you can. I have before said all I mean to say 
upon the credibility of the witnesses. It is not agreeable to me to 
awaken unpleasant sensations in witnesses by unkind comments upon 



TRIAL OF JUDGE WILKINSON ET AL. 239 

Argument of Hon. Judge Rowan. 



their evidence, and therefore I forbear to comment upon that of 
Redding, Johnson and Oldham. 

Gentlemen of the jury, I have been endeavoring to convince you 
that Judge Wilkinson, under the incontrovertible facts proven in this 
case, was (apart from the foul and nefarious conspiracy by which he 
and his friends were attempted to be beaten and degraded), justifiable, 
under the most rigid operation of the law, in taking the life of Rothwell, 
and that if he had not done so to save the life of his brother he w^ould 
have justly drawn upon himself the contempt, scorn and derision of all 
honorable men, and what is worse, if possible, of the ladies too, for they 
admire a kind not less than a stout heart in man. 

§ 331. Gentlemen of the jury, I leave Judge Wilkinson with you. 
I have not been as much concerned about the legal as the moral aspect 
of his case. His is not a common case, for in common cases a mere 
legal acquittal is the desire of the accused and the aim of his counsel ; 
but to a high-minded, honorable man, like the Judge, a mere acquittal 
upon the dry law of the case has but little to recommend it. A gen- 
tleman who would at any and all times sacrifice his life to preserve his 
honor, can be but little pleased with any efforts of his counsel which, 
by overlooking his honor, aim at saving his life. My aim, (and such I 
am sure has been the aim of his counsel who have preceded me), has 
been to manifest to you and to the public that Judge Wilkinson and 
his friends have, throughout this unhappy affair, acted up to the most 
punctilious requisitions not only of natural and municipal law, but of 
the strictest honor and sternest morality. We have entertained no fear 
of a conviction throughout the case. We represent men who do not 
place a very high estimate M-^on mere animal /(/e otherwise than as it sub- 
serves the higher purposes of human existence — ^men whose lives are in 
their honor, and can only be reached by sullying it — and I have dwelt 
longer on the Judge's case in the view to rescue him from the slufs 
attempted to be thrown upon his honor by the imputations and enven- 
omed innuendoes of Mr. Hardin than for any other purpose. The 
case of each of the three is, in its legal aspect ^ the case of all; for they 
were all assailed by the same vile coterie, and for the same nefarious 
purpose, and they all resisted with a bold and unquailing spirit, each as 
he best might under the circumstances of attack. The act of each 
necessarily tended to the protection of all, and none had cause to 
reproach the other with the want of energy or spirit. 

Let us pass from the Judge to Mr. Murdaugh, and in doing so we 
pass over the Doctor. There is no proof that he uttered a word, and it 
is abundantly proved that he was disabled by brutal violence from per- 
forming an act in this drama. Let it be remembered to his credit that he 
did not quail — he did not supplicate the merciless mob, and would have 
died in dignified silence had he not been bravely rescued by his brother. 



240 THE LA W OF HOMICIDE. 

Argument of Hon. Judge Rowan. 



Mr. Hardin says of Murdaugh, that when accosted by Redding he held 
up his hand, showing to all the blade of his white-handled knife, and 
declared with an emphatic oath that he would kill any man who laid 
hands upon him. This conduct, he thinks, evinced a sanguinary 
intent — a bloody purpose. No doubt of it ; but it was a purpose of 
defense, not assault. He did not conceal his knife to plunge it by sur- 
prise into the breast of the first assailant, but openly and bravely 
showed it to all, and warned them at the peril of their lives to stand off. 

§ 332. But Mr. Hardin finds in his reply to Redding, namely, that 
if he or any other man said that he had drawn a bowie-knife upon 
Redding in his shop, he told a damned lie, the same, or rather a con- 
tinuation of the same evil spirit which he had evinced in brandishing 
his drawn knife. That he evinced in the latter, as in the former 
instance, a brave and determined spirit, I readily admit; and the 
mob who asvsailed him were silly not to have perceived and been 
restrained by it. It was a fearless and defying spirit which he was 
happy in possessing and wise in displaying — ^a spirit which, instead of 
thirsting for blood, panted to avoid the effusion of it. Gentlemen, all 
that is ascribed to Mr. Murdaugh by Mr. Hardin, according even to his 
most unjust interpretation of it, did not justify, the assault made upon 
him by the unfortunate Meeks and Rothwell. Words do not, in law, 
justify blows. They, however, according to all the testimony, made 
the assault upon him, before he had done anything towards them more 
than to warn them what would be the consequence in case they did 
assault him. But the nature of the assault did not, in the opinion of 
Mr. Hardin, justify him in the defense which he made. Meeks seized 
his knife-hand and commenced cowhiding him, while Rothwell 
belabored him over the head with a large hickory club, gashing his 
head at each blow, as you perceive by the scars. Where now is the 
8{)irit of chivalry which produced in the mind of Mr. Hardin such strong 
reprobation of the stroke which Judge Wilkinson gave Rothwell ? Was 
it chivalric for the two — Meeks and Rothwell — to beat Murdaugh at 
the same time, one with a cow-hide and the other with a cudgel? The 
one to hold him by his knife-hand and degrade him with a cow-hide 
while the other was beating him to death with a club, and others (for 
such is the testimony), beating him with their fists ? Surely this was 
not only cruel, but cowardly — especially in the opinion of so gallant a 
knight as Mr. Hardin — ^but according to the views of that gentleman, 
Mr. Murdaugh should have run as far as he could before he killed his 
assailant, and he did not attempt to escape by running. 

§ 333. He read you the law to that effect from Blackstone. Gentle- 
men, I have always contended that the law which he has read, and 
which I admit to be the law of England, should, though adopted by our 
constitution, be construed by us according to the genius and spirit of our 



TRIAL OF JUDGE WILKINSON ET AL. 241 



Argument of Hon. Judge Bowan. 



free institutions. It should not here, where we are all equal, and where 
there is no distinction but that which exists between the good and bad, 
be construed to require a man to run from his fellow man, for with us a 
free man has no superior. 

" The laws of several nations," says my Lord Hale, in volume 1, page 489, 
"in relation to crimes and punishments differ, and yet may be excellently 
suited to the exigencies and conveniences of every several State, so the 
laws of England are AMiW to the conveniences of the English government,'' 
etc. And even in England, in some cases, they give to the law the 
construction for which I contend ; even there when one man assails 
another upon the King's highway the assailed need not retreat or run. 
Every law should be interpreted not only according to the nature and 
genius of the government, but to the circumstances in which the 
accused is placed at the time. The reason he need not run there is 
because he is on the King s highway, and authorized by the virtual 
presence of His Majesty to protect himself as fully as the King, were he 
r6a//y present, could protect him. Gentlemen, the free citizens of America 
are as much authorized in every part of the Republic to defend their 
lives as the subjects of the King of England are upon His Majesty's 
highways. The paths oi freemen are all sovereign highways or the high- 
ways of sovereigns. Freemen are always in the real presence of 
majesty — they are themselves in loco regis. They are themselves sover- 
eigns, and there never was a law which required a sovereign to run 
from a sovereign. The very idea is absurd. Another reason why the 
law of England requires a subject to run when assaulted out of the 
real or putative presence of the King, is that there the man is sunk and 
merged in the subject. Here with us the man is exalted to the sover- 
eign—every freeman has around him a zone of inviolability, an odor 
or aroma of sovereignty. There, there is a graduated series of subserv- 
iency in the organic structure of the government, from the King down 
through the titular ranks to the lowest vassal. Here there is, as I have 
already told you, no disparity between men. There the King is the fount- 
ain of all honor and possesses exclusively all the attributes of sovereignty. 
Here the people are the fountain of honor and the sole sovereigns. 
There the subject may be degraded without dimming the luster of the 
diadem — here the citizens can not be degraded without sullying the 
sovereignty of the nation. 

§ 334. How long, gentlemen, think you, would the freedom of the 
people last, after they had been fully trained to running (according to 
Mr. Hardin's view of the law), each from the other ? But cui bono 
require him to run ? for when his flight is impeded by a wall or any 
other impediment he may slay his pursuer. Why may not his honor, 
the spirit of freedom, and the pride of his own conscious self-worth, 
constitute the wall or impediment ? Can it be expected of men whose 
H.— 16 



242 THE LA W OF HOMICIDE. 

Ai^ument of Hon. Judge Bowan. 

spirits have been trained to run from their equals, who hare no honor 
of their own, that they will rush to the standard of their country s honorl 
But what is their country's honor? In what does it inhere, and where 
is it garnered up? Let the gentleman answer me these questions, and 
then tell me that when he is exposed by the assault of his fellow-citizen 
to the danger of losing his life, or of great bodily harm, he should run 
from his assailant. 

g 335. Sirs, the honor of the country is garnered up in the breasts 
of her citizens. It is the oxygen gas that sustains, animates and warms 
their souls, and spurs or allures them on to enterprises of goodness and 
of greatness. It is a sparkling nectar quaff^^d only hy freemen. It is the 
elixir of moral life. Gentlemen, be assured that the man who will run 
from a domestic, will run from a foreign enemy, for man is a unit. 
Teach him by your laws to run away and you will in vain expect him 
to advance upon his country's enemies. In England the King makes 
war at his pleasure and fights through it with an army of vassals 
reduced by discipline into a mechanical compaction. There, the army 
is a mass of automatons, a mere machine. Here, the people declare 
war and fight through it with armies of freemen. There, the sovereign 
declares war and fights its battles with armies of vassals. Here, the 
sovereigns declare war and themselves constitute the soldiers who fight 
its battles. There, bravery or cowardice in the soldiery is a matter of 
indifference. Here, bravery in the soldiery is essential — is a sine qxia 
non to success. Is it wise, then, I would ask you, gentlemen, to construe 
our laws so as to enfeeble or extinguish this spirit of our citizens— a 
spirit upon which not only our free institutions but our very independ- 
ence as a nation depends ? What would we say of the wisdom or 
foresight of the farmer who, instead of destroying the 'weeds which 
infested his corn as it grew in his field, would destroy his corn and 
leave them to grow and flourish ? But this construction of the law for 
which I am contending is not necessary for the justification of Mr. 
Murdaugh. His case does not need it. He was so hemmed in by the 
conspirators and the bar that he could not run if he would, and my 
word for it he would not if he could. Gentlemen, these three strangers 
are not of the running blood. They are not from a State where the 
running breed is much esteemed — where that spirit is countenanced 
and propagated. The State of their residence is not yet old and 
degenerate enough to patronize that description of men ; besides, the 
sun, whose influence is mighty in the concoction of the fluids of 
animal as well as vegetable life, does not in that climate much favor 
the concoction and growth of dastardly spirits. But he could not, 
gentlemen, as you must be convinced, have even given back. 

g 336. He did all that he could, and more than many men would have 
done; for, under the lash of the cow-hide, and the blows of the cudgel, and 



TRIAL OF JUDGE WILKINSON ET AL. 243 



Argument of Hon. Judge Rowan. 



fists of his assailants, he took the knife out of his right hand which 
was held by Meeks, into his left hand, and by such exertions as he 
could, with it extricated his right hand from the grasp of Meeks, and 
with it resumed the knife, and by killing Meeks rescued himself from 
the vile band of conspirators who had assailed him, and thus saved 
his life. Was he, under the facts of the case, justifiable in doing so ? 
Could he have done less, or having done less, could he have saved his 
own life ? I think I hear each man of you say to himself that you 
applaud him for what he did, and only regret as good citizens that from 
bis feeble structure and the overpowering, odds against him he was 
unable to have done more. I predicate my supposition of your regret 
that he was unable to do more upon what I know to be the abhorrence 
which every good man feels of lawless conspiracies and of mobs. Mr. 
Hardin has charged a mobbish spirit upon the Mississippians. He has 
overlooked the mob against the Ursuline Nuns, in the land of steady 
habits, and the frequent and triumphant mobs in New York and Balti- 
more, and fastened his eye upon the mob which took place at Vicksburg 
some years ago. He multiplies that into many, and clothes it with 
terrific horrors. 

§ 337. With him I reprobate all mobs, but I detest more especially 
those that are formed against helpless innocence, as in the case of the 
defenseless Ursulines, or against the tranquility and good order of 
society, as in New York and Baltimore ; but it is the province of intelli- 
gence to analyze and graduate even crimes. I conceive that there were 
some palliating circumstances in the affair at Vicksburg. It was not a 
deliberate, cold-blooded conspiracy of the bad against the good citizens 
of the place. It originated in the sudden and misguided zeal of 
orderly citizens against a conspiracy of gamblers — ^it was an evil not 
unmingled with some of the elements of virtue and goodness. Those 
gamblers had killed a native citizen of Kentucky, who was a stranger 
there, enjoying the hospitality of the place. Irritated with their voca- 
tion, and excited to madness by the tragic manner in which they had 
violated the laws of the land and principles of hospitality in the assas- 
sination of Doctor Bodly, suddenly, and in a paroxysm of resentment, 
they hung some two or three of the gamblers. Judging, therefore, of 
the Vicksburg mob from ita object and its cause, I find in it many 
i&itigathig circumstances ; but am far, very far from approving it. I 
repeat that I reprobate all mobs — even those which are raised and 
exerted on the side of virtue and the laws — but what has that mob to 
do with this ? How can it mitigate the conduct of the mob in this 
case, or aggravate the condition of the defendants ? Does the gentle- 
nian wish you to appease the manes of the gamblers who perished in that 
case by sacrificing the lives of Messrs. Wilkinson and Murdaugh in this, 
W^use they are Missiasippians, though not residents of Vicksburg ? 



244 THE LA W OF HOMICIDE. 

Argument of Hon. Judge Rowan. 

Or is he attempting to palliate the foul conspiracy in this case by 
offsetting it against that, and thereby to weaken the defense of the 
accused ? That can not be his object — it would be too absurd. His 
object must have been to excite your indignation against the conduct 
of the Missisippians in that case, and transfer the odium of it to the 
accused because they are from that State. 

§ 338. But let me tell him that if he hopes to gain anything by excit- 
ing the passions of this jury he miscalculates. He is not now amid 
the fervors which this case excited where it happened. He can not 
here produce the volume of passion which the false and erroneous mis- 
representations of the conspirators produced there, and to the propaga- 
tion and extension of which, he, by the force of his acknowledged 
talents, exerted before the examining court, contributed. Here he can 
not, as there he did, to a considerable extent, excite the mechanics and 
working classes against the gentlemen slave-holders and cotton-planters. 
Thanks to a just Legislature, we are now before a tribunal uninfected 
by passion and without any predisposition to take, even by contagion 
from him, the maddening infection. 

He can not hope to disparage the accused before any rational tribunal 
by inveighing against the habit of wearing arms. Strangers and trav- 
elers have been allowed, in all countries and by all..people, to wear 
them — ^and even citizens of the meekest and purest ^characters have 
worn them in their own country, aye, and used thenv too, upon occa- 
sions far less urgent than that of the accused. It is wise sometimes to 
wear them in large commercial cities. Even in Louisville it is prudent 
for strangers to wear arms. The knives of the defendants saved their 
lives at that place beyond doubt. Now the resident population of that 
city is as worthy, as peaceable, and as orderly, as the people of any place 
whatever; but there is there, as in all other commercial cities, a 
floating mass of people who prowl the streets, espedally- at night,* from 
whom all who might be supposed to have money or other valuables 
have much to apprehend. When I say the wise and meek have carried 
arms, and used them too, I allude to the Apostles — ^you all remember 
that the Apostle Peter drew his sword and smote off the ear of the 
high priest. This is an instance in which arms were not only worn, 
but used to protect a friend. 

2 339. Gentlemen of the jury, I repeat what I said before, that the 
wearing of arms by citizens within the jurisdiction of their State, and 
in the bosom of society, is an evidence of the weakness and degeneracy 
of their Government. The object of Government is to protect the good 
and the virtuous against the bad and the vicious portion of mankind. 
When the good wear arms it is evidence that they can not confide in 
the Government for protection, and are obliged to rely upon their own 
vigilance and energies to save themselves from the bad. And whenever 



TRIAL OF JUDGE WILKINSON ET AL. 245 



Argument ^ Hon. Judge Bowan. 



good men use their arms efficiently ancf successfully, and tragically if 
you please, against the mob or a conspiracy by which they are assailed, 
instead of the animadversion of the Government they are entitled to 
its thanks and its gratitude. 

Sirs, I speak the language of soberness and truth when I tell you 
that the fall of Meeks and Rothwell, which we all deplore, by the arms 
of the assailed, has done more, by tenfold, to repress and put down 
mobs and conspiracies in Louisville, and throughout the State of Ken- 
tucky, than the execution of those ill-fated men by the Government for 
the killing of one or all of the accused, had the accused fallen by their 
hands. There would be no mobs if it were certain that one or more 
of those who form the mob would certainly be killed. The principle 
of combination in a mob is, as I have before told you, cowardice. Each 
would/ear that he might be slain, and thus, and for the same reason, 
every other man of them would abstain from the combination. Those 
assailed, therefore, by a mob should be considered by the people of 
every State as authorized by the Government to kill as many as possible 
of the assailants ; and so, indeed, they are to be considered, under a 
wise and just interpretation of our laws, which, when they can not 
protect the citizen leave him to protect himself under the paramount 
authority of the law of nature. 

§ 340. I say boldly, but calmly, that Murdaugh and the Judge are 
entitled to the commendation instead of the reprehension of all good 
men, who believe as I do, and I am sure you must, that they acted each 
in defending himself and friends against the assaults of an infuriated 
mob — ^but I was speaking of the case of Murdaugh, so far as it presents 
itself as an individual case, and urging that in view of the position he 
occupied, and the aggregate force and physical violence with which he 
was assailed, he was strictly, and under the sternest construction of 
the law justifiable in killing the unfortunate Meeks. 

And, gentlemen of the jury, I can not pass over a fact in this case, 
to which I have as yet paid no special attention ; I mean the attempts 
to degrade Mr. Murdaugh, and with and through him, the Judge and 
the Doctor, by the stripes which Meeks repeated upon him with the 
cow-hide. Recollect the testimony of Oliver, from which it appears 
that such was the determination of the conspirators to degrade, as well 
as beat the accused ; that Meeks prepared the cow-hide for his grasp, 
by knotting the small end of it. You can not doubt, but that it had 
been settled by the conspirators that he was to apply the cow-hide 
to their backs while they used their cudgels, knives, and other weap- 
ons in protecting him while going through the process. Hence the 
rush of the conspirators around Murdaugh when Meeks had seized his 
knife hand, and commenced upon him with the cow-hide, and hence 
tbe readiness with which he surrendered to Oliver the knife with 



246 THE LA W OF HOMICIDE. 

Argoment of Hon. Judge Rowan. 



which he had armed. himself before the task of using the cow-hide 
had been assigned to him. And hence it was that he was selected to 
use it, being the smallest man among them, to enhance, by his smallness 
of stature, the contemplated degradation. 

§341. Now, gentlemen, Mr. Hardin, a Kentuckian, tells a Ken- 
tucky jury, aloud too, in the hearing of perhaps a thousand Kentuck- 
ians, and, what is more astonishing, in the presence and hearing of 
near two hundred ladies, matrons and maids, that Mr. Murdaugh was 
in no danger • of being hurt by a small cow-hide in the hand of a small 
man — that he was in no danger of being wounded, maimed or killed by 
the cow-hide, and that therefore he had no right to kill Meeks for apply- 
ing it to his back ; and he quotes the aforesaid law of England, which 
requires a liege subject to give back, and flee from his fellow-subject until 
obstructed by a wall, or some insuperable impediment, before he kills 
his assailant, and then he can kill only to save his own animal life, and 
not the life of himself from the degradation of being cow-hided ! ! ! Sirs, 
how did you relish the law and the reasoning of Mr. Hardin upon this 
subject ? Do you believe with him, that the man, like the hog, consist* 
in mere animal structure ? that, like that animal, he suffers only from 
violence, inflicted upon his natural organic nature? that his pleasures 
and his pains consist alone in animal sensation, and that all the attri- 
butes of excellence in his character are essentially in bone and muscle ^ 

g 342. Ask any of those matrons, who adorn the bench above you, 
what she would think of a young man who was addressing her daughter, 
with his back striped by the prints of the cow-hide ? Ask her daughter 
what she would think of such a suitor ! Can you doubt the reply ■ 
Would not such a man be loathed and scorned by both mother and 
daughter ? Sirs, there are sins against individuals as well as sins against 
Heaven, which can only be expiated by blood — and the law of Kentudy 
is, that the man who is attempted to be cow-hided, not only may, but 
must, if by any possibility he can, at the time, kill the man who attempts 
thus to degrade him. I do notTefer to a law of Kentucky, enacted by 
the Legislature of the State; I mean a law paramount to any enacted 
by the Kentucky Legislature — a law that emanates from the hearts of 
the people of Kentucky and is sanctioned by their heads — ^a law that 
is promulged in the os ad ccelum of every Kentuckian, and proclaimed 
in the sparkling of every eye of both sexes and all ages — a law, the 
force of which every one feels, the import of which every one perceives 
by intuition. It is a law of Kentucky instinct. None are so ignorant as 
not to know this law ; few are so dastardly as to deny its injunctions. 

g 343. Gentlemen, in Kentucky, as in all the slave States, the cow- 
hide has a meaning and associations which are not known in England 
and those of our own sister States where slavery does not prevail ; it is 
employed only to correct slaves — slavery and freedom are antipodes. 



TRIAL OF JUDGE WILKINSON ET^AL. 247 

Argument of Hon. Judge Rowan. 

The first, with us means the nadir of human degradation ; the latter, 
the zenith of human rights, or rather of political and civil rights. The 
slave is considered a mere animal, a biped, without any of the attributes 
of political character. Whether this relative position of the slave and 
citizen is right or wrong, is not now to be discussed. The relation of 
slave and free citizen exists, and we can not help it ; the destiners so 
ordered it, and the sentiment, which I urge as the Kentucky law, is but 
a promulgation of the principles of fitness, which result from that 
relation. It is a sentiment identified with our souls, hearts and heads, 
and constitutes an essential element of our moral entity. 

§344. Gentlemen, I wish to be understood upon this point. I 
understand the term man to mean a moral being, and his animal body, 
to be a mere casket, made to contain and preserve the ^Vtf?e/, the morale, 
which is really and essentially the man. That the moral man being 
immortal, and of celestial origin, and enclosed in a machine so fearfully 
and wonderfully made, is under a high obligation to vindicate the 
safety of that machine so essential to the performance of his moral 
functions, during his occupation of it ; and I consider the obligation of 
man to preserve his moral nature from degradation, stronger than to 
preserve his animal structure from destruction. Degradation is the 
destruction of the moral, as decollation is the destruction of the phys- 
ical man. Now, sirs, the health of our moral nature is generally more 
necessary to our comfort and usefulness, than the health and integrity 
of our organic structure ; moral health consists mainly in sanity of 
intellect and unsullied honor. It is not the wound inflicted upon his 
body that a man, who feels and knows how to estimate his own intrinsic 
dignity and conscious self-worth, regards ; he rates that comparatively 
at nothing. It is the wound inflicted upon his character and upon his 
conscious self-worth — his moral entity, that agonizes him ; and there is 
no wound of that kind that agonizes and ulcerates like the cow-hide — it 
is incurable, and subjects him like the disease of the leper among the 
Jews, to be driven from the society of men. It does not, and perhaps 
can not, kill the body, but it destroys the man ; and by as much as the 
man is more important and more valuable than the body he occupies, 
by sq much more is it justifiable to destroy the assailant of the former, 
than the latter ; and yet ,Mr. Hardin, who here admits that a man, to 
save his animal life, may kill the assailant, and denies that he may, to 
save his moral life, or rather himself, do the same. Sirs, I repudiate, 
with all my soul, the doctrine that a man consists of his mere animal 
bulk ; that he is a mere automaton. That is the definition of man in 
his vassalid condition, of a slave, whose actions are controlled not by 
his own will, but by that of his master, and might perhaps be true of 
an oyster or a snail, but not of man in a state of freedom. As a slave, 
his entity consists in his mechanical utility to his proprietor. Fear with 



248 THE LA W OF HOMICIDE. 



Argument of Hon. Judge Rowan. 



him is the stimulant, the only motive to action, and the fear of the 
laceration of his body with the cow-hide ; but man in his native free- 
dom, or in the freedom of self-government, is an etherial, refined, 
invisible and sublimated substance. He is the moral being that occupies 
the clay tenement, and wills its motives and its actions, but not limited 
in \i\^ powers and aspirations by its limited aptitudes. The mere animal 
man can not leave the surface of his kindred earth ; but the real man, 
the moral and immortal essence, can not, will not, stay upon earth's 
dirty surface ; will not be confined within the narrow limits of his 
organic tenement — except in reference to the physical needs and 
brases of its nature , as, to all moral purposes, he ranges at large, lim- 
ited only by the calibre of his intellectual energies. Newton ranged 
among the stars, and Milton made himself familiar with both the super- 
nal and infernal regions. 

§ 345. But let us appeal to occurrences in human life. Have you 
not, gentlemen, all, or some of you, especially in early life, been embar- 
rassed, agitated and confused upon entering into a room in which there 
were ladies? What produced the embarrassment? Had there been 
no lady in the room you would not have been thus affected. The lady 
was in a remote corner of the room, say twenty feet from you, and yet 
she embarrassed you. How, in what manner, and by what process? 
She did not approach you ; she continued at the distance of twenty feet 
from you, and yet acted upon you. But nothing can act where it is 
not, and therefore she acted out of, or beyond the limits of her animal 
identity. Sirs, the ladies with whose audience we are honored during 
this' trial, have been exerting a benign influence upon all within this 
house, proximate or remote. There is, gentlemen, radiating from the 
physical structure of every individual, moral energies, feebler or 
stronger, in proportion to the calibre of his intellect, which, like the 
light and heat emanating from the sun, act upon distant and distinct 
subjects. Shall, then, this aura, this aroma of the soul — ^shall the divine 
essence of volition, be tarnished, sullied, degraded and annihilated by 
the stripes of a cow-hide, because the process does not threaten the 
destruction of the body? But, gentlemen, this subject is more dis- 
tinctly and emphatically one of intuitive perception than of reasoning. 
In its metaphysical aspect it is different, at least to me. 

But I do believe there never was a Kentuckian who would not rather 
perish than submit to be cow-hided. It is not a matter to be reasoned, 
about — ^it is a settled sentiment, inveterate and hereditary, not to be 
altered by any law of England, or of this country either. The man 
who does not, if he has it in his power, kill the man who attempts to 
cow-hide him, had better be slain himself. Public sentiment, I repeat, 
expects and commands him to do it, and surely it is not necessary to 
any good political, moral or religious purpose, that the privilege should 



TRIAL OF JUDGE WILKINSON ET AL. 249 



Aii^meiit of Hon. Judge Rowan. 



be accorded to any freeman to cow-hide his neighbor. It is unqualified 
ruin to the ma^ who submits to it. It throws him into exile in the 
midst of society ; he is shunned by even the refuse and offal of society, 
loathed and abhorred. The finger of scorn and derision is pointed at 
him from every quarter, and even by cowards. 

§ 346. Gentlemen, the stroke of the cow-hide over the head and 
shoulders of Mr. Murdaugh was an assault upon his life more deadly 
than any — than all the assaults made by the mob on that evening. He 
could not run from the cow-hide ; that would have been disgraceful and 
dishonorable ; and what a man can not do honorably he can not do at 
all. He was obliged, therefore, to kill him, for that, if for no other 
cause. That was in' itself a legion of causes. But without that, he had, 
as the proof evinces, abundant justifying cause. 

But, gentlemen, let us test the matter by the good old rule, of asking 
ourselves how we would have acted — what we would have done in the 
, like case — what would we do to the man who would attempt to cow- 
hide us? What, sirs, would we have our sons do in such a case? 
Let me answer for myself, and I think my answer will be yours. 
I am now an old man, and the blood circulates languidly in my 
veins; but languid, as the chilliness of age has made me, I declare 
solemnly in the face of high heaven, and this numerous crowd, that I 
would, if I could, kill the man who would attempt to cow-hide me; and 
I should think it the greatest misfortune of my life not to have it in my 
power to do so at the time ; for I could not present myself to my wife 
and my children after having submitted to disgrace ; and I would have 
my son to do so, too — to do as Mr. Murdaugh did. I woul(} rather he 
should have perished in attempting to defend his honor than live dis- 
graced, in the first case, I should feel bereaved and mourn his death, 
but cherish and respect his memory ; in the last, I should be mortified 
and humbled among men. I should have suspected that his mother, 
of whose fidelity a doubt had never crossed my mind, had dealt foully 
with me, and disinherit him; and so say you all, gentlemen, in refer- 
ence to yourselves and your sons; so says every Kentucky father. 

§347. Do not mistake me, gentlemen; I rate human life as high as 
any man in existence. I would not trifle with it ; I would not have it 
destroyed on slight causes. It is only when a man is in danger of 
enormous bodily harm, or of losing his life, that I would allow him to 
shed the blood of the assailant ; but to spit in a man's face, to pull his 
nose, or to* cow-hide him, is, in my estimation, the most enormous bodily 
liarm — a harm from the consequences of whicli he can only redeem him" 
self effectually by instantly demolishing the assailant if he can. To the 
list of injuries and assaults which I have mentioned, I would add a kick 
with the foot on the seat of honor ; but in front of these, and by far 



250 THE LAW OF HOMICIDE. 

Argument of Hon. Judge Rowan. 

the most to be abhorred, is a stroke with the cow-hide. In fine, gentle- 
men, a man must preserve his honor. It is the verdure of his soul ; it 
is the anticeptic of his nature, the strengthener and guardian of his 
morals. It must, I repeat, be preserved at all hazards. So says public 
sentiment, the tribunal from which there is no appeal. 

§ 348. But I will not further detain you. I have already detained 
you, I fear, too long; and yet, long as I have detained you, I have 
not (nor has any of my coadjutors), made any appeal to your 
feelings. No attempt has been made to excite your sympathies — no 
invocation to your mercy. Here the cases did not need, and the high 
character of the accused forbade any such resort; all they wanted 
they obtained in you, gentlemen, an intelligent, honorable and impar- 
tial jury. They have been, and so have been their counsel, more 
concerned about the moral than the legal aspect of the case. They 
knew that they stood acquitted and justified by the law of the land 
whenever its impartial voice could be heard. They did not, therefore, 
deprecate its sternest, its most rigid action upon their case ; but, like 
all honorable men, they have been keenly alive to the moral aspect of 
their posture. Their anxiety is, and has constantly been, that the 
public mind should, through this trial, which they are now undergoing, 
be disabused in reference to their conduct. You can not but have 
perceived that no concern for the mere personal safety of the accused has 
been displayed throughout the trial. The counsel who have preceded 
me have argued the case with wonderful ability, but evidently with no 
apprehension of a dangerous result. In fine, gentlemen, this case has 
been argued, through you, to the people. My arguments, had I felt 
concern for the safety of the gentlemen I* represent, would, I feel sure, 
have been more analytic and consecutive than they have been. The 
gentlemen who had preceded me had reaped the field, and left only a few 
straggling stalks to be gleaned ; and after such reapers no man could 
gather a respectable sheaf. I have not. therefore, attempted to take 
up. analyze and apply the testimony ; that had been done ably and 
demonstrably by my distinguished and talented coadjutors, and I could 
not think of disgusting you and tiring out myself by reiterating it. 

I feel that I have been irregular and discursive, much more so than 
had been my wont in years gone by, and I ascribe it, in some degree, 
to the causes I have just named. You, perhaps, may ascribe it to the 
growing weakness! of senility, and to guard against further exposure of 
weakness from that or any other cause, this shall be my last forensic 
effort. But before I close it, let me suggest that it would be courteous 
to these already much injured strangers, and in keeping with just 
notions of national hospitality, to render your verdict (which I know 
well will be one of acquittal), without retiring from the box. I barely 



TRIAL OF JUDGE WILKINSON ET AL. 25l 



Argament of the Prosecuting Attorney. 



suggest it. I ask nothing from you but the performance of your duty. 
I only suggest that it is your privilege to give in your verdict without 
retiring. You will exert that privilege or not, at your pleasure. 

ARGUMENT OF THE PROSECUTING ATTORNEY. 

Mr. Bullock, prosecuting attorney, then rose and spoke in conclusion 
as follows : 

§ 349. May it Please the Courts and Gentlemen of the Jury : You, gen- 
tlemen, have not disappointed the expectations I had formed of the 
attention you would give to the questions of law, the evidence, and the 
arguments of counsel in this great and important cause. I feel a pride 
in considering that so intelligent a jury could have been so easily and 
with go little exception, selected from our jury panel. I feel no less 
pride in confiding to you the scales of justice, which I know you feel 
it is your duty to hold up steadily and with an even hand. It is no 
small part of my duty to see that nothing be thrown into either scale, 
which the law -says pan not be admitted, as the measure of justice. 

1 have listened with great admiration to the splendid effort made for 
the defense by one who has risen in this court for the first time, 
though distinguished and honored throughout the Union for his 
unrivalled powers of eloquence. But, gentlemen, however much we 
may be fascinated, we must reflect that the brilliant flowers of language 
addressed to the passions, have no sympathizing response in the laws 
of the land. All that has been said to delight the fancy and to dis- 
tract your attention from the simplicity of the facts must be discarded, 
that your cool reason and dispassioned judgments may have free scope. 
And T would ask you, gentlemen, whether, in your efforts to arrive at 
a just conclusion, you will be guided by the coruscations of the gentle- 
man's fancy, or the sunlight of sober truth and reason. 

§ 350. Gentlemen of the bar will figure to themselves many founda- 
tions for their assertions, which exist nowhere but in their own imagi- 
nations. It is a misfortune to these gentlemen, as it frequently is to 
others, that the law is not to be meted out to them according to their 
peculiar notions of the standard of measure. It is, no doubt, consid- 
ered by them, too, a misfortune, that when they wish to make evidence 
appear improbable, that does not exactly suit their views; they can 
not beat down a witness by facts, but are driven to the necessity of 
exerting talents so transcendant as those of Mr. Prentiss, in blacken- 
ing, vilifying, degrading, and insulting those who are defenseless and 
unarmed with equal talents, or equal opportunities of displaying them. 
Indeed, it seems to be a matter of complaint in this defense that these 
gentlemen should at all be suspected of offense, much less brought 
here under the implication of crime. However, the counsel for the 
defense may think it necessary to resort to such tortuous paths, I, at 



252 THE LA W OF HOMICIDE, 

Argument of the Prosecuting Attorney. 

least, shall not follow their example. I shall endeavor to redeem a 
pledge I made on the outset, that I would not consume your time by 
traveling out of the straight path of the evidence and the law. 

If Mr. Prentiss, or any other gentleman, believes that in speaking of 
Mississippians, I alluded to their country disparagingly, I hasten to 
remove the unjust supposition ; and I can, with confidence, say that in 
the performance of my duty, I know no difference between a Ken- 
tuckian and the inhabitant of a sister State. When I used the appel- 
lation it might have been in reference to the greater relaxation of the 
law there respecting the use of arms, but certainly not with a view of 
raising a prejudice against these gentlemen on this trial. 

Gentlemen, you are not to ask whether they are Mississippians or 
whether they are Kentuckians. You are to decide according to law 
and evidence, regardless of passions, prejudices or sympathies, or the 
complaisance due to sister States. You are also to disregard the 
peculiar laws and customs of those sister States, and to decide accord- 
ing to the laws recognized in Kentucky alone. 

g 351. I will here touch upon a point not urged by Mr. Hardin. It 
is on the subject of character. One of the most felicitous passages in 
Mr. Prentiss' speech was that in reference to the character of these 
gentlemen, and I am willing to accord to it all that weight which the 
law allows, but no more. However high these gentlemen may stand in 
the estimation of the citizens of their own State, yet their character is 
enitled to no more consideration than the law allows of in cases of 
doubt. But where no doubt exists, are you to consider character, 
however exalted, an impunity from punishment, or suffer it to wipe 
away from the insulted majesty of the law, the stain fastened upon it 
by the blood shed by their hands in the Gait House ? Starkie, second 
volume, page 214, lays down this rule : ** Where the guilt of an accused 
party is doubtful, and the character of the supposed agent is involved 
in the question, a presumption of innocence may arise from his former 
conduct in society. Such presumptions are, however, remote from the 
fact, and are entitled to little weight, except in doubtful cases." {a) 

If these gentlemen are entitled to that triumphant acquittal — to the 
acquittal by acclamation invoked from you — why have their advocates, 
who are lawyers of great learning, thrown the character of their clients 
into the defense, when they knew you could weigh that subject only 
when guilt or innocence is doubtful. 'Tis only (and they well knew it) 
where the scales are equipoised that character, like the sword of the 
Gaul upon the Roman battlements, can be thrown in to make either 
preponderate. Another thing they urge is that Judge Wilkinson, 
placed in such delicate circumstances as he was in regard to his 

(a) As to character of defendant, see jx»<, g 566-7-8. 



TMIAL OF JUDGE WILKINSON ET AL. 253 

Argument of the 'ProsecutiDg Attorney. 

contemplated marriage, would be the last to engage willingly in a fight 
or angry controversy. Unfortunately the Judge's own conduct offers a 
refutation to this argument. He displays none of that forbearance 
and unwillingness to embroil himself in fight, when, without provoca- 
tion, upon a slight and imaginary insult, he attacks the poor tailor in 
his own shop. 

§ 352 Judge Rowan and Mr. Prentiss would have you believe that 
the common law of England should be made to bend to the peculiar 
circumstances of their defense. Will you, gentlemen, change the law ? 
Will you warp and bend the common law of England, adopted by our 
constitution, and to which we owe protection of life, personal liberty 
and property ? I am well assured you will not take upon you to judge 
how the law ought to be bent, when you are told and must feel per- 
suaded that you are bound to take it as it is. Were you, indeed, in 
another place, delegated to the halls of your Legislature, you might 
individually make the attempt, unavailing though it might be ; but 
here you can not — you ought not. Some such notions as those of the 
gentlemen gave rise, I have no doubt, to the act of Assembly, which 
I will now read — second volume Dig. L. Ky., page 1295: "Whereas 
It is represented to the present General Assembly that doubts exist," 
etc., ^Therefore, Be it enacted," etc., " That nothing in the before-recited 
act sjfeftU be construed to change or alter the definition and punishment 
of nuuj^My^the common law," etc. 

Here the»^s the re-enactment of the common law, and here your own 
Legislature tells you that you must not be led away by the sophistry 
of counsel to believe so foolish a thing as that you are permitted to bend 
the law to suit their purposes. Is the law to be warped because they 
conceive there is a degradation in being struck with a cow-hide ? It is 
also a degradation to be called a fool or a liar, but the law says words 
are no excuse for even an assault, and where are you then to draw the 
line of demarcation ? 

§353. There is a spirit of licentiousness abroad, which, if not 
checked, may lead to consequences not to be contemplated without hor- 
ror. This licentiousness has already been suffered to go too far. But 
why need 1 stand here to tell you of what you all know, or to defend the 
laws, for they defend themselves ? Neither is it necesssary that I should 
stimulate you to the keeping of your oaths, or to admonish you that 
you have sworn solemnly to administer the law in justice no less 
than in mercy. I am bound to take it for granted that you will do 
so. I have, indeed, an admission from the gentlemen that the com- 
mon law of England governs the case, and not adventitious notions 
of what ought to be the common law. 

I know it is the customary resort of lawyers to ask you as jurors 
to place yourselves in the situation of the accused, and say how you 



254 THE LA W OF HOMICIDE. 



Argument of the Prosecuting Attorney. 



would act under similar circumstances. My answer would be that 
with similar motives, similar passions, similar disregard of the laws, 
as well as similar circumstances, 1 would act precisely as they did. 

These gentlemen have taken what I consider an unwarrantable 
liberty in denouncing the practice of lawyers taking money in aid of 
the prosecution from the fi-iends of the deceased. Yet where would 
now be the fame of the greatest lawyer Kentucky has ever boasted 
of had the precepts of the gentleman's own ethics applied to his own 
practice. He can not see the difference between a man who kills a 
man for his monej^ and the man who takes money to kill another. That 
gentleman himself has defended many horse-thieves and highway 
robbers, and accepted from their polluted hands a portion of their 
spoils as a reward of his services in snatching them from the fangs of 
offended law and justice. I need refer to no stronger case than that of 
•John Hamilton, who murdered in cold blood for his money the unfor- 
tunate Dr. Saunders. Has not Judge Rowan himself thus fed and 
clothed his family, fattened and grown rich upon the spoils of thieves 
and murderers? But, still, I blame him not. "It was his vocation, 
Hal " Why, then, insult my friend Mr. Hardin on this subject? I 
need say no more; the argument, of course, goes for nothing. 

§ 354. To return to the subject of these gentlemen's readiness to arm 
themselves for battle. Have we not" proved that Murdaugh and Dr. 
Wilkinson, upon the slightest provocation, were prompt in palling out 
their weapons almost upon every and all occasions. Does this argue a 
disposition willing to be driven to the wall before self-defense renders 
the use of such weapons lawful ? 

§ 355. Let me, before I proceed further, endeavor to wipe from the 
fair fame of Mr. Bedding the foul and unjust stigma with which it has 
been branded. When I attempted to obtain from respectable witnesses, 
merchants of Louisville deservedly of high standing, men who could 
have testified to his character in proof of .its being esteemed as elevated 
as that of any man in the community to which he belongs, I was met 
with the assurance from the other side that they did not intend to 
question or impeach his character. Yet how unfairly and unhand- 
somely do they come in after the evidence had closed, with all the 
vituperation of secure malignity, to stigmatise him as a perjurer and 
murderer. 

[Here Col. Robertson rose to say thaf they committed no breach 
of promise, not having assailed Mr. Redding's previous charact^, 
but his false testimony before this court.] 

Mr. Bullock: What has he stated that is not corroborated by others 
whose veracity is unquestioned ? He stated that he was assaulted in his 
own store. Are his details of that transaction unsupported by other evi- 
dence ? He goes to the Mayor's office. Is that untrue ? He asks for a 



TRIAL OF JUDGE WILKINSON ET AL. 255 

Argument of the Prosecuting Attorney. 

warrant ; is told he must have the names ; is offeped a warrant with 
names, to be filled up — declines it — says he would prefer going for the 
blanks or getting an officer to arrest the parties, knowing only one 
name — ^goes by Market strett — tells his brother-in-law what happened — 
is accompanied by him to the Gait House — says that in the bar-room he 
got the names — asked Judge Wilkinson if he was not the gentleman 
who had struck him in his own shop. All these things are leading 
facts, and is he not corroborated in stating them ? But an attempt is 
made to show a disposition to assault Judge Wilkinson in that very 
observation in question, " I think, sir, you are the gentleman who 
assaulted me with the poker in my own house or shop." What is there 
remarkable in that ? Does it not corroborate and fit in with his state- 
ment about the names, the blank warrant, and many other things ? In 
getting the names he was uncertain of the persons, and to assure him- 
self asks one if he was not the person who had struck him. What 
could be more natural, to see that he was right ? 

§ 356. Mr. Hardin has read to you from Foster that no words, how- 
ever opprobrious, are sufficient to justify an assault — may I not ask. 
how much less sufficient to justify a killing ? However refined and 
subtile Judge Rowan's notions may be of the nature and value of life, 
the notion entertained of it by the law is a surer guide. The law says 
that by it alone you must be guided, and not by vague and indefinite 
distinctions. 

Mr. Prentiss has made a most ingenious argument to prove that a 
conspiracy existed against these gentlemen ; but unfortunately he lays 
his principal foundation stone upon Jackson's testimony, which we 
have proved to be a running quicksand and unworthy of trust or confi- 
dence. The opposite side contend that Johnson and Redding are not 
entitled to credit. Well, suppose that were the case — though I am 
far from admitting it — but suppose the case, what then ? Can we not 
make them a present of their testimony and throw it aside with that 
of Jackson and Oliver, however unwilling to let them into such com- 
pany, have we not abundance of evidence as to the leading facts — and 
how will the gentlemen contradict that evidence ? Oldham tells you 
that while the affiiir was going on he was talking to some one about 
bringing a boat down the river from the mouth of the Kentucky, and 
that he had gone there to see that gentleman upon that subject, and 
had no knowledge of any conspiracy and consequently no idea of 
joining in it. Johnson tells you plainly how he got there — he had 
parted from Redding at the jail and had gone in search of an officer; 
that he went to the Gait House merely to see the arrest. Rothwell, it 
is well known, accompanied Redding as his brother-in-law. Halbert 
boarded in the Gait House, and had as much right to be there as Wilk- 
inson or any one else. Holmes, who was his bosom friend and comrade, 



256 THE LA W OF HOMICIDE. 

Aigoment of the Prosecutiiig Attomej. 

was there on his invitation as his guest. Might not the gentlemen as 
well ask how came Trahue, Montgomery and others there ? Had Montr 
gomery who raised a chair, heen killed, these gentlemen might as well 
be defended for that killing as for that of Meeks and Rothwell. 

§357. Another argument is, that these gentlemen were going down 
to supper — and I do not myself think they were bound to go through 
any other than the bar-room passage ; yet if their object was merely to 
go to supper, why did Murdaugh come wrapped in his overcoat? I 
have no doubt that the witness who expected there would be a 
fight, attended the Gait House for no other reason than that which is 
so common throughout Kentucky as well as everywhere else, to be 
looking on wherever there is a fight ; for people, in spite of all we can 
say, will have the curiosity to see what is going on even in the jaws 
of danger. 

I thank Judge Rowan for the fine definition he has furnished of the 
value of human life, because I may quote what he advances on the 
subject in proof of the value of these gentlemen's lives, to show that 
the lives of Rothwell and Meeks were to them and their friends no less 
valuable — no less precious. And will Judge Rowan say that we must 
throw the shield of the law between these gentlemen and their tempo- 
rary loss of liberty, yet deny its protection of the lives of Rothwell 
and Meeks, to the Commonwealth, when threatened with the loss of 
two valuable citizens. I tell you, gentlemen, it matters not whether 
you believe the law ought to be other than it is, you are bound to admin- 
ister it though the heavens should fall — you are bound to administer it 
as it is, for you are sworn to do it. How does Mr. Murdaugh stand on 
that point ? who showed the first weapon ? who brandished his dirk, 
and seemed to court the combat? 

g 358. In reference to the opinions of Mr. Prentiss and Judge Rowan, 
that a man's right to self-defense is founded upon his own notions of 
right, I have a few observations to make. If that were really the law, 
in the name of common sense, could any man ever be convicted ? Does 
the law quoted by them actually establish such an absurdity ? Far 
from it. Their doctrine is too wire-drawn for their purpose. The words 
of the law say there must be satisfactory proof that the danger was 
imminent. I have said before that the law presumes the guilt of the 
slayer until his innocence is shown. There must be evidence of that 
innocence where there is ground to presume guilt. We have proven 
the fact that Rothwell and Meeks were killed. Must not these gentle- 
men who killed them prove their innocence ? 

* In reference to a point made against me, if I said, as is alleged, that 
a man has no right to kill another who is slaying his brother, I meant 
to say that he had no more right from the circumstance of relationship 
than he had without it ; but I did not intend to deny the right of any 



TRIAL OF JUDGE WILKINSON ET AL, 257 

Aigument of the Prosecuting Attorney. 

man to prevent a killing by slaying him who is in the act of commit- 
ting a felony. Now, when Judge Wilkinson made the fatal stabs with 
his knife, is the fact proven that his brother was in such apparent and 
imminent danger of immediate death as to justify his interference upon 
the principles of the case read by the gentleman from Lord Hale ? 

Gentlemen, you have been detained a great while on this trial. It is 
justly considered an important trial ; the manifest anxiety of a crowded 
court evinces it. You have been told that owing to peculiar circumstances 
you are to bend the law of England common to this country; that 
because a cow-hide has been used, which here is considered a degrada- 
tion; that because of these things you are, at the request of these 
gentlemen's advocates, not alone to acquit the prisoners, but to acquit 
them with plaudits, and to excite the applause of the crowd. You are 
told all this, though it is known you have a grave and solemn duty to 
perform ; though it is presumed you have heard of the majesty of the 
law, and though you see before you that majesty represented with such 
dignity by the presiding Judge of this court. These things are not to 
be overlooked. If the law is to be vindicated, if it has been broken, 
if it has been violated, render your verdict in its vindication. If you 
believe these gentlemen innocent, acquit them, but do it with propriety. 
But I would entreat you to deliberate ; and whether you vindicate the 
offended laws or restore the innocent to society unscathed, in render- 
ing your verdict remember that this is not a theater, but a solemn 
court of justice. Gentlemen, the case is with you. 
[Concluded at fifty-five minutes past three o'clock.] 
The jury remained in consultation exactly fifteen minutes, and upon 
returning to the court and being called over, gave in the following 
verdict. On the indictment for the murder of John Rothwell : 

" In the case of Edward C. Wilkinson and others, for the murder of John Bothwell, we of 
the jury, find the within -named defendants, and each of them, not ouilty of the oflfenae 
charged against them in the indictments. Robert Alezawdbr, One qf the Jufy." 

The same verdict was rendered on the indictment for the murder 
of Alexander H. Meeks. 



H.— 17 



APPENDIX. 



The following is a copy of a petition and accompanying certificate 
presented to the Legislature by defendants in this cause, for change 
of venue : 

To (he Honorable the Speaker of the House of Representatives of the Common- 
wealth qf Kentucky : 

The undersigned, your petitioners, beg leave most respectfully to 
represent to your honorable body that they are indicted in the Circuit 
Court of the County of Jefferson in two separate cases for the crime 
of murder, and in one case each in the Police Court of the city of Louis- 
ville for assault and battery. While your petitioners feel the most 
thorough conviction that the disaster which led to those indictments 
was unavoidable on their part, and forced upon them by the necessity 
of protecting their persons from violence, and, as they believe, their 
lives from the most wanton sacrifice, at a time when appeal to the laws 
or refuge to the aiithorities of the country could not be thought of; 
while they are assured that from an impartial tribunal they can have 
nothing to fear, they yet assert, with a confidence in which they think 
they can not be deceived, that the excitement of the public mind of 
the city and county where these causes are pending is so intense, so 
deep and so general, that fair and impartial trials are not reasonably to 
be expected, and that they look for nothing but injustice and oppression 
unless the venue of every case is changed by your honorable body to 
some county not contiguous to Jefferson, nor liable from its position to 
imbibe the prejudices or catch the contagious feeling of the populace 
of Louisville. Your petitioners are advised that aid in this matter of 
the change of venue can only be afforded them by your honorable 
body, and they therefore pray you will extend that aid by passing a 
law for that purpose. 

Convinced as they are that their apprehensions are not idle or 
groundless, but the result of a very calm and careful, though anxious 
survey of the condition of public sentiment with reference to their 
cause, since the catastrophe out of which it grew to the present time— 
and, as in duty bound, they will ever pray, etc. 

Edward C. Wilkinson, 
John Murdaugh, 
Ben. R. Wilkinson. 

Jefferson County Court. — This day came the parties whose names 

(258) 



TBIAL OF JUDGE WILKINSON ET AL. 259 

Appendix. 



are affixed to the foregoing petition and made oath in due form of law 
that the matters and things stated in the said petition are true. Given 
under my hand and seal, this 14th day of January, 1839. 

.Daniel C. Banks, J. P., J, C 

B. 

