CHAPTER XIX.

Friday, the fifth and last day of the trial, was ushered in by a

tempest of wind and rain, that drove the blinding sheets of sleet

against the court-house windows with the insistence of an icy flail;

while now and then with spasmodic bursts of fury the gale heightened,

rattled the sash, moaned hysterically, like invisible fiends tearing at

the obstacles that barred entrance. So dense was the gloom pervading

the court-room, that every gas jet was burning at ten o'clock, when Mr.

Dunbar rose and took a position close to the jury-box. The gray pallor

of his sternly set face increased his resemblance to a statue of the

Julian type, and he looked rigid as granite, as he turned his brilliant

eyes full of blue fire upon the grave, upturned countenances of the

twelve umpires:

"Gentlemen of the Jury: The sanctity of human life is the foundation on

which society rests, and its preservation is the supreme aim of all

human legislation. Rights of property, of liberty, are merely

conditional, subordinated to the superlative divine right of life.

Labor creates property, law secures liberty, but God alone gives life;

and woe to that tribunal, to those consecrated priests of divine

justice, who, sworn to lay aside passion and prejudice, and to array

themselves in the immaculate robes of a juror's impartiality, yet

profane the loftiest prerogative with which civilized society can

invest mankind, and sacrilegiously extinguish, in the name of justice,

that sacred spark which only Jehovah's fiat kindles. To the same astute

and unchanging race, whose relentless code of jurisprudence demanded

'an eye for an eye, a tooth for a tooth, a life for a life,' we owe the

instructive picture of cautious inquiry, of tender solicitude for the

inviolability of human life, that glows in immortal lustre on the pages

of the 'Mechilti' of the Talmud. In the trial of a Hebrew criminal,

there were 'Lactees,' consisting of two men, one of whom stood at the

door of the court, with a red flag in his hand, and the other sat on a

white horse at some distance on the road that led to execution. Each of

these men cried aloud continually, the name of the suspected criminal,

of the witnesses, and his crime; and vehemently called upon any person

who knew anything in his favor to come forward and testify. Have we,

supercilious braggarts of this age of progress, attained the prudential

wisdom of Sanhedrim?

"The State pays an officer to sift, probe, collect and array the

evidences of crime, with which the criminal is stoned to death; does it

likewise commission and compensate an equally painstaking, lynx-eyed

official whose sole duty is to hunt and proclaim proofs of the

innocence of the accused? The great body of the commonwealth is

committed in revengeful zeal to prosecution; upon whom devolves the

doubly sacred and imperative duty of defence? Are you not here to give

judgment in a cause based on an indictment by a secret tribunal, where

ex parte testimony was alone received, and the voice of defence could

not be heard? The law infers that the keen instinct of

self-preservation will force the accused to secure the strongest

possible legal defenders; and failing in this, the law perfunctorily

assigns counsel to present testimony in defence. Do the scales balance?

"Imagine a race for heavy stakes; the judges tap the bell; three or

four superb thoroughbreds carefully trained on that track, laboriously

groomed, waiting for the signal, spring forward; and when the first

quarter is reached, a belated fifth, handicapped with the knowledge

that he has made a desperately bad start, bounds after them. If by dint

of some superhuman grace vouchsafed, some latent strain, some most

unexpected speed, he nears, overtakes, runs neck and neck, slowly

gains, passes all four and dashes breathless and quivering under the

string, a whole length ahead, the world of spectators shouts the judges

smile, and number five wins the stakes. But was the race fair?

"Is not justice, the beloved goddess of our idolatry, sometimes so

blinded by clouds of argument, and confused by clamor that she fails

indeed to see the dip of the beam? If the accused be guilty and escape

conviction, he still lives; and while it is provided that no one can be

twice put in jeopardy of his life for the same offence, vicious

tendencies impel to renewal of crime, and Nemesis, the retriever of

justice, may yet hunt him down. If the accused be innocent as the

archangels, but suffer conviction and execution, what expiation can

justice offer for judicially slaughtering him? Are the chances even?

"All along the dim vista of the annals of criminal jurisprudence, stand

grim memorials that mark the substitution of innocent victims for

guilty criminals; and they are solemn sign-posts of warning, melancholy

as the whitening bones of perished caravans in desert sands. History

relates, and tradition embalms, a sad incident of the era of the

Council of Ten, when an innocent boy was seized, tried and executed for

the murder of a nobleman, whose real assassin confessed the crime many

years subsequent. In commemoration of the public horror manifested,

when the truth was published, Venice decreed that henceforth a crier

should proclaim in the Tribunal just before a death sentence was

pronounced, 'Ricordatevi del povero Marcolini! remember the poor

Marcolini;' beware of merely circumstantial evidence.

"To another instance I invite your attention. A devoted Scotch father

finding that his own child had contracted an unfortunate attachment to

a man of notoriously bad character, interdicted all communication, and

locked his daughter into a tenement room; the adjoining apartment (with

only a thin partition wall between) being occupied by a neighbor, who

overheard the angry altercation that ensued. He recognized the voices

of father and daughter, and the words 'barbarity,' 'cruelty, 'death,'

were repeatedly heard. The father at last left the room, locking his

child in as a prisoner. After a time, strange noises were heard by the

tenant of the adjoining chamber; suspicion was aroused, a bailiff was

summoned, the door forced open, and there