On an application of Judge Wilkinson, Dr. Wilkinson and Mr. Mur- 
daugh, to the Legislature for a change of venue, on an indictment 
found against them in the Jefferson Circuit Court for murder, the 
undersigned have been called on to express their opinions, whether 
there is a necessity for such change of venue. They certify that on no 
occasion have they ever witnessed so much excitement as existed at 
the time the unfortunate event occurred, and it continued to exist for 
some time. Since an examination of the testimony before the commit- 
ting Judge has been heard, there is not so much excitement ; that the 
crowds attending that excitement for a week or more, sufficiently man- 
ifested the general feeling in the community. The undersigned are of 
opinion, that, even at this time, there would be great uncertainty in 
obtaining a jury who had not heard the testimony or some part of it, 
and formed and expressed an opinion for or against the accused. And 
they are of opinion that the ends of justice, as well as it regards the 
Commonwealth as the accused, would be better attained by a change 
of the place of trial from this city and county. 

R. Tyler, J. M. Clendenin, H. B. Hill, 

J. Everett, John I.. Gray, John 0. Cochran, 

A. Throckmorton, R. S. Ward, Nathaniel Wolfe. 

William Riddle, Abraham Hite, 

The foregoing contains a true copy of the petitions presented to the 
Legislature of Kentucky at the last session, for a change of venue, by 
E. C. Wilkinson, etc., taken from the originals (on file) by me this 
26th April, 1839. John C. Herndon, 

AssH Clerk H. B. 
§ 362. The following is an authenticated copy of the act of the 
Legislature authorizing the change of venue : 

" Ax Act authorizing a change of venue in the case of the Common- 
wealth against Edward C. Wilkinson, Benjamin R. Wilkinson and 
John Murdaugh. 

1. Be it enacted by the General Assembly of the Commonwealth of Ken- 
tucky, That the Judge of the 12th Judicial District shall be and he is 
hereby authorized and required to hold a special term of the Mercer 
Circuit Court for the trial of criminal cases, to commence on the 4th 
day of March next and continue for and during twelve judicial days 
if the business require him so to do. 

2. That it shall be lawful for the Jefferson Circuit Court and the 



260 THE LA W OF HOMICIDE. 

Appendix. 

Police Court of the city of Louisville, respectively, on the appearance 
of Edward C. Wilkinson, Benjamin R. Wilkinson and John Murdaugh, 
in the discharge of their respective recognizances entered into in said 
court by reason of indictments therein preferred against them for 
murder and assault and battery, and upon the said accused persons and 
each of them directing in open court their election and consent to be 
entered of record, to make an order changing the venue of said cases 
to the Mercer Circuit Court. 

3. That when the said order for the change of venue shall have been 
made in conformity with the second section of this act, it shall be the 
duty of the Judge of the Jefferson Circuit Court and Police Court 
respectively, to require the said Edward C. Wilkinson, Benjamin R 
Wilkinson and John Murdaugh, respectively, to enter into recogni- 
zances in such penalty and with such surety or sureties as may in the 
discretion of such Judges, respectively, seem proper, conditioned for 
the appearance of the said Edward C. Wilkinson, Benjamin R. Wilk- 
inson'and John Murdaugh, severally, at the Mercer Circuit Court on 
the said 4th day of March next. And it shall also be the duty of said 
courts to recognize the witnesses for the Commonwealth in said cases 
to attend at the said Mercer Circuit Court on the said 4th day of March 
next. And when the said changes of venue shall have been ordered 
in compliance with the provisions of this act, it shall be the duty of the 
clerk of the said courts, respectively, and they are hereby required, 
forthwith to transmit to the Clerk of the Mercer Circuit Court the 
indictments against said Wilkinsons and Murdaugh, and likewise all 
bonds, writs, recognizances or other papers filed in said cases, together 
with full and complete copies of all orders made in said cases by the 
sheriff of Jefferson county, and the clerks of said courts shall take 
from the sheriff a receipt for the papers so to him delivered. And it 
shall be the duty of said sheriff with all possible despatch to deliver 
said papers to the Clerk of the Mercer Circuit Court and take his 
receipt for the same ; and upon said sheriff producing said receipt to 
the Judge of the Jefferson Circuit Court, it shall be his duty to make 
an order allowing said sheriff six cents per mile for each mile by him 
traveled in going to and returning from the said county of Mercer, 
which said allowance shall be paid out of the treasury. 

4. That if either of said clerks or the sheriff shall fail or refuse to 
comply with or perform the duties imposed upon them and each of 
them by this act, the party so offending shall be subject to a fine of one 
hundred dollars, to be adjudged against him or them by the Jefferson 
Circuit Court upon motion by the Attorney for the Commonwealth, 
upon reasonable notice being given of said motion. 

5. That the Clerk of the Mercer Circuit Court, upon receiving the 
papers in the said prosecutions, shall set the said cases for trial on the 



TRIAL OF JUDGE WILKINSON ET AL. 261 

Appendix. 

said 4th day of March, and issue a venire facias and subpoena for wit- 
nesses as if the said indictments had been originally found in said 
court. And the Judge of the Mercer Circuit Court shall have as full 
and complete jurisdiction of said cases, and as plenary power to try and 
determine the same, as if the offenses wherewith the said parties stand 
charged and had been committed in the said county. And it shall be 
the duty of said Court in his discretion to make all such orders in said 
cases that he might according to law makie where the indictments had 
been found in said court. And the Judge of the said Mercer Circuit 
Court shall, upon the finding of the jury, pronounce final sentence of 
condemnation or acquittal, or set aside the verdict or verdicts that may 
be rendered on said trial, and grant a new trial or trials, if the justice 
of the case requires it, in like manner as if the offenses had been 
committed within the jurisdiction of said court. 

6. That the Judge of the Mercer Circuit Court shall be, and he is 
hereby authorized and empowered, to recognize the witnesses on the 
part of the Commonwealth, to appear from time to time as the said 
case may be continued ; and shall proceed upon all recognizances in 
the same manner as if the same had been entered into in said court. 
And in case the indictment or indictments heretofore found against 
said Edward C. Wilkinson, Beiyamin R. Wilkinson and John Mur- 
daugh, or either of them, shall be found or quashed, or the judgments 
thereon arrested, the said persons so accused shall not for that cause 
be discharged, but a grand jury shall be summoned, and the case or 
cases again submitted to them to be acted upon as if the offense had 
been committed within the jurisdiction of said court ; and upon the 
finding of another indictment or indictments, the said parties shall be 
again put upon their trial, and the case or cases proceeded in in all 
respects as if the said offenses charged had been committed within the 
jurisdiction of the said court. 

7. That the sheriff, clerk and jailor shall perform all the duties per- 
taining to their respective offices in the progress of said trial as if the 
said cases had properly originated within the jurisdiction of said court. 
And witnesses attending the said Mercer County Court, in consequence 
of this change of venue, upon recognizance or subpoena shall receive 
the same compensation that is allowed by law to other witnesses going 
out of their counties upon legal process. 

8. That no number of continuances granted by the Judge of the 
said Mercer Circuit Court at the instance of the Commonwealth shall 
operate the discharge or acquittal of the said Edward C. Wilkinson, 
Benjamin R. Wilkinson, and John Murdaugh, or any one of them. 

A copy from the original, which has passed both branches of the 
Legislature. January 28th, 1839. 

Attest: T. J. Helm, C. H. R. 

John C. Herndon, AssH, 



PART II. 



THE LAW OF HOMICIDE. 



excusable. Justifiable and Felonious Homicide. 

§ 471. Homicide is the killing of a humaQ being. It is 
not necessarilj a crime at all : but it is either excusable^ justi- 
fiable or criminal^ according to the circumstances. Before 
proceeding to discuss the different grades of felonious homicide, 
it will be convenient to consider the law of justifiable and 
excusable homicide. There is no practical distinction^ in this 
country, between these two classes of homicide, — for the result 
in both cases is the same, namely, an acquittal and discharge 
from all punishment and restraint, except that in some of the 
States, by statutory enactment, a party acquitted on the ground 
of insanity is restrained of his liberty, for a greater or less 
period. The distinction between justifiable and excusable 
homicide was once important in England, because, in the latter 
case, the law presumed that the party was not wholly free 
from blame, and therefore he suffered a forfeiture of his goods, 

at least. (*) 

Justifiable Homicide. 

§ 472. Preserving the distraction between these two kinds 
of homicide for the sake of order and convenience, the follow- 
ing are some of the cases in which the taking of human life 
is held to be justifiable : 

1. Killing an alien enemy in battle in time of war; 

2. Executing a criminal by an officer, pursuant to a death- 
warrant, and in strict conformity to law ; (a) 

(1) 4 Bl. Com. 188 ; 2 Inst. 148, 315. 

(a) 1 Hale, 448; Com. v. Daley j 4 Penn. Law Journal, 158 ; 8 Greenl. Ev. g 115. 

(263) 



264 THE LAW OF HOMICIDE. 

Excusable Homicide - Self-Defense. 



3. For the prevention of an atrocious crime, attempted to 
be committed by force, such as murder, robbery, burglary, 
rape, mayhem or any other felony against the person ; (a) 

4. . When an officer of justice, in the legal exercise of a 
particular duty, kills a person who resists or prevents him 
from exercising it. (6) 

But the right of an officer to take the life of one who resists 
an arrest, or attempts to escape, is a grave question, and requires 
careful and somewhat elaborate consideration. Seepo^^, §§ 527, 
528, 529. 

£xcii8able klomic^de. 

§ 47*^. Excusable homicide (c) is : 

1. Where a man engaged in a lawful act, kills another by 
accident ; 

2. Where a man kills another in the necessary defense of 
himself, or those whom he is bound to protect or defend, viz.: 
those between whom and himself any of the domestic relations 
exists, such as that of master and servant, husband and wife, 
parent and child, (d) 

§ 473a. There is another case of non-punishable homicide, 
which should be named as excusable, viz.: where the perpe- 
trator, by reason of tender years or insanity, is incapable of 
committing a crime or forming a criminal intent. 

Self-Defense. 

§ 474. As the plea of self defense is the most common 
case of excusable homicide, it is proposed to consider it in this 
place, with a considerable degree of elaboration. Before pro- 
ceeding further, however, it is proper to inform the reader 
that much that is laid down here, from the common law author- 
ities has been materially modified by decisions in the various 
States. 

(a h) 4 Bl. Com. 178, 180 ; 1 Russell on Or. 665, 670. 

(c) Bick. Or. Practice, 269. ' 

(d) 4 Hale, 484 ; 21 Ind. 23 ; 23 Ind. 231 ; 24 Ind. 151 ; 43 Ind. 871 ; 45 Ind. 518 ; SlraiUm r 
Staiey 30 Miss. 619 ; 51 Ind. 407 ; 51 Ind. 453 ; 56 Ind. 122 ; 57 Ind. 80 ; U. S. v. Wmerger, 3. 
Wash. C. C. 515 j Short v. State, 7 Yerg. 510; Sharp v. State, 19 Ohio, 379. 



THE LA W OF HOMICIDE. 265 

Self-Defense^Betreating. 

^ ■ ■ ■ ■ ■■■ ■■■■!■ I. ■ I ■ I ■ ■■ I I ■! I ■» ■ I ■ ^^—^1 I ■ ■ I ■ ^^i^^l^MI^^ 

§ 475. Oae of the cases of excusable homicide^ is, where 
one is assaulted, upon a sudden affray, and in the defense of 
his person, where immediate and certain suffering would be 
the consequence of waiting for the assistance of the law, and 
there is no other probable means of escape, he kills his assail- 
ant. 

" To reduce homicide in self-defense to this degree,^' it must 
be shown that the slayer was closely pressed by the other 
party, and retreated as far as he conveniently or safely could, 
in good faith, with the honest intent to avoid the violence of 
the assault. The jury must be satisfied that, unless he had 
killed the assailant, he was in imminent and manifest danger 
of losing his own life, or of suffering enormous bodily harm. 
So the law is laid down in 3 Greenl. Evidence, § J 16, citing 
4 Bl. Com., 182; 1 Buss, on Crimes, 660, 661 ; Whar. Am. 
Crim. Law, 385, 397. 

§ 476. It is to be observed that Prof. Greenleaf, in his 
work on evidence, title " Homicide," does not allude to the 
cases wherein the defendant may kill in self-defense, upon 
apparent danger of death or great bodily harm, where the 
deceased being the assailant, and the accused being without 
&ult, has reasonable and probable cause to believe, and does 
honestly believe from the acts of the assailant, that his life is 
in danger, or that great bodily harm will be done him unless 
he defends himself. This is a good defense, as will be shown 
hereafter; post, §§ 479, 480, 481, et acq. 

§ 477. Blackstotie says, ^^ That the party assaulted must 
flee as far as he conveniently can, either by reason of some 
traU, ditch or other impediment, or as far as the fierceness of the 
assault will permit ; for it may be so fierce as not to allow him 
to yield a step without manifest danger of his life, or enormous 
bodily harm ; and then in his defense, he may kill his assail- 
ant instantly.*' (a) 

(a) 4 Black. 185 ; Wright v. The State, 44 Tex. 645 ; Styles v. The Stale, 57 Ga. 183 ; The State 
V. Dixm, 75 N. C. 275 ; West v. State, 2 Tex. App. 460 ; Erwin v. State, 29 Ohio, 186 ; Tiner t. 
Stale, 44 Tex. 128 ; James v. State, 44 Tex. 314 ; Marks v. Borum, 57 Tenn. 87 ; ZweUs v. The 
State, 92 Aili. 585, 



266 THE LA W OF HOMICIDE, 

Self-Defense— BetreatiDg. 

m 

% 478. Such is the law as laid down in the common law 
authorities. But this doctrine that a man when murderously 
assaulted must ^^ turn tail and run/' (to use the language of 
ex-President Lincoln)^ and keep running until he runs against 
a stone wall or some other impediment^ before he is allowed 
to slay his assailant^ has been received with great disfavor in 
modern times^ and may be regarded as almost entirely exploded 
in this country. Indeed, even at common law^ the party 
assailed was not obliged to flee at all^ if the onset was so sud- 
den, or the danger was so imminent^ that giving back would 
endanger his life^ or would, under the circumstances be of no 
avail. If there ever was a good reason for this ^^ running 
doctrine/' it does not exist ajb this day, It had its origin at 
the dawn of the common law, before the invention of gun- 
powder and revolvers. At that time all " gentlemen'* wore 
swords^ and the common people carried Sheffield whittles and 
staves. No body carried a pistol. Then a party assaulted 
and in imminent danger of death might save himself by run- 
ning ; now the assailed party would probably increase his 
danger by retreating from the pistol with its " swift and leaden 
death.'' The reason for the old law has, in a manner, ceased — 
therefore the "running doctrine" should cease. CessarUe 
ratione legia, cesscU ipsa lex. Upon this question the following 
decisions have been made in Indiana : 

§ 479. " Where a person, being without fault, and in a place 
where he has a right to be, is violently assaulted, he may, with- 
out retreating, repel force by force ; and if, in the reasonable 
exercise of his right of self-defense, he kills his assailant, he is 
justifiable; and if the defendant, when assaulted, believed, 
and had reasonable cause to believe, that the use of a deadly 
weapon was necessary to his own safety, then he had a right 
to act upon such reasonable belief." (a) 

(a) Runnion v. The State, 57 Ind. 80 ; Erwin v. The State, 29 .Ohio St. Bep. 186 ; StaU v. 
Kenedy, 20 Iowa, 569; StaU v. Harrii, 1 Jones (N. C.) 190; Styles v. The State, 57 Ga. 183; 
State y. Dixon, 75 N. C. 275 ; State v. CoUins, 32 Iowa, 38 ; PhiUipt v. Com. 2 Duvall (Ky.) 
328 ; Tweedy v. State, 5 Iowa, 433 ; Bohannan v. Com. 8 Bush (Ky.) 481 ; Maher v. People, 24 
111. 241; State v. Thompson, 9 Iowa, 188. 



THE LAW OF HOMICIDt!. 267 

Self-Defense— Reasonable Apprefei«oaion. 



'^ Retreat is not always a condition which must precede the 
exercise of the right of self-defense/^ (a) 

!Rea«»onable Oronnd of Apprehension— Selfirl^e^s Case. 

§ 480. The position assumed by Hon. S. S. Prentiss in the 
argument of the Wilkinson case^ that, if the defendants 
believed and had reasonable cause to believe and apprehend, 
from, the acts of the deceased, and those acting with him, that 
they were in danger of death or great bodily harm [the 
defendants being without fault], they, the defendants, had a 
right to use the same means of self-defense against such 
apparent danger as if the same had been real, although the 
position was assailed by Hon. Benjamin Hardin as a novel 
and dangerous doctrine — is sound law, and was not then a 
novelty, but has always, to a considerable extent, been recog- 
nized in principle, in the adjudicated cases and in the text- 
books. 

§ 481. Thus, if the apprehension of an immediate and 
actual danger to life, or great bodily harm be sincere, it is a 
defense, if such apprehension be reasonable. This has often 
been adjudicated in ancient and modem times, (b) In an old 
English case it appeared that the defendant being in bed, and 
asleep in his house, his maid-servant who had hired the 
deceased to help her to do her work, as she was going to let 
her out about midnight, thought she heard thieves breaking 
open the door, upon which she ran up stairs to her master and 
informed him thereof; who, rising suddenly and running 
down stairs with his sword drawn, the deceased hid herself in 
the buttery, lest she should be discovered. The defendant's 
wife, observing some person there, and not knowing her, but 
conceiving that she was a thief, cried out, " Here be they that 

(a) Creek v. The State, 24 Ind. 151. 

(6) Shorter v. The People, 2 Comst. 198 ; Patterson v. The People, 45 Barb. 625 ; People v. 
Cole, 4 Parker C. C. 35 ; Whartoa Am. Cr. L. g 1026; Creek ▼. Th« StaU, 24 Ind. 151 ; 
CampMl ▼. People, 16 TIL 17; «S?a/« v. CoUins, 32 Iowa, 39 ; Adams y. The People, 47 111. 208; 
State V. Swift, 14 La. Ann. 827 ; Bunnion v. The State, 57 Ind. 80 ; Jarrett v. The State, 58 Ind. 
293 ; Com. v. Woodward, 102 Mass. 155; Maher v. The People, 24 m. 241 ; Petri v. People, 65 
m. 18 ; Slate t. Burke, 30 Iowa, 331. 



268 THE LA W OF HOMICIDK 

* Self»I>efeiue--Selfridee'8 Case. 

would undo us." Thereupon the defendant ran into the but- 
tery, in the dark, not knowing the deceased but taking her to 
be a thief, and thrusting with his sword before him, killed her. 
This was held to be a misadventure, (a) 

§ 482. Sir William Uawkesworth, being weary of life and 
willing to be rid of it by the hand of another, having first 
blamed his keeper for suffering his deer to be destroyed, and 
commanded him to execute the law, came himself into his 
park at night, as if with intent to steal the deer ; and being 
questioned by the keeper, who knew him not, and refusing to 
stand or answer, was shot by the keeper. This, says Lord 
Hale, was holden excusable homicide by the statute de malefac- 
ioribuB in parcis, because the keeper was in no fault. (6) 

§ 483. The statement of Mr. Prentiss, in his address to 
the jury in the Wilkinson case {antCy § 174), that " reasonabk, 
well-grounded apprehension arising from the actions of others, 
of immediate violence and injury, is a good and legal excuse 
for defensive action," is consonant to reason and fully sustained 
by the authorities. Perhaps he should have qualified the 
statement with the condition, ^^the defendant being without 
fault." 

§ 484. The illustration of Mr. Prentiss {ante^ § 206), has, 
in reason, all the force of judicial sanction, viz. : " If mine 
enemy point at me an unloaded pistol or a wooden gun, in a 
manner calculated to excite in my mind apprehensions of 
immediate great bodily harm, I am justifiable in taking his 
life, though it turn out afterward that I was in no actual 
danger." 

§ 485. Selfridge^s Case. — This was one of the earliest 
cases in this country in which the doctrine of "reasonable appre- 
hension," etc., was distinctly recognized and applied by the 
court. The acquittal of Selfridgc, for the killing of young Aus- 
tin, was regarded by many as a ^reat outrage upon public justice. 
The homicidie grew out of a political quarrel, in Massachusetts, 

(a) Levet's Case, Cro. Car, 538 ; 1 Hale, 42, 174. 
(&) 1 Hale, 40. 



THE LA W OF HOMICIDE, 269 

Self-Defenae— Selfridge's Case. 



when party feeling ran hjgh between the Federalists and the 
National Kepublicans. It is most likely that the acquittal of 
defendant was wrongful^ and that the accused should have 
been convicted of manslaughter at least. Yet the principles of 
law as laid down in that case by the learned Judge Parker, 
as abstract propositions, must be admitted in the main to be 
good law, viz : " That when, from the nature of the attack, there 
is reasonable ground for a man to believe that there is a design 
to destroy his life, or commit any felony upon his person, the 
killing of the assailant will be excusable homicide, although it 
should afterward appear that no felony was intended. And 
there must be not only reasonable ground to believe that there 
is a design to destroy the defendant's life, but that reasonable 
belief should be based, not on surmises or interences, but 
on an actual, immediate and physiclal attack from the assail- 
ant. A, in the peaceable pursuit of his affairs,^' he said, 
" sees B rushing rapidly toward him with an outstretched arm 
and a pistol in his hand and using violent menaces against his 
life as he advances. Having approached near enough in the 
same attitude. A, who has a club in his hand, strikes B over 
the head before or at the instant the pistol is discharged, and 
of the wound B dies. It turns out that the pistol was loaded 
with powder only, and that the real design of B was only to 
terrify A. Will any reasonable man say that A is any more 
criminal than he would have been if there had been a bullet 
in the pistol ?'' 

This is very good law, but the fact was, that it was the 
defendant, Selfridge (*^A''), that had the loaded pistol, and 
" B'^ (Austin), had only a cane. 

§ 486. The principle has been carried still further in Ten- 
nessee, where the Supreme Court decided that if a man, though 
in no danger of serious bodily harm, through fear, alarm or 
cowardice, kill another, under the impression that great bodily 
injury is about to be inflicted upon him, it is neither murder 
nor manslaughter, but self-defense, (a) 

(o) Grainger v. The State, 5 Yerger, 459 ; and see Young v. The State, 11 Humph. 200 ; 
J^ippy T. State, 2 Head, 217 ; CarroU v. The State, 23 Ala. 28 ; Mies v. State, 26 Ala. 31 ; Mer- 
edUhr. Qm. 18 B. Hon. (Ey.) 49. 



270 THE LA W OF HOMICIDE. 

Self-Defense. 

• 

§ 487. The lawfulness of taking life in self-defense depends 
upon its necessity (or what reasonably appears to be necessary). 
It is not necessary when it can safely be avoided ; and there- 
fore it is the duty of a man in such cases not to take life if he 
can safely abstain therefrom. But the question to be deter- 
mined by the jury in these cases, is, not whether taking life 
might in &ct have been avoided with safety, but whether the 
defendant in the circumstances of agitation and peril in which 
he was placed, might reasonably have believed and did believe 
it necessary to use the defensive cusHon whioh resulted in the death 
of his assailant, in order to save his own life, or avoid consid- 
erable personal harm. Perhaps the jury calmly investigating 
the transaction may be of opinion that is was not necessary to 
take life ; but the question is not what they coolly think, but 
what the defendant might reasonably have believed in the 
beat of the conflict, (a) 

§ 488. On the subject of self-defense, it has been held in 
Indiana that retreat is not always a condition which must 
precede the exercise of the right of self-defense, (b) 

To justify the killing of another on the ground of the fear 
of bodily harm, there must be reasonable cause for such fear, 
and it is not sufficient to show that the defendant was in 
actual fear. The criminal law, while indulging to a humane 
extent^ the mere infirmities of human nature, nevertheless 
requires of sane men the exercise of a mastery over their fears 
as well as their passions (c) 

To justify a homicide on the ground of self-defense, it is 
not necessary that the accused should have believed that it 
was necessary to take the life of the assailant in order to defend 
himself. If the death of the assailant results from the defend- 
ant's reasonable defense of himself, he is excusable, whether 

(a) Bicknell Cr. Practice, 274. It will be seen that the language employed by the learned 
Judge is somewhat modified abOTe ; this is done to conform to some late decisions of the 
Supreme Court of Indiana. Hicks v. The State, 51 Ind. 407 ; Whar. on Homicide, 2 Ed. ^485; 
1 Hale P. C. 479 ; Shorter v. The People, 2 Com. 193; Pierton y. The State, 12 Ala. 149 ; State 
y. Vance, 17 Iowa, 138. 

(6) Creek y. The State,2ilnd, 151 ; see Irwin y. The Slaie, 29 Ohio St. 186. 

{€) IbuL 



THE LA W OF HOMICIDE. 271 

MlBadyenture— Accident. 

he iotended that consequence or not^ or whether he believed 
that result necessary or not. (a) 

§ 489. On the trial of an indictments for. nxurder, it is suf- 
ficient to establish a case of self-defense, if the defendant being 
without £iult, believed and had reasonable cause to believe from 
the acts of the deceased that his own life was in danger, or 
that he was in danger of great bodily harm. (') Therefore, 
on the trial of sucU an indictment, where the evidence was 
such as to entitle the defendant to a correct instruction to the 
jury as to the law on the subject, it was error to charge " that 
there can be no successful setting up of the plea of self-defense 
in a case of homicide, unless the necessity for taking life is 
actual, pressing and unjent — in a word, unless the taking of 
his adversary's life is the only reasonable resort of the party 
who kills his antagonist, and he is compelled to do so in order 
to save his own life, or his person from great and severe calam- 
ity ; or, to charge that '* self-defense can only be resorted to 
in a case of absolute necessity.'' (6) 

Homicide by MisadTenture or Accident. 

§ 490. It is excusable homicide, where a man, doing a 
lawful act, without an intention of hurt, unfortunately kills 
another by accident (c), as where a man is at work with a 
hatchet, and the head thereof flies off and kills a bystander ; 
or, if a parent is correcting his child, or a master his appren- 
tice or scholar, the bounds of moderation not bein^ exceeded ; 
or if an officer is punishing a criminal within the bounds of 
moderation and within the limits of the law, and in either of 

(a) Hicks r. The Staie, 61 Ind. 407. 

(1) Gbeat Bodily Harm.— It is error, in a liomicide case, for the Court to charge the 
jury that "great bodily harm" is such as would give one reasonable apprehension that his 
life was in danger. Oreer v. The Stale, 6 Jerry Baxter Tenn. Bep. 629. 

(&) WaU V. The State, 51 Ind. 453; Bunyan v. The State, 57 Ind. 80 ; Eichey v. Tfu: State, 59 
Ind. 121 ; Agee v. The Slate, 64 Ind. 340 ; West v. The State, 59 Ind. 113 ; Kingen v. The State, 
45 Ind. 518 ; Pierson v. The Slate, 12 Ala. 149 ; MoPherson v. State, 22. Ga. 478 ; Floyd v. State, 
36 Qa. 91 ; Chase v. State. 46 Miss. 683 ; StewaH v. StaU, 1 Ohio St. 66 ; SfatK v. Benham, 23 
Iowa, 154; Stale v. Burke, 30 Iowa, 331 ; Com. v. Drum,5S Penn. St. 1 ; Creek v. State, 24 Ind. 
151 ; CampbeU v. People, 16 111. 17 ; State v. Collins, 32 Iowa, 39; Adatns v. The People, 47 III. 
'^; State v. Swift, 14 La Ann. 827. 

(c) 4 BL Com. 178, 179. 



272 THE LA W OF HOMICIDE. 

Murder at Common Law. 

these cases death ensues, (a) So, if a man shooting at game 
lawfully^ by accident kill another^ it will be excusable. (6) If 
a man intending to kill a person who is attempting to commit 
a forcible felony upon his person or property^ by mistake kill 
one oF his own family, it will be excusable, (c) And where 
a man, to protect his grain from deer at night, gave his ser- 
vant a gun, with instructions to shoot when he heard any 
rustling in the grain, and, in the night went himself into the 
field, and the servant, thinking it was the deer, shot him, this 
was held to be excusable homicide, {d) And when a man, 
shooting at a mark, by accident kills a bystander, this is 
excusable homicide, provided proper caution has been used to 
prevept accidents ; for, if the mark were placed near a road or 
path where persons were in the habit of passing, the killing 
might be manslaughter, (e) 

§ 491. The subject of accidental or negligent killing will 
be considered further, under the heads of murder and man- 
slaughter. 

Of Murder. 

§ 492. At common law, murder is thus defined, or rather 
described : " Where a person of sound memory and discretion 
unlawfully killeth any reasonable creature in being and under 
the King's peace^ with malice aforethought^ either express or 
implied. (/) 

§493. It is proposed, first to lay before the reader the 
principles and rules that applied to murder at common law,, 
and afterwards to notice the different grades of felonious hom- 
icide, as established by statutes and modern judicial decisions. 

§ 494. First, it must be committed by a person of sound 
mind ; but, although this is a part of the common law and 
statutory definition of murder, yet it is not for that reason to be 

. (a) 3 Greenl. Ev. g 116. 

(&) Foster, 260; Bicknell Cr. Pr. 269* 

(c) Foster, 260. 

\d) 2 East P. C. 266. 

\e) 1 Hale, 38. 

(/) 4B1. Com 196; Whar. Cr. L. §930; 3 Greenl. Ev. gl30; McMUUm v. The SUOe, 
35 Ga. 75 ; Lewis C. L. 394; Cmn. v. Thompmm, 6 ^ass. 134 ; Slate v. ZeUer, 2 Halfltead, 220; 
State V. Norru, 1 Hay, 429 : Russell on Cr. 482 ; Ckm. v. Webiter, 3 Cush. 30i; State v. Harris, 
27 La. Ann. 572 : 70 Ind. Rep. 126 ; 54 Ind. 128. 



THE LA W OF HOMICIDE. 273 

Harder at Cominon Law. 

distinguished from other offenses-^for in all cases, insanity, 
with certain restrictions, is a defense. And in prosecutions 
for felonious homicide, it is not necessary for the State, in the 
first instance, to make any proof of the defendant's Soundness 
of mind ; (a) because the law presumes every person to be of 
sound mind, until the contrary is made to appear. The law 
in regard to insanity in cases of homicide will be considered 
hereafter. j 

§ 495. Next, there must be of course an urdatoful killing^ 
that is, without warrant or excuse ; and the killing may be by 
shooting, stabbing, drowning, suffocation, poisoning, starva- 
tion, exposure, beating, and an infinite variety of other means 
by which human life may be destroyed. But if a person be 
indicted for one species of killing, as by poisoniug, he can not 
be convicted by evidence of a totally different species of death, 
as by shooting with a pistol, or starving. But when they only 
difier in circumstances, as if a wound be alleged to have been 
given with a sword, and is proved to have been done with a 
staff, an ax or a hatchet, the difference is not material, (i) 

§ 496. " A reasonable creature '^ simply means a human 
being. But a child in the womb, is not a human creature ^' in 
being '* within the law. The child must have been born (c) ; 
and every part of it must have come from the mother in order 
that the killing of it will be felonious homicide, (d) The 
umbilical cord which attaches to her need not be parted ; (e) 

(a) Nor is it necessary to aver in the indictment that \he accused was of " sound mind,' 
although those words are used in the statute defining murder. Fannestock v. The State, 23 
Ind. 231. When -the plea of insanity is interposed, the jury should acquit the defendant, 
if from the evidence they should have a reasonable doubt whether the defendant was sane 
when he committed the homicide. Polk v. The State, 19 Ind. 170. See post " Insanity," 1 
Arch. Or. Pr. and PI. 8th Ed. 16 ; Bradley v. The SkUe, 31 Ind. 492 ; Steven* v. The State, 31 
Ind. 486 ; Chase v. The People^ 40 lU. 358; People v. McCann, 16 N. Y. 58. 

(6) 4 Bl. Com. 196 ; 2 Hale, 185 ; Beavers v. The State, 58 Ind. 530 ; Carter v. The State, 2 
lad. 617 ; People v. CoU, 3 Hill, 432; Roscoe Cr. Ev. 706; Ckm. v. McAfee, 108 Mass. 458; 
Biaie v. Pox, 1 Dutcher, 656; Siaie v. SmUh^ 32 Me. 369; 3 Greenl; Ev. gl35 ; Dvikes v. The 
State, 11 Ind. 657; People v. Gttedell, 43 HI. 228; Bex v. ITughes, 5 Car. A. P. 126: Stockdale's 
Case, 2 Lewin C. C. 220. 

(c) Rex V. Brain, 6 Car. A P. 349; 3 Iowa, 274 ; Bex v. Cnttchley, 7 C. A P. 814. 

(rf) Rex V. Brain, supra. 

(c) Rex V. Reeves, 9 Car. A P. 25 ; iter. v. Enoch, 5 Car. A P. 539 ; Rex v. PouUwn, 5 Car. 
A P. 329 ; 3 Greenl. Ev. § 186 ; 2 Bishop Gr. L. | 541 : CanfiOd v. The State, 56 Ind. 168. 

H.-.18 



274 THE LA W OF HOMICIDE. 

Murder at Common Law. 

nor is it required that the child should have breathed^ if other- 
wise it bad life and an independent circulation, (a) While 
on the other hand^ supposing it to have breathed I>efore beiDg 
fully born^ and then death to have ensued by unnatural means 
before the delivery was completed, it could not be the subject 
of this offense. (6) 

§ 497. There is no need, however, that the full period of 
gestation should have elapsed ; therefore, if a person intending 
to commit an abortion, does an act which causes the child to 
be born before the natural time, and so, less capable of living, 
whereby it dies after birth from this premature exposure to 
the external world, he is guilty of murder, (c) It is said noc 
to be murder where a woman sunders the head from her 
in&nt's body before birth is complete, (d) " If a woman be 
quick with child, and by a. potion, or otherwise, killeth it in 
her womb ; or, if a man beat her, whereby the child dieth in 
her body, and she is delivered of a dead child, this is a great 
misprision, and no murder; but if the child be born alive^ 
and dieth of the potion, battery or other cause, this is mur- 
der, (e) And if one counsels, before birth, a mother to kill 
her child after birth, and she does it, he is thereby an accessory 
before the fact, to the crime of murder. (/) 

§ 498 " In the King^s Peace.^^ — This allegation is no 
longer necessary, and requires no further comment. 

§ 499. Malice aforethought, — We come now to the most 
important part of the definition of murder, viz : " with malice 
aforethought.*^ It is this which distinguishes murder from 
the inferior grade of felonious homicide called manslaughter, 
which is *' the unlawful killing of another, without malice, 
either express or implied, which may be either voluntarily 
upon a sudden heat, or involuntarily, but in the commission 

(a) Bex V. Brain, gupra ; State v. Winthropj 43 Iowa, 519. 

(6) 2 Bishop a-. L. g 541 ; 3 Greenl. Ev. g 136. 

(c) Beg. V. West, 2 Car. & K. 784 ; Bex v. Senior, 1 Moody, 846 ; 2 Bishop Gr. L. g 542 ; 1 
Boscoe Cr. Ev. 695. 

id) Bex V. SeUis, 7 Car. A P. 850 : 2 Bishop Or. L. g 542. 

(«) Lord Coke, 3 Inst. 50 ; 1 Hale P. C. 433. 

(/) Parker Case, 2 Dy. 186, pi. 2 ; 3 Inst 51 ; 1 Hale P. C. g 475 ; 2 Bish. Cr. L. g 542. 



THE LA W OF HOMICIDE. 275 

Murder at Common Law— Malice. 

of some unlawful act. (a) Supposing the homicide to be 
criminal^ that is to say not excusable nor justifiable^ then the 
only remaining question^ (oflen a difficult one)^ is whether the 
offense amounts to murder or only manslaughter; and this 
makes it necessary to consider these two grades of offense 
together. 

§500. Malice prepense^ or aforethought, is that which dis- 
tinguishes murder from the inferior grade of felonious homi- 
cide. This term is not restricted to spite or malevolence 
towards the deceased in particular ; but embraces also that 
general malignity and recklessness of the lives and personal 
safety of others, which proceed from a heart void of a just 
sense of social duty, and fatally bent on mischief. (6) And 
whenever the fatal act is committed deliberately, or without 
adequate provocation, the law presumes it was done in malice : 
and it behooves the prisoner to show from evidence, or by 
inference from the circumstances of the case, that the offense 
is of a mitigated character, and does not amount to murder, (c) 
In showing this, the idea or meaning of what the law terms 
malice, is to be carefully kept in view ; and the evidence is to be 
directed to prove not merely that he entertained no ill will 
toward the deceased in particular; but to show that in the 
fatal act he was not unmindful, but duly considerate of the 
lives and safety of all persons, (d) 

§ 501. Malice is either express or implied. The former is 
indicated by external circumstanced shovving the unlawful in- 
tention to kill, such as lying in wait, prior threats, an old 
grudge, or a concerted scheme to do bodily harm, (e) And a 

(a) 4 Bl. Com. 191 ; 1 Hale P. C. 466 ; Wharton Or. L. -.-; Lewis U. S. Or. L. 348 e/ seq; 
2R. S. Ind. 1876, 426; Perry v. Slate, 44 Texas, 473 ; Murray v. State, 1 Tex. App. 417 ; Mur- 
phy V. The State, 31 Ind. 511 ; The State v. Throckmorton. 53 Ind. 354 ; Hoss v. The Slate, 18 
Ind. 349 ; Stewart v. The State, 1 Ohio St. 66 ; State v. Kennedy, 20 Iowa, 569. 

(6) 4 Bl. Com. 198; Foster, 256, 257 ; 2 Starkie Ev. 516 ; UnUed Slates v. Boss, 1 Gall. 628 ; 
3 Greenl. Ev. g 144. 

(c) Sex T. Greenacre, 8 C. A P. 35 ; 4 Bl. Com. 200 ; York*s case, 9 Met. 103 : 3 Greenl. 
Ev. 144. 

(d) 3 Greenl. Ey. g 144 : Dennison y. The State, 13 Ind. 510 : Murphy y. The State, 31 Ind. 
511 ; OowgiU y. The State, 37 Ind. Ill ; Wall v. The Stale, 51 Ind. 453 ; People v. Hector, 19 
Wend. 606 : Biley v. The State, 9 Humph. 646 : Stale y. Etssenkemp, 17 Iowa, 25 ; 11 Ga. 615. 

(e) 1 Hale, 451. 



276 THE LA W OF HOMICIDK 

Murder— Malice— Manslaughter. 

man may commit such a willful act as shows him to be an ene- 
my to mankind in general, and thereby indicates indiscrim- 
inate malice^ such as discharging a gun into a multitude of 
people, (a) So, if a man resolves to kill the next man he 
meets, and does it, this is murder, although he did not know 
the man, and had never seen him. [b) Where no malice is 
openly indicated, the law will sometimes imply it ; as if a 
man kill another unlawfully without any provocation ; (c) or 
if two persons mutually agree to commit suicide together, and 
accordingly take poison, or attempt to drown themselves to- 
gether, and only one of them dies, the survivor is guilty of 
murder, as accessory to the death of the other, (d) [See note 1.] 

§ 602. It was formerly understood to be the law, and it is 
generally held at this day, that in manslaughter there is no 
intention to kill ; and it was decided many years ago, by the 
Supreme Court of Indiana, that '^ malice aforethought means 
the intention to kill ; '^ and that '^ to constitute malice afore- 
thought it is only necessary that there be a formed design 
to kill.^' (e) This decision was made in 1842, under the Re- 
vised Statutes of 1838, which defined murder as at comipon 
law ; and is in accordance with established authority. Since thsit 
time, by statute in Indiana, t distinction is made between 
murder in the first degree, and murder in the second degree ; 
the former being committed purposely and with premeditated 

(a) 1 Hawk. chap. 29, sec. 12. 

(6) 4 Bl. Com 200. 

(c) 1 Hale, 455. 

{d) R. & R. 523 ; 8 C. A P. 418. 

(1) The purpose to kill may be inferred from the deliberate us2 of a deadly i^eapoo, so 
used as to be likely to produce death. Murphy v. The Staief 31 Ind. 311. The inieat to kiU 
is far different from the intent to murder^ and neither intent hi conclusively presumed from 
such a use of a deadly weapon ; foi evidence may show that the intent was not felonioas or 
malicious. Moore Cr. Law, g 842 ; Clem y. The State, 31 tnd. 480; Bradley r. The SUUe, 31 
Ind. 492 ; 2 Bishop Cr. Law, g 680 ; Clark v. The Slate, 8 Humph. 671 ; Perry v. The People, 
14 111. 498 ; Slate v. GiUick, 7 Iowa, 287 ; Slate v. Neely, 20 Iowa, 109; CotUra : 1 Greenl. Ev. 
I 18 ; Cam. v. York, 9 Met. 93 ; Com. v. Webster, 5 Gushing ; Slate v. Smith, 2 Strob. 77 ; Bex 
V. Thomas, 7 Car. A P. 817 : T/nited States v. McGlue, 1 Curt C C. 1 ; Greene t. The 
State, 28 Miss. 687 ; Murphy v. The Slate, 31 Ind. 511 ; MiUer v. The State, 37 Ind. 432. And 
the intent to kiU is not presumed if the deadly weapon be employed in a manner not likely 
to be deadly in a particular instance. Moore Cr. Law, g842; 2 Bishop O. Law, 5th ed. 
I 681 : State v. Roane, 2 Dev. 58 ; State v. West, 6 Jones (N. C.) 505. 

'{e) Beauchamp v. The State, 6 Blackf. .300-1 ; Perry ▼. The State, 44 Texac^ 473,' State 
V. Evans, 65 Mo. 574 ; State v. SmUh, 77 N. C. 488. 



THE LA W OF HOMICIDE 277 



Murder — Manslaughter. 



nwlieey and the latter *^ purposely and maliciously, but without 
premeditation/' Manslaughter is defined substantially as at 
common law. . (See post^ Part III, § 607 et seq,, where all the 
statutes of Indiana in relation to felonious homicide are set 
out.) This distinction between murder in the first, and in the 
second degree, and the judicial decisions thereon, have mate- 
rially modified the law as formerly laid down ; and there is a 
current of modern decisions in regard to n^nslaughter widely 
different from the common law doctrines. 

§ 503. It was formerly held (and is so now, perhaps, gen- 
erally outside of Indiana), that there is no such offense as an 
assault and battery with intent to commit manslaughter, (a) 
And that on an indictment for an assault and battery with in- 
tent to commit murder, the defendant must be acquitted unless 
it appears that, if death had resulted from the defendant's act, 
it would have been murder, and not manslaughter merely. (6) 
(See note 1.) 

§ 504. But in more recent times the Supreme Court of In- 
diana has held that, in manslaughter there may be intention 
to kill, arising in the sudden transport of passion, but it may, 
and in this grade of offense must be unaccompanied by malice. 
(c) Also, that a man may be guilty under the statute of aiding 
and abetting the crime ot manslaughter ; {d) and that under 
an indictment for murder in the first degree, the defendant 
may be convicted of murder in the second degree, or of man- 
ia) Bicknell Or. Pr. 292. 
(h) 2 Wharton Cr. L. 1279. 

(1) Voluntary MANSLAnairrER. or not.— The prisoner waa shooting a smaU pistol 
about the house where the prisoner resided, on the 25th of December— he was shooting 
*' Christmas guns/* The prisoner finally went into the house and said to one of the inmates, 
that if the deceased did not kiss him he would kill her. He then loaded his pistol and went 
into the deceased's room, and told her if she did not kiss him he would shoot her. He then 
put his arms around her, and the pistol went off, killing the deceased. The pistol was not 
loaded with a leaden ball, and all the parties were friendly. The prisoner expressed great 
astonishment at killing the deceased. The court, believing that the killing was done unin- 
tentionally, holds that the facts do not constitute voluntary manslaughter, but refrains from 
expressing any opinion as to the offense being involuntary manslaughter. NeUon v. The 
atate, 6 Jerry Baxter, Tenn. Rep. 418— cases cited : Morley v. The Slate, 1 Sneed, 407 ; Lee v. 
State, 1 Ck)ld. •2-67. 

(c) Denntton v. The SicUe, 13 Ind. 510. 

(d) Goffy. PHme, 26 Ind. 196 ; The State v. Srowr. 64 Mo. 367 ; 29 Ohio, 186 ; Brtoin v. 
State, 29 Ohio, 186. 



278 THE LA W OF HOMICIDE, 

Manslaughter— Intent. 

slaughter ; and under an indictment for aiding and abetting 
the crime of murder in the first degree^ the defendant may be 
convicted of aiding and abetting the crime of manslaughter, (a) 
Although a person unlawfully and purposely kill a human 
being) yet if it be done in a sudden heat of passion, caused 
by a sufficient provocation, and in the absence of express 
malice, the malice will not be implied from the act, but 
the offense will be manslaughter; but words only, however 
abusive and insulting they may be, can not constitute such 
sufficient provocation to rebut the presumption of malice, 
arising from the act in such a case, and reduce the offisnse from 
murder to manslaughter (6). (See note 1.) 

§ 505. It was further held, that the word voluntarily in 
our statutory definition of manslaughter means, '^ by the firee 
exercise of the will, done by design, purposely '* (c) ; and that 
on the trial of an indictment for an assault and battery with 
intent to commit murder, where the court below instructed the 
jury, in effect, " that there can be no purpose to kill in man- 
slaughter ; and that if such a purpose be shown to exist and 
death result, the killing is murder \ '^ it was held that this in- 
struction was erroneous (d). 

§ 606. An indictment will lie for an assault, or an assault 
and battery, with intent to commit voluntary, manslaughter ; 
and on an indictment for an assault and battery with intent to 
commit murder in the first degree, if the evidence justify it, 
there may be the same conviction as under an indictment for 
an assault and battery with intent to commit manslaughter. 
(See note 2.) 

(a) Goff V. PrivMy 26 Ind. 196. 

(ft) Murphy V. The State, 31 Ind. 511 ; See also ex parte Moore, 30 Ind. 197. 

(1) Assault with Intent to commit Manslaughter.— Manslaughter being a felony 
in Tennessee, an attempt to commit manslaughter in an offense, and an indictment for an 
assault with intent to commit manslaughter is good, under section 4630 of the Code. The 
StaU Y. WilliamSj 6 Jerry Baxter Tenn. Bep. 655. 

(c) Murphy V. The State, 31 Ind. 511 ; Sruner v. The State, 58 Ind. 159 ; Creek v. The State, 
24 Ind. 157 ; Dennison v. The State, 13 Ind. 510 ; State v. ThrockmorUm, 53 Ind. 354. 

(d) Murphy v. The StaU, 31 Ind. 611. . 

(2) Involuntary Manslaughter.— The punishment of the crime of involuntary man- 
slaughter is provided for by statute in Kentucky ; it is therefore to be punished by fine and 



THE LA W OF HOMICIDE. 279 

Voluntary Manslaughter. 

■■ ■ ,,„^,^ , J , ,, ^»i,» . ■ ■ I ■■■■ . , ■ ■ ■■■ ' ' , " * 

Indictment for Toluntary Manslaughter. 

The Supreme Court of Indiana, in the case of Bruner v. The 
State, 58 Ind. 160, have made a decision as to voluntary and 
involuntary manslaughter, of a character so important as to 
require special notice. It appears that in a quarrel, the de- 
fendant, Bruner, struck Koch, on the head with a dogwood 
stake three-and-a-half inches at the butt, twenty-one inches 
long and tapering from the butt to a point ; from which blow 
Koch died nine days afterward. The evidence showed that 
the blow was the primary cause of the death ; yet that the 
wound was not necessarily fatal if he had received proper 
medical attention and treatment at the proper time ; and the 
indications were that Koch had received a light blow, rather 
than a heavy one. There was no external injury, no fracture 
of the skull, and no rupture of the blood vessels. The defend- 
ant testified that he had no intention to kill Koch, but just to 
knock him down. 

The defendant was indicted for voluntary manslaughter ; 
i. 6., that the defendant did ^^ unlawfully and feloniously kill 
one Bernard Koch without malice, but voluntarily upon a 
sudden heat, by then and there striking and injuring him^ the 
said Bernard Koch, upon the head with a stake, etc., of which 
he died," etc. 

The Supreme Court say, that it appeared that the defendant, 
if guilty at all, was rather guilty of involuntary manslaughter, 
than of voluntary manslaughter, wherewith he was charged in 
the indictment. *' At all events it is certain, we think, that 
the evidence furnished so much reason for doubt of the appel- 
lant's guilt of the crime wherewith he was charged [voluntary 
manslaughter], and for belief in his probable guilt of involun- 
tary manslaughter in the killing of Bernard Koch, that the 

imprisonment, which is the common law punishment for ofTenses for ^hich no punishment 
is provided by statute. Conner v. The Commonwealth, 13 Bush (Ky) Rep. 714. 

On a trial for murder, the jury found the defendant guilty of manslaughter " in the second 
degree.'*'' Motion in arrest of judgment, because there is no such offense in Mississippi as 
manslaughter in the second degres. But held by the Supreme Court, that the words in italics 
are surplussage, and that the verdict is good and judgment should be pronounced for man* 
daughter. Traube v. The State, 56 Miss. Rep. 153. 



280 THE LA W OF HOMICIDE, 

Sudden-Heat— P]royocatlo&. 

court below should have instructed the jury as requested by 
the defendant, in regard to what constituted involuntary man- 
slaughter, and ir they believed from the evidence that Bruoer 
in the killing of Koch was guilty of involuntary manslaugh- 
ter, it would be their duty to acquit him of the crime charged 
in the indictment. '' 

The Court below of its own motion gave the jury the fol- 
lowing instruction : 

'^The question of involuntary manslaughter does not enter 
into this case. If the prisoner intended the blow, and the 
blow produced death, and it was an unlawful blow, then the 
defendant is guilty of manslaughter voluntarily. The unlaw- 
ful act necessary to constitute involuntary manslaughter is an 
unlawful act wherein the party killed is accidentally killed, 
when the killing is collateral to the act committed." 

This instruction, the Supreme Court say, is erroneous, 
because it was for the jury, and not for the Court to say 
whether '^ the question of involuntary manslaughter entered 
into the case;'' and that if the jury believed from the evidence 
that Bruuer, in the killing of Koch, was guilty of involuntary 
manslaughter, then they should acquit him of the crime for 
which he was on trial. 

Sudden-Heat— Provocation. 

§ 507. In considering voluntary manslaughter, it is to be 
observed that it must be committed on a sudden heat ; and 
this jsudden heat must arise upon a sufficient legal provocation. 
Mere words, however opprobrious, will not be such a provoca- 
tion as will reduce the killing from murder to manslaughter; 
there must be considerable personal violence, or if it be slight, 
it must be accompanied with circumstances of indignity or 
insult, (a) If a man should merely jostle another in the 
street, and should be instantly killed therefor, it would be 
murder. But if A should publicly spit in the face of B, or 
pull his nose, or offer him any other great personal indignity, 

(o) 4 Bl. Com. 191 ; Millers. The State, Zl ln&. 432: Murphy v. 7%e State, Zl Ind. 511; 
Beauchamp v. The State, 6 Ind. 299; SkUe v. Barfield, 8 Ire. 344; Felix v. StaU, 18 Ala. 
720; Rapp y. Cmn. 14 B. Mon. 614. 



THE LA W OF HOMICIDE. 281 

Sudden-Heat — Provocation. 

and B should thereupon immediately kill him^ the books say 
it would be manslaughter, (a) So, if there be provocation by 
blows not sufficiently violent in themselves to leduce the killing 
below the crime of murder, yet if they be accompanied by 
very aggravated words and gestures, this may make it man- 
slaughter only. (6) 

§ 508. It is said, '* that to reduce a homicide upon provo- 
cation to manslaughter, it is essential that the fatal blow appear 
to have been inflicted immediately upon the provocation being 
given.^' (o) But it is manifest from an examination of the 
adjudicated cases and the text books, that this word '^ immedi- 
ately '^ is not to be understood with literal exactness ; for the 
cases are numerous where there was a considerable lapse of 
time between the provocation and the killing, in which the 
act was held to be manslaughter, by reason of the sudden heat 
arising from provocation, (d) 

§ 509. If between the time of the provocation and the act 
of killing, there be sufficient time for passion to subside, or as 
it is generally expressed, sufficient *^ cooling time,^^ and then 
the person who has been provoked kills the other, this will be 
deemed deliberate revenge, and not heat of blood ; and there- 
fore it will be murder, {e) 

§ 510. Where the prisoner and the deceased were on inti- 
mate terms, and were at a public house drinking, and a scuffle 
between them ensued, and the deceased struck the prisoner 
and gave him a black eye, and the prisoner called for the 
police and went 'away, and in about five minutes afterward 
returned and stabbed the deceased with a knife, which he usu- 
ally carried about him, Lord Tenderden said it was not every 
. slight provocation, even by a blow, which will, when the party 
receiving it strikes with a deadly weapon, reduce the offense 

{a) 4 BL Com. 191. 

(6) 1 C.& K. 55-3. ' 

(c) Bicknell Cr. Pr. 280 ; 7 C. «& C. 817. 

{d) Bicknell Cr. L. 280, 281 ; Moore v. TKe Slate, 30 Ind. 197. 

(e) 7 C. & P. 817 ; R^g v. Kirkham, 8 C. & P. 115 : People v. SulUvan, 3 Seld. 396 ; Denniwn 
V. Tlie State, 13 Ind. 510; Maker r. The Pe/)ple, 10 Mich. 212; Miller v. The State, 37 Ind. 
432 ; State v. Jones, 20 Mo. 58 : Felix v. State, 18 Ala. 720 ; State .v. Dunn, 18 Mo. 419 ; State 
V. Craton, 6 Ire. 164. 



282 THE LA W OF HOMICIDE, 

Sudden-Heat- ProTocatlon. 

from murder to manslaugbter, and that if there had been any 
evideoce of an old grudge between the parties the crime would 
probably have been murder. But he left it to the jury to say 
whether there had been time for the passion of the prisoner to 
cool^ and reason to gain dominion over htm ; if not, that they 
should find him guilty of manslaughter only (a). 

And where the prisoner was at the house of the deceased's 
mother^ who asked the deceased to turn him out, and the 
deceased did so and gave him a kick as he went — upon which 
the prisoner said he would make him remember it^ and went 
hon^e, about three hundred yards^ and passed through a bed- 
room into a kitchen adjoining, and there got a knife, and 
returned and met the deceased bringing him his hat, and tbey 
talked and walked together, and the deceased gave the prisoner 
his hat, and the latter swore he would have his rights, and 
stabbed the deceased twice, saying he had served him right, 
and then ran home: — Tindai.l, C. J., told the jury that the 
question was, whether the provocation were so recent that the 
prisoner could not be regarded as master of his understanding, 
in which case it would be manslaughter only, or whether there 
had been time for the blood to cool and reason to resume its 
sway, in which ease the offense would be murder. The jury 
found the prisoner guilty of murder. (6) 

§ 511. If a man find another in adultery with his wife, 
and immediately kill him, this is manslaughter merely ; (c) 
but if the slayer is what Shakespeare calls a " wittol cuckold," 
it is submitted that the offense would amount to murder, (d) 

§ 612. In considering whether the killing upon a sudden 
heat amounts to murder or manslaughter, the instrument used 
by the slayer must be taken into consideration ; if a deadly 
weapon be used, the provocation should be great ; if it be a 
weapon or other means not likely to produce death, a less 

provocation will be suflScient to reduce the offVnse from mur- 

' — 

(a) 5 C. A P., 324 ; Reg. v. Ktrkham ; 8 C & P. 115 ; Peopk v. SiMivan, 3 Seld. 396. 
(6) 6C. <feP. 159; Dennisony. The Stale, IZ Ind. 510; Field v. The State, 50 Ind. 15; 
B0X V. Howard, 6 C. A P. 157. 

(c) 1 Hale 486. 

(d) Webster Un. Die, " Wittol." 



THE LA W OF HOMICIDE. 288 

Sudden-Heat — FroTocation. 

der to manslaughter. The resistance on the part of the defend- 
ant should bear some reasonable proportion to the provocation 
given by the deceased, (a) If, upon a slight provocation^ one 
beats another in a cruel and unusual manner so that he dies^ 
it is murder and not manslaughter. An unlawful imprison- 
ment of the defendant^ by the deceased, was held to be suffi- 
cient provocation to make a killing with a sword manslaughter 
onl/. (6) And where a soldier insulted a woman, by words, 
and she struck him on the head, and he hit her on the breast 
with the hilt of his sword, and ran after her and stabbed her 
in the back, this was, at first, deemed murder, but it appearing 
that the woman had struck the soldier with an iron patten, 
which drew a great deal of blood, it was held to be man- 
slaughter only, (c) 

§ 513. Where a boy, after fighting with another, ran home 
to his father bleeding, and the father took a small cudgel and 
ran three-quarters of a mile to the other boy and struck him 
one blow with the cudgel, and thereby killed him, this was 
held to be manslaughter, (d) 

§ 514. In a case in Indiana, it appeared that the deceased 
and the prisoner were both residents of the city of New Alba- 
ny, and were friends, no trouble or difficulty having previ- 
ously existed between them. The parties met at a saloon in 
New Albany, where they engaged in playing cards and drink- 
ing beer, until they were both intoxicated. They quarreled 
about politics and the battle of Pittsburg Landing, using 
coarse and abusive language to each other. The prisoner bein^ 
excited and angry left the card table and said he would go 
home. The deceased insisted that he should not go, and 
asked him to drink with him and settle the difficulty, which 
the prisoner refused to do, and started to go out. The de- 
ceased, who was much the stronger man, thereupon seized hold 
of the prisoner, and a struggle ensued between them, the de- 
ceased forcing the prisoner into a chair, aud insisting that. he 

(a) 1 Str. 499 ; Foster, 292. (c) Foster, 292. 

(6) 1 East P. C. 233. {d) 12 Co. 87. 



284 THE LA W OF HOMICIDR 



Provocatlon—Oooling Time. 



should not go until they had another drink. The prisoner 
again refused to drink with the deoeased, and told him to let 
him alone. He again started to leave^ but the deceased caught 
him a second time, and in a verj rough manner fi>rced him 
back. The prisoner got away again from the deceased, and 
started to leave through the front door of the saloon, followed 
by the deceased, when the prisoner called on persons present 
to take notice that he demanded of the deceased to let *him 
alone, and proceeded toward the front door ; but the deceased 
followed him, and caught hold of him just as he had reached 
a screen that stood across the door-way near the door. A 
scuffle ensued between them, when the prisoner, in attempting 
to jerk away from the deceased, partially fell and knocked 
down the screen which lodged without falling entirely 
down, but leaving the prisoner under it. The deceased then 
caught him by the legs and attempted to draw him back into 
the room, but he kicked loose, and as he was crawling out 
of the door-way the deceased kicked at him, but whether he 
hit him or not, the witnesses could not tell. The prisoner then 
left, much excited. The prisoner walked hurriedly home, a 
short distance from the saloon, and very soon came out of the 
house with a revolver in his hand. He returned rapidly to 
the saloon, the revolver in his hand, and shot and killed the 
deceased. His absence from the saloon did not exceed five 
minutes. It was proved that intoxication had the effect on 
the prisoner to excite his passions and greatly impair his rea- 
son. Soon after he left the saloon there were marks of vio- 
lence and blood observed on his face and neck. The case 
coming before the Supreme Court, on appeal from a decision 
in habeas corpua^ the court intimate, without so expressly de- 
ciding, that the offense was manslaughter. But they do ex- 
pressly decide, that it is not clear that the proof was evident, 
or the presumption strong, that the killing was malicious, and 
that the prisoner was entitled to be let to bail. Ex parte, 
Moore, 30 Ind. 197. 



TSE LA W OF HOMICIDE. 



285 



Involuntary Manslaughter — ^N^igence. 



Of InTolimtary Manslans^hter — Cnlawftil Act — IVegli- 

gence. 

§ 515. When a person is engaged in any unlawful act^ and 
unintentionally kills a person^ it is either murder or man- 
slaughter according to the character of such unlawful act. If 
such unlawful act be rape, arson^ robbery, burglary or poison- 
ing, it would be murder in the first degree by statute in Indi- 
anal So, if a man unlawfully, purposely, and with deliberate 
and premeditated malice, shoot at A and miss him, and kill B, 
this will be murder, {a) So, if, in like manner, he strike at 
A, and by accident he strike and kill B, it will be murder. (6) 
If a man unlawfully shoot at another's poultry, and by acci- 
dent kill a man, it will be manslaughter, (c) If a man throw 
a stone at a horse, and the stone hit a person and kill him, it 
will be manslaughter, (d) When A strikes a horse on which 
B is riding, and the horse springs out and runs over a child 
and kills it, this is manslaughter in A, but misadventure 
in B. (e) 

If one puts out poison to kill rats, and a man is killed by 
eating it, this, in general, would be excusable homicide ; but 
if the poison were so placed as to be likely mistaken for food, 
it might be manslaughter. (/) If a man breaking an unruly 
horse, ride him amongst a crowd, and the horse kick a man 
and kill him, this is murder, if the rider brought the horse 
into the crowd with intent to do mischief, or even to divert 
himself by frightening the crowd, {g) Such criminal negli- 
gence is evidence of universal malice ; but if the rider brought 
the horse into the crowd incautiously only, this would be man- 
slaughter, (h) 

« 

§ 516. Where an act, lawful in itself, is dangerous, a homi- 
cide occurring thereby will not be excusable, unless it appear 
that the party doing the act used such caution as to make it 
improbable that any injury would follow it. Without such 



(a) Foster, 261 ; 1 Hale, 441. 

(6) 1 Moody C. C. 93. 

(e) Foster, 248. 

(<Q 1 Hale, 89. 



(e) Whar. on Homicide, 45, 47. 

(/) 1 Hale, 431. 

{g) 1 Hawk, chap. 31, g 68. 

(A) 1 East P. C. 231. 



286 THE LA W OF HOMICIDE, 



Involuntary Ma2i8lBughtei>— Negligence. 



caution the homicide would be manslaughter at least; thus/if 
a workman throwing rubbish from a house, should kill a per- 
son passing by, it will be murder, manslaughter or excusable 
homicide, according to the degree of care used. If he did it 
without any previous warning and when it was likely that 
persons were passing, it would be murder, (a) 

If he did it without warning at a time when it was not 
likely that any persons were passing, it would be manslaughter. 
(6) If he did it in a retired place where persons were not 
passing, or likely to pass, it would be misadventure merely, 
(c) But suppose he previously gave warning. In that case, 
if it happened in a small village where few persons pass, it 
would be excusable ; if in a populous city, at a time when the 
streets were full, it would be manslaughter. 

* 

§ 517. If a man drive a cart over another, and kill him, 
having timely notice of the probable mischief, and not using 
sufficient care and caution, it will be murder or manslaughter. 
If he purposely drove furiously amongst a crowd, it would 
be murder ; if he drove in a street where persons were much 
in the habit of passing, it would be manslaughter, {d) If 
he so drove in the street, where people did not usually pass, 
it would be excusable homicide, provided he took the care 
usually taken by persons in similar circumstances, (e) 

If a man within shooting distance, should shoot a rifle to- 
ward a crowd of people and kill one of them, it would be 
murder. (/) If he shoot it merely to unload it, but in a place 
where persons are likely to pass, and somebody be killed there- 
by, it will be manslaughter, {g) If in a place where nobody 
was likely to pass, it will be excusable homicide if anybody be- 
killed by it. So, if a man, knowing that people are passing 
along a street, wantonly throw a stone with intent to hurt 
some of the persons passings and a person be killed by it, it 
will be murder, although the stone was not intended to hit any 

(a) 3 Inst. 57. («) Id. 261. 

(6) Foster, 262. (/) 1 Hale, 475. 

(c) 1 Hale, 475. {g) 1 Str. 481. 

(<Q 1 East P. C. 268. 



THE LA W OF HOMICIDE. 287 

Inyoluntary Manslaughter — N^ligence. 

particnlftf person (a) But if thrown heedlessly, without in- 
tent to hurt any one, into a place where people were in the 
habit of passing, if anybody be killed thereby, it will be man- 
slaughter. (6) And if thrown into a place where people 
were not likely to pass, killing thereby would be excusable. 
Where a boy took out the forestick of a cart, whereby the 
cart was upset, and the cartman, who was loading sacks of 
wheat therein, was killed, this was held to be manslaughter. 
And where a child of tender years was killed by a person 
giving it an improper quantity of intoxicating liquor, this was 
held to be manslaughter, although he did it merely for 
sport, (c) Where a man found a pistol in the street, and 
without knowing whether it was loaded, pointed it at a woman 
and shot her, this was held to be manslaughter, (d) 

§ 518. But it is submitted, that, in order that a party shall 
be deemed guilty of manslaughter for the unintentional killing 
of a human being, in the commission of some unlawful act, 
the killing should have some immediate and consequential 
relation to the unlawful act. For example, suppose that the 
owner of a steamboat is running it on Sunday in carrying 
passengers and freight, in violation of a State statute, and 
without any fault or negligence on the part of those in charge 
of the boat, a collision occurs in which some of the boat's pas- 
sengers are killed. Surely this could not be adjudged man- 
slaughter on the part of those running the boat by reason of 
their running it unlawfully on Sunday ; because the killing 
and the unlawfulness of the running of the boat are in legal 
coBtemplation too remote. Again, if a man be cutting cord 
wood on Sunday, in violation of law, and the ax fly off the 
helve and accidentally kill a bystander, this would certainly 
be misadventure and not manslaughter. In order that, in the 
two cases above mentioned, there should be criminal responsi- 
bility, it should be made to appear that the deaths ensued in 
consequence of the negligent or wrongful manner of perform- 
ing the act, without regard to whether it occurred on Sunday 

(a) 1 Hale, 475. (c) 3 C. A P. 211. 

(6) 1 Hale, 485. (<2) Foster, 264, 265. 



288 THE LAW OF HOMICIDE. 

InToluQtary Manslaughter-^NegUgence' 

or some other day. Aocordiugly it is laid down by Mr. East, 
P. C. 260, that if an act unlawful in itself, as shooting at 
game, be prohibited to be done, unless by persons of a certain 
description, the case of a person not coming under that descrip- 
tion offending against such statute, and in so doing unfortu- 
nately killing another, will &11 under the same rule as that of 
a qualified man, and must equally be attributed to misadven- 
ture. So, if two friends are hunting on posted lands forbidding 
hunting on the premises, or in violation of an act forbidding 
hunting on lands of another without the consent of the owner, 
and one of them, in shooting at a squirrel, accidentally and 
unfortunately happens to kill his friend, it is a case of homicide 
by misadventure ; and the idea that it is to be punished as a 
felonious homicide is abhorrent to reason and common sense. 

§519. Of Negligence in Involuntary Manslaughter. — Neg- 
ligence in the performance of a lawful act may amount to 
unlawfulness, so that a homicide resulting from such negligence 
will be manslaughter. If the act be in itself lawful, but 
done in an improper manner, whether it be by excess or by 
culpable ignorance, or by want of due caution, and death 
ensues, it will be manslaughter, (a) That which constitutes 
murder when done by malice aforethought, is manslaughter, 
when resulting merely from culpable negligence. It is man- 
slaughter where death is occasioned by excessive correction 
given to a child by the parent or master ; (6) or by ignorance, 
gross negligence or culpable inattention or maltreatment of a 
patient on the part of one assuming to be his physician or sur- 
geon ; (c) or by the negligent driving of a cart or carriage, or 
the like ill-management of a boat ; or by gross negligence in 
casting down rubbish from a staging or the like ; (d) and gene- 
rally it may be laid down that when one, by his negligence, ha? 
contributed to the death of another, he is responsible, (e) The 
caution which the law requires in all these cases is not the 

(a) Eeg. v. Hughes, 1 Dears. & Bell, 248. 

(6) 1 Hale P. C. 473, 474 ; Foster, 262. 

(c) 1 Hale P. C. 429 ; Rex v. Webib, 1 Webb A Robb. 405 ; 8 Greenl. Ev. § 129. 

((f) I East P. C. 262 ; Foster, 262 ; Hale P. C. 472 ; 8 Qreenl. Ev. § 129. 

(e) Reg. t. SwiatdaU, 2 C. & K. 282. 



THE LA W OF HOMICIDE. 289 



Manslaughter. 



utmost degree which can poBdibly be used, bat such reasonable 
care as is used in the like cases and has been found by long ex- 
perience to answer the end. (a) 

§ 520. Railway Negligence, — A switch tender was indicted 
fur manslaughter^ in neglecting to properly move a switch, 
whereby loss of life ensued. It was held that it was not 
necessary to prove that the neglect was willful or of purpose^ 
and that the question whether due care was shown was exclu- 
sively for the jury. (6) 

It is laid down in Whar. Am. Cr. L. § 1014/, that 
'* a schoolmaster, who, on a boy's return to school, wrote to 
his parent proposing to beat him severely in order to subdue 
his obstinacy, and on receiving his father's reply assenting 
thereto, beat the boy for two hours and a half, secretly in the 
night, and with a thick stick (/) until he died, is guilty only of 
manslaughter, no malice being proved, (c) [Upon what prin- 
ciple this was not adjudged to be murder, the author of this 
work is unable to determine.] 

§ 621. Wherever there is a legal duty, and death comes by- 
reason of any omission to di^harge it, the party omitting is 
guilty of a felonious homicide. (cQ But if the duty is only a 
moral r>ne, and the dereliction is only an omission to do, in 
distinction from an actual doing, there is no legal responsi- 
bility. Yet there is the same responsibility in the one case as 
in the other, where a positive act, instead of a mere omission, 
is the cause of the death. If a man neglects to supply his 
legitimate child with suitable food and clothing, or suitably 
provide for his apprentice, whom he is under a legal obligation 
to maintain, and the child or apprentice dies of the neglect 
he is guilty of a felonious homicide, (e) But his wife, if she 
does the same thing, even toward her own offspring, does not 
incur this guilt, because the law casts the duty of maintenance 

(a) 1 Bags. 482; 8 Oreenl. Et. 129. 

{b) State T. O'Brien, 3 Vroom. 169 ; Whar. Am. Cr. L. § 1010a. 

(c) R. V. Hopley, 2 F. <l F. 202 ; Whar. Cr. L. | 1014/. 

{dj 7CoxCr. Cases, 301 ; Bish. Cr. L. §599. 

(e) Rex V. Squire, 490, Bish. Cr. L. 1 600. 

H.— 19 



290 THE LA W OF HOMICIDE, 

DwelllDg— Property— Defense of. 



on him alone, and not at all on her, who stands in this respect^ 
in no other relation than a mere servant, (a) If one has his 
idiot brother abiding in his house, who, by his deglect, per- 
ishes from want, this is not an omission which casts on him a 
criminal liability ; because he is under no obligation, in law, 
to maintain his brother; and an omission, without a duty, 
will not create an indictable ofiense* 

§ 522. The person in charge or controlling the running 
of a stage coach, a hackney coach, railroad train, steamboat, 
ferry-boat, or the like, who by his gross negligence, or plain 
omission of a duty imposed by law, causes the death of a 
human being, is guilty of manslaughter, at the least. 

Of the ]>elfeiuie of One's I^wellingy Pn^perty, £tc. 

§ 523. A man may repel force by force in the defense of 
his person, habitation or property, against one or many who 
manifestly intend and endeavor by violence or surprise to 
commit a known felony on either. (6) In the defense of one's 
habitation he is not bound to retreat. And when an attempt 
is made to commit a personal injury, arson or burglary on the 
habitation, the owner or any part of his &mily, or even a 
lodger with him, may lawfully kill the assailants in order to 
prevent the mischief intended. 

§ 624. The well-known maxim, that '' every man's house 
is his castle,'^ is so far recognized by the law that a man is 
justified in opposing even to death those who seek to break 
into it by violence, (c) 

§ 525. But the principle above laid down does not extend 
to a case of defense to a mere trespass, where the attack is not 
in itself felouious, nor designed to invade the dwelling-house, 
(d) If a man deliberately kill another to prevent a mere tres- 
pass on his property, whether that trespass could or could not 

(a) Rex V. Saunders, 7 Car. & P. 277 ; Bish. Cr. L. g 600 

(6) U. S. V. Mingo, 2 Curtiss, C. C. R. 1 ; Emm v. The State, 4 Mis. 762. 

(c) Pond V. The People, 8 Mich. 181 ; Com. v. DreWt 4 Mass. 391 ; 4 Bl. Com. 222. 

(d) 20 Iowa, 569 ; 10 Minn. 223. 



THE LA W OF HOMICIDE. 291 

Dwelling-Houae— Property— Defense of. 

be otherwise prevented, it is murder ; (a) and consequently an 
assault with intent to kill can not be justified upon the ground 
that it was necessary to prevent a trespass on property, (d) If 
such killing take place in passion and in the heat of blood, the 
killing is manslaughter, but under no circumstances can it be 
less. For the rule of law is, that where such trespass is barely 
against the property of another, not his dweUing-kouaey it is not 
a provocation sufficient to warrant the owner in using a deadly 
weapon ; and if he do so and with it kill the tsespasser, this 
will be murder, because it is an act of violence beyond the 
provocation; but if the injury be inflicted with an instrument 
and in a manner not likely to kill, and the trespasser should 
happen to be killed, it will be no more than manslaughter — 
the law so far recognizing the adequacy of the provocation 
arising from the trespass. (6) But while the owner of land in 
possession, may not lawfully, in the first instance, slay a mere 
trespasser, yet it seems that if after having forbidden the tres- 
passer from entering, the latter persists, the owner may use 
reasonable force to prevent the trespass, and if thereupon the 
trespasser assault the owner with a deadly weapon, and the 
owner kill him, he is justifiable. («) 

§ 526. Turning Chd of One^a House. — A man has a right to 
require another to leave his house, but he has no right to put 
him out by force till gentler means fail ; and if he attempt to 
use violence in the first instance and is slain, it will not be 
murder in the slayer, if there be no previous malice, (c) So, 
it will be at least manslaughter, if the owner of a house kills 
a visitor, who comes in peaceably, though forbidden, and who 
refuses to leave when ordered out. (d) 

(a) Whar. Am. Cr. L. g 1025 ; StaU v. Morgan, 3 Ire. 186 ; Whar. Horn. 215, 232 ; Com. v. 
Drew, 4 Mass. 391 ; Monroe v. The State, 5 Georgia, 95 ; Oliver v. The State, 17 Ala. 588 ; Car- 
rottr. The State, 2ZA\a.2S] Notes \. The Slate, 2Jd AIa. 31; Harriwn y. The State, 24 Ala. 
67 ; 18 Georgia, 194. 

(6) Oaxton v. The State, 2 Humph. 181 ; Whar. Am. Cr. L. g 1025. 

(c) State V. Sloan, 47 Mo. 604 : Gretchia v. State, 53 111. 295 ; McCoy v. State, 3 Eng. 451 ; 
Whar. Or. L. g 1025. 

(d) State V. SmUh, 3 Dey. & Bat. 117/ McCoy v. State, 3 Eng. 451, 
(«) Ad. Torts. 



292 THE LA W OF HOMICIDE, 

OiBcers— KUling by, and oC 

The Killing of, or 1^, Omcemi q€ Jnallee. 

§ 527. Officers of justice are not justified in taking human 
life, unless they are at the time in the act of executing law- 
fully a duty imposed by law, and under sach circumstances 
that if the officer had been^illed, such killing would have been 
murder, (a) If the officeir be resisted in the lawful execution 
of his duty, he may repel force by force ; and if, in so doing, 
he kill the party resisting, it is justifiable homicide, [provided 
there is a necessity for such extreme action]. (6) An officer, 
resisted, need not retreat in any case, for it is his duty to ex- 
ecute the law ; but there must be some apparent necessity for 
the killing by the officer ; and if the party were killed after 
his resistance had ceased, or if there reasonably appeared to 
he no need of violence by the officer, the killing would be 
manslaughter at least, and might be murder if the circum- 
stances indicated malice, (c) 

Where a person having lawful authority to arrest a man, 
attempts to do it, and the man flies, or first resists and then 
flies, and is killed in the pursuit by the person making the 
arrest, it may or may not be justifiable, according to the cir- 
cumstances. If the charge against the party were treason or 
felony, and he could not otherwise be apprehended, the killing 
would be justifiable, (d) But if the party were chained with 
merely a breach of the peace or other misdemeanor, or if the 
process were issued in a civil suit, unless it were occasioned by 
means not likely to kill — such as knocking him down, or 
striking with a common cane, or other weapon not deadly ; in 
which case, it would be manslaughter only, (e) 

§ 528. In cases of felony the killing is justifiable before an 
actual arrest is made, where in no other way the escaping felon 
can be taken. In such cases, that is to say in cases of felony, 
if the felon flies from justice, or if a dangerous wound be 
given, it is the duty of every man to use his best endeavors 

(a) 1 Hale, 490. 

(6) 2 Hale, 218. 

{e) 1 East P. C. 297. 

(d) 1 Hale, 481 ; Foster, 271 ; 1 Hawk.chap. 28, g 11.. 

{fi). Foster, 271 ; 2 Hale, 117 ; 1 East P. C. 312 ; Doug. 207. 



THE LA W OF HOMICIDE. 293 



Officers— Killing by, and of. 



for preventing an escape ; and if in the pursuit the felon be 
killed^ when he can not otherwise be taken, the homicide is 
justifiable; and the^ame rule holds if the felon, after being 
legally arrested, break away and escape. But if he may be 
taken in any case without such severity, it is at least man- 
slaughter in him who kills him ] and the jury ought to inquire 
whether it was done of necessity or not. (a) But the justifi- 
cation of homicide happening in the arrest of persons charged 
with misdemeanors or breaches of the peace, is subject to a 
different rule from that laid down in respect to cases of felony, 
for generally speaking, in misdemeanors it will be murder to 
kill the party accused for flying from the arrest^ though he 
can not otherwise be taken, and though there be a warrant to 
apprehend him ; but under certain circumstances it may 
amount only to manslaughter, if it appear that death was not 
intended. (6) In some instances, however, of flight, in cases 
of flagrant misdemeanors, such as that of a dangerous wound, 
the killing may be justified if the party can not be otherwise 
overtaken ; but this is founded upon a presumption that the 
offense may turn out to be a felony, (c) 

§ 529. In a case before the Supreme Court of Indiana, the 
defendant, Agee, was indicted for an assault with intent to 
murder, for shooting at an oflScer who was attempting to arrest 
him on a charge of bastardy^ (which is held to be a civil pro- 
ceeding, althougk a warrant is issued in the name of the State). 
The court ruled, that if the person attempting to make the 
arrest had a valid warrant for the arrest of the defendant, with 
full authority to execute the same, still the officer would have 
no right to shoot the defendant merely for the purpose of 
arresting him, at a time when the defendant was fleeing ; and 
ii the officer had shot the defendant and killed him, merely 
for the purpose oi preventing him from fleeing and escaping 
an arrest, the officer would have been guilty of murder ; and 
where the defendant was fleeing and the officer attenipted to 

Wi i Gab Or L. 482, 484, 487 • 1 East P. C. 298. 

Ktn J Hale i- C 481 . Foster 271 2 Bish. Cr. L. §678. 

Ul 1 £asi P. C. 302 ; 1 Gab. Cr. L. 484. 



294 THE LA W OF HOMICIDE. 

Officers— Killing by, and of. 

take his life^ or to do him great bodily harm^ by shooting at 
him with a deadly weapoa^ then the defendant would have the 
right to repel force with force ; and if tde defendant under 
such circumstaucea used no more force than was reasonably 
necessary to repel such attack, the defendant would be excus- 
able, (a) The reader must note the difference between cases 
of arrest in civil process or misdemeanors, and arrest for 
felony. (6) 

§ 530. But in misdemeanors and breaches of the peace (as 
well as in cases of felony), if the ofiScer meet with resistance, 
and the offender is killed in the struggle, the killing will be 
justified, (c) But this must be understood with the qualifica- 
tion that the officer will not be justified in taking human life 
wantonly in case of slight resistance^ nor will the officer be 
justified in taking human life in case of serious resistance, 
unless there be apparent necessity for such killing. Jailors 
and their officers are under the same protection that other min- 
isters of justice are ; and, therefore, if, in the necessary difif- 
charge of their duty they meet with resistance, whether from 
prisoners in civil or criminal suits, they are not obliged to 
retreat, but may immediately repel force by force. And if the 
party so resisting happens to be killed, this, on the part of the 
jailor or his officer, or any person coming in aid of him, will 
be justifiable homicide, (d) But an assault upon a jailor 
which would warrant him (apart from any personal danger), 
in killing a prisoner, must, it seems, be such from whence he 
might reasonably apprehend that an escape was intended which 
he could not otherwise prevent ; for jailors, like other ministers 
of justice, are bound not to exceed the necessity of the case in 
the execution of their offices ; and therefore t lie law as laid 
down by Hawkins, is, that if a criminal endeavoring to break 
the jail, assaults the jailor, the latter may kill him in the 
affray, (e) And in regard to the degree of force which the 

(o) Agee y. The Stale, 64 Ind. 340. 

(6) Ante, g 528. 

(c) 1 Hale P. C. 117 ; 1 East P. C. 302, 303. 

(d) Foster, 321. 

(e) 1 Hawkins P. C. 81, g 13; 1 Hale, P. C. 496. 



THE LA W OF HOMICIDE. 295 

' " ■ ' ' ^p— ^^^-^— — — — I— i^a 

Insanitf. 



jailor may lawfully employ to prevent an escape accompanied 
by violence against the jailor, the law, in reason, will not make 
a nice discrimination as to the means he may employ ; for the 
reason that when criminals resort to violence against the jailor 
to make an escape, the jailor may reasonably apprehend the 
utmost degree of desperation and violence on the part of the 
prisoners, and he may not know to what extent the prisoners 
may have secretly armed themselves in order to regain their 
liberty. 

Of Insanity. 

§ 531. Although, the defense of insanity is not peculiar to 
cases of homicide, but applies alike to all other offenses, yet, 
as questions of criminal responsibility depending on mental 
condition, arise perhaps more frequently in homicide than in 
any other class of offenses, it is deemed proper to discuss the 
subject in this work. 

§ 532. It is not proposed in these pages to enter into a 
scientific analysis of the various phases of mental alienation, 
after the manner of the medical jurisconsults; but to state in 
general terms and in plain and concise language the result of 
the authorities, as to criminal responsibility, in cases of alleged 
mental incompetency. But it ought to be premised that the 
defense of insanity, although it lies somewhat under popular 
prejudice, yet, in reason and in law, when properly sustained 
by evidence, it is as perfect a defense as it is possible to con- 
ceive. While on the one hand there have been wrongful ac-. 
quittals by reason of alleged insanity, yet on the other hand 
there have been many wrongful convictions of unfortunate 
l)eings, really irresponsible by reason of mental disorder, con- 
demned to a felon's doom, as a propitiation at the altars of 
ignorance, stupidity, and popular prejudice. 

§ 533. The doctrine is thus generally laid down : " A man 
can not be excused from punishment on the ground of insanity, 
unless incapable of distinguishing between right and wrong 
with reference to the criminal act at the time he did it." (a) 

(o) 5 C. A p. 168 ; Bick. Cr. Pr. 276. 



296 THE LA W OF HOMICIDE. 

Inauie Delusion. 

But it will be seen {post §§ 537, 538, 539; et seq,), that this 
criterion is materially modified by jadicial decisions in recent 
times. (') 

§ 533a. The books of authority say : That '^ although there 
be a temporary deficiency of reason, or aberration of mind, at the 
time of an act, yet if there be a partial degree of reason, and 
a competent use of it, to have restrained the passions which 
produced the crime, if there be thought and design, a faculty 
to distinguish the nature of actions, and to discern the differ- 
ence between moral good and evil — then the party will be 
responsible for his actions." (a) 

§ 534. " The instruction to be given to the jury in refer- 
ence to the defense of insanity is : If the accused knew the 
difference between right and wrong in respect to the act in 
question ; if he were conscious that such act was one which he 
ought not to do ; and if that act were at the same time contra- 
ry to the law of the land, then he is punishable.^' (6) 

§ 535. *^ In cases of insane delusion : If such delusion be 
partial only, and about one or more particular subjects or per- 
sons only, and if there be no insanity in other respects, the 
party is in the same situation as to responsibility as if the facts 
in regard to which the delusion exists were real. For ex- 
ample, if under the influence of his delusion he supposes 
another ipan to be in the act of attempting to take his life, 
and he kill that man, as he supposes, in self-defense, he will 
be exempt from punishment, (c) [If his delusion were that 
tihe deceased had inflicted a serious injury upon his character 
or fortune, and he killed him in revenge for such supposed 
injury, he would be liable to punishment.''] So the law is laid 
down in the reply of the judges to the questions proposed by 
the House of Lords, 1843, 4 Bl. Com. Appendix B, Wen- 
dell's edition. But it should be here remarked that the 

(1) Seepott, U 640, 541, 542, 543, 544, 545. 
(a) 1 C. A K. 129, 130 ; Bick. Cr. Pr. 276. 

{b) Answer of the Judges to the qaestlons proposed by the House of Lords, June, 1848; 
4 Bl. Com. Wendell, App. "B." 
(c) i6i</; Bick. Cr. Pr. 277. 



THE LA W OF HOMICIDE. 297 

Insanity—" Right and Wrong." 

correctness of that part of the opinion included in brackets^ 
has been seriously questioned by eminent authorities. 

§ 536. The authoritative exposition of the law of insanity 
as laid down with great deliberation and care by the English 
judges in reply to the questions propounded by the House of 
Lords, has been very generally adopted by judicial decisions 
and by the text writers both in England and America. Yet 
within the last few years the authority of these opinions has, 
in some respects, been much shaken. Still the opinions thus 
given, may be regarded as the generally-received doctrine, 
especially that " a knowledge of the difference between right 
and wrong, with reference to the act, is the criterion of crim- 
inal responsibility.'^ 

§ 537 But while the courts and the learned expositors of 
the law still adhered to the criterion of a *' knowledge of right 
and wrong " to determine criminal responsibility, they were 
often confronted with such cases as this : A man who has 
always conducted himself with propriety in all the relations of 
life, kind, affable, humane and just, suddenly or within a brief 
period, changes the habits of his life and seems to be trans- 
formed in every essential particular* from his former self. He 
undergoes a complete revulsion of his affections, and those 
who were the objects of his tenderest love and affection become 
objects of antipathy and aversion. He is recognized by his 
family and friends as an insane man, and is the object of 
constant solicitude. And yet he manifests no appreciable intel- 
lectual lesion. He reasons well, and talks with eloquent and 
forcible volubility. He talks more, and with more acuteness 
than he ever did before. Suddenly, without motive, and 
without provocation, he kills some one, perhaps his best friend, 
under circumstances of apparent atrocity and inhumanity. He 
can give no reason for the act, except that he had to do it — he 
couldnH help it. He says he knew it was wrong, and that it 
was against law, human and divine. Here is a case of undoubted 
insanity. But how is it to be classified ? What shall be done 
with the man ? He knew the difference between right and 
wrong with reference to the act. Shall he be hanged ? 



298 THE LA W OF HOMICIDE. 

Moral Inaakity. 

§ 538. By the older authorities, the question propounded 
at the close of the preceding section must be answered in the 
affirmative; but in later times the current of judicial author- 
ity clearly establishes the doctrine, that although the alleged 
criminal may have the power to discriminate between right 
and wrong, and knows that the act is wrong, yet in many 
such cases the accused is irresponsible — by reason of some 
abnormal condition of the affective faculties of the mind, 
amounting to insanity. Whether this condition should be 
denominated " moral insanity/' " impulsive insanity," or *' in- 
sanity of the affective faculties," is immaterial ; and the writer 
will therefore content himself by laying before the reader a 
number of judicial decisions on this subject, in several of the 
States. 

§ 539. Chief Justice Gibson of Pennsylvania, in 1846, in 
a case before him, said : " There is a moral or Iiomioidal in- 
sanity consisting of an irresistable inclination to kill, or com- 
mit some other particular offense. There may be an unseen 
ligament pressing on the mind, drawing it to consequences which 
it sees but can not avoid, and placing it under a coercion, 
which, while its results are clearly perceived, is incapable of 
resistance. The doctrine which acknowledges this matiia is 
dangerous in its relations, and can be recognized only in the 
dearest cases. It ought to be shown to have been habitual, or 
at least to have evinced itself in more than a single instance. 
It is seldom directed against a single individual. But that it 
may be so, is proved by the case of the young woman, who 
was deluded by an irresistible impulse to destroy her child, 
though aware of the heinous nature of the act. The frequency 
of this constitutional malady, is fortunately small, and it is 
better to confine it within the strictest limits. If juries were 
to allow it as a general motive, operating in cases of this char- 
acter, its recognition would destroy social order, as well as 
personal safety. To establish it as a justification in any par- 
ticular case, it is necessary either to show by clear proofs its 
contemporaneous existence^ evinced by present circumstances, 



THE LA W OF HOMICIDE. 299 



Moral Insanity. 



or the ezistenoe of an habitual tendency developed in previous 
oaseS; becoming in itself a second nature/' (a) 

§ 540. In a still earlier case in Pennsylvania, Judge Lewis, 
a jurist of great ability and eminence, said : " Moral insanity, 
or irresistible impulse, arises from the existence of some of the 
the natural propensities in such violence that it is impossible 
not to yield to them. It bears a striking resemblance to vice, 
which is said to consist of an undue excitement of the passions 
and will, and in their irregular or crooked actions leading to 
crime. It is, therefore, to be received with the utmost scrutiny. 
It is not generally admitted in legal tribunals as a species of 
insanity which relieves from responsibility for crime, and it 
ought never to have been admitted as a defense, except in cases 
where it appears that these propensities exist in such violence 
as to subjugate the intellect, control the will, and- render it 
impossible for the party to do otherwise than yield. When its 
existence is fully established, this species of insanity relieves 
from accountalMlity to human laws.(6) 

§541. It has been held in Kentucky, that while irresistible 
impulse as a distinct line of defense is recognized, yet it must 
be ^hown to exist in such violence as to render it impossible 
for the party to do otherwise than yield to its prompting8.(c) 
The doctrine, however, has been emphatically repudiated in 
North Carolina in 1861. (d) 

§ 542. Judge Story decided that a young woman, who in 
a violent impulse of puerperal fever threw her child over- 
board, though at the time perfectly conscious of the enormity 
of the act, was entitled to an acquittal, (e) 

§ 543. In the State of Indiana, it has been held that where 
a person is moved to the commission of an unlawful act by an 
insane impulse controlling his will and judgment, he is not 

(a) Com. y. Iffoder, 4 Bftrr,, 266L 
(6) Lewis, U. S. Cr. Law, 404. 

(c) Scott V. Com. 4 Metcalf , 227 ; Smith v. C<w», 1 DuvaU, 224 ; Hopps v. The People, 31 111. 
385 ; Com. v. ffaskeU, 2 Brewster, 491 ; Stevens v. Statey 31 Ind. 486 ; State t. FeUeTf 81 Iowa 
67; Mu. Ifut. Co. v. T. Terry, U. S. Supreme Court, 1872. 

(d) State V. Brandon, 8 Jones, 463. 

(e) U. & T. Hewaan, 7 Boat. Iaw Bep., 361. 



300 THE LA W OF HOMICIDE. 

Moral Insanity. 

guilty of a crime ; and if he is a monomaniac on any subject, 
it is wholly immaterial on what subject, so that the insane 
impulse leads to the commission of the act ; and on the trial 
of an indictment for murder, and the defense of insanity was 
interposed, the court charged the jury '* that if they believed 
from the evidence that the defendant knew the difference 
between right and wrong in respect to the act in question, if 
he was conscious that such an act was one which he ought not 
to do, and if that act was at the same time contrary to the law 
of the State, then he is responsible for his acts/' it was held 
by the court that the instruction was not law ; (a) [because 
the defendant might have been moved to the commission of the 
act by an insane impulse controlling irresistibly his will and 
judgment — ^and therefore the defendant would not have been 
responsible, notwithstanding he knew the difference between 
right and wrong as to that act.] 

§ 544. Insanity is a disease which may impair or totally 
destroy either the undef^dandvng or the wiUy or both ; and in 
a criminal case all symptoms of such disease, and its effect 
upon these faculties, should go to the jury, and they must deter- 
mine, as a matter of fact, the mental condition of the defendant ; 
and an instruction to them which limits their inquiry to the 
condition of the power to apprehend by the understanding is 
erroneous. (6) 

§ 545. The following has also been ruled in Indiana, on the 
subject of insanity : So far as. a person acts under the influence 
of mental disease he is not criminally responsible ; and the 
jury in a criminal case must be satisfied beyond a reasonable 
doubt of the defendent's mental capacity to commit the crime 
charged, (c) 

§ 546. It has been considered that there are four kinds of 
persons who may be said to be won compotes: 1. An idiot ; 2. 

(a) Stevens v. The State, 31 Ind. 485. 
(6) Bradley v. The State, 31 Ind. 492. 

(c) SleveM V. The State, 31 Ind. 485 ; Polk v. The State^ 19 Ind. 170. Also, Bradley v. The 
iStofe,31Ind.492. 



THE LA W OF HOMICIDE. 301 

Lunatios. 

Ooe made non compos by sickness ; 3. A lunatic ; 4. One that 
IS drunk, (a) By statute in Indiana^ the phrase '^ of unsound 
mind/' includes idiots, non compotes,' lunatics, and distracted 
persons. (6) The classification, by the old, authors, of the 
different kinds of insanity, under the heads of lunacy, idiocy, 
etc., is not considered at the present day as either accurate, or 
full enough to embrace all the various forms of mental defect, 
or aberration. 

An idiot is a fool or madman from his nativity, who never 
has any lucid intervals ; and such a one is described as a per- 
son that can not number twenty, tell the days of the week, 
does not know his father or mother, his own age, etc.; but 
these are mentioned as instances only, fi>r, whether a person is 
an idiot or not, is a question of fact for the jury, (c) 

§ 547. A person made non compos mentis by sickness, or as 
it is otherwise expressed, a person afflicted with dementia aoei- 
dentalis vel adventitial is excused in criminal cases from such 
acts as are committed while under the influence of the disor- 
der. Several causes, have been assigned for this disorder, as 
violence of fever, concussion or hurt of the brain, and the 
like, (d) A lunatic is laboring under a species of insanity, 
but he is afflicted by his disorder only at certain periods and 
vicissitudes, having intervals of reason, called " lucid inter- 
vals.'^ Such a person, during his frenzy, is entitled to the 
same indulgence as to his acts, as one whose insanity is fixed 
and permanent. The name of lunacy was taken from the 
influence which the moon was formerly supposed to have in all 
the disorders of the mind, (e) [See note 1]. 

(a) Co. Litt. 246: Beverly's case, 4 Co. 124; Lewis U. 8. Or. L. 600. 

(b) 2 R. S. Ind. 1876, 818. 

(c) Bac. Ab. Idiots, etc. [A] ; Lewis U. S. Cr. L. 600. 

(d) Lewis U. S. Cr. L. 601. 
\e) Ibid. 

(1) Insanity.— On the trial of an indictment for mnider, where the insanity of the pris- 
oner was set up as a defense, the court instructied the jury, that the fact that some or all of 
the ancestors of the person had been insane, did not of itself prove that person insane ; and 
that in the absence of direct and preponderating evidence of Insanity at the time of the kill- 
ing, it could not be be justified on that plea. Held^ erroneous, because of the nae of the 
word dirwt. The State ▼. Simnu, 68 Mo. Bep. 805. 



302 THE LA W OF HOMICIDE. 

DrunkenneflB. 

Intoxlcatloii. 

§ 548. In what cases evidence of drunkenness in the ac- 
cused^ is to be heard ; in what cases, if any, it amounts to a 
complete defense ; whether such evidence is to be heard to 
qualify the character of the alleged offense, or to mitigate and 
reduce its grade or punishment, will next be considered. Be- 
ginning with the earliest doctrines on this subject, and thence 
tracing them down to this day, we find that according to Sir 
Edward Coke, (a) "a drunkard who is voluntariua dcwnon, 
hath no privilege thereby, but what hurt or ill he doth, his 
drunkenness doth aggravate it." 

§ 549. Judge Story says, in regard to drunkenness : " The 
law will not allow a man to avail himself of the excuse of his 
own gross vice and misconduct to shelter himself from the 
legal consequences of his crime." (6) So says Lord Hale, (c) 
Parke, B., (d) and Alderson, B. (e) 

§ 550. The whole current of authorities, both in England 
and America, ancient and modern, is to the same effect — mod- 
ified, however, by some comparatively recent decisions, in 
regard to intent, mistake, etc., as will be hereafter noticed. 

§ 551. Thus: A man who, by means of intoxication, vol- 
untarily puts himself in condition to have no control of his 
actions must be held to intend the consequences. The safety 
of community requires this rule. Intoxication is so easily 
counterfeited, and when real, is so often resorted to as a means 
of nerving the person up to the commission of some desperate 
act, that the law can not recognize it as an excuse for the com- 
mission of crime. (/) 

§552. But, the drunkenness of the party is often an 
important consideration in criminal cases where the guilty 

(o) 1 Inst. 247. 

lb) U. 8. V. Drew, 5 Mason, 28. 

(c) 1 Hale, 7. 

(d) Rex V. Thomasjl C. & P. 817. 

(e) J2. V. Meakin, 7 C. A P. 297. 

(/) U. S. V. DreWy 5 Mason, 28 ; Pirtle v. The StatBy 9 Hump. 66a ; Com* v. BawMMi 8 
Gray, 463 ; People v. Garbutt, 17 Mich. 9; 2 Cooley's Blackstone, Book 4, 27. 



THE LA W OF HOMICIDE. 303 

Drunkenness. 

■m- B^^^M ■! ■_MM__l__M__M__^ M^^WI ■ I I ■■■ I ■ I ~ H ' 

knowledge or intent constitutes the principal ingredient of the 
crime, so as to make the peculiar state and condition of the 
defendant's mind at the time, and with reference to the act 
done, the iiiiportant subject of inquiry, (a) So held in Ohio 
as to passing counterfeit money. (6) So, in Eugland, as to the 
appropriation of another's property, which might be larceny, 
or trespass merely, according as the specific intent to steal was 
absent or present, (c) On the other hand, it has been held in 
Indiana that in a prosecution for larceny, proof of the volun- 
tary intoxication of the accused is not admissible in his behalf, (d) 
But this was a case of stealing a horse at night, and there was 
no claim that the horse was taken by mistake or under claim 
and color of right. But suppose the case had been, that the 
defendant, being very drunk, had a horse hitched to a rack 
close by another horse very like his own, and that he, in his 
obfuscated condition, took and rode off the other man's horse, 
and was arrested in the act. He claims that he made a mis- 
take. He should certainly be allowed to prove his condition 
at the time, to rebut the alleged animus furandi. 

§ 553. Again in cases of homicide : While intoxication, 
per 56, is no defense to the fact of guUtj yet when the question 
of intent or premeditation is concerned, evidence of it is 
admissible to determine the degree, (e) and to show that there 
was no specific intent, or that there was no positive premed- 
itation. (/) In New York, on a trial for murder with a club, 
in a sudden affray, it was held admissible to prove that the 
prisoner was intoxicated at the time, and the court ruled that 
if the prisoner, from intoxication, was in siich a condition that 

(a) Swan v. The Slate, 4 Hump. (Tenn.) 141 ; U. 8. v. Rodenbush, 1 Bald. 517 ; KeUey v. 
The State, 3 8 A M. 518 ; 1 Bish. Or. L., § 411 ; Rex v. Pitman, 2 C. A P. 423 ; People v. East- 
mod, 14 N. Y. 565; HaiU v. The State, 11 Humph. 154; Sioan v. The State, 4 Humph. 136; 
Pigman y. The State, 14 Ohio, 555 ; Mooney v. The State, 33 Ala. 419 ; State v. Garvey, 11 
Minn. 154. 

(6) Pigman v. The State, 14 Ohio, 555. 

(c) Rex y. Pitman, 2 0. A P. 423. 

(d) Dawson v. The State, 16 Ind. 428. This case is contrary to the weight of authority. It 
is substantially overruled in Cluck v. The State, 40 Ind. 263. See, also, Bish. Cr. L. g 411 
Safferty v. The People, 66 111. 118. 

(c) 1 Whar. Am. Cr. L. 41. 
(/) Ibid. 



804 THE LA W OF HOMICIDE. 



Infancy. 



there wafl no motive or intention to oommit the crime of mur- 
der, the jury should find a verdict of manslaughter, (a) 

§554. In those States where there are two degrees of 
murder, depending on the presence or absence of premedita- 
tion, evidence of drunkenness is admitted, as tending to show 
a want of premeditation, so as to reduce the offense from 
murder in the first degree to murder in the second degree. (6) 

Belliium Tremens, etc 

§ 555. Settled insanity, produced by intoxication, affects 
the responsibility in the same way as insanity produced by 
any other cause, (c) Delirium tremens, when complete, destroys 
the moral as well as the intellectual responsibility, (d) 

Irresponsibility by Reason of Tender Tears. 

§556. In regard to capital crimes, the law conclusively 
presumes that an infant under the age of seven years has not 
sufiBcient discretion to be guilty of such offense, (c) At the 
age of fourteen years and upwards the criminal actions of 
infants are subject to the same modes of construction as those 
of adults ; for the law presumes them doli capaees and capable 
of distinguishing between right and wrong; but during the 
interval between the ages of seven and fourteen an infant is 
deemed to he doli incapaxy and is therefore presumed to be 
unacquainted with crime. Yet, if the evidence shows that the 
offender had sufficient knowledge and discretion, he may be 
convicted and punished. The evidence of malice, however, 
which is to supply age, should be strong and clear beyond all 
doubt and contradiction, and if it appear to the court and jury 
that the offender was doli eapax, and could discern between 
good and evil, he may be convicted and suffer death. Thus, 
it is said that an infant of eight years old may be guilty of 

-» I -■ ■ ■ ■ ■■ I ■ ■ ■ ■■■■■_ I ,. ... ■ ■ — ^^^ M^— ^^^^^— ^M^l^— — ^M— — ^^M^"^"^^ 

(a) 1 Whar. Am. Cr. L. 41 ; Rogers v. People, 3 Parker 0. B. 632. 

{b) 1 Whar. Am. Cr. L. g 41, citing many cases; contra^ State v. Cross, 6 Jones, Mo. 832. 

(c) 1 Whar. Cr. L. g 33 (a) ; Ray Med. Ju. Ins. 438. 

(d) U. S. Y. Drew, 5 Mason, 28; U. S. t. Clarke, 2 Cranch C. 0. Beps. 158; Bailey y. The 
State, 26 Ind. 422. 

(e) lHale27, 28;4Bl.Com. 23. 



THE LA W OF HOMICIDE. 305 

Dying Declarations. 

marder and shall be hanged for it ; (a) and where an infant 
between eight and nine years of age was indicted and found 
guilty of burning two barns^ and it appeared upon examina- 
tion thai; he had malice, revenge, craft and cunning, he had 
judgment to be hanged, and was executed accordingly. (6) 
But it is safe to affirm that capital punishment has never been 
inflicted on one so young in the United States. 

Of tlie*£Tideiice. 

§ 667. Under this head it is proposed to discuss, chiefly, 
those topics on the law of evidence, that are peculiar to cases 
of homicide ; the law of evidence as applicable generally to 
criminal and civil proceedings, not coming within the purview 
of this work. 

I>yliig Dedarations. 

§ 668. Evidence of dying declarations is admitted only in 
prosecutions for felonious homicide ; and such evidence is ad- 
mitted in those cases only where the cause of the death of the 
declarant is the subject of the dying declarations, (c) Such 
evidence is admitted partly from the necessity of the case ; and 
partly from a consideration that a statement made by a per- 
son in a dying condition, when all expectation of recovery is 
gone, and when it is presumed that all hope, fear and passion 
as to earthly matters, have been removed by the shadow of 
death — has all the solemnity and binding force on the con- 
science, as the solemnity of an oath. But the latter consider- 
ation, namely, the solemnity of the occasion, is not the only 
reason for the admission of dying declarations ; for, upon an 
indictment for perjury a dying declaration is not admissible 
to disprove a fact on which perjury is assigned, (d) And on 
an indictment for endeavoring to procure an abortion, the 
dying declarations of the woman are not admissible, though 
they relate to the cause of her death, {e) And where a man 
has been robbed, and dies before the trial of the robber, his 

(a) DaU. Jtul. c. 147. (d) 4 D. A R. 120. 

(6) Dean's case, 1 Hale 25, note u. («) 2 B. & C. 609n. 

(e) 2 B. & C. 608 ; 14 Ind. 673. 

H.— 20 



306 THE LA W OF HOMICIDE. 

Dying Declarstiom. 

dying declarations respecting the robbery are not admissible, (a) 
But on an indictment for the murder of A by poison^ which 
was also taken by B, who died in consequence thereof^ the 
dying declarations of B were held admissible. (6) So, also^ 
the dying declarations of an accomplice have been held to be 
admissible, (c) Dying declarations made by the deceased in 
favor of the defendant are admissible, {d) Where a dying 
declaration is reduced to writing, that writing must be pro- 
duced ; a copy, or parol evidence of the contents, will not do 
unless the original he destroyed or lost, (e) It is no objection 
to the admission of a dying declaration that it was elicited by 
questions and answers. (/) And the exact words of the dying 
declaration need not be proved. It is sufficient to prove the 
substance of the declaration, {g) 23 Ind. 40. 

§ 559. The dying declaration of a person who expects to 
die, respecting the circumstances under which he received a 
mortal injury, are constantly admitted in criminal prosecutions 
where the death is the subject of criminal inquiry ; though the 
prosecution be for manslaughter ; (A) though the accused was not 
present when they were made, and had no opportunity for 
cross-examination, (i) and against or in favor of the party 
charged with the death, {j) For it is considered that when 
an individual is in constant expectation of immediate death, 
all temptation to falsehood, either of interest, hope' or fear, 
will be removed and the awful nature of his situation *'will be 
presumed to impress him as strongly with the necessity of a strict 
adherence to truth as the most solemn obligation of an oath 
administered in a court of justice. (A) When every hope of this 

(a) 4 CAP. 233. 

(6) 2 M. A Rob. 53. 

(c) East P. C. 354, 366. 

{d) 1 M. & Rob. 551. 

\e) 7 CAP. 280. 

(/) 7 . & P. 238. 

{g) 8 Blackf. 101 ; See Blck. Or. Pr. In Ind. 160, 161. 

(A) Staie v. Hanna, 10 La. An. Rep. 181. 

(<) 1 Phil. Ev. 223; 1 Stark. Ev. 101 ; People v. Green, 1 Den. 614; 1 Park C. C. U ; State 
V. BrunaUo, 13 La. Ann. 45. 

(j) U. S. V. Taylor, 4 Cranch C. C. R. 338. 

(*) 1 Leach 502 ; 1 Gilb. Ev. 280 ; WaUtan v. Com. 16 B. Mon. 15 ; 31 Texas, 579 ; Hill ▼. 

The State, 41 Georgia, 484; iStatey. Nash, 7 Iowa, . 



THE ULW OF HOMICIDE, 307 

Dying DecIantkMnL 

world is gone^ when every motive to falsehood is silenced^ and 
the mind is induced by the most powerful considerations to 
speak the truth, a situation so solemn and awful is considered 
by the law as creating the most impressive of sanctions. 

§ 560. Emdence does not Conflict with Provision of Consii- 
iution.- — The constitutional provision, that the accused shall be 
confronted by the witnesses against him, does not abrogate the 
common law principle that the declarations in extremis of the 
murdered person, in such cases, are admis-ible in evidence, (a) 

Questions to which Dying Declarations are Restricted, — Dying 
declarations are admitted, from the necessity of the case, to 
identify the prisoner, and to establish the circumstances of the 
res gestce, or to show transactions from which the death results ; 
when they relate to former and distinct transactions, they do 
not come within the principle of necessity. (6) Therefore, it 
seems, that dying declarations by a party that the prisoner 
had, two or three times previously attempted to kill him, are 
not admissible, (c) And so when they go to show old malice 
on part of the prisoner to the deceased, (d) Yet it is compe- 
tent to detail collateral remarks, on the part of the declarant, 
made at the time of the uttering of the declarations as to the 
homicide, where such collateral declarations tend to sustain the 
declarant's mental capacity. Thus in a case in the Supreme 
Court of New Jersey, in 1857, Chief Justice Green said : 
" If it be true, as was proved by experts called by the defense, 
that the injury sustained by the deceased was calculated to de- 
range the mental faculties, it was competent for the State to 
meet the objection in liminey and to show by his acts and words, 
that he was laboring under no hallucination, and that his 
mental faculties were unimpaired, (e) 

§ 561. Gases in which such Declarations have been held Ad- 
missible. — Dying declarations, however^ are not admissible 

(o) 2 Howard Mias. 655 ; 11 Ga. 355 ; 8 Ohio St. R. 131 ; N. S. ; 7 Iowa, 347 ; 26 Wis. 884. 

ib) R. V. Mead, 2 B. A C. 605 ; 1 Whar. Am. Cr. L. g 670. 

(c) 7 Humph. (Tenn.) 542. 

(d) Mote V. The SiaUy 35 Ala. 421. 

(e) DonneUy v. The State, 2 Dutcher, 496. 



308 THE LA W OF HOMICIDE. 

Dying Dedantions. 

unless it appear to the court that they were made under a aeose 
of impending dissolution, (a) and a consciousness of the 
awful occasion, (6) though the principle is not affected by the 
fact that death did not ensue until a considerable time after the 
declarations were made, (c) When the party expressed an 
opinion that she should not recover, and made a declaration at 
that time, but asked a person on the same day whether he 
thought *' she would rise again, ^' it was held that this showed 
such a hope of recovery as rendered the previous declaration 
inadmissible, {d) But it is not neceseary to prove expressions 
implying apprehensions of immediate danger, if it be clear 
that the party does not expect to survive the injury, which 
may be collected from the general circumstances of his condi- 
tion ; (e) as when the party was a member of the Catholic 
church, and had confessed and been absolved, and received 
extreme unction, before making the declaration. (/) 

§ 562. In a case before the twelve judges of England, it 
was held that the declarations of the deceased made on the 
day he was wounded, and when he believed he should not 
recover, were evidence, although he did not die until eleven 
days after;. and although the surgeon did not think his case 
hopeless, and continued to tell him so until the day of his 
death, {g) 

§ 563. On this subject the following decisions have been 
made in Indiana: An expression of opinion [only] by the 
declarant, as to who it was that fired the fatal shot, based on 
previous threats, and his account, in extremis, as to what had 
previously occurred between the deceased and the accused, are 
not admissible in evidence, (h) And when a written 

(a) B V. Woodcock. 1 Leach, 500 ; iJear v. Welbom, 1 East P. C. 358 ; 1 Greenl. Ev. g 158 ; 
2 Russ. Cr. 752 ; 7 Hump. (Tenn.) 642 ; Moan v. The State, 12 Ala. 764 ; 17 IlL 17; 8 Ohio 
131 ; 32 Mifls. (3 Georg.) 433 : 13 Flor. 637; 50 Mo. 370. 

{b) R. V. Pike, 3 0. A P. 598 

(c) Rex V. Moeely, 1 Moody, 97 ; 2 Ru». Or. 757. 

(d) Rex V. Fagent, 7 C. A P. 238. 

<«) Murphy V. The People, 37 111. 447. 

(/) Ibid. 

{g) Rex V. Mosley, 1 Moody, 97. 

{h) Binns V. The Stale, 46 Ind., 811. 



THE LA W OF HOMICIDE. 309 

Dying Declarations. 

memorandum of declarations made in extremis is not signed^ 
parol evidence of such declaration is admissible. If the de- 
claration has been signed^ the writing should be produced^ or 
accounted for. (a) 

§ 564. *^ In order to admit proof of statements as dying 
declarations^ the proof must clearly show that the declarant 
was in fact at the very point of death^ (6) and that he was fully 
conscious of that fact^ not as a thing of surmise and conjecture, 
or apprehension, but as an inevitable fact. It is not neceesary 
that the deceased should have declared in terms that he ex- 
pected to die at once, if his condition was such that, of neces- 
6ity such an impression must have existed in his mind. On 
the other hand, no matter how strong the expression of this 
certainty of death may have been, if there be any evidence of 
hope, in the language or actions of the deceased, his statements 
will be rejected." (o) 

If the expression in the foregoing opinion, ''that the dedar- 
arU must in fact be at the very point of death," was intended to 
be taken literally, it is certainly against the whole current of 
authorities. While it is certain that the declarant must be in 
extremis, or a moribund condition, and he must be conscious 
of the fact, and have given up all hope, and expect to die very 
shortly, yet it is going too far to require, as the case seems to 
require, that the declarant should in fact be at the very point 
of death, with the death-rattle in his throat, in order that his 
declarations may be received in evidence. There are numerous 
instances in the adjudicated cases when the declarations were 
admitted where they were made many hours or days before the 
declarant reached the " very point of death." It will be 
observed, too, by examining the above-mentioned case fully, 
that the syllabus is not borne out by the body of the decision. 
See later cases: Watson v. The State, 63 Ind. 548, and Binns 
V. The State, 46 Ind. 311. 

{a) Binns v. TJie State, 46 Ind. 311. 

(&) But see jMM^, in this section. 

(c) Morgan v. The State, 31 Ind., 193. 



310 THE lA W OF HOMICIDE, 

Corpus Delicti— Finding Dead Body. 

Of tbe Corpus Delletl, and Finding the Bead Body. 

§ 565. Oo this subject Lord Hale says : '^ I would never 
convict any one of murder or manslaughter unless the fact 
were proved to be done^ or at least the body fouud dead." (a) 
The death in such a case should be distinctly proved^ either 
by direct evidence of the fact, by inspection of the body, (i) 
or by circumstantial evidence strong enough to leave no reas- 
ouable doubt, (c) The fact of death should be shown either 
by witnesses who were present when the murderous act was 
done, or by proof of the body having been seen dead, or if 
found in a state of decomposition, or reduced to a skeleton, 
that it should be identified by dress or circumstances, as in the 
Webster case, where the teeth formed the chief means of iden- 
tification ; and in an English case, where the same test was 
successfully applied to a body after a lapse of twenty-three 
years, (d) Several remarkable cases have occurred where 
persons have been convicted and executed for the murder of 
parties who afterward turned out to be alive. These cases are 
well calculated to vindicate the policy of the law as to proving 
the corpus delicti. 

Should the death be proved by eye witnesses, it is not 
essential that the body should have been seen after death, as 
in case of killing or mortally wounding a man, and then 
throwing the body into the sea. (e) In Missouri it has been 
held that a confession on the part of the accused, that he 
drowned his wife, was sufficient proof of her death, without 
any evidence that she was seen after death. (/) In Indiana it 
has been decided that in a prosecution for murder, the corpus 
delicti may be' proved by circumstantial evidence, and it is 
not necessary that the body of the deceased be found, {g) And 
also that on a trial for murder, where evidence was given of 
the finding of a skeleton of a human being, of the sex of the 

(a) 2 Hale P. C. 290 ; 5 Humph. 383. 

(&) 1 Stark. Ev. 575, 3 ed. ch. 5. 

(c) People V. RtOloff, 3 Parker C. R. (N. Y.) 401. 

{d) Rex V. Clewes, 4 C. A P. 221 ; 1 Whar. Or. L. g 746. 

(e) Rex V. Hindtnarsh, 2 Leach Cr, L. 669. 

(/) State y. Lamb, 28 Mo. 218. 

Q) Stocking v. The StaU, 7 Ind. 326. 



THE LA W OF HOMICIDE. 311 

Character of Defendant. 

— — t ■ III 

person charged to have been murdered and corresponding to 
his size, it was decided that this was sufficient evidence of the 
corpus delicti to justify the admission of circumstantial evi- 
dence to identify the skeleton as that of the murdered party, 
as well as to show the cause and manner of his death, (a) 

£Tldeiice of Cbaracter. 

§ 56t>. Evidence of the defendant's good character is 
admissible in his behalf in all prosecutions for murder and 
manslaughter, as well as in all other crimes ; and that, not 
only in doubtful cases, as has sometimes been loosely said, but 
in every case, whether the evidence against the defendant be 
direct or circumstantial, strong or weak, cogent or doubtful. (6) 
The good character of the party accused, when established by 
evidence, ought always to be submitted to the consideration of 
the jury together with the other facts and circumstances of the 
case, (c) It is not proper for the judge to charge the jury 
that " in a plain case a good character would not help the 
prisoner, but in a doubtful case he has a right to have it cast 
into the scales and weighted in his behalf;" the true rule being, 
that in all cases a. good character is to be considered of 
weight, (d) Whether it be a doubtful case or a plain case 
can not be determined until the whole evidence is put in ; and 
character is an ingredient which may render that doubtful 
which would otherwise be clear. If it be a plain case of guiU, 
i, c, granted that the defendant is guiUy of the crime where- 
with he is charged, then, of course, the evidence of good 
character would be of no avail. But so long as the question 
of his guilt or innocence is in dispute, the jury should consider 
all proper evidence in his behalf, whether it be his own good 
character, or the prosecutor's bad character, or evidence of 
ulibi or self defense. 

§ 567. Evidence of this description is admitted, on the 

(o) McCulloch V. The State, 48 Ind. 109. 

(6) Arch. Or. P. 104; 2 Russ. Cr. 784; Rex v. Stannard, 7 C. A P. 673; Com. v. Webster, 
5 Gush. 324 ; DavU v. State, 10 Ga. 101 ; 1 Whar. Cr. L. g 636. 
(cj 2 Russ. Cr. 785. 
(d) State V. Henry, 5 Jones N. C. 65. 



812 THE LA W OF HOMICIDE. 

Character— Threats of Deceased. 

' ■ ■ »■ 

principle that it is not likely that one who has always condncted 
himself peaceably and morally will commit an atrocious crime, 
and '' at a single bound leap the wide gulf that separates vice 
.from virtue/^ As observed by Mr. Prentiss, in his celebrated 
speech in the Wilkinson case, *' good character always^ has 
been, and always will be, a wall of strength around its pos- 
sessor^ a seven-fold shield to him who bears it. In proportion 
to the excellence of a man's character, is, and ever ought to 
be, the violence of the presumption that he has been guilty of 
a crime." (a) 

§ 568. In proving the defendant's good character, witnesses 
are not allowed to speak, of their own personal knowledge, of 
his good conduct, but of his "general reputation," or *' gene- 
ral character," (used in the sense of reputation). And such 
evidence of good character should have relation to the nature 
of the offense charged ; as in larceny, for honesty and fair deal- 
ing ; in perjury, for truth; and in murder or manslaughter, or 
assaults with intent to commit them, for peace and humanity, 
and the like. (6) 

ETidence of the Character, Conduct, and Threats of 

the ]>eceafiied. 

§ 569. As to the Bad Character of the Deceased, — Evi- 
dence of this 8ort is generally inadmissible in behalf of the 
accused, (c) But it has been thought admissible to show that 
the deceased was possessed of preponderating strength, that 
he carried arms, and that his character was so far desperate as 
to necessitate the most extreme precaution on the part of a 
person attacked by him, notice of this being brought home to 
the defendant, (d) It is no excuse for a murder that the per- 
son murdered ^as a bad man; but the character of the deceased 

(a) Ante, §201. 

(6) 1 Whar. Am. Cr. L. g 636, et seq. 

(c) Com. V. York, 9 Metcalf, 110; State v. Field, 14 Maine, 248; State v. Jackson, 17 Mo. 
544 ; Wise v. The State, 2 Kansas, 419 ; State v. Brien, 10 La. Ann. Rep. 453 ; People v. Mur- 
ray, 10 Cal. 309. 

(d) PrUchett v. State, 22 Ala. 39 ; DeForest v. The State, 21 Ind. 23 ; 9 Yerger, (Tenn.)342; 
25 Ga. 699 ; 6 Jones, (Mo.) 588 ; 1 Mete, (Ky.) 370 ; 2 Kans. 419 ; Fannestock v. The State, 23 
Ind. 231. 



THE LA W OF HOMICIDE. 3 1 3 



Threats by Deceased. 



may sometimes be given in evidence, to show that the defend- 
ant had good reason in believing himself in danger^ when the 
ciroumstanoes of the case are equivocal, (a) But notice to the 
defendant of this bad character is required. (6) 

§ 570. Upon this question it has been held in Indiana, in 
Dukes v. The State, 11 Ind. 557, that when the question 
arises whether the accused acted upon grounds that justified 
him in the deed, it would seem that the character of the 
deceased might be considered, especially when the deceased 
knew his character and knew him at the time he committed 
the act ; and that in justifying homicide, in defense of one's 
person, property, etc., the defendant may give in evidence any 
facts tending to show the character of the attack which he 
resisted, the intention with which it was made, and that he 
had reasonable grounds to believe it was necessary to go to the 
extent he did in resisting it. To the same eflPect is DeForest v. 
The State, 21 Ind. 23. 

§ 571 Threats by Deceased. — It is admissible on behalf of 
the party accused, to show threats which would be likely to 
induce him to reasonably believe that his life was in danger; 
but it is frequently laid down, that such threats, without overt 
acts must be shown to have been communicated to him prior 
to the homicide, (c) 

On the contrary, it has been decided in Indiana (d) that 
threats made by the deceased against the defendant should be 
admitted in evidence, whether they were communicated to the 
defendant or not. To the same eflPect are rulings in Kentucky, 
Illinois, Georgia, Ohio and other States, (d) [See Note 1.] 

(o) People V. Murray, 10 Cal. 309. 

(6) People V. Henderson, 28 Cal. 465; 1 Whar. Or. L. §641. 

(c) 2 Whar. Am. Or. Law, §1027; Keener \. The State, 18 Ga. 194; Alkins v. The State, 
16 Ark. 568; Slaie v. Gregor, 21 La. Ann. 473; People v. Lombard, 17 Cal. 316; Netocomb v. 
The State, 37 Miss. 383 ; Powell v. Tfie State, 19 Ala. 577 ; II(yye v. The State, 39 Ga. 718 ; Prid- 
gtn V. State, 31 Tex. 420; see, also, 15 B. Monroe (Ky.) 539. 

(<*) 37 Ind. 57 ; 15 B. Monroe (Ky.) 539 ; 16 111. 18 ; 18 Ga. 194 ; 19 Ohio, 302. 

Note 1.— Threats and Character op Deceased.— In trials for homicide evidence 
of the violent and dangerous character of the deceased is admissible, without reference 
to the question whether there is any evidence in the case, showing that at the time of 
the killing the defendant was in danger, real or apparent, of death, or great bodily harm at 
the hands of the deceased. And threats made by the deceased against the accused, and not 



314 THE LA W OF HOMICIDE. 

The Indictment. 

« 

The Indiclment. 

§ 572. The prolixity aud great particularity of the two 
indictmentSy in the WilkiDson case, are very striking to those 
who are not familiar with the old praetioe aod rules of law in 
regard to indictments, (a) These iudictments were drawn 
with great care, accordiog to the common law forms, and not- 
withstanding their great verbosity, there is scarcely an allega- 
tion in them that could safely have been omitted under the 
former practice. In most of the States of the Union, and in 
Great Britain, the rules of practice and pleading in criminal 
causes have been greatly improved and simplified ; and many 
of the allegations formerly required in indictments are de- 
clared by statutes to be unnecessary. 

The Revised Statutes of Indiana, 1852, prescribed a number 
of '^ simplified forms in criminal actions'^ (2 R. S. 1876, 
368) ; but these forms were held unconstitutional and void by 
reason of a defect in the title of the act. (7 Ind. 516 ; \\ Id. 
307 ; 9 Id, 408 ) But there are other statutory provisions 
which materially change and simplify the rules of criminal 
pleading. Among them are the following : 

*' Section 54. The indictment or information must con- 
tain: 

^^ First. The title of the action, specifying the name of the 
court to which the indictment or information is presented, and 
the names of the parties 

^^ Second. A statement of the facts constituting the offense, 
in plain and concise language, without repetition. 

** Skc. 55. The indictment or information must be direct 
and certain, as it regards the party and the offense charged. 

** Sec. 56. The precise time of the commission of the 
offense need not be stated in the indictment or information; 
but it is su£Qcient if shown to have been within the statute of 
limitations, except when the time is an indispensable ingredient 
in the offense. 

communicated to him before the killing, are admissible in all cases where the acts of the 
deceased in reference to the fatal meeting are of a doubtful character. Little ▼. The StaU, 
6 Jerry Baxter (Tenn.) Rep. 491. See also Jacktan v. The State^ Id. 452. 
(a) ^n/0, §§6,6. 



THE LA W OF HOMICIDE. gl5 

" ' J -. M - ■ - I ■ Will iiMfca^— — ■^»^ ■■■ ■ ■■^^■^w ^^1^^— 1^^^^ 

The Indictment. 



^' 8rc. 57. In an indictment for an offense committed in 
relation to property^ it is sufficient to slate the name of any 
one, or names of several or joint owners. 

^^ 8£C. 58. The words in an indictment must be construed 
in their usual acceptation, in common language, except words 
and phrases defined by law, which are to be construed accord- 
ing to their legal meaning. 

** Skc. 59. Words used in the statute to define a public 
offense, need not be strictly pursued, but other words, convey- 
ing the same meaning, may be used. 

^^ S£C. 60. The indictment or information is sufficient if it 
can be understood therefrom : 

" First. That the indictment was found by the grand jury 
of tho county, or the information presented by the prosecuting 
attorney of the circuit in which the court is held ; 

^^ Second. That the defendant is named, or described, in an 
indictment, as a person whose name is unknown to the grand 
jurors ; or, in an information, to the prosecuting attorney ; 

" Third. That the offense was committed within the juris- 
diction of the court, or is triable therein ; 

" Fourth. That the offense charged is clearly set forth, in 
plain and concise language, without repetition ; and, 

*^ Fifth. That the offense charged is stated with such a de- 
gree of certainty, that the court may pronounce judgment 
upon a conviction, according to the right of the case. 

" Sec. 61. No indictment or information may be quashed 
or set aside for any of the following defects : 

" First. For a mistake in the name of the court or county 
in the title thereof; 

" Second. For the want of an allegation of the time and 
place of any material fact, when the venue and time have been 
once stated in the indictment, or information ; 

" Third. That dates and numbers are represented by 
figures ; 

" Fourth. For an omission of any of the following allega- 
tions, viz, : ^ With force and arms,^ ^ contrary to the form of 



816 THE LA W OF HOMICIDE. 



The Indictment. 



the statute/ or ^against the peace and dignity of the State of 
Indiana ;' 

'^ Fifth, For an omission to allege that the grand jurors 
were empaneled^ sworn, and charged ; 

" Sixth. For any surplusage or repugnant allegation^ when 
there is sufficient matter alleged to indicate the crime and per- 
son charged ; nor, 

" Seventh. For any other defector imperfection which does 
not tend to the prejudice of the substantial rights of the de- 
fendint upon the merits/' 

§ 573. Notwithstanding the foregoing statutory provisions, 
it will be seen, by the adjudicated cases, that greater certainty 
and particularity are often required in indictments, than at first 
blush would seem to be necessary under these statutes. In- 
deed, it has been decided that the Legislature has not the 
power to dispense with such allegatioos in indictments as are 
essential to reasonable particularity and certainty in the de- 
scription of the offense (45 Ind. 338). While conciseness is 
a cardinal excellence in criminal pleading, yet there is gener- 
ally more or less danger of carrying it too far. Therefore, the 
pleader should not make it an object to draw his indictment 
in the fewest possible words. It is better to err in the oppo- 
site direction at the expense of unnecessary prolixity. It is 
always safe to follow approved precedents ; and, therefore, 
unless a short form has been settled by the Supreme Court, and 
your facts are identical, with those of the adjudicated case, it 
is best to follow the old forms substantially, omitting only 
such allegations as are plainly unnecessary. The indictment 
against Judge Wilkinson et at., ante §§5, 6, is a good form, 
which may be used with propriety at this day, with very little 
change. It should be borne in mind that those short indict- 
ments which the Supreme Court have held good, were subjects 
of grave dispute, while other short indictments, seemingly in 
accordance with the modern practice, have been held bad, as 
in the case of Sheppard v. The State, 54 Ind. 25. Care 
should be taken to modify the old forms to conform to the 



THE LA W OF HOMICIDE, 317 

The Indictment. 

statutory definitions of the various grades of felonious homi- 
cide ; for example, in Indiana, instead of the phrase *' with 
malice aforethought/^ used at common law in charging the 
highest degree of felonious homicide, the following words 
should be used in an indictment for murder in the first degree : 
" Feloniously, purposely, and with premeditated malice." See 
post, §606, pi. 1. 

In Part III of this work will be found a number of short 
forms, which have been held sufficient by the Supreme Court 
of Indiana. 

In regard to the requisites of indictments for felonious homi- 
cide, it has been held that it is not necessary in an indictment 
for murder to aver that the accused was a person of sound 
mind, (a) It was decided in 7 Blackf. 20, that the part of 
the body to Which the violence was applied, must be stated in 
the indictment, but the proof need not correspond with the 
statement. It was afterwards held, however, that it is not 
absolutely necessary that the part of the body struck by the 
ball should be specified in the indictment. (6) It is not neces- 
sary to describe the depth or breadth of the wound, (c) Un- 
less the indictment contain the technical word '^ murdered/^ it 
is an indictment for manslaughter only, (d) To aver that the 
defendant held the gun ^' in both hands/' is equivalent to 
averring ^' in both his hands." (e) The indictment need not 
name the particular kind of poison administered, in a case of 
murder by poisoning ; and if it do, it will not be necessary 
that the proof correspond. (/) The kind of gun and shot 
need not be specified, nor the wound described, (g) The sig- 
nature of the prosecuting attorney is not necessary to the 
validity of an indictment. (A) The words " malice afore- 
thoughty^ are not equivalent to the phrase '^ premeditated 

(a) 1 Blackf. 395, 396. 

(6) WhOehell v. The State, 23 Ind. 89. 

(c) JHas V. The State, 7 Blackf. 20. 

(d) Ibid. 

(e) Ward y. State, 8 Blackf. 101. 
if) Carter v. State, 2 Ind. 617. 

{g) Dukes v. StaU, 11 Ind. 567 ; DOUm y. State, 9 Ind. 406. 
(A) Dukes y. StaU, 11 Ind. 557. 



I 



818 THE LA W OF HOMICIDR 

The iDdictment. 



malice/' and therefore^ when^ in an indictment, it is charged 
that the killing was done with *' malice aforethought/' it 
amounts to murder in the second degree only, (a) 

§ 574. An indictment, averring that the defendant feloni- 
ously, willfully, and of his malice aforethought, *^ did kill, 
murder and put to death [a certain person], with a pistol and 
knife/' was held to be insufficient in California, because it did 
not sufficiently specify the manner and facts of the killing. (6) 
To the same effect is a decision in Indiana, (c) The date of 
the death of the deceased, as well as that of the stroke or 
wounding, should be stated, (d) so that it shall appear on the 
face of the indictment that the injured party died within a-year- 
and-a-day after the stroke, for if the death did not occur 
within that time the law presumes that it resulted from some 
other cause, (e) When it is averred in the indictment that the 
deceased was killed with a knife, this averment need not be 
strictly proved as charged ; it will be sufficient to show that 
the deceased was killed by any other instrument capable of 
producing the same kind of wound or hurt. (/*) 

§ 675. But, if the indictment allege a stabbing, and the 
evidence prove a shooting, the variance will be fatal, the 
species of death being different in these two cases, (p) Where 
the indictment charged the killing to have been done by blows 
upon the head, and the evidence showed that the death 
was caused by the deceased falling on the ground, in conse- 
quence of a blow received from the defendant, it was held 
that the indictment did not properly state the cause of the 
death. (A) And when the indictment averred that the killing 
was done with a brick, and it was proved that the defendant 
knocked the deceased down with a blow of his fist, and that 
he fell against a brick which caused his death, it was held to 
be a variance, (t) And where the indictment charged that 

(a) Finn v. The State, 5 Ind. 400. (/) 9 Coke, 67a. 

(6) People V. Aro, 6 Cal. 207. (g) 1 Moody C. C. 818. 

(c) Shepherd v. The State, 54 Ind. 25. (A) 1 Moody C. C. 189. 

Id) StaU v. Conley, 39 Maine, 78. (i) 1 Moody C. C. 118. 

(e) People v. KeUey, 6 Cal. 210. 



THE LA W OF HOMICIDE. ^ 319 

Once in Jeopardy. 

the killing was done by shooting with a pistol loaded with 

gunpowder and a leaden bullet, and it was proved that there 

was no bullet in the wound^ and none in the room where the 

act occurred, and that the wound might have been made with 

the wadding of the pist >!, it was held that the indictment was 

not proved, (a) [Sed quer^f] An indictment charged the kill 

ing by choking and suifocation with moss and dirt ; and it 

appeared by the evidence that the death was produced by 

inflammation which was the effect of the choking ; this was 

held sufficient, upon the ground that the proximate cause of 

the death having been truly stated, it was not necessary to 

state in the indictment the intermediate process arising from 

such cause. (6) Where an indictment charged a murder by 

cutting the throat of the deceased, and a surgeon proved that 

the real throat was not cut (the wound not extending far 

enough around the neck), it was held that there was no vari- 

ance» because the word throat used in the indictment must be 

understood to mean what is commonly called the throat, (o) 

It is not necessary in Indiana to state in which hand the 

instrument of death was held, and if such averment is made 

in the indictment, it will be no variance, although the evidence 

shows that the instrument was held in the other hand from 

that which is averred in the indictment, (d) 

Onee in Jeopardy. 

§ 576. Although the law on this subject is equally appli- 
cable in all offenses, yet, by reason of its great importance in 
homicide cases, it is deemed useful and proper to present the 
law on this topic in these pages. 

§ 577. According to the common law, where there has been 
a final verdict, either of acquittal or conviction, upon a valid 
indictment, the defendant can not again be placed in jeopardy 
for the same offense. But, according to modern doctrines, to 
be noticed hereafter, there are other cases of jeopardy, that bar 

(o) 5 C. A p. 126. (c) 6 C. A P. 401. 

(6) R. & R, 345. (d) Bick. Or. Pr. 261. 



320 ^ THE LA W OF HOMICIDE. 

Once in Jeopardy— Foimer Acquittal or Conviction. 

a further prosecution, besides '^ a final verdict of acquittal or 
conviction." 

§ 578. It is declared in the 6th article of the amendments 
to the Constitution of the United States, that no person ^' shall 
be subject for the same offense, to be twice put in jec pardy of 
life or limb." Similar provisions are to be found in all the 
constitutions of the thirty-eight States of the Union. In 
some States the language is " life or liberty.'' In Indiana : 
" No person shall be put in jeopardy twice for the same 
offense." In Kentucky: **No person shall, for the same 
offense, be twice put in jeopardy of life or limb." The same 
language is used in the constitution of Tennessee. In Missis- 
sippi : •* No person's life or liberty shall be twice placed in 
jeopardy for the same offense." In Ohio : " No one shall be 
twice put in jeopardy for the same offense." Same in Illinois. 
In Missouri : ** No person after being once acquitted by a jury, 
shall be again for the same offense put in jeopardy of life or 
liberty ; but if the jury to which the question of his guilt or 
innocence is submitted, fail to render a verdict, the court be- 
fore which the trial is had, may, in its discretion, discharge 
the jury and commit or bail the prisoner for trial at the next 
term of court ; or« if the state of business will permit, at the 
same term; and if judgment be arrested after a verdict of 
guilty on a defective indictment, or if judgment on a verdict 
of guilty be reversed for error in law, nothing herein contained 
shall prevent a new trial of the prisoner, on a proper indict- 
ment, or according to correct principles of law." 

§ 679. FiraU of jeopardy by acquittal or conviction. 
The general principle stated, arde § 577, is recognized as fer 
as it goes, in all the States ; and the criterion laid down, gene- 
rally, is : Would the evidence necessary to support the second 
indictment, have been sufficient to procure a legal conviction 
on the first ? (a) But the former acquittal, in order to be a 
good bar, must have been upon a charge within the jurisdic- 
tion of the court where the party was acquitted. For exam- 
ple, an acquittal by a justice of the peace upon a charge of an 

(a) IB. &B. 473; 9 East, 437; 20. &P. 634. 



THE LA W OF HOMICIDE. 



321 



Once in Jeopardy — Former Acquittal or Conviction. 



assault and battery with intent to commit murder^ is beyond 
the jurisdiction of a justice of the peace, and therefore void, 
and can not be pleaded in bar of an indictment afterward 
found for the same offense, (a) The reason of this is, that on 
a charge before a justice of the peace for a fdonyy the justice 
sits as an examining court, and can only discharge, commit or 
hold the accused party to bail, to answer in a higher court ; 
and he has no jurisdiction to acquit or convict. It has been 
said by an eminent jurist of Indiana, (b) that an indictment 
for an assault and battery with intent to murder, is barred by 
a former acquittal before a justice of the peace for an assault 
and battery, alleged to be for the same assault and battery 
described in the indictment ; citing Foster, 229. But the Su- 
preme Court of Indiana have recently decided otherwise ; and 
have held that an ^' assault and battery (a misdemeanor), when 
committed in connection with an attempt to murder, is merged 
in the felony known as ^' an assault and battery with intent to 
murder ; '' and an acquittal or conviction of the misdemeanor, 
though by a court of competent jurisdiction, is no bar to the 
prosecution of the felony ; but if the intent to murder be not 
established, such acquittal or conviction will bar a conviction 
of the assault and battery, (c) It was further held, that on a 
trial for simple assault and battery, one can not be convicted 
on evidence showing him guilty of an assault and battery with 
intent to commit murder. 

§ 580. An acquittal upon an indictment for burglary and 
larceny may be pleaded to an indictment for a larceny of the 
same goods; but if the first indictment were only for a 
burglary with intent to .commit larceny, an acquittal on it 
would not be a bar to a subsequent indictment for the 
larceny, (d) An acquittal on a charge of murder is a bar to 
a subsequent prosecution for inanslaughter, for the same kill- 
ing, because the defendant might have been lawfully convicted 
of manslaughter under the former indictment for murder, (e) 



(a) 4 Blackf. 156. 

(6) Bick. Cr. Pr. 119. 

(e) State v. Hattabaugh, 66 Ind. 223, 

H.— 21 



((f) Hale, 245; 14 Ind. 572. 
(e) 2 Hale, 246 ; 9 C. & P. 364. 



322 THE LA W OF HOMICIDE. 

Once in Jeopardy — Discharge of Jury. 



An acquittal upon an indictment for manslaughter is a bar to 
an indictment for murder^ for the same act of homicide, (a) 

§581. But, as stated, ante §577, there are other cases of 
jeopardy, that bar a further prosecution, besides an acquittal 
or conviction ; and these will now be noticed. In several of 
the iStates it has been held that where a jury in a capital case 
has been discharged without the consent of the accused, before 
rendition of the verdict, after the trial has commenced, such 
discharge may, under certain conditions, bar a second trial for 
the same offense, under the same or another indictment, upon 
the ground that the defendant has been " once in jeopardy/' 

§ 582. Upon this subject the Supreme Court of the United 
States has held that " courts of justice are invested with the 
authority to discharge a jury, without the consent of the 
defendant, whenever, in their opinion, taking all the circum- 
stances into consideration, there is a manifest necessity for the 
discharge, or the ends of public justice would otherwise be 
defeated. They are to exercise a sound discretion on the 
subject; and it is impossible to define all the circumstances 
which would render it proper to interfere." (6) 

§ 583. In Virginia, mere inability to agree is not such a 
necessity as will justify the court in discharging a jury, and in 
such a case the defendant can not again be put in jeopardy, (o) 
But in a case in which the jury had been in deliberation for 
nine days, one of the jurors suffered materially in health, and 
for that reason the jury were discharged, it was held in 
Virginia that a second trial was regular, {d) 

§ ^84. In Tennessee the jury were empaneled on Thurs- 
day evening, at 2 o'clock, and they came in once or twice 
during the same evening and declared that they could not 
agree, but they were kept together all that night by the court, 
and at 9 o'clock the next morning they were discharged by the 
court, the jury dfolaring that they could not agree. The term 
of the court did not conclude until the day following. It was 

(a) 4 Co. Rep. 466; 1 Stark. 305 ; Fos. 229. (c) WiUiams v. Com., 2 GrattaD, 568. 

(6) U, S. V. Perez, Wheaton, 579. {d) Com. v. FeOs, 9 Ldgh, 613. 



THE LA W OF HOMICIDE, 323 



Once in Jeopardy— Discharge of Jury. 



held that this was not such a case of necessity as authorized the 
court to discharge the jury; and it was said that it was not 
within the power of the court to discharge the jury without 
the consent of the prisoner, except in case of sickness, insanity, 
or exhaustion among themselves, (a) 

In California it has been decided that the jury can not be 
discharged without the prisoner's consent, except in cases of 
legal necessity, or from some cause beyond the control of the 
court, such as death, sickness or insanity of some of the jury, 
of the prisoner, or of the court ; and hat a discharge of the 
jury without some such reason protects the defendant from 
another trial. (6) 

§ 585. In Mississippi the decision of the Supreme Court 
of the United States {ante § 682 ; U. 8. v. Perez, Wheaton, 579), 
was followed, (c) But it was afterwards held in that State 
that a discharge merely because the jury were unable to agre^ 
worked an acquittal ; yet it is otherwise when the term of the 
court is about to expire, and there is no possibility of agree- 
ment, (d) 

In Illinois the view of the Supreme Court of the United 
States seems to obtain, (e) 

In Ohio, first by decision of the Supreme Court (/), and 
afterwards by statutory enactment : " When the jury have 
deliberated long enough to leave very little doubt that their 
opinions are inflexibly formed," and are unable to agree, the 
court, at its discretion, may discharge the jury. 

§ 586. In the State of Indiana it has been held : The 
discharge of a jury in a criminal case, because of their inability 
to agree upon a verdict, after a protracted deliberation, does 
not entitle the defendant to a discharge on the ground that he 
has been once in jeopardy, (g) 

(a) Mahaia v. The Staie^ 10 Yerger, 532; See Stale ▼. Rankin, 4 Cold. (Tenn.) 146. 

(6) People V. Webb, 38 Cal. 467. 

(c) Moore v. The State, 1 Walker, 184. 

{^ Josephine v. The State, 89 Miss. 618 ; Woods T. l%e State, 43 Mia. 364. 

(e) State v. Stone, 2 Scam. 326. 

if) Dobbins v. State, 14 Ohio St. R. 498. 

{g) The State v. Nelson, 26 Ind. 866. 



824 THE LA W OF HOMICIDE. 

Once in Jet^wrdf—Practice. 

In this case^ after deliberating three days, the jury &iled to 
agree, and stated to the court that there was no probability 
that they could agree. Whereupon, over the defendant's 
objection, the court discharged the jury. And afterwards, the 
defendant was, on motion^ discharged from further custody 
upon the indictment, the prosecuting attorney objecting. This 
discharge was evidently made upon the assumed ground that 
the defendant had been once in jeopardy; and the court then 
proceeds to give a very lucid and elaborate opinion on that 
subject. The judgment of the court below was reversed, the 
court holding that the defendant should be tried again, saying, 
'* differing from the spirit of what has heretofore been held in 
Indiana, and from the doctrine held in Pennsylvania, Tennes- 
see, Virginia, North Carolina and Alabama, we are, however, 
in accord with the Supreme Court of the United Slates, and 
of Massachusetts, Mississippi, New York, Illinois and Ken- 
tucky.'^ (a) In other cases the Supreme Court have decided 
that the jury reporting that they could not agree might be 
discharged against the defendant's objection, when they had 
been out for eighteen hours, (6) and nineteen hours, (c) and 
that such discharge did not bar further proceedings against the 
defendant. 

§ 587. In all criminal prosecutions, the defendant, under 
the oral plea of " not guilty," may show a former conviction 
fur the same offense. (<2) A defendant in a criminal prosecu- 
tion, may plead specially a former acquittal, or a former con- 
viction, in bar, and have the issue or issues joined on such plea, 
tried separately and apart from the question of the innocence or 
guilt of the crime charged in the pending indictment ; (e) and 
it is optional with the accused whether he will plead a former 
acquittal or conviction specially, or give the same ' in evidence 
under the plea of not guilty ; (/) and if the issue or issues 

(a) U. S. V. Peres, 9 Wheaton 579 ; Com. v. Bowden, 9 Mass. 494 ; Cmn. v. Purchase, 2 Pick. 
621 ; People v. Goodwin, 18 Johns. 187; Moore v. State, 1 Walk. (Miss.) 134; Stone v. StaU,i 
Scam. 326 ; Com. v. Olds. 5 Let. 137. 

(6) 27 Ind. 131. 

(c) 26 Ind. 346. 

(d) Lee v. The State, 42 lud. 152 ; The Slate v. Levingy Id. 541. 
(c) Clem V. Statet 42 Ind. 420. 

(/) IMd. 



THE LA W OF HOMICIDE. 325 

Once in Jeopardy— Practice. 

joined on a plea of former acquittal or conviction are found 
against the de&n<]ant^ he may still enter a plea oi not guilty, (a) 
When a legal indictment has been returned by a competent 
grand jury to a court having jurisdiction of the person and 
the offense^ and the defendant has pleaded^ and a traverse jury 
has been duly empaneled and sworn, and all the preliminary 
requisites of record are ready for the trial, the prisoner has 
been once put in jeopardy ; (6) and in such a case, the prosecu- 
ting attorney can not, even with the consent of the court, enter 
a .7wl. pros,y and indict the defendant again foi^ the same 
offense, (c) But where the indictment is so defective in form, 
that if the defendant were found guilty he would be entitled 
to have any judgment which could be entered thereon reversed ; 
or if the judge discover any defect after the trial has com- 
menced, which would render the verdict against the prisoner 
void, or voidable — then the judge on his own motion may stop 
the trial, and what may have transpired will be no bar to the 
future proceeding, and the prosecuting attorney may noL pros. 
the indictment and procure a new one. (d) 

§ 588. If, upon an indictment for murder in the first de- 
gree, the defendant is found guilty of an inferior grade of hom- 
icide, without saying anything as to the higher grade, the find- 
ing is, by implication, an acquittal of the higher grade, (e) 
When two or more persons are killed by the same act, the 
State can not indict the guilty party for killing one of the 
persons, and after a conviction or acquittal indict him for kill- 
ing the other. (/) A criminal cause was submitted to the 
court for trial, and the judge, after hearing the evidence, took 
the case under ad visecpent on the 16th day of December, but 
(without a finding), died on the 28th of April following ; held, 
that this did not work a discharge of the defendant, (g) 

(a) Ibid. 

(6) Joy V. The State, 14 Ind. 189 ; 4 Blackf. 845 j 7 Jd. 191 ; 5 Ind. 292. 

(c) 14 Ind. 189. 

id) Ibid. 

(c) Clem V. The State, 42 Ind. 420. 

(/) Ibid. 

(g) Betcher v. SkUe, 32 Ind. 480. 



826 THE LA W OF HOMICIDE. 

Habeas Corpus, for Bail. 



Where the jury, after ample time spent in confiultatioDy is un- 
able to agree upon a verdict^ this constitutes good cause for 
their discharge, without the consent of the accused; but the 
discharge of the jury ^^ without good cause/' and without the 
consent of the defendant/ is equivalent to a verdict of not 
guilty, (a) But if the jury be discharged on account of the 
illness or death of a juror, or of the judge, or because the term 
of the court has expired, the prisoner has not been in jeopardy, 
and may be tried again. (6) However, it was held in a mur- 
der case, that where one of the jurors became sick, and asked 
to be discharged (the prisoner refusing to consent to such dis- 
charge), and the court, without any sworn statement from the 
juror as to his condition, or the evidence of a physician on the 
subject, discharges the jury, such discharge will be a bar to a 
retrial of the prisoner, (o) 

See further on this subject, the criteria laid down by the 
Supreme Court of Indiana, in The State v. HaUabatyh, 66 
Ind. 228. 

<lf Ball— Habeas Corpus. 

§ 589. The Oenstitution of the State of Indiana provides 
that ** murder or treason shall not be bailable when the proof 
is evident or the presumption strong.^' There are similar pro- 
visions in the constitutions of all the States. If the indict- 
ment is either for murder in the first degree or murder in the 
second degree, (d) prima faciey the defendant is not entitled to 
bail. Sometimes the prosecuting attorney consents to bail in 
a certain amount, and the court on such consent admits the 
prisoner to bail. But in the absence of such consent the 
defendant must remain in imprisonment unless he is admitted 
to bail, on motion in the court wherein the indictment was 
found, or in vacation by the proper judge upon application by 
writ of habeas corpus, (e) The prosecuting attorney must be 
notified of the time and place for the hearing, and the court, 
or judge, having summoned the witnesses shall investigate 

(a) 26 Ind. 846. (d) So held In Ind. 

(6) State V. yeUan, 26 Ind. 866. (d) 2 G. & H. (Ind.) 898. 

(c> Mttlo V. The State, 19 Ind. 298. 



THE LA W OF HOMICIDE. 327 

Habeas Corpus, for Bail. 

the criminal charge ; and discharge, let to bail, or recom- 
mit the prisoner, as may be just and legal, and shall recognize 
witnesses when proper, (a) Upon such investigatign, for the 
purpose of being let to bail, the presumption is against the 
prisonerr He is the actor or plaintiff in the proceeding, and 
therefore the burden of proof is on him. He introduces his 
evidence first, there being cast on him the onus of showing 
that it is a bailable case. He must therefore introduce the 
evidence upon which the State intends to rely for a conviction ; 
but he may cross-examine or impeach the witnesses. (6) On an 
appeal to the Supreme Court from a decision refusing to allow 
the prisoner to be bailed, the Supreme Court will weigh the 
evidence without regard to the finding below, (c) 

The judges of the Criminal Courts of Indiana are author- 
ized to issue writs of habeas corpus in favor of persons in 
custody for an alleged '^ violation of the criminal laws of this 
State,^^ and to admit to bail, or discbarge the prisoner, the 
same as the judges of the Circuit Court, {d) 

§ 590. We submit the following form of a petition in such 

a case : 

State op Indiana, ) 
Vigo County. J ^^• 

To Hon. Thomas B. Long^ Sole Judge of the Vigo Criminal Circuit Court 
[or Civil Circuit Court"] : 

Your petitioner, John Jones, respectfully represents that he is 
restrained of his liberty and imprisoned in the jail of said county, 
by Louis Hay, sheriff, and e^ officio jailor of said county, upon a commit- 
ment on an indictment by the grand jury of said county against the 
said petitioner for the alleged crime of murder in the first degree, in 
killing one Richard Roe, at said county, on the first day of January, 
1880. Your petitioner says he is not guilty of said crime of murder [or 
that the proof is not evident^ and the presumption is not strong against him 
as to his guilt of said crime of murder], and he says that, therefore, 
he is entitled to be admitted to bail ; and for that purpose he prays 
Your Honor to order the issuance of a writ of habeas corpus, directed to 
said sheriff, commanding him to bring the body of your petitioner 
before Your Honor, in order that the evidence for and against him 

(a) 2Q.&K. (iDd.) 319. {c) Ibid; ex parte Moore, 30 Ind. 197. 

{b) Ex parte Ueffiren, 27 Ind. 87. (d) Acts of 1875, Beg. S. 58. 



828 THE LA W OF HOMICIDK 

Prosecution by AffldaTit and Information. 

may be examined, to the end that your petitioner may be admitted to 

bail, if the evidence shall warrant the same. John Jones. 

State of Indiana, ) . 
Vigo County, J 

John Jones, the above-named petitioner, being duly sworn, states on 
oath that the matters stated in the foregoing petition are true, in 
substance and in fact. John Jone& 

Subscribed and sworn to before me on this first day of May, 1880. 

[Signed by the Officer.^ 

The petition being presented to the judge, he endorses 
thereon an order for the clerk to issue the writ, returnable at a 
designated time and place. The writ in this case is served by 
delivering it to the sheriff, and upon it he makes his return, 
producing the body of the prisoner before the judge at the 
time and place named in the writ. The notice to the prose- 
cuting attorney should be in writing, and may be signed by 
the prisoner or his attorney, and served as in case of ordinary 
notices. Each party causes his witnesses to be subpoenaed, 
and the examination proceeds as above stated. 

Of ProMcutions by AflldaTit and Information* (i) 

§ 591. By an act approved March 29, 1879, (a) felonies 
may be prosecuted in the Circuit and Criminal Courts of In- 
diana^ by affidavit and information, in the following cases : 

" First. When any person is in custody on a charge of 
felony and no grand jury is in session. 

** Second, When an indictment has been found by the grand 
jury, and has been quashed. 

** Third. When a cause has been appealed to the Supreme 
Court, and reversed on account of defects in the indictment 

'* The affidavit and information may be amended in matter of 
substance or form at any time before the defendant pleads, and 
the information may be amended at any time to conform to the 
affidavit. When the affidavit is amended it shall be sworn to." 

It seems that under this act, the facts necessary to give the 
court jurisdiction to prosecute the defendant in this way should 
be clearly set forth both in the affidavit and information ; that 

(a) Acts of 1879, 143. (1) See Appendix I. 



THE LA W OF HOMICIDE. 329r 

Principal and Accessory. 

is to say, " that the said C D [the defendant], is in custody of 
the sheriff of said county in the jail thereof, on a charge of 
the same felony, hereinabove set forth,'^ and the like. 

As murder is included in the word felony y it appears that by 
this act a party may be prosecuted, convicted and hanged, 
without having been indicted by a grand jury, which, to say 
the least of it, appears to the older members of the profession 
to be a " startling innovation,*' especially in view of Black- 
stone's encomium upon the " excdient forecast of the founders 
of the English law in contriving that no man should be called 
to answer for any capital crime unless upon the preparatory 
accusation of twelve or more of his fellow-subject, the grand 
jury." 

<lf Principal and* Accessory* 

§ 592. At common law, one may be a principal in the com- 
mission of a felony either in the first or second degree. A 
principal in the first degree is one who is the actor or actual 
perpetrator of the crime; as, one who with his own hands 
strikes a murderous blow. A principal in the second degree 
is one, who, not being the chief actor, is present, aiding and 
abetting in the commission of the criminal act ; and this pres- 
ence need not always be an actual immediate standing by, 
within sight or hearing of the criminal act ; but there may be 
also a constructive presence, as, for example, where one com- 
mits a robbery or murder, and another keeps watch or guard 
at some convenient distance for the purpose of giving assist- 
ance, (a) But in case of murder by poisoning, a man may be 
a principal felon by preparing or laying the poison, or persuad- 
ing another to drink it who is ignorant of its poisonous quality, 
or giving it to him for that purpose; and yet not administer it 
himself, nor be present when the very deed of poisoning was 
committed. (6) And the same rule will hold in regard to other 
murders committed in the absence of the murderer, by means 
which he had prepared beforehand, and .which probably could 
not fail of their object; as by laying a trap or pit-fell for 

(o) 4 Bl. Com. 33 ; Bick. Or. Pr. 13, 14. 
(6) Foster, 349 ^ 4 Bl. Com. 34, 85. 



380 THE LA W OF HOMICIDE. 

Principal and Aooetaory. 

another, whereby he is killed ; letting out a wild beast with 
intent to do mischief, or inciting a madman to commit murder, 
so that death thereupon ensues. In these cases the offending 
party is guilty of murder as a principal in the first degree. 
He is not guilty as an accessory, for that necessarily presup- 
poses a principal. And as he is certainly guilty either as 
principal or accessory, and can not be so as accessory, it follows 
that he must be guilty as principal; and that in the first 
degree, because there is no other criminal or superior whom 
he aids, abets or assists, (a) 

§ 593. An accessory is one who is not the chief actor in 
an offense, nor present at its performance, but is some way 
connected therein, either Ipefore or after the fact committed. 
An accessory before the fact, is one who being absent at the 
time of the commission of the criminal act — that is, being 
neither actnali}^ nor constructively present, procures, counsels, 
commands or abets another therein. (6) If a person be in snch a 
position that the immediate actor may be encouraged by the hope 
of any ready help or assistance from him, even though it be 
merely to give the alarm, if necessary, such person is not an 
accessory before the fact but is a principal, constructively pres- 
ent. The procurement, aiding or abetting, may be through 
the intervention of a third person, (c) but it must be continu- 
ing ; for if the procurer of a felony countermand his order he 
will not be guilty, (d) So, if he order or advise one crime 
and the principal designedly commit another or a like crime 
against another person, the former will not be responsible, (e) 
But the accessory will be liable for all the consequences of the 
criminal act by him commanded or advised ; as, if A procure 
B to burn C's house, and in doing so, the house of D is also 
burned, A is accessory to the latter crime as well as the 
former. (/) 

§ 594. The use of different means, from those which were 
advised, will not excuse the accessory ; as, if one hire another 

(a) Ibid. (d) 1 Hale, 618. 

(6) 1 Hale, 615. («) 1 Hale, 617. 

(o) 5C. &P. 586. if) Plow. 475. 



THE LA W OF HOMICIDK gSl 

Principal and Accessorf. 

to poison a man, and he shoots him instead. Here the hirer is 
guilty as accessory to the murder, (a) 

While all who are present aiding and abetting him who 
inflicts the mortal blow in case of murder are principals^ yet 
it is not every intermeddling in a quarrel or affray from which 
death ensues that constitutes an aiding and abetting to the 
murder. If^ for instance^ two men fight on a former grudge 
and of settled malice^ and with intent to kill^ of which the 
spectators are innocent, and they of a sudden take sides with 
the combatants and encourage them with words, and death 
ensue, it will not be murder in such persons. (6) In order 
that a bystander may be guilty as a principal in the second 
degree, something must be shown in his conduct which unmis- 
takably evinces a design to encourage, incite, approve of, or in 
some manner afford aid or consenj: to the act. (c) And in a 
case in Indiana, (c?) the Supreme viourt held that it was error 
to instruct the jury that a party being present, " who aided, 
abetted or conserded '^ to the homicide was a principal in the 
second degree ; and that although the court below used the 
proper technical legal language defining a principal in the 
second degree, as laid down in the books, yet as the word 
consent in this connection has a different meaning in law, from 
its popular use and acceptation, the jury might have been 
misled by the charge of the court. 

§ 595. There is practically no importance in the distinction 
between principals in the first degree and principals in the 
second degree in the State of Indiana; for it is provided by 
statute that any person who aids or abets in the commission of 
any offense may be charged, tried and convicted in the same 
manner as if he were a principal, (e) And by another statute 
the same punishment is to be inflicted upon aiders and abettors 

as upon the principal. (/) And, again : accessories before or 

_^__^_^_^_^_^^^____^_^^^__„____^_^_^^^^____^ •^-^■^— ^■^^— ^-^^^■^^^^^^— ■'^■■"^^■^■^""^■"^"^^"""■^^^""^"^^""•"^ 

fa) Foster, 369. * 

{b) State V. King etal.,2 Rice's S. C. Digest, 106. 

(c) Qmaughly v. The State, 1 Wis. 16d. 

(d) Oem V. The State. 

(«) 2R.S. (1876)388, §66. 
(/) 2 R. 8.(1876) 447, §48' 



S32 



THE LA W OF HOMICIDE. 



Acceaaory after the Fact. 



after the fact, and aiders and abettors may be indicted and 
convicted before or after the principal offender is indicted and 
convicted, (a) But where an accessory to the crime of assault 
and battery with intent to murder is tried before the principal^ 
and a verdict of guilty is rendered against him, bat before 
judgment the principal is tried and acquitted^ the accessory, on 
the production of the record showing the acquittal of the 
alleged principal, is entitled to be discharged. (6) Under 
recent rulings of the Supreme Court of Indiana a man may be 
guilty as an accessory before the fact to manslaughter. 

§ 596. An accessory after the fact, is one who, knowing a 
felony to have been committed by another, receives, relieves, 
comforts or assists the felon, (c) Any aid given to one known 
to be a felon in order to hinder his apprehension, trial or pun- 
ishment, would make such ^ideran accessory afler the fact, {d) 
But suffering a prisoner to escape being an omission only, 
would not make the party an accessory after the fact, (e) and . 
the aid given must have been adapted, to hinder the appre- 
hension, trial or punishment of the criminal. (/) But it is 
lawful to supply a felon in prison or on bail, with necessaries 
for his sustenance, {g) or with medical or surgical attendance ; (A) 
or endeavor to procure a pardon, or agree not to give evidence 
against him, or fail to discover the felony, (i) At common 
law an exception was made in favor of a felon's wife, as she 
was presumed to act under his coercion. But by statute in 
Indiana, (and it is presumed in other States), the exception is 
extended to others of the domestic relations : " husband or 
wife, parent or grandparent, child or grandchild, brother or 
sister, by consanguinity or affinity, or master or apprentice." 
(J) This statute of Indianax>mits the ingredient, *' knowing hira 
to have committed a felony;'^ but it requires that the party 
should have " an intent that the felon should escape detection 



(a) 2 R. S. (1876) g 51. 

(h) 42Ind. 214. 

\e) 1 Hale, 618. 

{d) 2 Hawk. chap. 29, sec. 26. 

(e) 1 Hale, 619. 



(/) 9C.&P. 335. 

ig) 1 Hale, 620. 

(A) 1 Hale, 332. 

\i) lb. 618 ; Mood. 8. 

(J) 2 R. S. 1876, Ind. 447, g 50. 



THE LA W OF HOMICIDE, 838 

Of the Venue. 

or punishment/' which seems to amount to the same thing as 
averring his knowledge of his guilt. 

Among the acts that will make a party an accessory after 
the fact are the following : That he concealed the felon in his 
house^ (a) or shut the door against his pursuers until he should 
have an opportunity of escaping, (6) or took money from him 
to allow him to escape, (c) or supplied him with money, a 
horse or other necessaries in order to enable him to escape, {d) 
or bribed the jailor to let him escape, or supplied him with ma- 
terials to break jail, {e) 

§ 597. In order to prove the case against a party indicted 
as an accessory after the fact, it must appear among other 
things, first that the felony was complete, and secondly that 
the accessory aft;er the fact knew that the felon was guilty. (/) 

Of the I^ocal Jurisdiction. 

§ 598. In general, the indictment must be found, for mur- 
der or manslaughter, in the county in which the offense was 
committed. But by statute in Indiana, if any mortal wound 
is given or poison administered in one county, and death by 
means thereof ensue in another, the jurisdiction is in either 
county, (g) It is further provided, that when a public offense 
has been committed partly in one county and partly in another, 
or the acts or effects constituting or requisite to the 3onsumma- 
tion of the offense, occur in two or more counties, the jurisdic- 
tion is in either county, {h) It is presumed that under .this 
statute it would be held that if the defendant being in one 
county and the deceased in another, should shoot across the 
county line and kill the party, the defendant might properly 
be indicted in either county. 

As to local jurisdiction in felonies generally, in particular 
cases, see 2 R S. Ind. 1876, 372, 373. 

(a) 2 Hawk. chap. 29/8ee. 1. 

(&) 1 Hale, 619. 

(c) 1 Hale, 4, 1. 

(<f) 2 Hawk. chap. 29, sec. 26, 

{e) 1 Hale, 621. 

(/) Chit. Or. L. 264 ; 1 Hale, 622 ; HdmU T. SiaU, 39 Miss. 702. 

ig) 2 B. S. Ind. 1876, 374, sec. 9. 

(h) Id, 14, 



884 THE LAW OF HOMICIDE. 

Jurors. 

Of the Competency of Jurors. 

§ 699.* In ludiaua, it is required that a petit juryman shall 
be either a householder or freeholder^ and a qualified voter, to 
be competent to serve in any court in such county in which 
such person shall be such householder or freeholder and quali- 
fied voter ; and it is not lawful to select any person as a jury- 
man to serve in any Circuity Superior or Criminal Court of 
this State, who has served as a juror in either of said courts in 
such county durinfi; the year immediately preceding such selec- 
tion ; and, if such person be selected it is cause of challenge, (a) 
It is provided by statute in Indiana, that "when the jurors 
are called each may be examined on oath by either party, 
whether he has formed or expressed an opinion of the guilt or 
innocence of the defendant, and upon such examination and 
other questions put by leave, the court may determine upon the 
competency of the juror. Any juror is incompetent who has 
formed or expressed an opinion of the guilt or innocence of 
the defendant.'^ (6) Soon after the enactment of this statute 
in 1852, the courts were inclined to construe it strictly; and, 
if the juror answered that he had either formed or expressed 
an opinion, that was the end of it, in general, and the juror 
was set aside, (c) But gradually the courts have receded from 
such view, and it has been held, that although the jurors have 
heard talk, and may have read newspaper accounts, and are 
inclined to think one way, if what they have read is correct; 
yet, Jf they have not talked with the witnesses, nor formed nor 
expressed an opinion, and have no ill-will against the defend- 
ant and can give him a fair trial, they are competent jurors. (c2) 

Again, it was afterwards held that an opinion based upon 
mere rumor, not upon a knowledge of the facts, nor from hear- 
ing evidence, nor from conversing with the witnesses, is not a 
good cause for challenge, unless the opinion be firmly fixed, (e) 

Still later, in a case where jurors answer that they have 
formed opinions as to the guilt or innocence of the defendant 

(a) Acts of 1873, 159. (d) 7 lod. 832. 

(6) 2 E. S. (G. A H.) 408, §84. («) 16 Ind. 847. 

(c) Bict. Cr. Pr. 132. 



THE LA W OF HOMICIDE. 335 

Jurors. 

from rumor and newspaper statements ; and upon further 
examination they answered that it would require neither more 
nor less evidence to satisfy them of the existence or non-exist- 
ence of the material fiicts involved in the case, by reason of 
their already- formed opinion, the court held that such jurors 
were competent, and the defendant's challenge for cause was 
properly overruled, (a) 

§ 600. Again, in Clem v. ITie State, 33 Ind. 418, which 
was a case for murder, two of the jurors declared that they 
had formed what they called " a partial opinion '' from reading 
newspaper accounts of the facts, and from rumor, and one 
of them said he had expressed an opinion, which, it appeared, 
was a mere impression, not made up from conversation with 
witnesses ; and the same jurors further stated that if sworn as 
jurors said opinion would have no influence upon them, and 
that they could act solely upon the evidence offered upon the 
trial ; and it was evident that they had no fixed opinion upon 
which they rested. It was held that they were not, for this 
cause, incompetent as jurors. To the same effect is the case 
of Hart V. The State, 57 Ind. 102. 

On a trial for murder, one of the jurors answered, on his 
voir dire, that, from the evidence given on a former trial of the 
same party for the same offense, as reported in the newspapers 
and read by him, he had formed and expressed an opinion, to 
change which would require some evidence, but which would 
readily yield thereto ; held that the juror was competent. (6) 

Of Reasonable Bonbt. 

§ 601. Where there is reasonable doubt whether the guilt 
of the defendant is satisfactorily shown, he must be acquitted ; 
and where there is reasonable doubt in which of two or more 

(a) Morgan v. The State, 31 Ind. 193 ; see 23 Ind. 231. 

(6) Gv4stig V. Tht State, 66 Ind. 94 ; 4 Blackf. 101 ; 7 Blackf. 678 ; 15 Ind. 347 ; 23 Ind. 231 : 27 
Ind. 430 ; 31 Ind. 193 ; 33 Ind. 418 ; 40 Ind. 263 ; 52 Ind. 68 ; 58 Ind. 182 ; 57 Ind. 102 ; 62 Ind. 
307 : 2 I>ev. A Bat. 196 ; 2 Green (N. J.) 195 ; Moore Or. L. g 301. But, contra, see FotUs v The 
State, 7 0. St. 47. 

It appears that, at this day, by a sort of judicial legislation, the Supreme Court of Indiana 
have brought the law of this State, upon this question, in accord with common sense and the 
spirit of the times. Henceforth opaque ignorance is not to be deemed the chief qualification 
for a juTor. 



386 THE LA W OF HOMICIDE. 

» - 

Beaaonable Doubt. 

degrees of an offense he is guiltj, he may be convicted of the 
lowest degree only, (a) In a case of circumstantial evidence, 
if the jury are not satisfied beyond a reasonable doubt of the 
guilt of the accused, he ought to be acquitted, whether he 
disprove the unfavorable circumstances or not. (6) And cir- 
cumstantial evidence will not be sufficient for a conviction 
unless it has a tendency to exclude every reasonable supposi- 
tion inconsistent with the defendant's guilt ; but the evidence 
need not be strong enough to show that it was impossible that 
any other person could have committed the crime, (c) And 
although the evidence may not be sufficient to produce absolute 
certainty of the defendant's guilt, nor even to prove that he 
had any motive to commit the crime, it may still be sufficient 
to satisfy the jury beyond a reasonable doubt, and if so, it will 
warrant a conviction. If the jury have a reasonable doubt as 
to the existence of any one of the circumstances constituting 
the chain of circumstantial evidence, that circumstance ought 
not to have any weight in determining their opinion as to the 
defendant's guilt or innocence, (d) 

To warrant a conviction, circumstantial evidence must be 
such as to produce in the minds of the jury such certainty as 
a discreet man would be willing to act upon in his own grave 
and important concerns, (e) The Supreme Court of Indiana 
have undertaken the very difficult task of defining a reasonaik 
doubt, in these words : '^ To be satisfied beyond a reasonable 
doubt, the jury must be so convinced by the evidence that 
they would be willing to act upon such a conviction in a mat- 
ter of the highest importance to themselves, where there was 
no compulsion resting upon them to act at all. (/) The part 
which we have put into italics is by no means satisfactory and 
has often been criticized. In later decisions the present Court 
seem inclined to drop the italicized part of the definition, hold- 
ing in effect that an instruction to the jury defining a reason- 
able doubt as above, but omitting the italicized words, is not 

ia) 2 B. S. 1876, p. , sec. 104. {d) 5 Blackf . 679. 

(5) 5 Blackf. 676. (e) 16 Ind. 9 ; 23 Ind. 170. 

(e) 6 Blackf. 579. (/) 81 Ind. 492. 



THE LA W OF HOMICIDE. 887 

Limitations. 

error ; and that the defendant^ if he desires a fuller instruction 
on the subject of reasonable doubt^ should speeiaUy request 
such instruction, (a) As to what is a reasonable doubt is a 
question of common sense and reason^ and can not be ascer- 
tained by artificial rules or definitions. Moral evidence can 
not be weighed with the nicety and certainty with which 
coins and bullion are weighed at the mint. For erroneous 
instruction defining a reasonable doubt^ see Wright v. Tke 
Stale, 69 Ind. 163. 

Statute of Umitations. 

§ 602. An indictment for murder may be found at any 
time after the commission of the offense — that is, there is no 
limitation. (6) Manslaughter must be prosecuted by indict- 
ment found within two years after the commission of the 
offense, (c) If the defendant be indicted for murder^ and it 
appears to the jury that he was guilty of manslaughter only, 
he must be acquitted, if the evidence shows that the indict- 
ment was found more than two years after the commission of 
the offense. When, however^ the offender has been absent 
from the State, or has concealed himself so that process could 
not be served on him^ or has concealed the fact of the crime^ 
the time of such absence or concealment shall not be included 
in computing the period of limitation, (d) In such cases the 
facts which give jurisdiction^ notwithstanding the lapse of 
time^ must be alleged in the indictment ; (e) and such facts 
must be alleged with certainty. A general allegation that the 
defendant concealed the fact of the crime^ is not sufficient. 
The particular acts done by him, whereby he concealed such 
crime must be alleged. (/) To bring the case within this ex- 
ception to the statute of limitation, it must be a concealment 
of the feet of the crime, unconnected with the fact that the 
accused committed it ; and the concealment must be the result 
of positive acts, done by the accused, intended to prevent a 

(o) See id) 2 G. A H. 393. 

(6) 2 G. & H. 398. («) 14 Ind. 52. 

(c) Ibid, (/) 14IncL282. 

H.— 22 



338 THE LA W OF HOMICIDE. 



Golden Rules for the Examinaticn of WitneaMs. 



discovery of the commission of the offense, (a) The con- 
struction given to these provisions is, that the time of the de- 
fendant's absence from the State or concealment, etc., which 
may occur during the period of limitationi must be added to 
that period, (6) 

Of the Examination of WitnegHca. 

§ 603. There is nothing more important in the conduct of 
a criminal trial than a skillful and judicious examination of 
the witnesses. Much depends on the natural acumen and 
experience of the counsel, and it is impossible to lay down 
rules beforehand to meet all emergencies that may arise on the 
^* occasion sudden.^' It is scarcely necessary to say that the 
counsel ought to be fully acquainted with the testimony that 
each of his own witnesses will give before he puts him on the 
stand; and he ought to know, as far as possible, the evidence 
to be introduced by the other side. In short, he ought to 
know, so far as practicable, all the facts of the case, pro and 
con. He will thus be able to see the bearing and relevancy of 
the evidence as it is unfolded, step by step. He will under- 
stand what to offer, and what to withhold ; when to object, and 
when to hold his peace. The following rules for the examina- 
tion of witnesses were published by the celebrated David 
Paul Brown, of Philadelphia, and by him were entitled : 

CU^lden Rules for the Examination of Witnesses. 

FIRST, AS TO YOUR OWN WITNESSES. 

§ 604. I. If they are bold, and may injure your cause by 
pertness or forwardness, observe a gravity and ceremony of 
manner toward them which may be calculated to repress their 
assurance. 

ir. If they are alarmed or diffident , and their thoughts 
are evidently scattered, commence your examination with mat- 
ters of a familiar character, remotely connected with the sub- 
ject of their alarm, or the matter in issue ; as, for instance- 
Where do you live ? Do you know the parties ? How long 

(a) 14lDd. 120. (6) 14 Ind. 52. 



THE LA W OF HOMICIDE. 339 

Oolden Rules for Examination of Witnesses. 



have you known them, etc ? And when you have restored 
them to their composure, and the mind has regained its equi- 
librium, proceed to the more essential features of the case, 
being careful to be mild and discreet in your approaches, lest 
you may again trouble the fountain from which you are to 
drink. ' 

III. If the evidence of your own witnesses be unfavorable 
to you (which should always be carefully guarded against), 
exhibit no want of composure ; for there are many minds that 
form opinions of the nature or character of testimony, chiefly 
from the effect which it may appear to produce upon the 
counsel. 

IV. If you perceive that the mind of the witness is imbued 
with prejudices against your client, hope but little from such a 
quarter; unless there be some facts which are essential to your 
client's protection, and which that witness alone can prove, 
either do not call him or get rid of him as soon as possible. 
If the opposite party perceive the bias to which I have re- 
ferred, he may employ it to your ruin. In judicial inquiries, 
of all possible evils, the worst and the least to be resisted is 
an enemy in the disguise of a friend. You can not impeach 
him — ^you can not cross-examine him — you can not disarm 
him — ^you can not indirectly, even, assail him ; and if you ex- 
ercise the only privilege that is lefk to you, and call other wit- 
nesses for the purpose of explanation, you must bear in mind, 
that, instead of carrying the war into the enemy's country, the 
struggle is still between sections of your own forces, and in 
the very heart, perhaps, of your own camp. Avoid this, by 
all means. 

V. Never call a witness whom your adversary will be com- 
pelled to call. This will afford you the privilege of cross- 
examination — take from your opponent the same privilege it 
thus gives to you — and, in addition thereto, not only render 
everything unfavorable said by the witness doubly operative 
against the party calling him, but also deprive that party of 
the power of counteracting the effect of the testimony. 



840 THE LA W OF HOMICIDE. 

Golden Rules for ElzamfnatioD of Witneases. 



VI. Never ask a question without an object, nor without 
being able to connect that object with the case^ if objected to 
as irrelevant. 

YII. Be careful not to put your question in sn«h a %ha'pe, 
that, if opposed for informality , you can not sustain it, or, at 
all events produce strong reason in its support. Frequent 
fiiilures in the discussion of points of evidence enfeeble \K)ur 
strength in the estimation of the jury, and greatly impair your 
hopes in the final result. 

VIII. Never object to a question from your adversary with- 
out being able and disposed to enforce the objection. Nothing 
is so monstrous as to be constantly making and withdrawing 
objections ; it either indicates a want of correct perception in 
making (hem^ or a deficiency of real or moral courage in mi 
making them good. 

IX. Speak to your witness clearly and distinctly, as if you 
were awake and engaged in a matter of interest; and make 
him also speak distinctly and to your question. How can it be 
supposed that the court and jury will be inclined to listen, 
when the only struggle seems to be whether the counsel or the 
witness shall first go to sleep? 

X. Modulate your voice as circumstances may direct. *^ In- 
spire the fearful and repress the bold " 

XI. Never begin before you are ready ^ and always finish 
yehen you have done. In other words, do not question for 
questions' sake, but for an answer. 

CROSS-EX A MINATION. 

§ 605. I. Except in indifferent matters, never take your eye 
from that of the witness. This is a channel of communication 
from mind to mind, the loss of which nothing can compensate. 

" Truth, falsehood, hatred, anger, scorn, despair, 
And aJl the passion»>-an the soul is there. ' 

II. Be not regardless either of the voice of the witness; 
next to the eye this is perhaps the best interpreter of the mind. 
The very design to screen conscience from crime — the mental 
reservation of the witness — is often manifested in the tone, or 



THE LA W OF HOMICIDE. 341 

Ooldm Bules for Examination of Witnesses. 

accent, or emphasis of the voice. For instance, it becoming 
important to know that the witness was at the corner of Sixth 
and Chestnut streets at a certain time, the question is asked : 
" Were you at the corner of Sixth and Chestnut streets at six 
o'clock V' A frank witness would, perhaps, answer : " I was 
near there/' But a witness who had been there, desirous^ 
conceal the fact, and to' defeat your object, speaking to the 
letter rather than the spirit of the inquiry, answers, " No ;" 
although he may have been within a stone's throw of the 
place, or at the very place within ten minutes of the time. The 
common answer of such a witness would be : ''I was not at 
the comer at six o'cfoci." Emphasis upon both words plainly 
implies a mental evasion or equivocation, and gives rise, with 
a skillful examiner, to the question : ^^ At what hour were you 
at the corner ?" or, " at what place were you at six o'clock ?" 
And in nine instances out of ten it will appear that the witness 
was at the place about the time, or at the time about the place. 
There is no scope for further illustrations — but be watchful, I 
say, of the voice, and the principle may be easily applied. 

III. Be mild with the mild, shrewd with the cunning, 
confiding with the honest, merciful to the young, the frail or 
the fearful, rough to the rufiBan and a thunderbolt to the liar. 
But in all this, never be unmindful of your own dignity. 
Bring to bear all the powers of your mind — ^not that you may 
shine, but that virtiie may triumph and your cause may prosper. 

IV. In a criminal^ especially in a capUal^ case, so long as 
your cause stands well, ask but few questions ; and be certain 
never to ask any, the answer to which if against you, may 
destroy your client, unlesis you know the witness perfectly well, 
and know that his answer will be favorable equally well ; or 
unless you be prepared with testimony 'to destroy him, if he 
play traitor to the truth and your expectations. 

V. An equivocal question is almost as much to be avoided 
and condemned as an equivocal answer ; and it always leads 
to or excuses an equivocal answer. Singleness of purpose, 
clearly expressed, is the best trait in the examination of 



342 THE LA W OF HOMICIDE. 



Oolden Rules for Examination of Witnenes. 



witneeseSy whether they be honest or the reverse. Falsehood is 
not detected by cunning but by the light of truth ; or if by 
cunning, it ifi the cunnipg of the witness and not of the 
counsel. 

yi. If the witness determine to be witty or refractory 
n^th you^ you had better settle that account with him at first, 
or its items will increase with the examination. Let him have 
an opportupity of satisfying himself, either that he has mis- 
taken your power or his oum. But in any result be careful 
that you do not lose your temper. Anger is always either 
the precursor or evidence of assured defeat in every intellectual 
conflict. 

yil. Like a skillful chess-player^ in every move fix your 
mind upon the combinations and relations of the game ; par- 
tial and temporary success may otherwise end in total and 
remediless defeat. 

yill. Never undervalue your adversary^ but stand stead- 
ily upon your guard. A random blow may be just as fatal as 
though it were directed by the most consummate skill. The 
negligence of one often cures, and sometimes renders effective, 
the blunders of another. 

IX. Be respectful to the court and jury, kind to your col- 
leagues, civil to your antagonist; but never sacrifice the 
slightest principle of duty to an overweening deference toward 
either. 



PART III. 



ABSTRACrS OF DECISIONS. COMMENTARIES, ETC. 



§ 606. It is proposed, in this part of the work, to give all 
the statutes of the State of Indiana, defining felonious homi- 
cide ; and abstracts of decisions of the Supreme Court, in 
homicide cases, embracing all the decisions from 1st Blackford 
to 70th Indiana Iteports, inclusive, (seventy-eight volumes), 
except a few unimportant points. Most of the matters in 
these -ibstracts are peculiar to homicide cases, but in some in- 
stances they are alike applicable to all criminal cases. This is 
not a digest merely ; but resort has been had to a large extent 
to the body of the decisions, in order to give the reader a cor- 
rect view of the point actually decided, and the reasoning of 
the court thereon ; thus clearing up that which often appears 
to be obscure and unintelligible in the syllabus. Among these 
abstracts are interspersed many notes and commentaries, by 
the author, explaining the decisions. Also several forms of 
indictments, in homicide cases, that have been passed upon by 
the Supreme Court, are given. In addition to the above there 
are abstracts of numerous decisions in cases of homicide^ in 
other States. 



(343) 



ABSTRACTS OF STATUTES 

JLhJ} 

DECISIONS OF THE SUPREME COURT OF INDIANA 



FROM ICT BLACKFORD TO IQru INDIANA REPORTS, INOLUSIYE. 



Murder In the First Hegree. 

1. If any person of sound mind shall, purposely and with premedi- 
tated malice, or in the perpetration or attempt to perpetrate any rape, 
arson, robbery (a) or burglary, or by administering poison, (b) or caus- 
ing the same to be done, kill any human being, such person shall be 
deemed guilty of murder in the first degree, and upon conviction 
thereof shall suffer death. 2 R. S. (Davis), 423. 

2. If either party to a duel be killed, the survivor shall be deemed 
to be guilty of murder in the first degree, and shall sufier death. 2 R. 
S. (Davis), 425. 

3. Any person convicted of treason, or murder in the first degree, 
may, instead of being sentenced to death, in the discretion of the jury, 
be imprisoned in the State prison during life. Ibid. 

4. If any person shall by previous appointment made within, fight 
a duel without the State, and in so doing shall inflict a mortal wound 
upon any person, whereof the person so injured shall die within this 
State, such person so offending shall be deemed guilty of murder in 
the first degree, in the county where such death shall happen, and 
shall suffer death or be imprisoned in the State prison during life. 
2 R. S. (Davis). 426. 

5. If the life of any person be lost [by the commission of arson] 
the offender shall be deemed guilty of murder in the first degree, and 
suffer death, or imprisonment in the State prison during life. 2 R S. 
(Davis), 246. 

(a) Moyndhan v. The State, 70 Ind. 126. 
lb) Bechielheimer v. The State, 54 Ind. 128. 

(344) 



THE LA W OF HOMICIDE. 345 

Self-Defeosc. 

Murder In tlie Second ]>egree« 

§ 607. 6. If any person shall purposely and maliciously, but without 
premeditation, kill any human being, every such person shall be deemed 
guilty of murder in the second degree ; and on conviction thereof, shall 
be imprisoned in the State prison during life. 2 R. S. (Davis), 426. 

7. So, it is murder in the second degree, with the same punishment, 
if death ensue to any person, by reason of the offender's willfully and 
maliciously placing obstructions on the track of a railroad, etc. Idem, 
438. And by an act of March 1, 1855, it is murder in the first degree 
where a person on a railroad train, car or locomotive is killed by shoot- 
ing, or by throwing a stone, stick, club or other substance whatever. 

Manidangliter. 

8. If any person shall unlawfully kill any , human being, without 
malice, express or implied, either voluntarily upon a sudden heat, or 
involuntarily, but in commission of some unlawful act, such person 
shall be deemed guilty of manslaughter, aud upon conviction thereof 
shall be imprisoned in the State prison not more than twenty-one, non 
less than two years. 2 R. S. (Davis), 426. 

ff 

Decisions as to tbe Cliaracteristics of the Tarious 

Grades of Homicide. 

§ 608. 1. Instructions. — The following instructions, the same being 
relevant to the case, were given to the jury : If homicide be committed 
in a sudden heat, by the use of a deadly weapon, no provocation by 
mere words will reduce the killing to manslaughter. The question 
should never be — was there anger merely ? but, was there legal provo- 
cation to such anger ? The use of a dangerous weapon under a provo- 
taon by words only, or under no provocation, is always evidence of 
malice aforethought. To constitute malice aforethought, it is only 
necessary that there be a formed design to kill ; and such design may 
be conceived at the moment the fatal blow is given, as well as a long 
time before. Malice aforethought means the intention to kill ; and 
when such means are used as are likely to produce death, the legal 
presumption is that death was intended. Hdd, that these instructions 
were correct. Beauchamp v. The State, 6 Blackf 300, 301. (a) 

2. Self-Defense. — If a n>an, on returning to his own house, find 
himself barred out and excluded therefrom by another, and then re- 
peatedly demands, and is denied admission, he has a legal right to 
break in the door; and if he encounter resistance on thus entering, 

(a> The above decision was made in 1842 under the Revised Statutes of 1838, which defined 
murder as nt common law, and made no distinction between murder in the first and second 
degrees. For later decisions under the present statutes, see ir\fra. 



846 THE LA W OF HOMICIDE. 

The Indictment. 

and be first stricken by the unlawful occupant, with a deadly weapon, 
and then, meeting force with force, he take the life of such occupant, 
such killing would be excusable homicide in self-defense. De Forrest 
V. The State, 21 Ind. 23. 

3. Manslaughter — Intention to Kill. — In manslaughter there may 
be intention to kill, arising in the sudden transport of passion; but it 
may, and in this grade of offense, must, be unaccompanied by malice. 
Denniaon v. The State, 13 Ind. 510. 

Of the Forms and Requisites of Indletments for 

Felonious Homlelde. 

§ i09. 4. Where a statute creates an offense, which did not exist at 
common law, the indictment should conclude contra formam staiuti: 
Aliter, where the statute is merely declaratory of the common law. 
FulUr V. The State, 1 Blafckf. 63, 64. (a) 

5. It is sufficient to describe the grand jurors, in the indictment, as 
'• good and lawful men ;" those words including every qualification re- 
quired by law. Jerry v. The State, 1 Blackf. 395, 396. 

6. An indictment for murder may be good, without stating the 
accused to be a person of sound memory and discretion ; and though 
the killing must be shown to be unlawful, the word " unlawful" itself, 
need not be used. Idem. 

7. A count in an indictment for murder, stated that the defendant 
made an assault on one G B, and that the defendant with a certain 
ax, etc., the said G B, in and upon the left side of the head, and over 
the left temple of him the said G B then and there feloniously, will- 
fully, and of his malice aforethought, did strike and beat, giving to the 
said G B, then and there, with the ax aforesaid, in and upon the right 
sida of the head of him the said G B, and over the right temple of 
him the said G B, one mortal wound, etc., of which said mortal wound 
the said G B, etc., on, etc., died, and so the jurors aforesaid, upon 
their oath aforesaid do say, etc. Held, that the count in the description 
of the offense, Was repugnant and inconsistent with itself in a material 
part, and was void. Bias v. The State, 7 Blackf. 20. 

9. Such count must state the part of the body to which the violence 
was applied ; but the proof need not correspond with the statement. 
Ibid. 

10. If an allegation in such count be sensible and consistent in the 
place where it occurs, and be not repugnant to antecedent matter, it 
can not be rejected as surplusage, although it be repugnant to a 
subsequent allegation. Ibid. 

(a) Now, by statute, the expression against the form of the statute, or statutes, is unneces- 
sary in any indictment. So, also, as to the phrase " against the peace and dignity of the 
State of Indiana." 



THE LA W OF HOMICIDE. Ml 



The Indictment.. 



11. An objection to such count, for repugnancy in tb« description 
of the offense, can not be removed by striking out the allegation which 
is inconsistent with a previous one, unless, after striking out the subse- 
quent allegation a legal description of the offense will still remain. 
Ibid. 

12. In an indictment for murder, when it is alleged to have been 
caused by a wound, it is not necessary to describe the depth or breadth 
of the wound. Ibid, 

§610. 13. An indictment in such case concluded as follows: "And 
so the jurors aforesaid upon their oath do say, that the said S. D. (the 
prisoner), in manner and form aforesaid, feloniously and willfully, and 
of hia malice aforethought, did kill and murder, contrary to the form 
of the statute," etc. Held, that this conclusion was insufficient, for 
not designating the person murdered [i. e., in the conclusion. It will be 
seen that the first part of the indictment does not designate the person 
assaulted, beaten and mortally wounded, of which mortal wound the 
party designated died," etc.] Ibid. 

14. Although an indictment charge that the defendant feloniously 
and willfully, and of his malice aforethought, did strike the deceased, 
etc., giving him, etc., a mortal wound, etc., yet if it do not contain the 
technical allegation that the defendant feloniously murdered the 
deceased, it is an indictment for manslaughter only, and not for murder, 
the word murder being a term of art, which can not be supplied in an 
indictment by any other word. Ibid. 

15. An indictment for murder alleged that the defendant, with a 
certain gun, which he in both hands then and there held, etc., feloni- 
ously did shoot, etc. Held, that the omission of the word his before 
the word hands was no objection to the indictment. Ward v. The State, 
8 Blf 101. 

16. Poison, Description of. — An indictment charging the defendant 
of murder by administering poison, need not state the particular poison 
administered, and if it do so state, it will not be necessary that the 
proof correspond. Carter v. The State, 2 Ind. 617. 

17. If the offense is punishable by a single statute only, and the con- 
clusion of the indictment is against the statutes, the conclusion will be 
considered good. Ibid. 

18. Against the Form op the Statute. — An indictment for murder 
in the first degree was found in the Decatur Circuit Court, at the April 
term, 1851, and concluded contra formam staiuti. By the statute of 1843, 
the punishment of that crime was death; by the act of 1846, 
the punishment is either death or imprisonment at hard labor during 
life, at the discretion of the jury. Held, that the conclusion of the 



348 THE LA W OF HOMICIDE. 

The Indictment. 

indictment in the singular, to-wit, contra fcrmam statuti, was correct. 
BenneU v. The State, 3 Ind. 167. (a) 

19. Indictment for Murder in the Second Degree. —The second 
count did not aver that the homicide was committed with premedi- 
tated malice, or in the perpetration, or attempt to perpetrate, a rape or 
arson, etc.; nor did it allege that the homicide was maliciously perpe- 
trated, but on the contrary, it stated that it was committed without 
malice ; nor did it aver that the killing was upon a sudden heat, or in 
the commission of an unlawful act. Held^ that no indictable homicide 
was charged. Dukes v. The State, 11 Ind. 557. 

§ 611. 20. The following indictment was held to be good, for murder 
in the second degree : 

"The State op Indiana, ) In the Clinton Circuit Court, 
Clinton County, j October Term, 1858. 

The grand jurors for the county of Clinton, in the State of Indiana, 
upon their oath, charge that Samuel Dukes, late of said county, on the 
twenty-first day of July, in the year of our Lord, one thousand eight 
hundred and fifty-eight, at the county aforesaid, feloniously, purposely, 
and maliciously, but without premeditation, did kill and murder John 
G. White, a human being, by then and there feloniously, purposely, 
and maliciously but without premeditation, shooting the said John G. 
White in the abdomen, with a certain gun loaded and charged with 
gunpowder and leaden shot, which gun he, the said Samuel Dukes, in 
his hands, then and there had and held, and discharged and shot off, 
at and against the said John G. White. And so the jurors aforesaid, 
upon their oaths aforesaid, do find and say that the said Samuel Dukes, 
did feloniously, purposely, maliciously and without premeditation, kill 
and murder the said John G. White, on the day and year last afore- 
said, at the county aforesaid. [^Signed hy the prosecuting attorney and 
endorsed a true bill by the foreman]. Dukes v. The State, 11 Ind. 557. 

21. If the name of the defendant appears in the body of the indict- 
ment, the omission to name him in the title, is a defect which can not 
tend to prejudice his rights on the merits. Ibid. 

22. The kind of gun and shot need not be specified, nor the wound 
be described. Ibid. 

23. An indictment containing one good count should not not be 
quashed, and the judgment on conviction will be given on the good 
count. Ibid. 

24. Upon a paragraph for murder the defendant may be convicted 
of manslaughter. Ibid. 

25. The signature of the prosecuting attorney is not essential to the 
validity of an indictment. Ibid. 

(a) By statute In Indiana this technical averment is no longer necessary. " No indict- 
ment or information may be quashed or set aside '^ '^ "^ for an omission of the foUowiDg 
allegations," viz., " with force and arms," " contrary to the form of the statute," or " against 
the peace and dignity of the State of Indiana." 2 B. S. (Davis) 386, g 61. 



THE LA W OF HOMICIDE. 349 

The Indictment. 

§ 612. 26. Form of Indictment for Murder. -The following form for an 
indictment for murder in the first degree, was held good by the Supreme 
Court, Dillon v. The State, 9 Ind. 408. After stating the venue, court 
and term, etc. ; 

"The Grand Jury, etc., upon their oath charge that Alner Ihllcn, of 
said county, on the twentieth day of July, eighteen hundred and fifty- 
six, at the said county of Miami, did purposely and with premeditated 
malice, then and there unlawfully and feloniously kill and murder 
Margaret Dillon^ in the peace of the 8tate, then and there being, by then 
and there beating and striking her, the said Margaret Billon, upon the 
head, back and abdomen with a shovel, and by then and there inflict- 
ing divers mortal wounds and injuries upon the head, back and abdo- 
men of her, the said Margaret Dillon, which caused the death of the 
said Margaret Dillon. 0. Blake, Prosecuting Attorney" 

The above form was held g(^d by the Supreme Court, not because of 
the form prescribed by the st«,tute (2 R. S. 356.) [All these forms were 
held void in the case of The State v. Wilson, 7 Ind. 516] ; but by reason 
of certain other statutory provisions as to the requirements of an in- 
dictment, which materially modify the common law requirements. See 
2 R. S. (Davis) 383, §54; also, 384, 385, 386, 387, g§55, 56, 57, 58, 59, 60, 61. 

27. Depth, etc., of Wound. — In an indictment for murder a descrip- 
tion of the depth, etc., of the fatal wounds is not necessary. 

28. The following form of indictment was held good by the Supreme 
Court, in 22 Ind. 1—Cordell v. The State: 

The State OF Indiana 1 ^^ ^^^ Floyd Circuit Court 
Thomas CORPELL. j of October Tei^, 1864. 

The grand jurors for the county of Floyd, in the State of Indiana, 
upon their oath, present, that Thomas Cordell, on the 17th day of May, 
A. D. 1863, at the county of Floyd, aforesaid, did feloniously, purposely, 
and with premedijbated malice, unlawfully kill and murder Patrick 
Quirk, by then and there feloniously, purposely, and with premeditated 
malice cutting, stabbing and mortally wounding said Patrick Quirk, 
with a knife, which he, the said Thomas Cordell, then and there had 
and held in his hands, contrary to the form of the statute in such case 
made and provided, and againt the peace and dignity of the State of 
Indiana. Thomas M. Brown, Prosecuting Attorney. 

[Indorsed :] A true bill. 
Charles Frederick, Foreman. 

§613. 29. Indictment in three counts. 1st. That the defendant held 
the child in the flames, vapor and steam issuing from burning brush 
in the fire-place, until fatal injuries were inflicted. 2d. That fatal inju- 
ries were inflicted by blows. 3d. Alleging both the acts. Held, that 
there was no inconsistency in the counts. 14 Ind. 139. 

30. Prosecution for assault and battery with intent to commit mur- 
der. The indictment charged that A, on, etc., at, et<;., did then and 
there, unlawfully 9.nd feloniously, in a rude, insolent and angry manner, 



360 THE LA W OF HOMICIDE, 



The Eridenoe. 



touch and strike one B, with intent, then and there unlawfully and 
feloniously, and with premeditated malice, to kill and murder the said 
B, by shooting him in the back with a gun loaded with powder and 
shot, which gun the said A then held in his hands, etc. 

HeU, that the words with intent, etc., as used in the indictment, suffi- 
ciently expressed the meaning of the word " purposely," as used in the 
statutory definition of murder ; and that the word " feloniously," in 
the connection in which it was used in the indictment, was identical in 
its import with the word " purposely." [The code says: " Words used 
in the statute to define a public offense, need not be strictly pursued; 
but other words, conveying the same meaning, may be used. 2 R S. 
(Davis) 385, sec. 59.]. Carder v. The State, 17 Ind. 307. 

31. IxDicTMEXT. — It is uot absolutely /lecessary that the part of the 
body struck by the ball should be specified in the indictment. Whel- 
chell V. The State, 23 Ind. 89. 

32. When an indictment charges an assault with intent to commit 
murder, in the first degree, under the statute the defendant may be 
found guilty of an assault with intent to commit murder in the second 
degree. Wall v. The State, 23 Ind. 150 [or, of assault and battery with 
intent to commit manslaughter.'] 

Of the ETldenee In Cases of Homielde. 

§614. 1. Dying Declarations. — On a trial of an indictment for 
murder, the substance of the dying declarations of the deceased may be 
proved. Ward v. The State, 8 Blackf. 101. See, also, Home v. Williams, 23 
Ind. 40. 

2. Popular Opinion. — The court permitted the State to prove that it 
was the popular opinion that ergot would produce abortion. The 
evidence showed that ergot was administered to the deceased shortly 
before her death. Held, that the fact proved might show a motive for 
administering it, and the intention with which it was done, and hence 
was admissible. Carter v. The State, 2 Ind. 617. 

3. Medical Books are not admissible as evidence, but medical men 
may give their opinions as witnesses, which opinions may, in a measure, 
be founded on the contents of standard medical books as a part of their 
general knowledge. Ihid. 

4. The Prisoner's Account of the transaction, on an indictment for 
murder, related immediately after it occurred, is not admissible in his 
behalf, although no third person was present when the homicide was 
committed. Ibid. {_Sed quere, if it is so near the transaction as to be a 
part of the res gestce.] 

5. Evidence. — On the trial of a prisoner for the murder of A, the 
court permitted a witness to detail statements made to him, the wit- 
ness, by one B, in the absence of the prisoner, and ten days before the 



THE LA W OF HOMICIDE. 351 

The Evidence. 

murder was perpetrated ; it having first been proved by the State that 
the prisoner and B were present at, and participated in, the murder of 
A. Held, that the evidence was properly admitted. Rice v. The State, 
7Ind. 332. 

6. Prisoner's declarations. The defendant could not be allowed to 
prove his own account of the act, given a short time after it occurred ; 
and any statement of his, to be admissible in evidence for him, must 
have been a part of the res gestm. Dukes v. The State, 11 Ind. 657. 

7. Where the question arises whether the accused, in the commis- 
sion of a homicide- acted upon grounds that justified him, in the deed, 
it would seeni that the character of the deceased might be a circumstance 
to be considered, especially where the accused knew his character, and 
knew him, at the time he committed the act. But it seems that where 
these facts may not have been known, the evidence would be entitled 
to Uttle weight. Ibid. 

8. In justifying a homicide, in defense of person or property, etc., 
the defendant may give in evidence, any facts tending to show the 
character of the attack which he resisted, the intention with which it 
was made, and that he had reasonable grounds to believe that it was 
necessary to go to the extent he did in resisting it. Ibid. 

9. It is not error, on the trial of a prisoner for murder, to permit 
the State to prove, that he attempted, while in jail, to escape, but was 
retaken Hittner v. The State, 19 Ind. 48. 

10. Criminal Law and Practice — Evidence. — In justfying a homicide 
in defense of person, property, etc., it is competent for the defendant to 
give in evidence any facts tending to show the character of the attack 
he resisted, the intention with which it was made, and that he had' 
reasonable grounds to believe that it was necessary to do what he did, 
in resisting it, and to this end he may show the relations that existed 
between himself and the deceased for an indefinite period before the 
killing. DeForest v. The State, 21 Ind. 23. 

11. Murder — Circumstantial Evidence. — To sustain a conviction for 
murder upon circumstantial evidence, the facts proved must be sus- 
ceptible of explanation upon no reasonable hypothesis consistent with 
the innocence of the accused. It is not enough that the mystery of 
the crime can not be solved, from the evidence, except upon the suppo- 
sition of the defendant's guilt. Schuster v. The State, 29 Ind. 394. 

12. Possession of Weapon by Deceased — Proof of Threats by 
Deceased. — On a trial for murder in which the witnesses for the defense 
had testified that the deceased had a bowie-knife in his possession, the 
night of the murder, and the State had introduced evidence to show 
that he had no such knife, and the defendant proposed to prove threats 
made by the deceased when the knife was exhibited, and also when it 



352 THE LA W OF HOMICIDE, 



The ETideooe. 



was not shown, against the life of the prisoner, or of iiyury to him, 
some of which threats were not shown to have come to the prisoner's 
knowledge: Held, that evidence of the possession of the knife by the 
deceased, a short time before the date of the occurrence which resulted 
in his death, was proper for the consideration of the jury, whether 
known to the defendent or not, and either when exhibiting the knife, 
or at other times. Holler v. The State, 37 Ind. 57. 

13. Evidence— Threats.— -Upon a trial for murder, it is competent for 
the State to prove threats made by the defendant against the life of the 
deceased. Cluck v. The State, 40 Ind. 263. 

§616. 14. Evidence. — In a murder case, it is error to admit in evi- 
dence against the defendant a transcript of the pleadings and papers 
in an action of divorce by the deceased against the defendant, pending 
in court and undetermined at the time of the alleged murder. Binm 
V. The State, 46 Ind. 311. 

15. Dying Declarations. — On a trial for murder, declarations of the 
deceased made when in extremis, consisting of the expression of opinion 
[only] as to who it was that fired the fatal shot based on previous 
threats, and what had previously occurred between the deceased and 
the accused, are inadmissible. Ibid. 

16. Same. — Where a written memorandum of declarations made in 
extremis is not signed, parol evidence of such declarations is admissible. 
If signed, the writing should be produced, or accounted for. Ibid. 

17. Evidence. — On a trial for murder, a statement of the deceased 
person, made before the commission of the act, and not made in the 
presence or hearing of the defendant, is not competent* evidence 
cgainst the defendant. Cheek v. The State, 35 Ind. 492. 

18. On a trial for murder it is error to exclude evidence tending to 
show that the person killed by the defendant had entered into a com- 
bination with a third person to induce the defendant's wife to elope 
with such third person, and leave her husband and children, and that 
facts tending to prove such combination, of late date, had come to the 
knowledge of the defendant. Ibid. 

§617. 19. Evidence — Dying Declarations. — When the statements 
of a person are offered in evidence as his dying declarations, the proof 
must clearly show that the declarant was in fact att the \ery point of 
death, and that he was fully conscious of that fact, not as a thing of 
surmise and conjecture, or apprehension, but as a fixed and inevitable 
fact. Morgan v. The State, 31 Ind. 193. 

20. Same. — It is not required that the deceased should have declared 
in terms, that he expected to die at once, if his condition was such that, 
of necessity, such an impression must have existed on his mind. On 
the other hand, no matter how strong the expression of this certainty 



THE LA W OF HOMICIDE. 353 



The Evidence. 



of death may have been, if there be any evidence of hope, in the 
language or actions of the declarant, his statements will be rejected. 
Morgan v. The State, 31 Ind. 193. 

21. Jurors may not Impeach their Verdict by their affidavits, on 
grounds of public policy. Bennett v. The State, 3 Ind. 167. 

22. Habeas Corpus to be Let to*Bail. — A prisoner who has applied 
for such writ, and who is indicted for murder, may, upon the refusal 
of the judge to allow him to give bail, prosecute a writ of error from 
such judgment to the Supreme Court. Lumm v. The State, 3 Ind. 293. 

23. A prisoner indicted for murder in the first degree may sue out a 
writ of habeas corpus to be let to bail, and upon proof that he is guilty 
of a bailable homicide, he should be allowed to give bail. The prisoner 
should give notice of the application for the writ. Lnimm v. The State, 
3 Ind 293. 

§618. Discharge OF Jury. — On an indictment against Fleming 
Wright for murder, the following points were decided : 

1. Where a prisoner has been given in charge, on a legal indictment, 
to a regular jury, and the jury has been unnecessarily discharged, he 
has been once put in jeopardy, and the discharge of the jury is equiv- 
alent to a verdict of acquittal. Wright v. The State, 5 Ind. 290. 

2. The failure to embody in the R. S. 1852, a provision in relation 
to Circuit Courts, similar to section 325, p. 733, R. S. 1843, (which is sub- 
stantially enacted in relation to Courts of Common Pleas by the acts 
organizing them), is a casus omissus within the meaning of section 172, 
2 R. S. 1852. 383, and said section 325, p. 733, R. ,S. 1843, is therefore 
continued in force. Ibid. 

3. .The discharging of a jury before verdict, by the Circuit Court, in 
a criminal case, against the will of the prisoner, on account of the ex- 
piration of the time fixed by law, is, under said section 325, unneces- 
sary, and equivalent to a verdict of acquittal. Jbid. 

4. A jury, while engaged in the trial of a prisoner for murder, was 
discharged, against the will of the prisoner, by reason of the expiration 
of the time fixed by law, for the continuance of the term, and the 
prisoner was remanded to jail to await another trial. The prisoner 
soon after, applied to the judge of the Court of Common Pleas, of the 
county, for a writ of habeas corpus. The writ was granted, and, on the 
hearing, the foregoing facts having been made to appear, the judge 
remanded the prisoner to jail, to await his trial in the Circuit Court. 
Held, that by the R. S. 1852, (vol. 2, pp. 195, 196, sec. 725), the judge 
was compelled, upon the prisoner's petition to award the writ ; but, held, 
that upon the return of said facts, it was his duty to remand the pris- 
oner to the Circuit Court, and that the latter court might discharge 

H.— 23 



354 THE LA W OF HOMICIDE. 



MiscelliiDeoas. 



the prisoner, on motion, or he might plead the discharge of the jury 
in bar of a second trial. Wright v. The State, 5 Ind. 290. 

§619. 5. Under the R. S. 1843, malice was necessary to constitute 
murder, either in the first or second degree, and the distinction con- 
sisted in its being accompanied in the first degree with, and in the 
second degree without, deliberation and premeditation. Finn v. The 
State, 5 Ind. 400. 

6. The Words " Malice Aforethought " in the description of murder, 
do not, necessarily imply that the act was committed with deliberation 
and premeditation. Ibid. 

7. Indictment for murder, charging the prisoner with having com- 
mitted the act " feloniously, willfully and of his malice aforethought." 
Held, that under the R. S. of 1843, the indictment only contained a 
charge of murder in the second degree. Ibid. 

8. On the trial of a prisoner on an indictment for murder in the 
second degree, it is immaterial what the opinion of a juror is in regard 
to the death penalty.' Ibid. 

9. Assault and battery, which is simply a misdemeanor, is not included 
in any of the degrees of felonious homicide. Wright v. The State, 5 
Ind. 527. 

10. The assault and battery, in a case of felonious homicide, is merged 
in the felony. Ibid. 

11. On the trial of the prisoner on an indictment for murder, the 
jury by their verdict found him guilty of an assault and batter}'. 
Held, that the verdict was a nullity. Held, also, that the defect could 
be reached by motion in arrest of judgment. Held, also, that the in- 
dictment still stood against the prisoner, and that he must be 'again 
put on trial, (a) Ibid. 

12. Verdict. — Indictment charging the prisoner, Thomas Kenedy, with 
murder in the first degree. Verdict : " We, the jury, do say and find 
that Thomas Kened)/ is guilty, in manner and form as he stands charged 
in the indictment, and that he shall be imprisoned in the State prison, 
and kept at hard labor during life." The act of 1843, in force when 
the verdict was rendered, provided that upon an indictment for mu^ 
<ler in the first degree, the jury might find the defendant not guilty of 
the crime in the degree charged in the indictment, and might find 
him guilty of such murder in the second degree ; or they might find 
him guilty of manslaughter. Held, that the verdict showed, with suffi- 
cient certainty, that the prisoner was found guilty of murder in the 
first degree. Kenedy v. The State, 6 Ind. 485. 

5. When under the act in question, the jury, under a single count 
charging murder in the first degree, find the prisoner guilty of murder 



(a) The above case was governed by R. S. 1843, and not the R. S. 18%. 



THE LA W OF HOMICIDE. 355 

Miacellaneous. 

in the second degi*ee, the verdict should specifically name the offense 
of which he is found guilty. Ibid, 

§ 620. 13. Jurors. — Under the code of 1852, either party, on the 
trial of a criminal prosecution, may ask each juror whether he has 
formed or expressed an opinion of the guilt or innocence of the ac- 
cused ; but if the inquiry is not made, and the jurors are accepted, 
and properly sworn to try the cause, and render a verdict, they are in 
legal contemplation, duly empaneled, and their qualifications as jurors 
can not be contravened on a motion for a new trial. Romaine v. The 
State, 7 Ind. 63. 

14. Form op Verdict. — Indictment for murder. — The verdict found 
the defendant guilty of manslaughter, without adding the words, " as 
charged in the indictment." Held, that the form of the verdict was 
not objectionable. Evans v. The State, 7 Ind. 271. 

15. The Corpus Delicti in a prosecution for murder, may be proved 
by circumstantial evidence. It is not essential that the body of the 
deceased should be found. Stocking v. The State, 7 Ind. 326. 

16. Indictment for Murder. — Trial, and verdict that the prisoner 
was guilty of an assault and battery, and that he be fined, etc. Held, 
that the verdict was a nullity, and was equivalent to a verdict of ac- 
quittal. Held, also, that the indictment still continued against the pris- 
oner ; and that the proper mode of procuring his discharge was by 
motion therefor, and not by habeas corpus. Wright v. The' State, 7 
Ind. 324. 

17. Indictment for Murder, with a Count for Manslaughter. — The 
defendant asked the court to instruct the jury that, if they found from 
the evidence, that the person inflicting the mortal wound upon the 
deceased was guilty of manslaughter only, and did not find that the 
defendant inflicted the mortal wound, and it was not proved beyond a 
reasonable doubt that he was present, aiding and assisting such person 
in giving the fatal blow, the defendant could not be convicted ; for, in 
law, there could not be an accessory before the fact in a case of man- 
slaughter. Held, that the instruction was calculated to mislead the 
jury in this, that it seemed to confine the aiding, etc., to the act of 
inflicting the fatal blow. Stipp v. The State, 11 Ind. 62. (a) 

18. Quere. Whether there can be an accessory before the fact in a 
case of manslaughter? (b) 

(o) By reading this case in full the reader will see more clearly the reason of the 
decision. In the hody of the decision the court say : " If the defendant was engaged with 
the person who gave the blow * * in a common illegal undertaking, he may have been 
^llty as a principal << <• « without having actually assisted in inflicting the btow (that 
caused the death). 

{b) See other cases, irtfra, as to manslaughter. 



• 



356 THE LA W OF HOMICIDE. 



.^_ 



MisceUcneoos. 



§ 621. 19. Instruction. — On a trial of the defendant in an indict- 
ment for murder, it is error to charge *the jury, without qualification, 
that, if the defendant made an unlawful attack, or got into a fight with 
the deceased, upon a sudden heat, and slew him in the controversy, 
he would be guilty of manslaughter, at any rate; because, (say 
the Supreme Court), even under such circumstances, the defendant 
would be entitled to the benefit of any retreat, flight, or withdrawal 
from the contest, which he might in good faith have made, or attempted 
to make, although he was the aggressor in the first instance. Hittner 
V. The State, 19 Ind. 48. 

20. Insanity. — In a prosecution for murder, if the jury, upon the 
whole evidence in the cause, have a reasonable doubt whether the 
defendant was sane when he committed the homicide, they must also, 
and for that reason, have a reasonable doubt whether he purposely 
and maliciously committed the crime; because, without sanity the 
crime, as defined by the statute, can not be committed. Polk v. The 
State, 19 Ind. 170. 

g621a. 21. Erroneous Instruction. — On a trial for murder in the 
second degree, the court erroneously instructed the jury that, on con- 
viction of manslaughter, the heaviest punishment they could inflict 
was confinement for fourteen years in the penitentiary, while the stat- 
utes fixes it at twenty-one years. Conviction of murder in the second 
degree, ft.nd sentenced to the State prison for life. Held, that such 
instruction might have prejudiced the defendant, and entitled bim to 
a reversal of the judgment. Hoss v. The State, 18 Ind. 349. 

22. Under an indictment for murder the defendant may be convicted 
of manslaughter. Qarrick v. The State, 18 Ind. 409. 

23. In such a case the verdict will be sufficient which merely finds 
the defendant guilty of manslaughter and assesses his punishment. 
Ibid. 

g 622. 24. Reasonable Doubt exists when the evidence is not sufli- 
cient to satisfy the judgment of the truth of a proposition with such 
Certainty that a prudent man would feel safe in acting upon it in his 
own important affairs. Arnold "v. The State, 23 Ind. 170. 

(But see this matter materially modified and explained in subse- 
quent cases.) 

25. Murder — Self-Defense. — On the trial of an indictment for 
murder in the second degree, the court instructed the jury, that "no 
threatening actions " of the deceased could justify the defendant in 
taking life ; and in another instruction told them that if the deceased 
made a violent assault upon the defendant, while he was retreating, 
and the deceased pursued bim, and the defendant had reasonable 
apprehensions of great bodily harm, and had used all reasonable means 



THE LA W OF HOMICIDE. 357 

Miscellaneous. 

to keep out of the way, he would be justified in repelling the assault, 
and if, in so doing, death resulted, he ought to be acquitted. Held^ 
that neither instruction correctly stated the law. The latter was erro- 
neous, because retreat is not always a condition which must precede 
the exercise of the right of self-defense. Creek v. The tStcUe, 2A Ind. 151. 

26. Manslaughter. — In manslaughter the killing, if upon a sudden 

heat, must be voluntarily done, and without malice. Creek v. The State, 
24 Ind. 151. 

27. Self-defense — Fear of Bodily Harm. — To justify the killing of 
another on the ground of the fear of bodily harm, there must be rea- 
sonable cause for such fear, and it is not sufficient to show that the 
defendant was in actual fear. Ibid. 

28. Fear. — The criminal law, while indulging to a humane extent 
the mere infirmities of human nature, nevertheless, requires of sane 
men the exercise of a mastery over their fears, as well as their passions. 
Ibid. 

29. Manslaughter — Aiding and Abetting. — One may be guilty, under 
the statute, of ^ding and abetting the crime of manslaughter. GoJ^ v. 
Pnme, 26 Ind. 196. 

30. jSame. — As, under an indictment for murder in the first degi*ee, 
the defendant may be convicted of murder in the second degree, or of 
manslaughter, so under an indictment for aiding and abetting the 
crime of murder in the first degree, the defendant may be convicted of 
aiding and abetting the crime of manslaughter. Ibid. 

31. Murder — Habeas Corpus — Bail. — Upon the hearing of an appli- 
cation by a person under indictment for murder in the first degree, to 
be admitted to bail, the burden is upon him, to show that the proof of 
his guilt is not evident Ex parte Hefren, 27 Ind. 87. 

32. In order to show this, he must produce the evidence upon which 
the State intends to rely for conviction. He may, however, cross-ex- 
amine or impeach the witnesses testifying against him. Ibid. 

33. Murder — Appeal. — On an appeal from a decision below adverse to 
the application to be admitted to bail, the finding of the judge below 
is not entitled to the same weighty effect, as if it had been a finding on 
the final trial of an ordinary cause. The Supreme Court will weigh 
all the evidence, without regard to the finding of the court below. Ibid. 

§623. 34. Habeas Corpus to Admit to Bail. — On appeal from the 
refusal of a judge to admit to bail a prisoner committed on a charge 
of murder, the Supreme Court will weigh the evidence and determine 
the facte, as if trying the case originally. Ex parte Moore, 30 Ind. 197 ; 
(Kc. ex parte Heffren, 27 Ind. 87. 

35. Malice. — Where one person unlawfully and purposely kills an- 
other, malice in the absence of rebutting evidence, is presumed from 
the act ; but when no express malice is shown, and it appears that the 



358 THE LA W OF HOMICIDE. 

Insanity. 



act, though voluntary, was the result of a sudden heat, or transport of 
passion, upon a sufficient provocation, it rebuts the presumption of 
malice, which is an essential ingredient in the crime of murder, and 
reduces the offense to manslaughter. Ibid. 

36. Murder — Deliberation. — The crime of murder requires the mind 
to have acted from deliberation and intelligence, and where it is clouded 
by passion, the result of a sufficient provocation, the killing is no more 
than manslaughter. Ibid. 

37. Same. — On an application of a person charged with murder in the 
first degree, to be admitted to bail, it appeared in evidence that the 
prisoner and the deceased being friends, between whom there had been 
no previous difficulty, met in a saloon, where they engaged in playing 
cards and drinking beer until they both became intoxicated and fell 
into a dispute on politics, which resulted in coarse and abusive language 
between them, and the prisoner became excited and angry, and, leaving 
the card table, said he would go home, and attempted to go out, when 
the deceased, much the stronger man, perpetrated repeated personal 
violence and indignity upon the prisoner (who several times attempted 
to go away), sufficient to inflame his passion and provoke him to ex- 
treme anger; that the prisoner, thus provoked and greatly excited, 
escaping at length from the deceased, hastened to his own house, a 
short distance, and, not being absent from the saloon more than five 
minutes, returned with a revolver in hand, with which he immediately 
shot and killed the deceased. Held, that it was not clear that there was 
sufficient time between the provocation and the act, for passion to cool 
and reason to resume control, or that the. proof was evident or the 
presumption strong that the killing was malicious. Ibid. 

38. Presumption op Intent to Murder. — The intent to murder is 
not conclusively inferred from the deliberate use of a deadly weapon, 
and the error of giving an instruction to that effect on the trial of an 
indictment for murder at the instance of the prosecution, is not cured 
by giving a contradictory and correct charge upon that subject at the 
request of the defendant. Clem v. The State, 31 Ind. 480. 

On Insanity. 

g 624. 39. Where a person is moved to the commission of an 
unlawful act by an insane impulse controlling his will and his judg- 
ment, he is not guilty of a crime ; and if he is a monomaniac on any 
subject, it is wholly immaterial upon what subject, so that the insane 
impulse leads to the commission of the act. Stevens v. The State, 31 
Ind. 485. 

40. Knowledge of Right and Wrong. — On the trial of an indictment 
for murder in the first degree, the court instructed the jury " that if 
they believed from the evidence that the defendant knew the difference 



THE LA W OF HOMICIDE. 359 

Miscellaneous. 

beivveen right and wrong, in respect to the act in question, if he 
was conscious that such an act was one which he ought not to do, and 
if that act was at the same time contrary to the law of the State, then 
he is responsible for his acts. Held, that this is not law. Ibid, 

41. Same — Keasonable Doubt.— -So far as a person acts under the 
influence of mental disease he is not critninally responsible ; and the 
jury in a criminal case must be satisfied beyond a reasonable doubt 
of the defendant's mental capacity to commit the crime charged. Ibid. 

42. Reasonable Doubt. — A juror in a criminal case (this was a mur- 
der case), ought not to condemn unless the evidence excludes from his 
mind all reasonable doubt as to the guilt of the accused — that is, unless 
he is so convinced by the evidence, no matter what the class of the 
evidence, of the defendant's guilt, that a prudent man would be safe to 
act upon that conviction on matters of the highest concern and 
importance to his own dearest personal interests, under circumstances 
where there was no compulsion resting upon him to act all. Ibid. 
See also, 23 Ind. 1 70. 

43. Murder — Insanity. — The defendant, in a criminal case, is not 
required to prove his insanity, in order to avail himself of that defense; 
but merely to create a reasonable doubt on this point, whereupon the 
burden of proving his sanity, falls upon the State. Bradley v. The State, 
31 Ind. 492. 

44. " Cognitive and Cognative *' Faculties. — Insanity is a disease 
which may impair or totally destroy either the understanding or the 
will, or both ; and in a criminal case, all the symptoms of such disease 
and its effect upon these faculties, should go to the jury ; and they must 
determine, as a matter of fact, the mental condition of the defendant; 
and an instruction to them which limits their inquiry to the condition 
of the power to apprehend by the understanding, is erroneous. Ibid. 

[The court define cognitive as " the comprehending power, the feel- 
ings, or capacity for pain or pleasure ; and the cognative, as the will 
power." Ibid.~\ 

45. Voluntary drunkenness is no excuse for the commission of a 
crime ; but insanity, caused by continued drunkenness, is a good de- 
fense in a criminal action. Ibid. 

§625. 46. Murder — Presumption. — The intent to murder is not 
conclusively presumed from the deliberate use of a deadly weapon. 
Bradley v. The State, 31 Ind. 492. 

47. Manslaughter. — Although a person unlawfully and purposely kill 
a human being, yet if it be done in a sudden heat of passion, caused by 
a sufficient provocation, and in the absence of express malice, then 
malice will not be implied from the act, but the offense will be man- 
slaughter. Murphy v. The State, 31 Ind. 511. 

48. Provocation. — Words only, however abusive or insulting they 



860 THE LA W OF HOMICIDE. 

MiacelUneous. 

may be, can not constitute such sufficient proyocation to rebut the 
presumption of malice arising from the act in such a case, and reduce 
the offence from murder to manslaughter. Ibid. 

49. Use or Deadly Weapon. — If the act be perpetrated with a deadly 
weapon, so used as likely to produce death, the purpose to kill may be 
inferred from the act. Ibid. 

50. Voluntary Manslaughter. — The word voluntarily, in our statutory 
definition of manslaughter, means, by the free exercise of the will, 
done by design, purposely. Ibid. 

51. Same. — On the trial of an indictment for assault and battery with 
intent to murder, the court instructed the jury in effect that there can 
be no purpose to kill in manslaughter ; and that if such a purpose be 
shown to exist, and if death result, the killing is murder. Held, that 
this was error. Ibid. 

52. Instruction — Erroneous. — On the trial of an indictment for mur- 
der in the first degree, the court charged the jury that " if the defend- 
ant was present at the time and place of the murder, in any way 
assisting, aiding, encouraging, or contributing towards the murder, 
she would be guilty as a principal in the crime. So, if the murder was 
perpetrated with her knowledge and consent or connivance, she is a principal. 
Held, that the giving of the last sentence of the instruction was error. 
aem V. The State, 33 Ind. 4l8. 

[In this case the Supreme Court say that if " Chitty, Hale and Foster 
have employed this word ** consent,^' as implying not merely acquiescence 
of mind, but also the manifestation of it, it does not follow that it can 
be employed in an instruction to the jury without error. The jury 
would understand the language addressed to them in its ordinary 
sense, etc.] 

§ 626. 53. As to assault and battery with intent to conmiit murder, 
see Kunkle v. The State, 32 Ind. 220, disapproving The State v. Swails, 
8 Ind. 524. 

54. Murder op Wife. — On the trial of the defendant for the murder 
of his wife, he offered to prove that she had, for a long time, been 
having adulterous intercourse with one B and others, and that he (the 
defendant), had for a long time been cognizant of her adultery. Held, 
that the evidence offered was incompetent in justification or palliation 
of the offense ; that after the lapse of time sufficient for the passion to 
cool, and for reason to resume her swfey, the killing was as criminal 
and indefensible as if his wife had never been guilty of conjugal 
infidelity. Sawyer v. The State, 35 Ind. 80. 

55. Murder in the Second Degree is not bailable when the proof is 
evident or the presumption strong. Ex parte Coulter, 35 Ind. 109. 

56. Not necessary to aver the part of the person where the wound 
was inflicted. Jones v. The State, 35 Ind. 122. 



THE LA W OF HOMICIDE. 361 

Murder — Manslaughter. 



57. Voluntary Manslaughter. — An indictment for manslaughter, 
charging that the defendant did, on, etc., unlawfully and feloniously 
kill a person named, hy, then and there, unlawfully and feloniously 
cutting and stabbing and mortally wounding said person with a knife, 
etc., is sufficient. So, also, if it is charged that the instrument used is 
unknown to the grand jurors. Wxlleyet al, v. The State, 46 Ind. 363. 

58. Involuntary Manslaughter is where the killing is done involun- 
tarily, but in the commission of some unlawful act. Ibid. 

59. An indictment for involuntary manslaughter must show that the 
defendant was in the commission of some unlawful act, and that the 
death resulted therefrom. Ibid. 

60. An indictment alleging that the death resulted from using unlaw- 
fully, willfully and feloniously, an instrument on a pregnant female, for 
the purpose of producing a miscarriage, the use of such instrument not 
being necessary to preserve the life of the woman, is insufficient See 
41 Ind. 303 Ibid. 

§ 627. 61. Murder — Manslaughter — Use of Deadly Weapon — Mal- 
ice. — On a trial for murder where there are some circumstances, 
strongly tending to the conclusion that the crime was murder, and not 
manslaughter merely; such as the use of a deadly weapon by the 
defendant, in a manner seemingly cruel and not justified by the 
danger of the supposed assault by the deceased, and following the 
deceased and inflicting upon him a blow with a knife, after he had 
turned and was retreating ; and, on the other hand, there was some 
evidence that tended in some degree to modify such conclusion ; as, 
that the defendant was smarting under indignities inflicted upon him 
by the deceased, who a short time before had assaulted and chased 
defendant with a stable fork through the public streets until he took 
refuge, and the deceased had also applied to the accused degrading 
and humiliating epithets ; Held, that a charge to the jury, which, after 
defining manslaughter as an unlawful killing without malice, express 
or implied, stated that " if a man use a deadly weapon in killing his 
adversary the law implies malice from its use, except where the killing 
is excusable," was, in effect, telling the jury that there was no such 
thing as manslaughter where a deadly weapon was used, as the implied 
malice made it murder, if it was not excusable, and that the charge 
was erroneous. 

Held, further, that where there was doubt as to which of the blows 
was mortal, this instruction should have been given as requested : " If 
the blows which caused the death of A, the deceased, were given in 
self-defense, and other blows were afterwards given, which were not 
given in self-defense, not mortal, you should find the defendant not 
guilty." Miller v. The State, 37 Ind. 432. ' 



362 THE LA W OF HOMICIDE, 

Miacellaneous. 



62. Murder — Intoxication. — On a trial for murder, no proof of intox- 
ication at the time of the crime, which falls short of showing the de- 
fendant to have been utterly incapable of acting from motive, will 
shield him from conviction. If the reason be perverted, or destroyed 
by fixed disease, though brought on by his own vices, the law holds 
him not accountable. Cluck v. The State, 40 Ind. 263. 

g 628. 63. Murder — Former Acquittal — Special Plea. — To an indict- 
ment for murder in the first degree, for the killing of A, the defendant 
entered a special plea in bar, wherein she alleged that she had been 
indicted for murder in the first degree for killing one B ; that she had 
been tried by a jury upon said indictment for the killing of B, after 
having taken issue thereon by a plea of not guilty as charged therein, 
and that upon such trial she was found guilty of murder in the second 
degree, and sentenced to the State Prison for life ; by which finding and 
judgment she was acquitted of the charge of murder in the first 
degree as charged in said indictment ; and the crime charged in said 
indictment for which she was tried and acquitted, " was and is identical 
in all its parts, incidents and circumstances, with the crime charged in 
the indictment for the killing of" A ; that the evidence whereby alone 
the State will attempt to prove the indictment in this case is the same 
and in no wise different from that employed and produced on the trial 
of the indictment on w^hich she was acquitted of murder in the first 
degree, and this she is ready to verify, etc. Held, that the plea was 
good. Cleni v. The State, 42 Ind. 420. 

64. Held, also, that the plea stated in effect that the same act caused 
the death of A and B, and if the same act resulted in the death of both 
there was but one crime. Cleni v. The State, 42 Ind. 420. 

Held, also, that it. was not necessary that the plea should show that 
A and B were one and the same person. Ibid. 

65. Murder — Acquittal. — If upon an indictment for murder in the 
first degree, the defendant is found guilty of an inferior grade of homi- 
cide, without saying anything as to the higher grade, the finding is by 
implication an acquittal of the higher grade. I6id. 

66. iSame — Killing of Two Persons by the Same Act. — Where two or 
more persons are killed by the same act, the State can not indict the 
guilty party for killing one of the persons, and after conviction or 
acquittal, indict him for killing the other. Ibid. 

67. Pleading — Plea of Not Guilty — Special Plea. — The privilege given 
by statute (2 G. & H. 413, §97), that in all criminal prosecutions the 
defendant may plead the general issue orally, and under it every matter 
of defense may be proved, does not take away from him tho right to 
plead specially any defense which before that enactment might have 
been specially pleaded. Ibid. 



THE LA W OF HOMICIDE. 363 

Clem Case. 



68. Same — Special Plea in Bar — Trial. — A defendant in a criniinal 
prosecution may plead specially a former acquittal or a former convic- 
tion in bar, and have the issue or issues joined on such plea; tried 
separately and apart from the question of the guilt or innocence of the 
crime charged in the pending indictment. Ibid. 

Same. — If the issue or issues joined upon a plea of former acquittal 
or conviction are found against the defendant, he may still enter a plea 
of not guilty. Ibid. 

§629. 69. Same — Judgment. — The judgment upon a plea of former 
acquittal or conviction, when the issues have been found against the 
defendant is, that he answer over. Ibid. 

70. Same. — Upon the general issue only can a defendant, in a crim- 
inal prosecution, be found guilty and subjected to the penalty of the 
law. Ibid. 

71. Sam£. — It is optional with the defendant, in a criminal prosecu- 
tion, whether he will plead a former acquittal or conviction specially, or 
give the same in evidence under the plea of not guilty. Ibid. 

72. Same — Practice — Demurrer. — The rule that it is not an available 
error, that a demurrer has been sustained to a pleading, when there is 
another pleading under which the same evidence is admissible, is not 
applicable in criminal cases. Ibid. 

73. Same — Demurrer. — In determining the sufficiency of a plea of 
former acquittal or conviction, to which a demurrer has been sust^iined, 
the court can not regard the evidence that was afterwards given on 
the trial of the cause upon a plea of not guilty. Ibid. 

74. Instructions — Exculpatory Fads. — On the trial of a criminal cause^ 
it was error to instruct the jury, that if there were other facts not 
before them, which were exculpatory in their character, and they could 
have been proved by the defendant, but were not, the jury might con' 
sider such failure with the other circumstances offered to show the 
guilt of the defendant. Ibid 

75. Same. — The jury were instructed as follows : " Remember, that 
you are each responsible for the verdict you shall . render, not forget- 
ting, however, that no man can safely consider himself infallible, that 
no number of minds can agree upon a multitude of facts, such as this 
case presents, without some yielding of the judgment of individuals 
upon the evidence, some deference to the opinions of others, without 
what some might call compromise of diflferent views. No man who is 
unwilling to do this within reasonable limits, and without a sacrifice 
of conscience, ought to have a place in a jury box, or be a member of 
anv deliberative bodv." 

Held, where the indictment was for murder in the first degree, and 
the evidence was all circumstantial and tended to prove murder in the 



864 THE LA W OF HOMICIDE. 



MiaoeUaneottB. 



first degree only, and there was a verdict of guilty of murder in the 
second degree, with a recommendation to executive clemency, that the 
charge was erroneous. Ibid. 

§ 630. 76. New TKiiLL—Efect of Granting a New Trial.— The legal 
effect of granting the appellant a new trial in this cause, must be 
decided by the court below before it can properly be passed on by the 
Supreme Court. Ibid. 

11. Statute Construed — Technical Error. — To deprive a defendant 
on a criminal prosecution of the right to prove a former acquittal or 
conviction by a special plea, and to have the issue thus tendered tried 
first, and, if found against him, to have another jury try the issue on a 
plea of not guilty, is not a technical error within the meaning of Sec. 
160, 2 G. and H. 427. Ibid. 

78. Instructions — Efect of. — Although the jury in criminal causes 
are made the judges of the law as well as of the facts, the charge of 
the Court is presumed to control their minds to some extent; and when 
the Court has misdirected the jury, in a material matter of law, such 
misdirection is ground for a new trial. Ibid. 

80. Same. — When, from the whole case it appears that the jury might 
have rendered a different verdict, it may well be considered that an 
errorneous instruction leading to the verdict, influenced them, and is 
good ground for a new trial. Ibid. 

§ 631 . 81 . Criminal Law — Murder — Manslaughter — Justifiable Homicide 
— Instruction. — On the trial of an indictment for murder, where there 
is evidence tending to show that the defendant acted in self-defense, 
it is error to instruct the jury that if the death of a human being be 
produced by a deadly weapon in the hands of another, the presump- 
tion is that the party using such weapon intended, and is guilty of 
murder, and that to remove this presumption and reduce the killing 
to manslaughter, it devolves on the defendant to show that it was 
under great provocation, such as endangered tjhe life of, or would have 
resulted in great bodily harm to the party using such weapon. Kingen 
V. The State, 45 Ind. 518. 

82. Same. — The use of a deadly weapon, resulting in homicide under 
circumstances that endanger the life of a person using such weapon, or 
would result in great bodily harm to him, will justify the killing. 
Kingen v. The State, 45 Ind. 518. 

83. Criminal Law — Murder — Circumstantial Evidence — Corpus Delicti. 
— On a trial for murder, evidence was given of the finding of the 
skeleton of a human being of the sex of the person charged to have 
been murdered, and corresponding to his size. 

Held, that this was sufficient evidence of the corpus delicti to justify 
the admission of circmnstancial evidence to identify the skeleton as 



THE LA W OF HOMICIDE. 365 



Menhon Case. 



that of the murdered party as well as to show the cause and manner 
of his death. 

84. Same — Voluntary/ Confession. — A witness for the State in a trial 
for murder, testified to several' conversations with the accused, in some 
of which the latter spoke of having killed a man by the name of 
Morgan, which was the name of the person alleged .in the indictment 
to have been murdered, and in one conversation the prisoner stated 
that he was free of crime, but it did not affirmatively appear that the 
declaration of innocence was made in the same conversation in which 
he confessed the homicide. 

Held, that it could not be rightfully assumed by the Supreme Court 
that the assertion of innocence was necessarily made by the accused 
in the same conversation in which he said he had killed a man* by the 
name of Morgan. McCulhch v. The State, 48 Ind. 109. 

85. Criminal Law — Practice — Argument to Jury. — On the trial of an 
indictment for murder, it is error for counsel for State, in argument to 
the jury, to comment on the frequent occurrence of murder in the 
community and the formation of vigilance committees and mobs, and 
to state that the same are caused by laxity in the administration of 
the law, and that they should make an example of the defendant, and 
for the Court, upon objection by the defendant to such language, to 
remark to the jury that such matters are proper to be commented 
upon. 48 Ind. 109 ; 49 Ind. 33. 

86. Same — Instruction — Homicide upon Provocation. — On the trial of a de- 
fendant on an indictment for murder in the first degree, it was error to 
instruct the jury, that " to reduce a homicide upon provocation, it is 
essential that the fatal blow shall have been given immediately upon 
the provocation given ; for if there be time sufficient for the passion to 
subside, and the person provoked kill the other, this will be murder, 
and not manslaughter." Ferguson v. The State, 49 Ind. 33. 

Murder ik the Commission op a Robbery — Intent. — Where, in the 
perpetration of a robbery, the robber takes the life of his victim, he is 
guilty, under section 2, 2 R. S. Ind. 423, of murder in the first degree, 
though there may have been no intent to kill. Moynihan v. The State, 
70 Ind. 126. 

Poison. — As to killing by administering poison, see 54 Ind. 128, as 
to the question of intent. 

g 632. 87. Indictment — Different Counts, charging felonies, may be 
joined in the same indictment; and every separate count should 
charge the defendant as if he had committed a distinct offence. Mer- 
shon V. The State, 51 Ind. 14. 

88. Same — Practice. — When an indictment contains more than one 
count, it is not error to overrule a motion to require the prosecutor to 
elect on which count he will proceed. Ibid. 



366 THE LA W OF HOMICIDE. 

Miflcellaneous. 

89. Same — Chaflenge of Grand Juror. — Any person under prosecution 
for crime, and in custody or on bail, may, before he is indicted, chal- 
lenge, for good cause, any person returned or placed upon the grand 
jury. Ibid, 

90. Same — Plea in Abatement — When a person is not under prosecu- 
tion for an offense, he can not be supposed to anticipate that he may 
be charged with an offense before a grand jury ; and in such a case he 
may plead in abatement of the indictment the disqualification of any 
of the grand jurors who found it. Ibid. 

91. Same. — An objection to a grand juror, whether on the ground of 
incompetency of the juror, or corruption on the part of an officer, in 
selecting and empaneling Iiim, when taken by plea in abatement, must 
show that the defendant had no opportunity of making the objection 
by challenge. Ibid. 

92. Same — Evidence. — On the trial of an indictment for murder, 
where the evidence was uncertain as to the name and identity of a 
man shown to have been a stranger, and shown to have been seen in 
the locality before, but not after the night of an affray in which a 
person, not well identified, was stabbed and taken away apparently in 
a dying condition, there being no evidence that he was afterwards 
seen dead or alive, it was not competent to introduce in evidence 
statements made by said stranger on the day of the alleged murder, 
but before the affray, as to where he lived, where he was going, who 
were some of his relatives, that he had sold land, that he had lost a 
large sum of money which had been restored to him, that he had 
been intoxicated, etc., neither for the purpose of identifying the man, 
nor to show that the matters stated were true. Ibid. 

^. Murder — Instruction. — Where a husband and wife are jointly 
indicted and tried for murder, it is error to instruct the jury that to 
acquit either of them on the ground of self-defense, they should have 
feared and had reasonable cause to fear death or great bodily harm at 
the hands of the deceased. Hicks v. The State, 51 Ind. 407. 

§ 633. 94. Same — Self-Befense. — To justify a homicide on the ground 
of self-defense, it is not necessary that the accused should have believed 
that it was necessary to take the life of his assailant in order to defend 
himself. If the death of the assailant results from the defendant's 
reasonable defense of himself, he is excusable, whether he intended 
that consequence or not, or whether he believed such a result neces- 
sary or not. Ibid. 

95. Murder — Motion to Require the Prosecuting Attorney to Elect between 
Counts in the Indictment — Where, in an indictment of more than one 
count, the several counts are evidently based on the same alleged 
felony and inserted to avoid the consequences of a possible variance, it 



THE LA W OF HOMICIDE. 367 

Misoellaneous. 

is not error to overrule a motion to require the prosecuting attorney to 
elect on which count he will try the defendant. Wall v. The State, 51 
Ind 453. 

96. Self-Defense. — On the trial of an indictment for murder, it is 
sufficient to establish a case of self-defense, if the defendant, being 
without fault, believed, and had reasonable ground to believe from the 
acts of the deceased, that his own life was in danger, or that he was in 
danger of great bodily harm ; therefore, on the triaj of such an indict- 
ment, where the evidence was such as to entitle the defendant to a 
correct instruction to the jury as to the law on this subject, it was error 
to charge that "there can be no successful setting up of the plea of 
self-defense in a case of homicide, unless necessity for taking life is 
actual, present and urgent ; in a word, unless the taking of his adversary's 
life is the only reasonable resort of the party who kills his antagonist, 
and he is compelled to do so in order to save his own life, or his person 
from great harm and severe calamity ; " or to charge that " self-defense 
can only be resorted to in a case of absolute necessity, ^^ Ibid. 

97. Alibi. — It is error to instruct the jury, that " evidence of an alibi 
is evidence of a suspicious character.'' Line v. The State, 51 Ind. 172. 

§ 634. 98. Manslaughter — Instruction to Jury. — On the trial of an 
indictment for murder, the court, in its charge to the jury stated: "If 
you should find from the evidence, beyond a reasonable doubt, that 
the defendant, without malice, either express or implied, and with no 
intent to murder, unlawfully involuntarily killed the decedent," naming 
himj " this would be manslaughter," the context of the charge, giving 
the full statutory definition of manslaughter. Held, that the defendant 
could not complain of the omission, in the portion of the charge 
quoted of the words, " but in the commission of some unlawful act.^ ^elley 
The State, 53 Ind. 311. 

99. Murder — Indirect Cause of Death. — When wounds have been 
inflicted by one person upon another, and the latter afterward dies, it 
is not indispensable to a conviction of the former of murder, or man- 
slaughter, under an indictment based upon the infliction of such 
wounds, that they were necessarily fatal, and were the direct cause of 
death; but if they caused the death indirectly, through a chain of 
natural effects and causes, unchanged by human action, it is sufficient 
in this regard. Ibid. 

100. Same. — Where a person has inflicted wounds upon another 
which are fatal, and of which the latter dies, or which are dangerous 
in themselves, though not necessarily fatal, and cause congestion of 
the brain, of which the wounded person dies, or congestion of the 
brain' so induced, causes the exposure of the injured person to the 
inclemencies of the weather by which he dies, it must be held that 



868 1 HE LAW OF HOMICIDE, 

bheppard Caae— Indictmeot. 

the person who gave the wounds caused the death by the infliction of 
them. I(^i(i. 

101. Assault, rtc, with Intent to Commit Manalaughter. — ^Under Sec- 
tion 9, 2 G. & H. 438, prescribing a penalty for the perpetration of 
an assault or an assault and battery with intent to commit a felony, an 
indictment will lie for an assault or an assault and battery, with intent 
to commit voluntary manslaughter. The State v. Throckmorton, 63 Ind. 354 

102. The Same. — Under an indictment for an assault, or an assault 
and battery with intent to commit murder in the first degree, if the 
evidence justify it, there may be the same conviction as under an 
indictment for an assault or an assault and battery with intent to com- 
mit manslaughter. 

Therefore, where there was a trial and an acquittal under a count 
for an assault and battery with intent to commit murder, the judg- 
ment could not be reversed for the quashing of a good count for assaalt 
and battery with intent to commit manslaughter. Ibid. 

§ 635. 103. Murder Committed in the Perpetration of Burglary. — 
Where, after a person has burglariously broken and entered into a 
house, and while he was yet within the house, and immediately after, 
a watchman who came to the door by which said person had so 
entered, had shot at such person, he shot and killed the watchman ; 
Held, that the homicide being committed within the res gestx of the 
burglary, was committed " in the perpetration " of the burglary, within 
the meaning of Section 2, 2 R. S. 1876, 423. Bissot v. The StaU, 
53 Ind. 409. 

104. Conviction under One Count, and Acquittal as to Another. -^n 
the trial of an indictment containing two counts, the first charging » 
honycide committed by the defendant " purposely and with premedi- 
tated malice," and the second charging the killing to have been done 
" purposely and with premeditated malice in the perpetration of a 
burglary," an acquittal as to the first count, and a conviction on the 
second did not acquit the defendant on the whole indictment. M' 

105. Murder — Indictment — Certainty-- Motion in Arrest of Judgment— '^^ 
grand jury of Sullivan coupty, Indiana, returned into court the follow- 
ing indictment, viz. : 

State of Indiana, Sullivan County, ss : Sullivan Circuit Court, JuyB 
Term, 1875 

State of Indiana] 

vs. > Indictment for murder. 

Thomas Shefpard. ) 

The grand jury of Sullivan county, in the State of Indiana, good 
and lawful men, duly and legally empaneled, charged and sworn to 
inquire into felonies and ceftain misdemeanors, in and for the body of 
said county of Sullivan, in the name and by the authority of the State 
of Indiana, on their oaths present, that one Thomas Sheppard, late of 



THE LA W OF HOMICIDE, 369 



The Indictment. 



said county, on the 10th day of June, A. D. 1875, at said county and 
State aforesaid, did then und there, feloniously, purposely and with 
premeditated malice, unlawfully kill and murder Mason Engle, by then 
and there and thereby feloniously, purposely and with premeditated 
malice, firing a large-sized Colt's revolving-pistol, loaded with gun- 
powder and leaden balls, which he, the said Thomas Sheppard, then 
and there had and held in his hands, contrary to the form of the 
statute in such cases made and provided, and against the peace and 
dignity of the State of Indiana. J. L., Prosecutiny Attorney. 

Held, on motion in arrest of judgment, that the indictment is bad for 
want of certainty in charging the mode and manner in which the 
deceased came to his death [because, say the Supreme Court, the 
indictment does not say that the deceased was wounded by the balls 
from the pistol, nor that the pistol was ever shot at him, etc]. Sheppard 
V. The State, 54 Ind. 25. (a) 

§ 636. 106. Criminal Law — Indictment — Assault and Battery with Intent 
to Murder — Particular Words and Phrases. — An indictment charged that 
the defendant '"in and upon one" A B, did feloniously, purposely and 
with premeditated malice make an assault, and then and there, at and 
against the said " A B," did feloniously, purposely, and with premeditated 
malice, shoot a certain pistol, then and there loaded with gunpowder and 
leaden ball, which '' he, the defendant," then and there had and held 
in his hand, with intent, etc. Held, that the indictment sufficiently 
charges an assault and battery. Held, also, that the word " against,'^ as 
used in this indictment must be taken in its usual acceptation in com- 
mon language. The State v. Prather, 54 Ind. 63. 

107. Murder — Indictment — Attempt to Commit Rape — Surplusage — Pur- 
pose to Kill. — An indictment for murder commenced by charging that 
the defendant *' unlawfully, feloniously, and with premeditated malice 
did kill and murder one " A B, "a woman over the age of fourteen 
years, in an unlawful attempt, forcibly, feloniously and against her 
will," etc., "to ravish and have," etc., "carnal knowledge of her," etc., 
"by," etc., "purposely, willfully, unlawfully, feloniously and with pre- 
meditated malice, administering and causing to be administered unto " 
her, " a large quantity of deadly poison." Then followed allegations 
that the defendant had mingled the poison with wine, and had caused 
her to drink it, with the intention that such poison should create in 
her an uncontrollable desire for sexual connection, so that the defend- 
ant could thus carnally know her himself. The concluding allegations 
were, that the defendant unlawfully intending to satisfy his sexual 
passions upon her body, as before set out, '* in the manner and by the 



(a) Sed quere. Is this case in harmony with subsequent decisions of the Supreme Court, 
when they appear to hold that an indictment may be quashed for defects, for which amotion 
in arrest of judgment will not be sustained ? 

H.— 24 



370 THE LA W OF HOMICIDE. 

MiscelUneous. 

means aforesaid," etc., "feloniously, willfully, unlawfully, and of pre- 
meditated malice did kill and murder her," A B, etc., but there was no 
allegation in the indictment of any attempt by the defendant to have 
sexual connection with her. 

Held, that the indictment is sufficient as charging a murder by the 
administering of poison, but not of a murder in an attempt to commit 
a rape ; the allegation in regard to the attempt to commit a rape being 
treated as mere surplusage. 

Held, also, that such indictment sufficiently shows that the woman 
died of the poison administered to her.- 

Held, also, that a purpose to kill the woman, on the part of the 
defendant, is sufficiently alleged. Bechtelheimer y . The State, 54 Ind. 128. 

108. Same. — Under section 2, of " an act defining felonies," etc., 2 
R. S. 1876, 423, a purpose to kill is an essential ingredient in the crime 
of murder in the first degree, where the killing is effected by adminis- 
tering poison. Ibid. 

109. Malice. — Where a purposed killing is charged in an indictment 
for murder, by administering poison, it is not necessary to allege that 
it was done with malice in order to constitute murder in the first de- 
gree. Ibid. 

110. Instructions to Jury. — Where a defendartt was on trial for 
having committed murder in the first degree by administering poison, 
it was error for the court to refuse to instruct the jury, trying the cause, 
that, if they found that the poison was administered to the deceased, 
a woman, only to excite her sexual passions, and thereby enable the 
defendant to carnally know her, and without any purpose or intention 
to kill her, they could not find the defendant guilty of murder. Ibid. 

111. Trial by Less Than Twelve Jurors. — The trial of a defendant in a 
criminal prosecution by a jury of less than twelve in numbeir', with, or 
without, the consent of the defendant, is unauthorized by law, and the 
verdict void. Allen v. The State, 54 Ind. 461, ace. 16 Ind. 496, and HiU 
v. The People, 16 Mich. 351. 

g 637. 112. Manslaughter — Instruction to Jury. — On the trial of a 
defendant for manslaughter, an instruction to the jury, in relation to 
the evidence of the means by which the deceased came to his death, 
should not assume that the immediate cause, producing death, was the 
result of an act of the defendant, but should clearly and logically 
connect such immediate cause with some '* unlawful " act of the 
defendant. Waybright v. The State, 56 Ind. 122. 

113. Assault with Intent to Murder — Evidence — Specific Acts. — Up<^" 
trial of a defendant indicted for assault and battery with intent to 
murder another, evidence of specific acts of violence, committed hy 
the latter, upon persons toward whom he had ill-will, is not admissible. 
Pratt V. The State, 56 Ind. 179. 



THE LA W OF HOMICIDE, 371 

Miscellaneoiu. 

114. Misconduct op Juror. — ^The fact that, during the separation of a 
jury by leave of court, upon an ac^ournment of a cause which they 

are trying, a member thereof, on his own motion and at his own ex- 
pense, by himself, and without becoming intoxicated, partakes of intox- 
icating liquor, is not sufficient cause for a new trial. Ibid. 

115. Failure op Dependant to Testify. — An allusion by counsel for the 
State in a criminal prosecution, made during his argument of the 
cause before the jury, to the fact that the defendant had failed to testify 
as a witness on the- trial of such cause, is sufficient ground for a new 
trial, and is not cured by the facts that the court admonished the 
counsel that such allusion was improper, and instructed the jury that 
no attention should be paid by them to the same. Long v. The State, 
56 Ind. 182. (a) 

§ 638. 116. Indictment for Murder. — " The grand jurors of Johnson 
county, in the State of Indiana, good and lawful men, duly and legally 
empaneled, charged and sworn to inquire into felonies and certain 
misdemeanors in and for the body of said county of Johnson, in the 
name and by the authority of the State of Indiana, on their oaths 
present, that one Frank Meiers, late of said county, on the 24th day of 
July, A. D. 1875, in said county and State aforesaid, did then and there, 
unlawfully and feloniously, willfully and purposely, and with premed- 
itated malice, unlawfully kill and murder Charles Bernauer, by then 
and there feloniously, purposely and with premeditated malice, cutting, 
stabbing, and mortally wounding said Charles Bernauer, with a knife 
which he, the said Frank Meiers, then and there had and held in his 
hands." * * * «' The appellant (the defendant), objects that the 
foregoing indictment is insufficient, because it did not charge that 
Bernauer's death resulted from the injuries, alleged to have been 
inflicted on him, and because it did not describe the parts of the body 
which were wounded by the appellant's knife. The common law forms 
of indictments have been abolished in this State, and the substance 
only of what was necessary to make a good indictment at common law 
need now be charged. The necessary averments have only to be in 
plm and concise language, and certain only to a common intent. 
McGool V. The State, 23 Ind. 127. We think that, under the rules of 
pleading in criminal cases, as they are now recognized in this State, the 
indictment sufficiently charged the means by which the deceased came 
to his death. Dillon v. The State, 9 Ind. 408; Dukes v. The State, 11 Ind. 
557; Jones v. Th^ State, 35 Ind. 122; West v. The State, 48 Ind. 483." 
Mdrs V. ITie State, 56 Ind. 336. 

§ ^39. 117. Alibi. — An instruction to the jury on the trial of a 

(a) The act authorizing the defendant, in a criminal cause, to testify, provides that if he 
do not testify, no allusion shall be made to such omission. 



872 THE LA W OF HOMICIDE 

Mll06llU160US. 

defendant in a criminal case, in relation to uncontradicted eTidence 
offered by him to establish an alibi, tending to cast suspicion on such 
evidence, is erroneous. Sater et ai v. The State, 56 Ind. 378. 

118. Same— Evidence. — Evidence of An alibi, introduced by a defend- 
ant should be subjected to the same, and no other test, that evidence 
of any other material fact is subjected to. Ibid. 

119. Ikdictmext — Murder in the First Degree. — An indictment for mur- 
der in the first degree, charged, that on, etc., at, etc.» the defendant " did 
then and there, unlawfully, feloniously, purposely, and with premedi- 
tated malice, kill and murder," one A B, by " then and there feloni- 
ously, purposely, and with premeditated malice, shooting and mortally 
wounding the body and person of said " A B, " with a gun loaded with 
gunpowder and leaden balls, which he," the defendant, "then and 
there in his hands had and held," etc. Held, on motion in arrest, that 
the indictment is sufficient. Veach v. The State^ 56 Ind. 584. 

120. WiTNi?ss — Credibility of — Instruction to Jury — Defendant's Testimony. 
— On the trial of a cause wherein the defendant testifies as a witness 
in his own behalf, it is error in the court to instruct the jury, in rela- 
tion to the credibility of such witness, " that one interested will not usu- 
ally be as candid and honest as one not so.'' Ibid. 

121. Bail — Weight of Evidence — Supreme Court. — On appeal to the Su- 
preme Court from the decision of a judge, on the petition of a person 
charged with a crime, to be admitted to bail, the evidence will be 
weighed without regard to such decision. Ex parte Sutherlin, 56 Ind. 595. 

122. M!uRDER — When Defendant admitted to Bail. — On such petition by a 
defendant confined in jail on an indictment for murder, if from the 
evidence the proof of his guilt be not evident, or the presumption 
thereof not strong, he should be admitted to bail. Ibid. 

§ 640. 123. Practice. — The overruling of a motion made by the 
defendant on a trial for murder, that the court instruct the prosecutr 
ing attorney, who had closed his evidence, to call certain witnesses, 
then present, is not error. [Defendant's counsel moved the court to 
instruct the prosecuting attorney to call as witnesses, two other per- 
sons, then in the court house, who were present at the alleged mur- 
der, in order that the defendant might have the advantage of cross- 
examining them ; but the court refused so to instruct the prosecutor.] 
Ward v. The State, 8 Blackf 101. 

124. Impeachment of Verdict. — A juror's affidavit in such case as to 
the view he took of the testimony, is inadmissible to impeach a 
verdict for the State. [The law seems now to be settled that jurors 
will not be heard in impeachment of their verdict.] 

125. Conscientious Scruples of Juror — Indictment for Murder.— The 
prosecuting attorney propounded the following question to each juror: 



THE LA W OF HOMICIDE. 373 



Evidence. 



** Whether he entertained such conscientious scruples on the subject 
of capital punishment as would deter him from finding a verdict asses- 
sing the death penalty in any case of murder in the first degree?" 
One of the jurors answered affirmatively, and he was discharged. 
Heldy that such conscientious scruples disqualify a juror. Held^ also, 
that a grand juror would be disqualified for the same reason, {a) Gross 
V. The Stale, 2 Ind. 329. 

126. Jury Judges of the Law. — The court instructed the jury that they 
were the judges of the law and the facts, but it was their duty to be- 
lieve the law as laid down by the court. Held, that the instruction was 
right. Ckrter v. The State, 2 Ind. 617. 

127. Execution op Prisoner, Ordered after Escape and Recapture. 
— The defendant was indicted for murder in the first degree. The 
jury found him guilty as charged in the indictment, of murder in the 
first degree, and that he suffer death, etc. The court rendered judg- 
ment on the verdict. Previously to the day named for his execution, 
the prisoner made his escape, and was afterwards retaken by the 
sheriff, and kept in custody until the next term of the court, at which 
term the prisoner was again brought before the court by the sheriff, 
and the fact of his escape, etc., being made known, the court again 
awarded execution against him on the former judgment. Held, that 
there was no error in this. Bland v. The State, 2 Ind. 608. 

128- A New Trial for Newly-discovered Evidence, is rarely, if ever, 
granted, if the only object of the evidence be, to impeach the character 
of a witness. Ibid. 

129. To Set Aside Judgment. — By our statute, no judgment of any 
court of record, can be set aside on motion, unless such motion be 
made at the term at which such judgment was rendered. Ibid. 

§ 641. 130. Evidence. — Declarations which form a part of the res 
gestas, and are to be regarded as a part of the transaction in question, 
do not come under the head of hearsay, but are admissible as original 
evidence. Binns v. The State, 51 Ind. 46. 

131. Same. — A declaration which is simply narrative of a past event, 
depending solely for its effect upon the credit of the person making 
it, and not so connected with the transaction in question as to illustrate 
its character, is inadmissible in evidence. Ibid. 

132. Same — Murder. — On the trial of a defendant indicted for murder, 
declarations of the deceased made in the absence of the defendant 
and after the infliction of the injury, subsequently resulting in death, 
as to the manner in which, and the means by which such injury was 
inflicted, are not admissible as evidence against the defendant. Ibid. 

(a) Sinee the above case was tried, the R. 8. of 1852 have made provisions for the case 
of jurors who have conscientious scruples in r^ard to the death penalty. 



374 THE LA W OF HOMICIDK 

MiaceUaneoiu. 

133. Same — Motive. — Where, in such case, the defendant was on trial 
for the alleged murder of his wife, it is not competent, as tending to 
establish a motive for the commission of the murder, to introduce in 
evidence the record of a decree of a court in an action by the deceased 
against the defendant for a divorce, ordering the latter to pay money 
into court, restraining him from selling his property, appointing a 
receiver, etc. lUd. 

134. Same. — In such case as tending to show the state of feeling 
between the defendant and deceased, parol evidence of the pendency 
of such suit may be given. Ibid, 

135. Same — Self-Defense. — On the trial of a defendant indicted for 
murder, where the evidence showed that he, being disabled in one 
arm, had procured a pistol to defend himself against a threatened 
assault by an able-bodied man, and that, while standing on a public 
street leaning against a building, surrounded by an excited crowd, he 
had been threatened by another person, and then struck by a third, 
the deceased, whom he at once had shot and killed, the court 
instructed the jury, that " before a man can take life in self-defense, he 
must have been closely pressed by his assailant, and must have 
retreated as far as he safely or conveniently could, in good faith, with 
the honest intent to avoid the violence of the assault Held, that such 
instruction is erroneous. Hdd, also, that where a person, being with- 
out fault, and in a place where he has a right to be, is violently 
assaulted, he may, without retreating, repel force by force, and if, in 
the reasonable exercise of his right of self-defense, he kills his assail- 
lant, he is justifiable. Held, also, in such case, that, from the evidence, 
the real question presented for the determination of the jury was, did 
the defendant when assaulted, believe, and have reason to believe, that 
the use of a deadly weapon was necessary to his own safety ? Held^ 
also, that no question as to the duty of the defendant to retreat was 
presented to the jury by the evidence. Runyan v. The State, 57 Ind. 80. 

§ 642. 136. Juror. — In criminal cases in this State, it is the general 
rule, in relation to a challenge of a juror by the defendant for cause, 
that an opinion formed by the juror, as to the guilt or innocence of 
the accused, based solely upon a newspaper account of the alleged 
crime, and which, in the belief of the juror will not have any influence 
upon him, in the trial of the cause, is not sufficient ground for chal- 
lenge. Hart V. The State, 57 Ind. 102. 

137. Manslaughter, Voluntary and Involuntary. — An indictment for 
manslaughter, charged, that the defendant, at, etc., on, etc., did "un- 
lawfully and feloniously kill " the deceased, " without malice but volun- 
tarily upon a sudden heat," by "striking and injuring" the deceased, 
** on the head with a stake, " which the defendant then and there, bad 



THE LA W OF HOMICIDE, 875 

7 

« 

and held in his hands, and "of which striking and ii^juring the" de- 
ceased " lingered, and lingering, did die." Held, that the indictment 
is sufficiently certain, in its description of the injury, resulting in death. 
Held, also, that the indictment charged the commission of voluntary 
manslaughter. Held, also, that under such indictment the defendant 
can not be convicted of involuntary manslaughter. Bruner v. The State, 
58 Ind. 159. 

138. Same. — The unlawful and felonious killing of a human being, 
" without malice, but voluntarily upon a sudden heat," is voluntary man- 
slaughter. Ibid. 

139. Same. — Where the killing is involuntary, but in the commission 
of an unlawful act, it is involuntary manslaughter. Ibid. 

140. Same. — One guilty of involuntary manslaughter can not be con- 
victed under an indictment charging him with voluntary manslaughter. 
Ibid. 

141. Same — Jury. — On a trial of a defendant for manslaughter, the 
question as to whether the manslaughter committed was voluntary or 
involuntary is one wholly for the jury. Ibid. 

Same — Unlawful Act. — One who voluntarily commits an unlawful act, 
whicb unintentionally, but not necessarily, results in the death of 
another, is guilty, not of voluntary, but of involuntary manslaughter. 
Ibid. 

142. Murder — Threats. — Where a defendant on trial for murder offers 
to prove threats made against him by the deceased, afterward coming to 
his knowledge, and that the latter had challenged him to fight, and 
had otherwise ill-treated him, he must fix the time at which the alleged 
misconduct occurred. Gillooley v. The State, 58 Ind. 182. 

143. Assault and Battery with IxTENT.-An averment in an indictment 
for assault and battery with intent to murder, that the defendant 
wounded the injured party by " shooting " him with a pistol loaded with 
gunpowder and leaden balls, is equivalent to an averment that the 
injured party was hit by the substance with which the pistol was 
loaded. Jarrell v. The State, 58 Ind. 293. 

§ 643. 144. Same — Manslaughter. — Under an indictment for an assault 
and battery with intent to commit • murder the defendant may be con- 
victed of assault and battery with intent to commit manslaughter. 
Ibid. 

Sam£ — Reasonable Doubt. — On the trial of the defendant in such case, 
the court instructed the jury that, " Evidence is sufficient to remove 
reasonable doubt when it is sufficient to convince the judgment of 
ordinarily prudent men with such force that they would act upon that 
conviction, without hesitation, in their most important affairs." Held 
that the instruction was correct. Ibid. 



876 THE LA W OF HOMICIDE, 

MtscQitaniooMk 

146. Same — Harmless Error. — An instruction to the jmy i« sach case, 
08 to what is necessary for the State to prove, to convict the defendantof 
assault and battery with intent to murder, or as to *' sudden heaC 
reducing the killing to manslaughter, though erroneous, is not available 
as ground for a new trial, where he is convicted of an assault and 
battery with intent to commit manslaughter only. 3id. 

147. Same — Retreat. — Where, on such trial, it appears that the injured 
party being unarmed, had, after attacking the defendant, fled for 
safety from the defendant, who was armed, and was aided by another, 
it is not available as a cause for a new trial that an instruction to the 
jury in relation to the duty of the defendant when the injured party 
had retreated, did not refer to the fact as to whether such retreat was 
or was not made in " good faith.** Ibid. 

148. Assault With Intent to Murder. — An indictment for an assault 
upon another with intent to murder him must allege facts, showing 
not only the attempt, but also the ability of defendant to commit the 
crime charged. Tlie State v. Hubbs^ 58 Ind. 415. 

149. Murder — ''Unlawful Killing.*^ — It is not necessary under the 
statutes of this State, in an indictment for murder, to aver that the 
killing was " unlawful."— Beaver* v. The State, 58 Ind. 530. 

150. Indictment — Murder. — In this State an indictment for murder in 
the first degree must aver that the killing was purposely done. Snyder 
v. The State, 59 Ind. 105. 

151. Same — Bequiring Prosecutor to Elect. — It is within the discretion 
of the Court to refuse to compel the prosecuting attorney to elect on 
which of two counts an indictment for murder in the first degree he 
will put the defendant on trial. Ibid. 

g 644. 152. Same — Admissions of Defendant before Coroners Inquest. — 
On the trial of an indictment for murder, a writing or statement signed 
by defendant, as his statement, or evidence, given by him as a witness 
before the coroner's inquest, over the body of the deceased, is admis- 
sible in evidence in behalf of the State, over the defendant's objection, 
unless it be shown to have been made by defendant under the inflH. 
ence of fear produced by threats. And whether the coroner's jury 
was legally organized or not, would not affect the question of the 
admissibility of such a statement freely made by the defendant. lUd. 

153. Same — Instruction to Jury. — On the trial of an indictment, the 
refusal of the court to instruct the jury, that, if there was a reasonable 
doubt in their minds as to the establishment by the evidence of any 
material fact necessary to convict the defendant, they should acquit 
him, was not cured by a general instruction given, that the defendant 
was by law presumed innocent nntil proved guilty beyond a reasonable 
doubt. Ibid. 



THE LA W OF HOMICIDE. 377 

Miscellaneous. 

164. Same — Statement to Jury of Material Facts to be Proved. — Where, 
on the trial of an indictment, the court in charging the jury proposed 
to call their attention to the material facts in the indictment which 
must be proved, and did not mention all of such material facts, the 
instruction was erroneous. Ibid. 

155. Same — Instruction assuming Facts. — Where, on the trial of an 
indictment for murder by poisoning, the court in its charge to the jury 
directed ** attention to the question whether the defendant gave " the 
deceased poison ''with a criminal intent." Heldy that this was error 
because the jury might understand the instruction to assume, that the 
defendant gave the deceased poison, and left to the jury the question 
of intent alone. Ibid. 

156. Same — Reasonable Doubt. — An instruction to the jury, on the trial 
of a criminal action, which is calculated, by its terms, to leave the im- 
pression upon the minds of the jury, that the State has made out her 
case, and that unless the evidence of the defendant raises in their 
minds a reasonable doubt, they should convict, is erroneous. Ibid. 

g 645. 157. Instruction to Jury. — Assault and battery, with intent 
to commit manslaughter. On the trial of an indictment for assault 
and battery with intent to kill and murder A, the court instructed the 
jury, that, if they found beyond a reasonable doubt, that the defendant, 
without malice, either express or implied, but voluntarily, and upon a 
sudden heat of blood and passion, unlawfully assaulted and beat the said 
A, in the manner and form charged in the indictment, this would be an assault 
and battery with intent to commit manslaughter. Held, that the in- 
struction was erroneous. West v. The State, 59 Ind. 113. 

158. Self-Defense. — To authorize a person to exercise the right of 
self-defense against an assailant, it is not necessary that the latter 
should, in fact, contemplate injury either to the person of the former 
or any member of his family. Richie v. The State, 59 Ind. 121. 

Arrest of Judgment. — An indictment which is sufficient on motion 
to quash is sufficient on motion to arrest. Greenley v. The State, 60 
Ind. 141. 

159. Murder — Harmless Defect. — An indictment for murder which is 
otherwise sufficient, is not rendered insufficient by a mere defect or 
informality which does not tend to prejudice the rights of the 
defendant. Ibid. 

160. Same — Juror — Conscientious Scruples as to Death Penalty. — On the 
empaneling of a jury to try a defendant indicted for rtiurder in the 
first degree, any person called to sit on such jury who entertains con- 
scientious opinions which would preclude him from returning, a verdict 
inflicting the penalty of death, may be challenged for cause ; and Sec. 
85, 2 R. S. 1876, page 394 of the Act, in relation to criminal pleading 



878 THE LA W OF HOMICIDE. 

and practice, declaring that such persons shall not sit as jurors, is 
constitutional. Ibid. 

161. Same — Cross-Examination of Defendant — Insanity, — On the trial of 
an indictment for murder where the defendant had testified in his 
own behalf, that the deceased was a married woman with whom he 
had been having illicit intercourse, and that the killing was committed 
by him in a passion of love and jealousy, amounting to insanity, on 
her refusal to longer associate with him, and that he had met her hus- 
band, and during his intimacy with the wife it was proper for the State 
to cross-examine him as to whether, at such meeting, the husband had 
forbidden him to further associate with her. Ibid. 

162. Same — Admissions. — An affidavit by the defendant for a continu- 
ance of such cause, admitting, though excusing, the killing charged, is 
competent evidence against him. Ibid. 

§ 646. 163. Assault with Intent to Murder. — Indictment — Duplicity. — 
An indictment charged that the defendant did " unlawfully, feloniously, 
purposely and with premeditated malice, make an assault" upon a 
certain person, and '* at and against and in contact with " such person, 
" did feloniously, purposely and with premeditated malice, shoot a cer- 
tain pistol, * * * loaded with gunpowder and leaden balls, which 
he," the defendant, " in his hands had and held, with the intent," such 
person, " feloniously, purposely, and with premeditated malice to kill 
and murder." Held, that the indictment is not open to the objection 
of duplicity. Jones v. The State, 60 Ind. 241. 

164. Same — Handioritinff — Proof by Comparison — Threats. — On such trial 
the State proved by a witness an admission made by the defendant, pre- 
vious to the trial, that a certain written instrument, unconnected with the 
facts of the cause on trial, was in his handwriting ; and then, submit- 
ting such instrument, and a writing containing threats of violence 
towards the prosecuting witness, to an expert, the State proved by him 
that both, in his opinion, were written by the same person, whereupon 
the court admitted such writing in evidence against the defendant. 
Held, that the evidence was incompetent. Ibid. 

165. M-VRDEB,-:- Manslaughter — Verdict — Venire de iCovo. — ^On the trial of 
a defendant indicted for murder, the jury returned a verdict finding the 
defendant guilty of manslaughter, as charged in the indictment, and 
that " he be fined, in the sum of one dollar, and imprisoned in the State 
prison for a period of fifteen years." Held, on motion for a venire de novo, 
that the jury is not authorized to assess a fine in such a case, but that 
the same should be regarded as mere surplusage, not vitiating the 
residue of the verdict, and that judgment should be rendered against 
the defendant imprisoning him as directed by the verdict. Veach v. 
The State, 60 Ind. 291. 



THE LA W OF HOMICIDE. 879 

Miscellaneous. 



166. Same — Erroneous Instruction Cured by Judgment. — An erroneous 
instruction to the jury in such case informing them, that in addition to 
imprisonment, they might assess a fine against the defendant if found 
guilty, was cured by the court by disregarding the fine, imposed by the 
verdict and rendering judgment of imprisonment. Ibid. 

167. Same — Former Acquittal — EJ^ect of Obtaining a New Trial. — When 
a defendant, who has been convicted of manslaughter on an indict- 
ment for murder, obtains a new trial, he may on such new trial be 
convicted of murder, as he, by obtaining the new trial, consented to be 
put on trial a second time for the same offense, thereby waiving his 
constitutional right to stand on his implied acquittal of murder on the 
first trial. Ibid. 

g 647. 168. Assault and Battery with Intent — Verdict. — On the trial 
of an indictment for assault and battery upon a person named, with 
intent to murder him, by shooting him with a gun loaded with powder 
and shot, a verdict finding *'the defendant guilty of assault and 
battery," is sufficient without the addition of the phrase, " as charged 
in the indictment." Rollins v. The State, 62 Ind. 46. 

169. Indictment — Name — Surplusage. — An inconsistent or repugnant 
clause or averment, concluding an indictment, such as a misnomer of 
the defendant, should be treated as mere surplusage, when the other 
averments of the indictment clearly and sufficiently charged the de- 
fendant with the commission of a crime. Kennedy v. The State^ 62 
Ind. 136. 

1 70. Murder- Verdict Fionng Illegal Punishment — Judgment. — Where, on 
the trial of a defendant indicted for murder, the jury returned a verdict 
of guilty, as charged in the indictment, fixing the punishment at im- 
prisonment in the State Prison, and assessing a fine, the latter should 
be disregarded by the court, in rendering judgment. And if in such 
case, judgment be rendered in accordance with the verdict, the Su- 
preme Court may affirm the judgment of imprisonment, and reverse as 
to the fine, by directing the court below to strike it out. Ibid. 

171. Assault with Intent to Kill — Indictment. — Where the indict- 
ment alleges that the defendant " then and there having the present 
ability," had " unlawfully and feloniously," attempted " to commit a 
violent injury upon " another, by " then and there unlawfully, feloni- 
ously, purposely and with premeditated malice," shooting, etc., "toward, 
at and against the body of" the latter, a loaded pistol, etc., " with in- 
tent, then and there and thereby, unlawfully, feloniously, and with 
premeditated malice, to kill and murder the latter. Held, that the 
indictment is good for an assault with the felonious intent charged; 
but is not good as a charge of assault and battery with such intent ; 
because it is not charged to have been done, in a *' rude, insolent or 
angry manner." McCulley v. The Staie^ 62 Ind. 428. 



880 THE LA W OF HOMICIDE, 



Miacellaneous. 



8 648. 172. Murder— /TuamYy Produced by Disease — Instruction.^On 
the trial of a defendant indicted for murder wherein he had intro- 
duced evidence tending to prove that he was subject to attacks of 
epilepsy, and that such disease tends to produce insanity, the court 
instructed the jury that, " When the defense of insanity is interposed 
to a prosecution for murder, the jury should carefully and intelligently 
scrutinize the evidence by which it is sought to be established. If the 
jury should find from the evidence that there is a reasonable doubt 
whether the defendant has been subject to attacks of epilepsy, and if 
this fact (if so found), has been supplemented by testimony of expert 
witnesses, establishing to the satisfaction of the jury (evidence raising 
a reasonable doubt being sufficient), that epilepsy is a disease which 
tends to produce insanity, this evidence would not be sufficient to raise a 
reasonable doubt of his sanity, at the time of the alleged commission of 
the homicide. There must be sufficient evidence to raise a reasonable 
doubt of actual insanity at the time of the alleged commission of the 
offense. ' Held, that the instruction was erroneous. Held, also, that an 
erroneous instruction is not cured by a proper instruction, unless the 
former be withdrawn. Guetig v. The Staiej 63 Ind. 278. 

173. Order of Introducing Evidence. — It is within the discretion of 
the court to allow the State, during the introduction of the defend- 
ant's evidence in chief, to call a witness as to original matter. Merrick 
V. The State. 63 Ind. 327. 

§649. 174. Coroner — Duty of on Inquest — Testimony Must be in Writ- 
ifig^ — When a coroner of this State is holding an inquest upon the body 
of a decedent, " supposed to have come to his death by violence or 
casualty," it is his duty under the provisions of sections 8 and of the 
act of May 27, 1852, "prescribing the powers and duties of coroners," 
2 R. S. 1876, 20, to cause all testimony given before him by witnesses 
to be reduced to writing and subscribed by them. Woods v. The State, 
63 Ind. 353. 

175. Same — Presumption — Parol Evidence as to Testimony Before Coroner 
— Impeaching Witnesses — Murder. — The law conclusively presumes that 
in such case the coroner has duly performed his whole duty, by caus- 
ing all of such testimony to be reduced to writing, and unless the 
proper foundation be laid for secondary evidence, parol evidence of the 
testimony given before the coroner by any such witness is inadmissible, 
even to impeach evidence given by him as a witness on the trial of a 
defendant indicted for murder of the person over whose body such in- 
quest was held. Ibid. 

176. Same — When Defendant's Evidence before Coroner is Admissible. — 
Where the defendant in such case has testified in his own behalf, the 
written statement of evidence given by him as a witness on such 
inquest is admissible in evidence to contradict him. Ibid. 



THE LA W OF HOMICIDE. 381 

Miacellaneous. 

177. Murder — Evidence — Dting Declarations. — On the trial of a defend- 
ant indicted for murder, the dying declarations of the deceased are 
admissible in evidence when it clearly appears that at the time they 
were made he was aware that death was rapidly approaching. Watson 
V. The State, 63 Ind. 548. 

g 650. 178. Indictment for Murder. — [After the title of the cause, the 
court, etc.] "The grand jurors of Sullivan county, in the State of 
Indiana, good and lawful men, duly and legally empaneled, charged 
and sworn to inquire into felonies and certain misdemeanors, in and 
for the body of said county of Sullivan, in the name and by the 
authority of the State of Indiana, on their oath present that one 
Thomas Sheppard, late of said county, on the 10th day June, A. D., 
1875, at said county and State aforesaid, did then and there, unlawfully, 
feloniously, purposely, and with premeditated malice, kill and murder 
one Mason Engle, by then and there feloniously, purposely, and with 
premeditated malice, shooting at and against, and thereby mortally 
wounding, the said Mason Engle, with a certain deadly weapon com- 
monly called a revolver, then and there loaded with gunpowder and 
leaden balls, which said revolver he, the said Thomas Sheppard, then 
and there had and held in his hands, of which said mortal wound, he, 
the said Mason Engle, then and there instantly died, contrary to the 
form of the statute in such case made and provided, and against the 
peace and dignity of the State of Indiana." 

(Signed), "J. E. L., Prosecuting Attorney." 

Held, That the indictment is well drawn and suflScient in every 
particular. Sheppard v. The State, 64 Ind. 43. 

179. Arrest op Judgment — Causes for. — Such motion lies for only 
two causes, viz: 1. That the grand jury had no legal authority to pre- 
sent the indictment, for want of jurisdiction in the court; and, 2. That 
the facts stated in the indictment do not constitute a public offense. 
Ibid. 

180. New Trial — Misconduct of Counsel — Reference to Former Trial — 
Evidence. — A statement, that, on a former trial, the defendant had been 
convicted, made in the hearing of the jury, by the prosecuting attor- 
ney, to opposing counsel, in reply to a remark by the latter calculated 
to elicit such remark ; and remarks of the same character made by a 
witness in the course of his examination, in fixing certain dates, are 
not sufficient causes for reversing the judgment. Ibid 

181. Juror — Misconduct of— Affidavit — An affidavit in support of a 
new trial, on the ground of misconduct of a juror, should clearly 
indentify the juror guilty of such alleged misconduct, and should 
clearly specify the facts alleged, to constitute misconduct. Achey v. 
TJie State, 64 Ind. 56. 



382 THE LA W OF HOMICIDE, 

Miflcellaoeotts. 

182. Same- — Affidavits charging that one of the jurors, prior to the 
empaneling of the jury, had expressed an opinion that the. defendant 
was guilty, and should he hung, should unequivocally allege that the 
defendant and his counsel were ignorant of that fact prior to the em- 
paneling of the jury. Ibid. 

183. Same — Wei(/ht qf Evidence — Supreme Court. — Where such a motion, 
hoth supported and resisted hy affidavits, has heen denied hy the court, 
the Supreme Court will not disturb such decision on the mere weight 
of the evidence afforded by such affidavits. Ibid. 

§651. 184. Self-Dbfense — ReMHing ArreH — Officer, — Agee was in- 
dicted for an assault with intent to murder one Houchens, while the 
latter was attempting to arrest the former for bastardy. The court 
below refused to charge the jury as requested by the defendant, that 
" in determining whether the defendant is guilty at all in this case, 
you should take into consideration what Houchens was doing at the 
time of the shooting by the defendant, providing you find that the 
defendant shot at Houchens. You should take into consideration the 
question of whether or not the defendant at that time believed, and 
as a reasonable man might believe, that the said Houchens was attempt- 
ing to take the life of the defendant or do him great bodily harm. 
There is some evidence before you to the effect that said Houchens was 
attempting, at that time, to arrest the defendant. Even if said 
Houchens had at that time a valid warrant for the arrest of the defend- 
ant, with full authority to execute that warrant, still Houchens would 
have had no right to shoot the defendant merely for the purpose of 
arresting him, at a time when the defendant was fleeing ; and if the 
said Houchens had shot the defendant and killed him, merely for the 
purpose of preventing the defendant from fleeing and escaping an 
arrest, the said Houchens would have been guilty of murder. And 
hence, if you should find from the evidence, that at a time when the 
defendant was fleeing, the said Houchens attempted to take the life 
of the defendant, or do him great bodily harm, by shooting at him 
with a deadly and dangerous weapon, then the defendant would have 
had the right to repel such an attack with force. If the defendant 
under such circumstances used no more force than was reasonably 
necessary to repel such an attack, the defendant would be excusable 
for such force used by him, and should not be convicted therefor of 
any degree of offense. 

185. "The theory of self-defense is, that the party assailed may repel 
force by force. When a party's life is in danger, or he is in danger of 
great bodily harm, or when, from the acts of the assailant he believes 
and has reasonable grounds to believe that he is in danger of losing his 
life, or receiving great bodily harm from his assailant, the right to 
defend himself from such danger or apprehension may be exercised 



THE LA W OF HOMICIDE. 383 

Jones Caae. 

by him, and he may use it to any extent that may be reasonably neces- 
sary. And even if the death of the assailant result from such reason- 
able defense, the party so defending himself is excusable. 

Held, that both of said instructions ought to have been given. (Citing 
Runyan v. The State, 57 Ind. 80.) Agee v. The State, 64 Ind. 340. 

g 652. 186. Murder — Evidence-^PrevioiLS Assault — Cautiousness of De- 
ceased — Motive — Opportunity. — On the separate trial of a defendant, who 
was indicted jointly with A, B, C, and D, for the murder of one, toward 
■whom all but D harbored ill-will engendered by adverse interests in a 
certain estate, wherein it appeared by the evidence, that the deceased 
was murdered of an evening, while entering his residence, which was 
in town, and that long previous thereto, but after such ill-will had 
arisen, and while the deceased was living elsewhere, he had been seri- 
ously injured by missiles exploded in his house by the defendant, it 
was competent to prove, that during all of the time elapsing between 
such explosion and the murder, the deceased had always entered his 
residence before dark, except on the evening of the murder, and that 
he and his family never ventured out of the house after dark, but 
fastened the doors, and slept up stairs. Jones v. The State, 64 Ind. 473. 

187. Same — Threats toward Deceased^ s Family, and Propositions of Com- 
promise, after Murder — Malice. — It was competent, on such trial, as tend- 
ing to show malice, to prove, that, after the murder the defendant 
proposed that the family of the deceased, if they would make a certain 
compromise, in relation to such estate, might return to their former 
home, unmolested, and vaguely threatening them if they did not com- 
ply. Ibid. 

188. Same — Declaration of Accomplice — Conspiracy. — D having pleaded 
guilty as charged in the indictment, and having testified, that, pursu- 
ant to a common purpose to commit the murder, means similar to 
those used in committing the murder, were prepared by the others, in 
the absence of C ; on the day it was committed, that the defendant 
had threatened to kill the deceased, and had tried to induce the witness 
to do the killing; and that A and B having left C, D and the defend- 
ant, with the understanding that they two were to kill the deceased, 
had returned, declared that they had done so, it was competent to give 
in evidence a conversation had between the witness and C, after such 
preparations, and before the murder, and in the absence of the defend- 
ant relative to the proposed murder. Ibid. 

189. Same — Conduct of Defendant toward Witness, after Murder — Impeach- 
ment of Witness — Evidence. — The conduct of the defendant after the 
murder, in causing the arrest of the witness, D, for another crime, his 
explanation thereof to D, and his furnishing money to him, to leave 
the State, was competent on his re-examination, to explain the relation 
existing between the witness and the defendant. Ibid, 



884 THE LA W OF HOMICIDE, 

Jooes Caw. 

190. Same^ Intimidation of Witness. — It having been developed on the 
examination of a witness for the State, that her testimony on the pre- 
liminary examination contradicted her present testimony, it was com- 
petent to prove by her, threats made by the defendant to be communi- 
cated, and which were communicated to her by D, prior to her -former 
testimony. Ibid. 

§ 653. 191. Same — Weapon carried by Defendant to Intimidate. — Such 
witness having testified that the defendant, on informing her that she 
was to be indicted for perjury, had declared to her, on proposing to 
him to confess the perjury, that " he had a revolver in his boot for all 
who went back on him," it was competent to prove that on the day of 
his arrest he was armed as he had so declared. Ibid. 

192. Same — Declaration of Accomplice — Conspiracy. — Declarations by B, 
made while armed and in company with the defendant, and during 
the pendency of a law suit in regard to said estate, which indicated a 
lying in wait for the deceased, were competent evidence, as tending to 
establish the conspiracy testified to by D. Ibid. 

193. Same — Transcript of Record — Harmless Evidence. — The transcript 
of the record of such cause, made on a change of venue thereof, 
though incompetent, was harmless evidence. Ibid. 

194. Same — Threats and Admissions of Third Person. — Threats made by 
a third person to kill the deceased, and admissions by him that he had 
procured D to commit the murder, were not competent for the de- 
fense. Ibid. 

195. Same-rBes Gestm. — Declarations by a third person accompanying 
acts, tending to show that he, and not the defendant, had committed 
the murder, would be competent evidence for the latter. Ibid. 

196. Same — Intimidation of Witness by Other Witnesses — Impeachment of 
Witness. — It is incompetent for a witness for the defendant to state 
what means, if any, had been used by witnesses for the State, to pre- 
vent him from testifying, where no ground for their impeachment has 
been laid. Ibid. 

197. Same — Instructions to Jury — Matters of Fact. — It is proper to refuse 
to give an instruction which embraces a theory of defense, founded on 
matter of fact solely, without any statement of the rules of law applic- 
able thereto. Ibid. 

§ 654. 198. Same — Crime Procured by Conspirators — Alibi. — It appear- 
ing by the evidence in such case that the murder had been committed 
pursuant to a conspiracy so to do, by the parties indicted, though pos- 
sibly by the hand of some one not a party to the conspiracy, it was 
proper to instruct the jury, that the defendant and his " confederates," 
(those indicted with him), though not present at the murder, might yet 
be guilty as conspirators. Ibid. 



THE LA W OF HOMICIDE. 885^ 

Adams Case. 

199. SavM — Credibility of Accomplice as Witness — It was proper to 
refuse to instruct the jury, in relation to the credibility of a confessed 
accomplice, who had testified, that, formerly, under the law as it then 
was, he would not have been allowed to testify. Ibid. 

200. Same— Credibility of Witness admitting Former Perjury. — It was 
proper to refuse to instruct the jury, in relation to the testimony of a 
witness who has confessed to having testified falsely on a former trial, 
that the jury should reject such testimony, if, on the explanation of 
the witness, that she had testified falsely because of fear inspired in 
her by threats made by the defendant, it does not seem to the jury read- 
able that fear could have been inspired by such threats. Ibid. 

201. Same — Opinion of Judge — Capital Punishment. — A defendant on 
trial for murder can not complain of an instruction which indicates 
that the court is opposed to capital punishment. Ibid. 

§655. 202. Involuntary Manslaughter — Murder. — On the separate 
trial of a defendant, indicted jointly with B and others, for murder, 
the evidence established substantially that an altercation had taken 
place between the deceased and B during the evening on which the 
party was killed; that the deceased having left the parties indicted, 
got into an altercation with another, displaying a pistol and threaten- 
ing to shoot any one interfering with him ; that subsequently the par- 
ties indicted came up to the deceased, who was immediately struck by 
B ; that, though the deceased denied having a pistol, the defendant 
and the other parties indicted, at the request of B, undertook to' assist 
him in disarming the deceased, and that during the scuffle, and imme- 
diately upon B's exclaiming that he had obtained the pistol, it was 
discharged, killing the deceased. 

Heldj that B was guilty, if at all, of involuntary manslaughter only. 

Heldy also, that the defendant was not guilty. Adams v. The State^ 
65 Ind. 565. 

203. Same — Instruction — Failure to Instruct Fully — The court, after 
reciting the statutory definition of manslaughter, instructed the 
jury that, "In manslaughter and in murder there is a common ele- 
ment of intent to kill. The distinction is, that in murder, malice 
either express or implied is present, while in manslaughter it is absent. 
The intention to kill must grow out of hot blood, in order to reduce an 
unlawful homicide to the grade of manslaughter." Held^ that in the 
absence of a request by the defendant, and a refusal of the court to 
instruct as to involuntary manslaughter, he can not complain of the 
instruction. Ibid. 

204. Voluntary and Involuntary Manslaughter Distinguished. — In volun- 
tary manslaughter the killing is intentional; while in involuntary 
manslaughter the killing is unintentional, but in the commission of 
some unlawful act. Ibid. 

H.— 25 



386 THE LA W OF HOMICIDE. 



The Erldenee. 



205. Same, — One indicted for voluntary manslaughter, can not be 
convicted on proof that he is guilty of involuntary manslaughter. Ibid. 

206. Same — Aider or Abettor. — There can be no aider or abettor in the 
commission of involuntary manslaughter. Ibid. 

207. Former Acquittal — Once in Jeopardy — Murder of Unborn (^kild— 
Attempt to Produce Miscarriage. — An acquittal on an indictment charging 
the defendant with the murder of an unborn child by the use of means 
intended to produce a miscarriage, is no bar to an indictment for an 
attempt to produce such miscarriage by the use of the same or any 
other means. The State v. Elder, 65 Ind. 282. 

§656. 208. Insanity — Frenzy — Lietrtiction. — The defendant can not 
complain of an instruction stating that "frenzy arising solely from the 
passions of anger and jealousy, no matter how furious, is not insanity." 
Guetig V. The State, 66 Ind. 94. 

209. Same — Under the defense of insanity the defendant should be 
acquitted, if the evidence raises a reasonable doubt of his insanity at 
the time of the act. Ibid. 

210. Murder — Manslaughter — Malice — Purpose. — If the killing was done 
unintentionally during an affray, or intentionally in hot blood engen- 
dered by the combat, but without malice, the offense is no more than 
manslaughter, and an instruction to the jury is erroneous, to the effect 
that "if the slaying was intentionally and unlawfully done, the slayer is 
guilty of murder, notwithstanding his blood may have become so 
heated as to caiTy him beyond his original purpose;'' because the in- 
struction omits the elements of premeditation and malice, and therefore 
it can not amount either to murder in the first or second degree, but to 
manslaughter only. Patterson v. The State, 66 Ind. 185. 

21 1 . Murder — Premeditated Malice. — An instruction that premeditated 
malice is where the intention to take life is deliberately formed in the 
mind, and that determination meditated upon before the fatal stroke 
is given, but that there need be no appreciable space between the 
formation of the intention to kill and the killing, that they might be 
as instantaneous as successive thoughts, and that it is only necessary 
that the act of killing be preceded by a concurrence of will, delibera- 
tion and premeditation, on the part of the slayer, is proper. Binns v. 
The State, 66 Ind. 428. 

212. Competency of Juror. — On the examination of jurors while 
being empaneled to try the defendant for murder, a juror answered, 
that from the evidence given on a former trial, of the same prosecu- 
tion, as reported in a newspaper and read by the juror, he had formed 
and expressed an opinion on the merits of the case, to change which 
would require some evidence, but which would readily yield thereto. 
Held, that the juror was competent. Guetig v. The State, 66 Ind. 94. 



THE LA W OF HOMICIDE. 887 

Miscellaneous. 

§657. 213. Assault axd Battery with Intext to Murder. — Misde- 
meanor Merged in Felony — Fanner Acquittal or Conviction. — The misde- 
meanor known as assault and battel y, when committed in connection 
with an attempt to murder, is merged in the felony known as assault 
and battery with intent to murder, and an acquittal or conviction of 
the misdemeanor though by a court of competent jurisdiction is no bar 
to the prosecution for the felony ; but if the intent to murder be not 
established, such acquittal or conviction will bar a conviction of the 
assault and battery. State v. Hattahough, 66 Ind. 223. 

214. Same.-'On a trial for simple assault and battery, one can not be 
convicted on evidence showing him guilty of assault and battery with 
intent to murder. Ibid. 

Basis of Reasonable Doubt. — It is error to instruct the jury in a 
criminal case, that the reasonable doubt of guilt to the benefit of which 
the defendant is entitled, must be one which '" is suggested by or arises 
out of the proof made.'^ Densmore v. The State, 67 Ind. 306. 

Common Sense. — It is error to instruct the jury, that in weighing the 
evidence and arriving at a verdict, "what is called common sense, is, 
perhaps the juror's best guide." Ibid. 

Erroneous instruction as to reasonable doubt, see Wright v. The State, 
69 Ind. 163. 

Assault, or Assault and Battery, with Intent to Murder. — An 
indictment charged, that "on," etc., " at," etc., the defendant "did will- 
fully, purposely, feloniously, and of his malice aforethought, make an 
assault on one " M B, " and then and there, with a pistol, which he 
had and held in his hands, which pistol was then and there loaded 
with gunpowder and a leaden ball, did then and there willfully, fe oni- 
'ously, purposely, and of his malice aforethought, shoot off said pistol 
at and against the said M B, with intent then and there and thereby, 
him the said M B, purposely, etc., to kill and murder, etc. 

Held, that for want of an averment of the present ability of the de- 
fendant to commit the injury, an assault is not charged. 

Held, also, that for want of an averment that the touching was un- 
lawful, and in either a rude or an insolent, or an angry manner, no 
assault and battery is charged. Howara v. The State, 67 Ind. 401. 

Murder — Involuntary Manslaughter — Reasonable Doubt — Harmless In- 
struction. — On the trial of a defendant, indicted in respective counts for 
murder in the first degree and involuntary manslaughter, wherein 
there was a verdict of guilty on the latter count (inly, the defendant 
could not complain of an instruction to the jury, that if they had a reas- 
onable doubt as to whether the defendant was guilty of murder in the 
first or second degree, or only of manslaughter, they " should give the 
defendant the benefit of such doubt, and convict, ' if at all, "of the 
lowest degree included in such doubt." Patterson v. The State, 70 Ind. 
341. [See same case as to intoxication, and assumption of fact]. 



888 THE LA W OF HOMICIDR 



M'tffillmi^m 



I>ecl8loii8 In Kentneky, Ohio, Twu ictM i ec , MiMiMlpi^ 

and OthM- Mates. 

§660. 1. Inpictment for Murder. — An indictment alleging that the 
defendant did feloniously kill and murder M is not bad for omitting 
the term " willfully." State v. Harris, 27 La. Ann. 672. 

2. An Indictment for Murder which charges that * * * **of said 
mortal wounds said A did immediately languish, and languishing did 
die," is defective in not specifically alleging when and how long after 
the wounding the death occurred. Such defect is not cured by the 
statute of jeofails, but authorizes the quashing of the indictment. 
State V. Sides, 64 Mo. 383. 

3. The Part of the Body Wounded. — ^Under the Missouri statute of 
jeofails, declaring that an indictment shall not be deemed invalid for 
want of any averment not necessary to be proved, an indictment foi 
murder which alleges that the accused did wound the deceased " in 
and about divers places of the body," is not fatally defective for fail- 
ure to state on what part of the body the wound was inflicted. State 
v. Edfnundson, 64 Mo. 398. 

4. •' Year and a Day." — An indictment for murder must show that 
the death occurred within a year and a day from the killing [wounding], 
but to allege that the defendant, on a day and a year named, killed the 
deceased, does show this, for the legal meaning is that the wounding 
and the death occurred on the same day. State v. Hitfl 11 Nev. 17. 

6. Omission of the word " Wound " from the clause " of which said 
mortal [wound] he the said T then and there died." Held, not a ground 
for arrest of judgment. State v. Rinehart, 75 N. C. 58. 

6. Several Counts — Efe<?<wn.— Where there is uncertainty as to the 
mode in which a homicide was committed it is good pleading to frame 
the indictment with ns many counts as are deemed necessary to meet 
the evidence ; and the district attorney will not be required to elect on 
which count he will proceed to trial. Dill v. State, 1 Texas. App. 278. 

7. Burden of Proof— 3fa^iV^.— An instruction in a capital case that 
*' the law implies malice in case of unlawful killing by means calculated 
to produce death, and in such a case the burden of proof is on the 
defendant, if he would reduce the offense to a lower degree than mur- 
der in the second degree," is erroneous. The law never casts the 
burden of proof on the accused in such a sense as to relieve the State 
from proving the facts constituting any degree of crime. Perry v. The 
State, 44 Texas, 473; Murray v. The State, 1 Texas App. 417. 

g 661. 8. Evidence — Preparation f(yr Combat— On a trial for murder, 
the State having introduced testimony tending to show antecedent 
malice and previous preparation for the combat, the accused has aright 
to introduce testimony tending to show that such preparation was 



THE LA W OF HOMICIDE. 389 

MiflcellaDeous. 

made in anticipation of an expected attack on himself; and the 
exclusion of such testimony is error. Long v. The State, 52 Miss. 23. 

9. Variance. — Where an indictment for murder charges the wound 
to have been inflicted on the right side of deceased's body, and it is 
proved to have been on the left side, the variance is not fatal. Nelson 
V. State, I Texas A pp. 41. 

» 10. Declarations of Deceased. — In a trial for homicide, where the 
question whether the prisoner or the deceased commenced the encoun- 
ter which resulted in death, is in any manner of doubt, it is competent 
to prove threats of violence against the prisoner made by the deceased, 
though not brought to the knowledge of the prisoner. Wiggins v. 
People, 93 U. S. (Otto), 465. 

11. Character of Deceased. — Evidence that the general character 
of the deceased was that of a turbulent, violent man, is competent, on 
a trial for homicide, as bearing on the question whether the killing 
may have been committed from a well-grounded apprehension of dan- 
ger. But this rule does not warrant taking the opinions of witnesses 
as to what particular acts the deceased would have been likely to com- 
mit. State V. Elkins, 63 Mo. 159. To nearly same effect, State v. Brown, 
Id. 439 ; Marts v. State, 26 Ohio St 162. 

12. Of Character of Accused. — Upon a trial for murder, charged to 
have been perpetrated in the attempt to commit a rape the prosecu- 
tion offered evidence that several years previous to the offense 
charged, the prisoner had committed a rape. The judge received it, 
and instructed the jury that they must not consider it, in determining 
whether the prisoner had committed the murder charged ; but if they 
were satisfied, by other evidence, of his guilt of murder, they might 
consider the testimony to a former rape as having some bearing on the 
question whether the murder was committed in attempting to commit 
a rape. Held, error. The fact of the accused committing a rape on 
another person, years previously, could have no tendency to show the 
intent of the homicide charged in the indictment, unless by showing 
that he was of a character and disposition leading to the commis- 
sion of rape, which is not a legitimate mode of proving the commis- 
sion of crime. State v. Lapage, 57 X. H. 245. 

g 662. 13. Killing of Officer. — If a public officer be resisted and 
killed by a person he is attempting to illegally arrest without 
color of authority of law, the killing will be manslaughter only, unless 
the evidence shows previous or express malice. If such malice is 
shown, the killing is murder, notwithstanding any illegality in the 
arrest. Bafferty v. People, 72 111. 73. 

14. Manslaughter. — To reduce killing to manslaughter, there must 
have been in the circumstances reasonable cause to fear that the 



890 THE LA W OF HOMICIDE. 

MifoelbuieouB. 



decedAed was about to kill the defendant, or do him great bodily harm; 
that he did actually fear this without proof of reasonable cause, is not 
enough. State v. Brounif 64 Mo. 367. 

15. Iktextion to Kill in Maxslavohter. — Intention or purpose to kill 
may be present in the crime of manslaughter, where the killing is 
without malice, upon a sudden quarrel. Erwin v. State, 29 Ohio, 186. 

16. Same — Manslaughter may sometimes be intentional. It is not 
justifiable to take life under provocation ; and yet a provocation may 
be serious enough to deprive intentional killing of its malicious char- 
acter, so that it is neither murder on the one hand, nor justifiable or 
excusable on the other. Ibid. 

17. Justifiable Homicide. — The right given an oflScer having the 
custody of a prisoner convicted of a felony, to take life to prevent the 
escape of the prisoner, does not extend to an oflScer attempting to re- 
arrest an escaped penitentiary convict. He has only such authority as 
belongs to an ordinary peace officer in making an arrest. Wrigkt v. 
State, 44 Tex. 645. 

18. Self-Defekse. — To sustain a plea of self-defense it must not only 
appear that the circumstances were sufficient to excite the fears of a 
reasonable man, and that the slayer really acted under the influence 
of those fears, and not in a spirit of revenge, but it must also appear 
that he thought and believed, and that he had good reason to think 
and believe that the danger was so urgent and pressing at the Htm oJ the 
killing, that, in order to save his own life or prevent a felony on his 
person, the killing of the other was absolutely necessary ; and it must 
appear, also, either that the person killed was the assailant, or that the 
slayer had really, in good faith, endeavored to decline any further 
struggle before the mortal blow was given. Stiles v. State, 57 Ga. 183. 

§663. 19. Self-Defense— J?<j<r^a^.— -One attacked with felonious in- 
tent may resist to the extent of taking the assailant's life. He is not 
under obligation to retreat. But one attacked without felonious intent 
must retreat, if he can, before he can justify the killing of his adver- 
sary. State V. Dixon, 75 N. C. 275. Compare Erwin v. State, 29 Ohio, 186. 

20. Resisting Officer. — A person guilty of a misdemeanor and fired 
on by a policeman, while avoiding arrest, may repel such attack in self- 
defense by returning the fire; and if, in so doing, he kills the oflficer, 
such killing is not necessarily unlawful. Tiner v. State, 44 Tex. 128. 
Compare James v. Statey Id. 314. 

21. What Constitutes Murder. — If, in a mutual combat, arising upoft 
a sudden quarrel, the slayer, under color of fighting upon equal terms, 
uses a deadly weapon without the knowledge of the other combatant 
and kills ; or when, at the beginning, he prepares a deadly weapon, so 
as to have the power of using it in some part of the contest, and does 



THE LA W OF HOMICIDE, 891 

Miscellaneous. 

use it, and kills the other with it, the killing will amount to murder. 
State V. Christian, 66 Mo. 138. 

22. Improper Treatment of Wound. — If one person intentionally 
inflicts upon another a wound calculated to destroy life, and death 
ensues therefrom within a year and a day, the offense is murder, or 
manslaughter, as the case may be ; and he is none the less responsible 
for the result, although it may appear that the deceased might have 
recovered if he had taken proper care of himself, or that unskillful or 
improper treatment aggravated the wound and contributed to his 
death. State v. Bantley, 44 Conn. 537. 

23. Certainty in Indictment. — An indictment for murder in the first 
degree, which describes the assault, and then cliarges that of the mortal 
wound inflicted by defendant the deceased " did instantly die," does 
not st^te with sufficient certainty the time and place of the death. 
Stale V. Lakey, 65 Mo. 217. Otherwise, had the averment been that 
the deceased "did then and there instantly die." State v. Steeley, 
65 Mo. 218. 

§ 664. 24. Technical Averments. — The words of a statute, " willful," 
"deliberate," "malicious," and "premeditated," are essential in an 
indictment for murder, but the common law form is sufficient. Poole 
V. The State, 58 Tenn. 288. 

25. Instruction. — It is the duty of the court trying such indictment 
to give the jury the technical meaning of such words, and not merely 
use them. An instruction that " the testimony must be sufficient to 
exclude every other reasonable hypothesis but that of the guilt of the 
defendant," is defective, although not abstractly erroneous. The court 
should add that the proof must exclude the idea that the deceased 
might have come to his death in a manner inconsistent with the guilt 
of the accused; that the jury must acquit if the evidence left a reason- 
able doubt of guilt, although not showing that another was the guilty 
agent. Ibid. 

26. Location of Wound. — In Texas the penal code and code of crim- 
inal procedure have abrogated the common law requirement, that an 
indictment for murder should aver the part of the body on which the 
mortal wound was inflicted. Wilkerson v. State, 2 Tex. App. 255. 

27. When Malice may be Presumed. — If one intentionally kills an- 
other with a dangerous weapon, the law presumes that the killing was 
malicious, and it devolves upon the slayer to adduce evidence to meet 
or repel that presumption. If he succeeds in adducing sufficient evi- 
dence in the minds of the jury of a reasonable doubt of his guilt, he 
is entitled to an acquittal. The State v. Alexander, 66 Mo. 148. 

28. Presumption from Use of Deadly Weapon. — If one kills another 
by shooting him with a pistol, the law presumes it is murder, in the 
absence of proof to the contrary. The State v. Evam, 65 Mo. 574. 



892 THE LA W OF HOMICIDE. 

MlnellMieoaB. 



29. Presumftiok. — The fact of willful killing being established, the 
offense is presumed to be murder. If the accused relies on circum- 
stances such as provocation to reduce the grade to manslaughter, he 
must prove them by satisfactory evidence ; raising a reasonable doubt 
is not enough. State v. Smithy 77 N. C. 488. 

30. Declarations or Threats of the Deceased. — Threats of the de- 
ceased against the accused, are not admissible in evidence, until it has 
been proved that the accused had been advised of them. State v. 
McCoi/, 29 La. Ann. 593. 

31. Threats by Deceased. — Upon a trial for homicide, recent threats 
made by the deceased fkgainst the accused may be competent, without 
accompanying proof that they were communicated to the accused, if 
the case was one of doubt which was the aggressor, for the threats tend 
to resolve this question; but they are not admissible when the evidence 
indicates a willful homicidal attack by the accused. Johnson v. The 
State, 54 Miss. 430 ; S. P. Slate v. ElUott, 44 Iowa, 486. Compare State 
V. Alexander, 66 Mo. 148; State v. Lee, Id. 165. 

32. Dying Declarations. — Statements made by the deceased are ad- 
missible in evidence as dying declarations only so far as they relate to 
the killing and the facts and circumstances attending it, and constitut- 
ing a part of the res gesta. So far as they relate to anterior occurrences 
tending to prove malice, they are inadmissible. State v. Draper, 65 Mo. 
335. 

33. Threats Made by the Deceased, just before the homicide, that 
he was going in search of and would kill the accused, held admissible, 
though not made in the presence of the accused, as tending to show 
the purposes of the deceased in assailing the accused in the affiray in 
which he was killed. West v. State, 2 Tex. App. 460. 

34. Bad Grammar and Spelling. — "We, the juror, find the defendant 
guilty, and sess his punishment at deth,'' however obnoxious in spelling 
and style, is an intelligible verdict in a murder case ; but it will not 
support a judgment, inasmuch as it fails to show of what degree of 
murder the defendant is found guilty. Krebs v. The State, 3 Texas 
App. 348. 

35. Excusable Homicide. — The mere attempt to commit a larceny is 
not a felony under the Tennessee code, and the owner is not excused 
in killing the trespasser in the act. Marks v. Borum, 57 Tenn. 87. 

36. Same. — A party assailed and endangered in life or limb, is not 
bound to retreat, but may pursue his adversary till the danger is past; 
and if in so doing a conflict ensues, and he kills his adversary, the kill- 
ing is justifiable. West v. State, 2 Texas App. 460. 

37. Self-Depense. — In order to justify homicide on the ground of 
self-defense, the party must have employed all means within his power, 
and consistent with his safety, to avoid the danger, and avert the ne- 
cessity of the killing. Levells v. The State, 32 Ark. 585. 



THE LA W OF HOMICIDE. 893 



Self-Defense. 



§665. The Law op Selp-Defense.— If one without fault believes, 
and has reasonable cause to believe, that another is about to take his 
life, or do him great bodily harm, and he has no other apparently safe 
means of securing himself from the impending danger, he may take 
the life of the other, and is excusable upon the ground of selfdefense 
and apparent necessity, although it may turn out that the appearances 
were false, and that there was, in fact, neither design to do him serious 
injury, nor danger that it would be done. Hollowayy. Commonwealth^ 
11 Bush (Ky.) Reps. 344. If one believes^ and has reasonable grounds to 
believe^ that another has sought him out for the purpose of killing him, 
or doing him great bodily harm, and that he is prepared therefor with 
deadly weapons, and makes demonstrations manifesting an intention 
to commence an attack, he is not required to retreat, but has the right 
to stand and defend himself, and even pursue his adversary until he 
has secured himself from danger, and if in doing so it is necessary to 
kill his antagonist, the killing is excusable upon the ground of self- 
defense. Ibid. 

g 666. 1. Assault with Dangerous Weapon — Killing Assailant JusHfi- 
able — Manslaughter — Old Grudge. — In criminal cases, the court will weigh 
the testimony, and if it preponderates against the verdict, they will 
grant a new trial. And a conviction of murder in the first degree in 
this case, is reversed on an examination of the proof adduced. Cope' 
land V. The State, 7 Hump. (Tenn). 429. 

2. If the prisoner was going her own road, in a laudable pursuit, 
and was assailed in that road with a hickory stick of dangerous char^ 
acter, and thereupon slew her adversary with a knife, this was homi- 
cide in self-defense. Ibid. 

3. If the prisoner, upon meeting her adversary unexpectedly, who 
had intercepted her upon her lawful road, and in her lawful pursuit, 
accepted the fight, when she might have avoided it by passing on, the 
provocation being sudden and unexpected, the law will not presume 
the killing to have been upon the ancient grudge, but upon the insult 
given by stopping her on the way ; and it would be manslaughter. Ibid. 

4. If the deceased was approaching the prisoner's path with the 
intention to assail the prisoner, and became irresolute and stopped, or 
abandoned her intention, leaving the prisoner full and unobstructed 
right and liberty to pass, and the prisoner brought on the attack, with 
the design to slay the deceased, the killing would be murder in the 
first or second degree according to circumstances. That is, if the 
killing was the result of an old grudge, and a previously premeditated 
intention, it would be murder in the first degree ; but, if it were the 
result of malice, suddenly produced by the sight of her enemy, with- 
out premeditation, it would be murder in the second degree. Ibid. 



894 THE LA W OF HOMICIDK 

Self-Defenae. 

5. Where the deceased went upon the path of the prisoner, armed 
with a dangerous club, intending to inflict some dangerous punishment 
on her, and stopped upon her path and awaited her coming, and the 
prisoner kept on her way, determined to resist and protect herself, be 
the consequences what they might, and the deceased commenced the 
combat, and the prisoner killed her, this was not murder in the first 
or second degree, but was homicide in self-defense, or at most, man- 
slaughter. , Ibid. 

§667. 1. Killing through Fear, Alarm or Cowardice, where the 
Dakger is Unreal. — If a man, though in no great danger of serious 
bodily harm, through fear, alarm or cowardice, kill another under the 
impression that great bodily injury is about to be inflicted on him, it is 
neither manslaughter nor murder, but self-defense. Grainger v. The 
State, 5 Yerger (Tenn.) 459. 

2. If a man is in great danger of bodily harm, or thinks himself so, 
and kill another, it will be a killing in self-defense. Ibid. 

3. But if, from the facts, it appears he only believed that a violent 
assault and battery, without endangering his life, or, inflicting great 
bodily harm, was intended, it is manslaughter. Ibid. 

[Sed quere f This case of Grainier v. The State has been much crit- 
icised by subsequent cases in Tennessee and other States.] 

§668. 1. Shooting with Intent to Kill — Acting upon Appearances — 
Contingent Threat Communicated — Definition of Assault. — To constitute the 
offense of maliciously shooting with intent to kill, under the second 
section of article 6, of the Revised Statutes of Kentucky, edition 1852, 
page 251, the offense must be such that it would have been murder had 
death ensued. If the offense had been under such circumstances as to 
constitute manslaughter, had death ensued, then, death not ensuing, the 
offense becomes the misdemeanor defined by article 17, chapter 28, page 
262. The offenses designated by these two different statutory pro- 
visions are grounded on the distinction between murder and man- 
slaughter. Rapp V. Commonwealth, 14 B. Monroe (Ky.) 615. 

2. The sudden heat and passion referred to in the statute last 
named must be a passion caused by such provocation as, had death 
ensued, would have reduced the offense from murder to manslaughter. 
Mere words or gestures do not constitute such a provocation. Ibid. 

3. If, from all the circumstances attending the infliction of a wound, 
the party wounding had reasonable grounds to believe, and did believe, 
that the party wounded intended to proceed immediately to the inflic- 
tion of bodily harm upon him, with a knife in his hand, and that he 
would do so unless prevented by such act of defense' as was then in his 
power, the act is excusable on the ground of self-defense. Ibid. 

4. It was corppetent for the defendant indicted for shooting mali- 
ciously with intent to kill to prove that a son of the person wounded, 



THE LA W OF HOMICIDE. 396 

Self-Defense. 



who was in the store when the defendant and his father entered it (his 
father having invited the defendant into the store), immediately ran 
up the stairs and returned about the time the defendant shot at his 
father, with a pistol, which he snapped at the defendant, and that 
he had had such pistol loaded some time before, and had then made a 
contingent threat to shoot the defendant, of which the defendant had 
been notified. This evidence would tend to elucidate the motives and 
acts of the parties. Ibid. 

5. An assault, in law, is an effort to cut, strike or shoot, within strik- 
ing, cutting, or shooting distance. If a party start to strike or cut, 
and before he gets in striking or cutting distance, stops and abandons 
his purpose, it is not an assault, in law. Ibid. 

g 669. 1. Mutual Combat with Deadly Weapons. — Duty of Retreating 
— Acting upon Appearances. — The law allows an individual, in defense 
of his person or property, to use such means as are necessary. In the 
selection and use of these means, he must of necessity, exercise his 
own judgment. He acts at his peril, and if he goes beyond what is 
necessary to accomplish the object and violates the law, he mu8t abide 
the consequences ; and in the exercise of this judgment, he must act 
rationally. Meredith v. The Commonwealth^ 18 B. Monroe, (Ky), 49. 

2. If one is threatened with death, or some great bodily injury, and 
has reasonable ground to believe, that it will be immediately inflicted 
unless prevented by an act of self-defense, which is in the power of the 
person assailed, he has the right to use such defense, for his own 
safety, although it might afterward appear that there was no real de- 
sign to inflict the apprehended injury. Ibid. 

3. Therefore an instruction that the defendant might lawfully kill 
his assailant, "if he had no safe means of escaping;" and that he is 
not excusable " if he could have safely retreated from the danger, and 
by that means have saved his life and person," is erroneous, because it 
leaves out of view, or negatives the principle above stated. Ibid. 

4. Whether reasonable grounds for the belief existed on the part of 
the defendant, that he was in imminent danger of death, or great 
bodily harm, is a question of fact for the jury. Ibid. 

§670. 1. Killing IN Self- Defense — Bare Fear — Overt Act — Reasonable 
Fear. — At commorj law, a bare fear of danger of death or great bodily 
harm, unaccompanied by any overt act indicating a present intention 
to kill or injure, would not warrant a party in killing another ; but 
there must have been some actual danger at the time. Dyson v. The 
State, 26 Miss. 362. 

2. The Mississippi statute renders homicide justifiable " when com- 
mitted by any person, in the lawful defense of such person, or of his, 
or her husband, wife, parent, child, master, mistress or servant, when 



896 THE LA W OF HOMICIDE. 



Self-Defense. 



there shall be a reasonable ground to apprehend a design to commit a 
felony or to do some great personal injury, and there shall be immi- 
nent danger of such design being accomplished." Ibid, 

3. The only modification of the common law, made by this statute, 
consists in the justification extended to the accused "when there shall 
be reasonable ground to apprehend a design to commit a felony, or to 
do some great personal injury," instead of the old rule, " actual danger 
at the time." Held, that it was not the intention of the Legislature to 
dispense with the necessity of showing some overt act indicating a pres- 
ent intention to kill, or to do some great personal injury, and that the 
danger was imminent at the time of the killing. It was intended to 
alter the rule of the common law so far as to justify a party acting 
conscientiously, upon reasonable fears, founded upon present overt 
acts to all appearances hostile, although there was really no danger at 
the time. [That an overt act is not necessary under certain circum- 
stances, see Phillips v. The Commonwealth, 2 Duvall (Ky.) 328, and 
Carico v. The Commonwealth, 7 Bush (Ky.) 124.] Ibid 

4. The following principles, declared by the circuit judge in charg- 
ing the jury, are approved, and declared to be soxind and salutary rules 
for the protection of society: 

(a) In order to justify killing, there must be some overt act indicat- 
ing a present intention to kill the party, or to do him some great bodily 
injury. 

(6) The danger of such design 'being accomplished must be immi- 
nent ; that is to say, immediate, pressing, and unavoidable at the time 
of the killing 

(c.) Mere fears of a design to commit a felony, or to do some great 
personal ii\jury to the party, though honestly entertained, unaccom- 
panied by any overt act indicating a design immediately to commit the 
felony, or do the iiy ury, will not justify the killing. Ibid. 

§671. 1. Homicide upon Appearances of Danger — Imminence of the 
Danger — Arming with Deadly Weapon and Seeking Affray — Necessity of Kill' 
ing a Question for the Jury. — Under the Mississippi statute (Hutch, 
Code, 957), reasonable ground to apprehend a design to xommit a 
felony, or to do some great personal injury, and imminent danger of 
such design being accomplished, must both co-exist at the same time, 
to make a killing justifiable self-defense. Cotton v. The State, 31 Miss. 
504. 

2. What is reasonable ground to apprehend such design must 
always be as much, or indeed more, a question of fact for the jury, than 
a question of law for the court Ibid. 

3. As part of the means of arriving at the truth of this fact, the 
peculiar character of the hostile party is as much a fact for the consid- 
eration of the jury as any other fact in issue ; and the jury must 



THE LA W OF HOMICIDE. 397 

Sell-Defense. 

determine from the hostile demonstrations whether there was such 
danger of this party executing his felonious designs as to justify the 
party in killing. Ibid. 

4. Although there may have been no actual danger at that very 
moment of time, the question in such a case is^ whether by delay the 
danger is not increased. Ibid. 

5. The only general rule which a court can, with any safety, lay down 
on this subject is, that whether the danger must be imminent and 
unavoidable, at the time of the killing, to make the killing justifiable 
self-defense, must depend on the facts and circumstances of each 
particular case; and of these, the jury must be the judges. Ibid. 

6. It was erroneous to instruct the jury that if the accused was armed 
with a deadly weapon, and sought and brought about the difficulty with 
the deceased, and killed the deceased in the difficulty with such weapon 
he is guilty of murder ; because the fact of a man's being armed with 
a deadly weapon, though he may be the aggressor in a difficulty, 
amounts to nothing, unless he provided himself with it with a view of 
using it if necessary in overcoming his adversary. Ibid. 

7. In such case, the party having commenced the difficulty, he can 
only use his ^weapon in self-defense, or take the life of the opposite 
party, where the danger is immediate and impending, or unavoidable. 
Ibid. 

§ 672. 1. Homicide in Self-Depense — Threats — Apparent Danger — Im- 
minent Danger — Voluntarily Engaging in Mortal Combat. — Threats, however 
deliberately made, do not justify an assault and battery, much less the 
taking the life of the party making them. Evans v. The State, 44 
Miss. 762. 

2. Evidence of threats previously made by the deceased, and com- 
municated to the defendant, is not admissible in trials for homicide, 
unless the testimony show, that at the time of the killing the deceased 
had sought a conflict with the accused, or was making some demon- 
stration toward the accomplishment of such threats. Ibid. 

3. Where the defendant, being armed with a gun loaded with buck- 
shot, invited the deceased to come out of the field where he was at 
work,, and while the deceased was approaching his cabin in his shirt 
sleeves, the defendant deliberately shot and killed him, it was held not 
error to exclude evidence of a threat made some time previously by the 
deceased, that if the prisoner fooled with him he would kill him. Ibid. 

4. If a man invites another to mortal combat, he who gives the invi- 
tation, being already armed, can not lawfully shoot the other before he 
has armed himself, and whilst going to a place for. his weapon, although 
the deceased had formed the purpose to use the weapon on his return. 
Ibid. 

5« In every case where homicide is attempted to be justified on the 



898 



THE LA W OF HOMICIDE. 



Self-Defense. 



ground of reasonable apprehension, it * must appear that the danger 
was urgent, present and imminent, and that no reasonable mode of ward- 
ing it off, or escaping from it existed, except to take life. Ibid. 

For further illustrations of the doctrine of self-defense, and reason- 
able apprehension of danger of death or of great bodily harm, see the 
following cases : 



Barfield's case, 8 Iredell (N.C.) 344 

Benham's case, 23 Iowa .154 

Biggs' case, 29 Georgia 723 

Bohannon's case, 8 Biish (Ky.)..481 

Burke's case, 3 Iowa 331 

Campbell's case, 16 111 7 

Carico's case, 7 Bush. (Ky) 124 Johnson's case, 27 Texas..., 

Carroll's case, 23 Ala 28 Keener' s case, 18 Georgia.. 



Copeland's case, 7 Hump. (Ten. ) 429 

Cotton's case, 31 Miss .'.504 

Creek's case, 24 Ind 151 

Dill's case, 25 Ala 15 

Drew's case, 4 Mass 391 

Doe's case, 1 Mich 451 

Drum's case, 58 Penn 1 

Duke's case, 11 Ind ....557 

Dupree's case, 33 Ala 380 

Dyson's case, 26 Miss 362 

Evans' case, 44 Miss 762 

Field's case, 44 Maine 244 

Franklin's case, 29 Ala 14 

Gallagher's case, 3 Minn 270 

Goodrich's case, 19 Vermont....ll6 
Grainger's case, 5 Yerg. (Tenn.)459 
Gray v. Combs, 7 J. J. Mar8hall..478 

Greschia's case, 53 111 295 

Harris' case, 1 Jones (Law) 190 

Harrison's case, 24 Ala 67 

Hays' case, 23 Mo 287 

Head's case, 44 Miss 731 

Hill's case, 4 Dev. & Batt 481 



Hinton's case, 24 Texas 454 

Holler's case, 37 Ind 57 

Holmes' case, 1 Wallace, jun 1 

Hopsonson's case, 18 111 264 

Hurd's case, 25 Mich 405 

Isaac's case, 25 Texas 174 

,..758 
...194 

Kenedy's case, 7 Nevada, 374 

Lamb's case, 41 N. Y 360 

Lander's case, 12 Texas 462 

McLeod's case, 1 Hill. (N. Y.)..377 
Meredith v. Com., 18 B. Monroe. 49 

Monroe's case, 5 Ga 85 

Myers' case^ 33 Texas 525 

Noles' case, 26 Ala. 31 

Oliver's case, 17 Ala 587 

Payne's case, 8 Cal 341 

Phillips' case, 2 Duvall (Ky.)...328 

Pitman's case, 22 Ark 574 

Pridgen's case, 31 Texas 420 

Pritchett's case, 22 Ala 39 

Rapp's case, 14 B. Monroe (Ky.) 615 ' 
Rector's case, 19 Wend. (N.Y.)569 

Hippy's case, 2 Head 217 

Shorter' s case, 2 Comst 193 

Silvus' case, 22 0. State 90 

Sloan's case, 47 Mo 664 

Wesley's case, 37 Miss 327 

Webster's case, 5 Cush. (Mass.) 305 



APPENDIX I. 



Since this work was chiefly prepared and electrotyped, the Legisla- 
ture of Indiana (1881), has enacted a Revised Code of criminal pro- 
cedure. In the main the former statutes are unchanged, but some 
new sections have been enacted, and some changes have been made as 
to former statutes, not materially affecting, however, the law as 
discussed in this volume. On the subject of prosecutions by affidavit 
and information, section 106 provides, 

That all public offenses, except treason and murder, may be prose- 
cuted upon information based upon affidavit : 

1. Whenever any person is in custody or on bail, on a charge of 
felony or misdemeanor, and the court is in session, and the grand jury 
IS not in session or has been discharged. 

2. When an indictment has been quashed, and the grand jury for 
the term when such indictment is quashed is not in session or has been 
discharged. 

3. When a cause has been appealed to the Supreme Court and 
reversed on account of any defect in the indictment. 

4. Whenever a public offense has been committed, and the party 
charged with the offense is not already under indictment therefor, and 
the court is in session and the grand jury has been discharged for the 
term. 

5. (This clause relates only to misdemeanors.) 

N. B. There being no emergency clause in this act, it will be in 
force only from the publication and circulation of the acts in the 
several counties of the State. 



(399) 



INDEX. 



■Grrhe HfAfeneM tn to fie vagts. 

ABETTORS— 

Bee Aider* and Abettors, 

ABSTRACTS- 

of statutes and dedsions in homicide cases in Indiana. ..........m........m....m^.....o... 84a 

decisions in Kentucky, Tennessee, Mississippi and other States » 88S 

ACCIDENT— 

killing by accident excusable — ^ ^.^, 267, 268, 271 

See Bimioide; Ezctuable Bamieide; Misadventure. 

AFFIDAVIT AND INFORMATION— 

AIDERS AND ABETTORS- 

inmanslaaghter.......^ ^ .^ ......m. ............^..... 357 

See ifemtctde; Principal and Aceesiory. 

ACCESSORIES— 

ai me i a c w»»— —•»•»»«.<«»«■«■■»»»««»»««»»«»««••»«»•»»»»»«»»>——• »— ■■■«t»iit %« » » i»«>«>ifc4>»<»*»««« »««»«—»» sssv 
Detoxe me laci********************************************* •••••••■•••••••••••••••••••••••••••• ci^*** ••••■• 4ai>*««»«*' p9v 

alter me iact»»»»»»«»»»«««.»»»»»»»»»»«»«»«»»»»»««»»«»««»»»« — ■«»»»—•»«■» — n— «>«»«>»«»»»« n n •«»»•»>•— <»—»»» ooSs 
See PHnc^jKil and Aeceuory, 

ACT OF KENTUCKY LGQISLATURE^^ 

changing the venue in Wilkinson case...*.* ..—.»«.>»»— >w>»«.»»»— >»»»«>»<— >»—w »»»«««——♦ SSi* 

ACQUITTAL- 

Yerdict of acquittal in ihe Wilkinson case ••••...m«.»..>«.mm.......«..*m*. 07 

See JPbrmer ^o^uMil; OiiminJetpttrdff, 

ACCOMPLICES- 

See iiftfert antf Jbettort; Ptinetpal and Afxets&fff, 

ADDITION— 

of defendiintin iiidICtOi6ttt..*..*...M....**MM«*«**M* mm...*...m«...m«..... ••••MM«.M*Jiote 1, 10 

ADULTERY— 

killing of adultererar by the husuand.«.««.M**M«MM««»«*.«MM-**MM« ••••••m««*««»m««....* 282 

See HudHtnd and Wife ; WSttol Cuckold. 

«* AQAINST THE FORM OF THE STATUTE "— 

this averment not now neceesory by statute in most of the StateB..*.«M..»*...»note 1, 10 
See Ocmtra Fiarmam Statuii; Indietmeni. 

AOE- 

See CapaUlUy; Infancy. 

decisions on alibi. .^......................m. ...••• mmmm.mmm^.^M?! 871 

H.— 26 (401) 



402 INDEX. 

ALLEGATIONS-. 

See IfidietmmUi Variamct. 

APPBEHENSION OF DANGER— 

reMonable apprehension of danger In mm of adf-defeoM 265, 268, 966, 287, e< «». 

See Spteek ^ S. 8, PrmUu, l»,apmoh nf Bm. OmUn, 178; &feeek of 
Mr.Bntkfek^iM] ae^'D^fmmfOmieid^ 

ABGUMENT— 

of Bir. Bollock, In WlUdnaon CMe, „., ^ 87, 251 

Oi Ooi. BooeilMn«...M.M...«..M«»>«...«.M.M ...•..« •«#..^„ — ^- -^ j^„- ,„ ,„^ ^^ ^^ 95 

of Om. Thompeon......,.,.,.^,.^,,...,^,,..^,,,^^..,,,,,,,,^",^,,,^,^^^^^^^^^^^^^^^^^^^^^^^^^ j5l 

01 jQuge ■"OW>n.«»»»— —««..».««..»«»««,„— »,,,«,^,,,^..^..^^..^^^^^^^^^^^^^^^^^^^^^^^^^^ ■■■i±-timn>i 198 

of 8. 8. PwntlM..^^.^...^.,.....^...,.^ „ — ..,^^....... ......^.. i. 122 

ABBEST- 

kUUng of officer in making arreat .^ ....^^^ 292 

kUUng by officer in making anrert .^ ^ M8^ 294 

See Officer; GmtUMe. 

ABSON— 

killing by perebn in the oommiasion of arson ia murder in the fiiat degree. -286, 344 

See Murder; Bomieide, 

AUTBEF0I8 ACQUIT- 

See Onee In Jeopanfy; Former Aequ4tka;.l>Ueharffe^ Jury ; OonttUviion, 
AUTBEFOIS CONVICT— 

See Onei in Jxpardy, 

BANKS, HENBY— 

his eridenoe in the Wilkinson case „ 78 

BAIL- 

habeas corpus to be admitted tb bail in homicide duies...^.^. '....'. 826, 858, 857, 858 

form of petition and proceedlngs....^..^^...^^.^^,.....^ ^^.,.. ^. 827 

See JMeiu C^iyut, 

BABBOUB,P.S.~ 

his -eridenoe In- Uie Wilklnsofr case*.....v.v.v.i......,.....'.i*«........^.,„....,....^..^.. 70 

BOWIE-KNIVES— 

SeeBemarktqfBardinonCarryinff.lUi MmOrkitf Jtidffe Sowtm em Qirrfkigt m 
BBOWN, DAVID PAUL- 

his " Golden Bules for the ExaminaUon of Witnesses ................... ^.„.^.....^.... 838 

B80XHEB, DEFENSE OF— 

See Speech of Prentiee, 151 ; l^teech ^ OfL JUbmitoiH III. 
BBOWN, JOSEPH— 

nis eviQence in tne *r UKinson C8S6M«a«*«M«****««*M«**Mt**«««*«*****«««««*««B«a«*»«*ai««»M«««(M»«>»*« 67 



BULLOCK, COMMONWEALTH'S ATTOBNEY— 

nis-openiug pyoocn«»«»«»««»»«»»»».»»»»»»»«»»»»»«».»»««««»»»»—«—»«a»t» m >M^i(i mn ,»»a— <——«»«<«— »«»««»««« 0/ 

BUBDEN OF PBOOP— 

See Inmiiiiy, 278, note a; Onut 'ProbdfuU. 

BUBGLABY— 

killing by burglar la murder in tbe first d«gree.........................» .«^......«285, 844 

See JBtmidSe; Murder, 

CAPABILITY OF COMMITTING CBIME- 

in cases of Infancy «,..«*...m....^......,« 804 

in cases of insanity .^..„ 296, 301 

in cases of drunkenness ~...mm....,m.. .....................808, 606^^ 

r. ; '■ :'8ee..Crimet.. ... 



INDEX 403 



CARELESSNESS— 

See NegUgenee; McuukntghUr ; Mmicide; Mwrd&r, 

See NoU to Page 10, olio Page 10 ; Ind4ameni, 

CHANGE OF VENUE— 

in the WiUdniott case by the Kentudcy Legi8latiire....MM.*-*»«M..~*«****M«».«. 7, 259 

CHAMBERS, GENERAL- 

his evidence in the Wilkinson CMe.«»..— .«..»»..»« »..»......»...>m.».....«« •«•...•........•.... 65 

CHARACTER^ 

evidence of the character of defendant «.. — 311 

eridence of the character, conduct and threats of the deceased ^ 812 

remarks of Hon. Seargent S. Prentiss <m the value of character. .••mm.*^^ 145 

remarks of Mr. Bullock on evidence of character - ~ 252 

See Evidence. 

CHILD* 

killing of child in embryo —»» * .„„——^ •••••* •• *•••• mm**».*278, 274 

See Parent and Child ; Infancy ; CapdbUity. 

CONCEALED WEAPONS— 

remarks of Hardin on carrying ~ 194 

remarks of Rowan on carrying...M^..M...M ^......m. .............m... 227 

CONTRA FORMAM 8TATUTI— 

this averment 9ot now necessary by virtue of statutes in most of the States..... 815, 346 
decisions on this .^.^ ^ 846, 347 

CONSPIRACY 

speech of Hon. S. S. Prentiss m».........m.............-..................m.«................. 122 

See ^<4fer«aiuf ^ftelfor*.. ...... ......^....-^.MM............ ^....829, 380 

CONSTABLE- 

killing of, or by Constables in the execution of their offices, with, or without war- 

^See (J^fftoetm 

CONSTITUTION— 

of the United States upon "Once in Jeopardy.** «.. ,.............^^.....^.......... ^20 

CORPUS DELICTI— 

proof of, is required ...^ ^. .....,....,..,.,..810, 855 

See Bead Body. 

CRAIG, THOMAS- 

his evidence in the Wilkinson case.. ., .....«.............................«,m.,...,« 25 

CRIMES- 

capability of committing crime in infancy ..............^„.............. 804 

capability of committing crime in insanity 295, 801 

capability of committing crime in drunkenness .......^ ..,.802, 808, 804 

CROSS-EXAMINATION— 

David Paul Brown»s " Golden Rules for the examination of witnesses.**............,.... 888 

Hee Evidence ; WUneuet. 

DANGER OP DEATH OR GREAT BODILY HARM— 

Qee Apprehension qf Danger; Seif-dtfente; SelJHdge'e Que; Preniisi^ ^peeeh; 
Ben. MardiH*t Bjpeeeh. 

DAVIE, JOHN C- 

his evidence in the Wilkinson casa........,*.....,.......... ...«............................«m..69, 70 



4(H INDtEX. 



DAWSON— 

his evldeiice in the WlUdnion cmBm »•»— — ..»-»...««. ««»«»««—..»... »-— . «■»»« «—»■..»« ^....—— 7B 

DEAD BODY— ^ 

8eeCin7w# IMieM. 

DEADLY WEAPON— 

deacriptloD of, and prooL....*..— ^•♦«««..— .^.— »»««»»^.«.>«.— m .-.^.^— — »,«.«JM> te l» 10 

manner of describing the instrument of death, aee indietmentB agaimt the Wil- 
kinsons and Murdaugh, and notes thereto ......^••mm*. ..•.••^..••mm....mm.....««»« 10 

See Mwder; Indidmeni; Varkmee. 

DEATH— 

must ensue within a-year^and-a-day » — ^....^^< ^ .^..-.^^ ;■, 918 

See JfulicfmeiU; jTmm/ " I<wr-afMf o-doy." 

DECISIONS- 

&ee Abttrad* qf Deeuioiu. 

DURING, E. B.— 

nis eTiaencoin tne Wliunson case»»»«»>— —»♦»•»— «•♦•«——>»««—»«»»»«»—»»■■»«— ««——«»»«»■■»»»■ tt 

DEFENSE— 

See file{/'-2>(/en«e; DufdHng-Houm s RnrnmaSble Afprthen$Umi Mmiieide; JSem- 

DESCRIPTION— 

of the Instrument of death ^ ~ - - ..,.. ..-"'O n 

description of the personal appearance of the Hon. 8. S. F)rentiaB and others ........ 121 

tmCBJiJROZ OF JUBY- 

effiBct of diachaiging the Jurj without Terdlct ....^ ^^....^..-^.^...^.aay 826^ a aeq. 

DONOOHUE, F— 

his evidence in the WilkiBson caee ...............................~m..~^m.— .^....-m.^.... 66 

DOUBT— 

See JKeoJMtt^ DmH. 

DitUNKENNESfU. 

Ae8pon8iDlllty>«**kMk»m**«««*M«*»«a««»M»* »»»»»»»»——«>••»•.»»«»»»»•••»<— »««——<>iHiSi| vUi oIMy S^Vj 8BB 
Bee Intoxieaiim, 

DiUEL AND DUELLING-- 

killing in duel is uiurder......... « *, .m............. M4 

Ben, Hardin, <«dueUlng .»«.....^ ^.^ ld4 

Judge Rowan's Yieifs on the dtillaing effects of " the oode." .^.«...........^«.^i 230 

6ee Homicidt ; MunUt. 

DilTBLLlNG-HOUSE- 

18 ft i iia n s casue***** •••••••••«•••««>«•>««>••«•••••••«•«•••••••••««••»••••••••••••••••••«••«•••••«•»•«(••••••■•■• ^«nf 

killing in defense of ^^ u..«wmm««»«* ••••••«•••••• 290 

See Seff'De/ense ; deniable Homicide; Metreating, 

DYING DECLARATIONS— 

m wnai cases majr oe 8nown«»»«»»<««— »»»*»«»«»— «»•»»«««»» ^»»t»>f»»»»»«» •—»«»»»»«»»«•«— «——«»iiWj^i iKpr 

UeClBlOnS in cases 0X*«««»»**«aa«*aa««a(«*««caMt***««»«a**« »««»«»»««*»»««»»«■>«>«»«»»>«««■»»■ * — —«■•«»— «fW»> OOI 

SeeSvidence. 

EVERETT— 

hiseyldence in the Wilkinson cas^............ •••M.M«Mt..«...MMM<M«M.**~«M«— ^T^ 90, S4 



mBEX, 405 



EVIDENCE— 

dying Aedaratloxis... .........^•......m........^.... 806, S52, 381 

eTidence of witnesses in the Wilkinson 'case....... 12 

eyidenoe of the character of the defendant in criminal causes m.. ......... 311 

evidence of the character of the deceased ............^ .«....*. 312 

evidence of threats made by the deceased < ^.^.......m.. 312 

evidence of the " Corptu delicti'*^ , ^ 310 

of the examination of witi^esses : 33J8 

« Golden Buies for the examination of witnesses," by David Paul Brown 338 

eonfessions^ « 365 

decifliona on matters of evidence. „« 350, 352, 364 

£XAHiNATlOK^ 

of witnesses in the Wilkinson caae...»............ ••.....••m 12 . 

See Mmdence; WUtteuea; *'Gdldeu Bulu.*^ 

BXCDSABLE HOMICIDE- 

the general doctrine „ 264 

self-defense „ .264^ 265, 266, 267, 345, 356 

other cases of excusable homicide ^.......m. ...-.» 271 

by accident, or misadventure ...*. 271 

See Hmniffide; Se^-J/t^ense; Mttsbtmd and Wife ; Master and Servant; JPareniand 
Child; Brother. 

FOEMER ACQUITTAL— 

See Once in Jeopardy / CbniNfttfion ; Diteharge qf Jwy» 

FOBMEB CONVICTION— 
See Once %» Jeepardjf. 

FOBCE AND ABMS— 

the averment " with force and arms,*' not now neceiMUry by statute in most of the 
Dcaies ••...«•• •*.*•.••..•..•.••..«...•..•... •«.....•......••.••*••...•.••.......•...»..«•••.. ••«••••••*•••>••<■•••■ • ^v 

See n et Armie, 

FOBMS 6t INDICTMENIS- 

for good and ba4 forms, see iwget^.. ^...•. ~.348, 849, 368, 371, 878, 881 

the imHetments against Judge Wilkinson, Dr. Wilkhuon and Mr. Murdaiigh......... 10 

requisites of indictments......^ .......^^.m « 10 n 

OASBISON, JAMES W.,— 

his evidence in the Wilkinson case................^ ......•..«....•...» 54 

" GOLDEN RULES"— 

for the examination of witnesses written by David Paul Browp....««....«.f^*M^.-.... 338 

ORAHAM, JAMES W., - 

his evidence in the Wilkinson ca8e..M.M.«*.«.*...M******«»*«<!*»**»*«M«t*««*«w*«M«««*^«M*«*» 57, 81 

GRAHAM, DR.— 

his evidence in the WUkinson case w^.....*..... ...••.m*«»m.m«*>*«*mmm* 74 

ORAND JURY— 

See page «... m.......*.***^ • - ^'^ 

GUILTY INTENT— 

in cases of poifionlng.....«.»»^... .......»........*.. • 370 

^ See Mdlice; Mwder; Munitav^hter; Wamieide. 

HABEAS CORPUS— 

for admission to bail .............. Ji26, 858, 857, 858 

fietition and proceedings. •. •»• 327 

dtei^ons in such cases. ...• ...:;.. :.............«..• :........ 372 

See BaU. 



406 INDEX. 



HABDIK, BENJAMIN— 

hii rwmrks op Appyehcmton of D»DgMr.«.»<».».— •».«»>,»«. »..«.—.m« .«.«—.»..«««<■■■■.— ..«.««.» 178 
860 SeViridget Que, 

HABBIS, ALFBED- 

his oridonoo in tlio WilkiiiBOD cm6«» « »»««« »»»»«. ».».««.»»««..»...«.« •• ••••..•••••••••••• ...••••••o2| 86 

«« HIBED COUNSEL *'— 

zoBuurks In delenio of ** bind counsel " by Ifr. Bullock^......^........^......— ^.^.^ 254 

HOMICIDE- 

definition of homicide ~...~ .........m..^....^ •^^ 268 

nittider ftt connon Iftw •••••• • ••■•••••••••••••••••••..•mm.**... »««•« «»»»»..« 272 

manilaughter — ^ ^............ ^.^ 274 

murder and manslaughter, by 8tatates.....................M^..—..MM...-MM».......27tf, 344, 345 

murder in first degree......... - -.m......^.«..«.m.m......276,344, 869 

murder in the second degree...........................^..............*...— ^.mm*..— ......276, 345, 348 

▼oluntary manslanghter ..•.^..........276, 345 

mvoiunui^y mansiaugnxer ......».....«...»..........».—.»».♦•»»».•»«.»•. ....^ ..•»•..«».«.»»«»»»— —■jCiro, wu 

justifiable homicide m*mmm...m...m««......... ••••m*m.... ...••.••.•. ...m ..•»•. 263 

ezcusaiiie nomiQCiei.. ••.••..••.• ..••••#.«•.•••..•••••••••• .••••.•.•...•.. ........••..••.•••••.•..•...••••••• zm 

nonucMie oy miaauvenxuivM .....»»««..»«...».«..»..»...«»...—..»«»»....«...»»»...•»......... ^... m .^^w, a7i 

killing by oflicer of justice ........ ^....m. 268, 292 

Kuimg ox o^Dcer »«...•• ....*•......>.....«....»......».♦...»....... ...#♦... ....................................... «SmS 

aming ox xxvQiasser .........»...«♦■««■■■.......♦. »..............«.»».....»......<...• ....................... sw 

killing of adulterer .^m. ..•......• ...•..*. ^■.....mm....m.*.m...........m......m* 282 

pii ciQ cn neav^^pn/vOcaxiou . ..... ........................ ........ ..#... ...... ...... ...... ... •..•.•.....xmi, aov 

iDw0D V in uoiuicioe cases .« . ..»■... ................................. ......................... ............... «mki 

poisoning— intent ...•.........■.•...• .................... .««M»f ..»..«>.......»....—..«...« 865 

iSse Murder; Mantkmghter. 

HUSBAND AND WIFE- 

kiUing In defense of each other....... .............................m............^.... .......««. 264 

killing of adulterer In yiayranls ............ ....•^........m.....^ 282 

IDIOTS-. 

are noc rsi^poDSiiDie ..... m....... ....» ..........».■<■■.. .....w....... ................................... .mp, 9M 

See JXMiMde; IneaiiUp* 

IMBBCIIJTY— 

See Jiuemfty; 0!^NiM(4<y. 

INDIANA— 

statutes of, in relation to homicide....... 344 

decisions of the Supreme Court In cases of homicide^ 345 

INDICTMENT— 

In the Wilkinson case .......* 10 

of the forms of Indictments ...368, 371, 378, 881 

requisites of .....314, 318^ 846, 368, 372 

in rdation to •' sound mind" 346 

as to poison 1...........^ 347 

See Ab0irae(t <^ Deciiitnu. 

INFANT8- 

their responsibility «.. 804 

kiUing of, *n tUero « .......273, 274 

See Parent and Child, 

IKFOBMATION— 

prosecution by ......889, 828 

BooJjgMavU. 



iNmsx. 40'? 



INSANITY— 

" soiiDd mind** in definition of murder......^.^... »...«. 272, 273 

defense of insanity.... * 295, 801, 868, 880 

idiocy, imbecility ...••....••«mm.*.~.. .•.«..••»..•..« ',„„«,♦...».. .....i.296, 30i 

lunacy, monomania.. ..^.••••..^•.••••—•^...•••••••~-«»»»-*'»*»»»»«**«"*'"* .swi, ^7 

decisions in insanity cases. ....^« —« ^^.....i....... 295, 801, 338, 378, 386 

onus pix>bandi ••«••- ..%.»»*»»*««»»» ■••»—«»« •»•■« »»«« » —♦».»■»»».»« »«~»«»»»»»«»«**'«- »»«**** * ', 

reasonable doubt-....".,.M-t""«»"*-"—-«*»^~——— «......i- .— ..k.i..273 note ft, 356 

BMaralinsanity- ....«..-««. — ,.,...,..^...«..,^,........»..«*.-. 297, 800; 368 

INSTBUMENT OF DEATH— 

in the charge in the indictment.,......^..-...............^......""—'— •":•*•»*"*••""— '^^ ^^^ 

See Variance; Indictment, 

INTENT— 

lii homicide cases - - ""S^S, 369, 386, 887 

See ManslaughUr ; Malice ; Murder. 

INTOXICATION^ 

' See2)rt«»*icnn«**; Intent. 

JACKSON— 

his evidence in the "Wilkinson case.... ^. ....«..• 69 

JOHNSON, WILLIAM— 

his evidence in the Wilkinson casie,.. 41, 81 

JUBOBS— 

competency of - '•• •3»4» 355, 370, 372. 873, 374, 877 

grand jurors - - * ^^ 

decisions as to jarws. .;...........*....«..... - 381, 382 

names of jurors in the WUkinson c&se............. 10 

See Once in Jeopardy, 

JUSTIFIABLE HOMICIDE- 

deftnition and cases of rf...... 263 

distinguished from exouaaUe................«.«.......»....»..*»»rt.M......;.w... 268, 264 

See Homicide. 

JEOPABDY— 

See "CkmstittUion!** Once in Jeopardy. 

KNIGHT, Dr.— ' 

his evidenoe in the Wilkinson eaae.«.«.....^<<M^...«..*.«..«......... ^.........,......... 67 

KENTUCKY— 

decisions in .«.....,«•..•. » ~ 388 

change of venue by the Kentucky Legislature of the case against the Wilkinsons 

and Mr. Murdai^h........ ;;:.'..'.: —.'" v.vv ".v. *"*• *'» 259 

eloquent tribute to the Kentucky pioneers, by Hon. S. 8. Prentiss 161 

LUNATICr-. 

See Insaniiy. 



LIMITATIONS- 

statute of .........;. ;..;....; : 887 

LOUISIANA— 

decisions in .^............m...................*........ 888 

MALICE- 

in murder .-— 274 

not requisite in manslaughter »........» m .274 

malice; express or implied.. ;... ;. 275 

See Drunkennest ; Intent. 



408 iND£;g. 

■■— — ^ — ■ 

Mcdonald, james— 

blB evidence In the Willdnion CMe _„ ^; 8S 

MAN8LAV6HTEB~ 

deflnition of. ** jotimmmi Iait «.« 

III! ■■■■■■■■^■■■■^iaipim«MM«i «««««« ••••••>••••• •••♦••i #9 

definition of, by litutee..^..,,...^^..^.^^^ ^.^■^^.,..^ . J77, 945 

Tolnntwrj mnneUughter....^.......^ u...^,.^..^^.. tn note, 27S, S79, S88, S86, 374 

Involuntarf mnneUughter.**^^ J. ^...ttS, 861, «5, 886 

intent to kiU...^ «^ — •-—"....—— .—^.-^•.«„.,,^^...27«^ 27B»MI^ 869 

sudden heat-.proTocatian ^jm^^Sl^m, 8B7 

aiding and abetting „^ a^ 

dedsiona, in abetracta j^^ 355^ ^7^ 8W, 8W, 877, 896 

See Bmbtmdand Wifig; Mmieide; Mmrder; MaHe$; NegUgmoes iiitorf. 

MASTER AND SERVANT— 

in aeienae of eacn other « ••••^•••...••..•......^.•.••........♦^ww^,^,,,.,,,^,^ 96i 

See Etetuahhamd JutU/Uible Bomieide, 

MEEK, ALEXANDER H.— 

inaicuneni lor Kiiung Oi~...»,m4,.....m« — --i-i-mjuhuiiihiii 11 

McORATH, THOMAS A.— 

hiaeTidenoe in the WUkinaon CMe ^ ^•..,-^aB, 80 

Mcdowell, db.- 

his evidence in the Wilkinson caae^...-^ ...... ik 

MILLER, WILLIAM— 

hia evidence in the Wilklnaon caae ^ . _^ jo, 86 

MISADVENTURE- 

kilUng by miaadventuie or accident........,.....^ .....«....m....«^^.,^^7, 968, 271 

See AecidaU. 

MISSISSIPPI— 

dedaiona in, in homicide caaea — ^.^ ,^ *...^...... — ..«^^...^,.. 888 

MISSOURI— 

dedaiona in th«t SUtte «^*^....^ ■■...■...■...^.>>.^.^.......^..,^ 888 

MISTAKE— 

killii^ by miatake ..•.•m..«..*..mm.....m«mm.«.*m«m«m.«mm*«m...»..»........267( 868^ Sl| 

See Accident; MUadttniwre, 

MONTGOMERY* 

bia evidence in the WllUiiaoii csfo «#•— i» M » n i m MtMi>atittMwiM w >ii »n i n »«i»«»— — > fM Mt n «>M 7 2, 80 

MONOMANIA— 

See InaanUy. 

MURDAUGH^ 

indictment again8tMM.....«...*.«.«....*...««*«MM«».*««M..*«**MM«.*..«MM**«M««MM.n...*.MM.M.M.«*» 10 

MURDER- 

bl common law .»»«..» ...»»■■»»....» ——«».«««»«» •*.«•.•••••—»»—»««««■■■•.—..».•■»»•——».>»•»....«.......« £Tm 

by statute, fiiat degrae.....,«—*M-*—M«"- .........^..b.. .................276, 844 

lu BccvDCL TiTi|^nTTi ■.....»■■■.■..■.. ■ ■ ■...■■.■.■§§».>. ■>>».«.a. ......... ■■§>....> ■■■.■■•■■■■■■. •.■■ ■.■■.>■. ...Y#w, oao 

uiviidiiucuis lor iuiutaiw •••«..... ....•• .....••.............•«....••.«... •••..••••.••••«..••■••.%...•.. v, vvo^ 94y 

ionus of indictment8........................M.M... ...MMatM ..••..848,849, 868, 871, 8^, 881 

BUQuen n6ai~~'pivvocavio'n ...... •.....«.. • ... — » «.... ...*..•.• •....•«•.•.•..••.......« ••....«• ......iCiw, Zoo 

MtWl »•»».#«•«..».*<..««..............•..•»....» ■.......«.«..»«..«...•.•..«.«»..»«.»« «..»..»«»«..«........•...»».«»..«.» Sof 

See Bomieide ; MaUee; Indieiment; Ihrmt (^ hididimmU, 

NEGLIGENCE— 

cases of killing by ..., .— ^.«,m^ ...aSgi 288 

See Mdndaughter ; Ckirdeuneu, 



Dn>Ex: 409 

NEW yORK— 

NON COMPOS MENTIS-- 
See InmmUy. 

OFFICER^ 

killing by officer «. m» ...«■». n »««»«• .»««»» .;»»»««.»— »m— «»»»». ».»..»•«.«. » »».« ..«. m<263| 298* 29S, 294 

killing of officer ^...... ............^.U^.....^.........«.......» ..^.^292,293, 294 

dedsioDS in such cases •^•.••..••.»««.**«.»»*«. .«...- «.m««.. 882 

See Arrest. 

OLIVER- 

his evidenee in the WiUdnson caae.....M.........M.M .^02, 88 

OLDHAM, HENRY— 

his evidence in the Wilkinson case ^...^ » - ^...••.... 88 



ONCE IN JEOPARDY— 

c-ommon law doctrine •^^••.•.....•. •«.•.« ........m.... 8l# 

4Uth (ll%i<^to amendments to the oonstitHiioB of the United States ....„...^^ ^ 320 

constitutional provisions in many States.......,.^.................... ,«^...........^.... 820 

cuscuarge oi jury ••••*••••••••«•«•••■••••••• »•»»«««»»»«»»«««—«»»»»••«»»«>«««»«»«»«<««»««« im3 B »i 93i9y 9i>4( ^ ^^9* 

uiscnarge in a nil iaiia»»««»— >»»••»»» »»•»»♦— »«»«»« ««■»——»»»«»»>«»»»«»«%«>»«»««« •••••••••««**«««4«**aMfiv s* tco 

former acquittal ^ .^..^ ^..«m 36^ 879, 886 

ONUS PROBANDI— 

in defense of insanity *........*-M....«....aMM«*M— ^..•••......•..••••««.*«m«,**-««*«..278 note a 

See Evidence; Burden^ Proqf, 

PARENT AND CHILDw. 

killing in defense of each other -m*..— ^.^....mm... m»....... ^ 388 

See ChUd ; I$tfanU. 

PAIUS, JOHN- 

nis eTKience in wiucinson CMC»««»— —««»«».»—.»«««»»«»>«—««♦—«.«•>— ■—«<—«<«»»»«,«»«— «»•»»««««—«» 88 

PEACE-OFFICER^ 

See Officer; OmtUOde. 

PEARSON, JOHN E.— 

his evidence in the WlUdnsan case^^.^.^--,^,-^ .................... ^.. 78, 70, 85 

rOPE, ROBERT— 

his evidence in the WiUdmon ease „, ^ ^.... gg 

POISON— .. . , -».. .,» ,^ ^, 

death by administering, is murder in the first degree. ^.285, 844» 86B 

See Homieide; Mwrder, 

PRENTISS, S. S- 

his speech in the case of the CommoBwealth of Kentucky v. Judge Wilkinson, Dr. 

Wilkinson and Mr. Murdaugh ..t.. 122 

remarks on this speech in the introduction ^. s 

Prentiss' testimony in the case ......w.- ^.. 77 

his remarks on self-defense ^ ^^ 149, 150 

his tribute to the pioneers of Kentucky ^« 151 

his remarks on reasonable apprehension .....^ 129, 149 

description of Prentiss by the raporter ..^.^, m 

PRINCIPAL AND A0CE8S0RT'*< 

deAnitionof, and cases ^..^....mm •♦. *** .• 829, 883 

See Aider* tmd Abettors, 

PRIVATE PROSECUTIONS— 

ase remarks of Judge Rowan ^••-^...........k ^ m.....«.....198, 218 

see remarics of Mx, i5uilocK(»**»,.M ••••••••im*********** •••••••••••••••••••••••m**********************.* 254 



410 INDEX, 



RAILROAD TRAIN— 

killing by obstruction, etc m..*.«.«m««.....mm...— «^«....m. «•*. «M5 

RAILY, MARTIN— 

RAPE- 

killing in the commlMioo of, ii munler In the flnt degree .....^ 286, 844 

Q»I£(mieide; Murder, . 

REAUGH, THOMAS— 

his evidence in the Wilkinson esse. ....•mm^...m.mm»................~ .^...12, 80 

REDDING. JOHN W— 

his evidence in the Wilkinson case......^.....^ ...12, 80 

REDMOND, SAMUEL- 

his evidence in the Wilkinson case ...•••••mm*..*...*** •—— ^..........m. 62, 28 



RETREATING— 

retreaUng to the wall * 265, 266, 270, 271 

t$ee Apprehension qf Danger ; Self-D^enee: Miteuaabte Momicide. 

REASONABLE DOUBT— 

evidence must exclude ..........m 335, 336, 356, 375, 377, 387 

REASONABLE APPREHENSION— 

see Selfridge's caae.....*..............«».- .....••.....*.•.....•. *•*•«. 267, 268, 268, 271 

the general doctrine stated .....^m .m.......... 265, 268, 2&i 

tne remarKs ox s. b. xreuuss, on.. .......•**.....••.................... ......•.•....•. -......•...•..IaIPi 149 

Qee Seif-d^enee, 

ROBBERY— 

killing in the commission of, is murder in the first degree .««.. »..•..... 285, S44 

86eMdmieide; Murder, 

ROBERTS, FRANKUN- 

his evidence in the Wilkinson case^.....**.. ......m. ** .*...m m. .*»......... 80 

ROBERTSON, COL— 

hia speech in the Wilkinson case.........M........M......i 86 

description of, by the repoTter............M.MM......... --..,j,, t - 121 

ROTHWELL, JOHN- 

indictment for killing of 10 

ROWAN, JOHN— 

his speech in the Wilkinson case ^ 198 

remarks on, in the introduction ;..;......... .....m.....; - 4 

his views on carrying weapons ^..m.. » 228, 228 

ROWAN, JR- 

his evidence In the Wilkinson case 78 

SANITY— 

See Ineanily. 

self-defense- 

killing in self-defense 264,271,898,398,846, 356 

remarks of Prentiss on ^ „ « ^ , 148, 150 

See Bteusable Homicide. 

SELFRIDGE'S CASE— 

stated and referred to 267, 268 

See 8^'D^ense ; Appreheneion qf Danger. 



INDEX. 411 



SERVANT— 

See Matter and Servant. 

SOUND MIND— 

See Insanity. 

SPEECH— 

of Mr. Bullock, in Wilkinson case.. ......................... m»«.................m 87) 251 

of Col. Robertson, in Wilkinson case ^......•. ^ ,., 96 

of CoK Thompson, in Wilkinson case ■•••••^••••••^••••••••.m •••••*• ■••••m«*mm.. ....•...• 154 

of Ben. Hardin, in Wilkinson case ...........•-^............••tM....... 170 

of Judge Bowan, in Wilkinson case ^ ...^. 198 

of S. 8. Prentiss, in Wilkinson case ......... ...m^.....^.. «.......^ ^... 122 

SUTHERLAND, WILLIAM— 

his evidence in the Wilkinson ca8e.........«..««....MM.......M,.....^......^ 66 

THREATS— 

Oj me Qeceaseu ..**f • •••••......• «*«•• •••*•••«•••«•••••■•■••••••• •••••••••••»••••••••••••••••••••••••••••••«••■• olo 

See Evidence. 

THOMPSON, COD- 

speech of, in the Wilkinson case ^....^ ^.................m.. 154 

TENNESSEE— 

decisions in, in homicide cases •.•mm.~. .......m... mm........m.....»...mm.»... 888 

TEXAS— 

decisions in, in homicide cases..................^..........^..^ ...«..•...« 888 

TIME— 

statute of limitations ^ » 837 

" year-and-»<da7 " ^ •••...•••••..••mm. ».....••.«..•«•......«........ ...^m... 818 

See Indictment. 

TBABUE— 

his evidence in the Wilkinson case « „»%—mf«»*—f»i^:..——m •••••• ...^.^..........47, 88 

TBESPASSER— 

killing of , - 846,290 

TRIAL OF THE WILKINSONS AND MURDAUGH— 

commences. - • 7 

VARIANCE- 

doctrine of, and cases •.••...« •...•....•••..... m^..,^, 278 

instrument of death 10 note 1 

«' had and held in his right hand"....^ — .••.—- 10 note 1 

phice of wound :. - - 10 note 1 

VENUE— 

local jurisdiction in cases of homicide 838 

of the Wilkinson case changed by an Act of the Kentucky Legishiture....... 7, 259 

TI ET ARMIS— 

the phrase, " with force and arms" dispensed with by statute ......lOi n., 814, 318 

VOLUNTARY MANSLAUGHTER— 
See Manslaughter; Homicide. 

WAGGRY, GEORGE— 

his evidence in the Wilkinson caae — m..... ........ ~ «.• 84 

WALL- 

retreatingto the wall - 265etseq. 

See Retreating. 

WEAVER, W— 

his evidence in the Wilkinson case 27 



412 INDEX. 



WILKINSON TRIAL^ 
ooaiDi6ncM ..M' 



WITNESSES- 

"Golden Bulcs'*^ « ^ ^ 838 

credibiUty of witDMMSM i ^ .^....^ ^ -872 



WITTOL CUCKOLP- 

OOC jl^^qy^"— rrT'i rmTii» »m M ifi^i mmm — ti- t — it — T--tn-inii ^''^fff ■ ■ •••••••••••••••••• OSt 

WOUND— 
YEAIUAND-A-DAY— 



APACEBOh 
TVm taw or homloicto 
llinfordLaw 



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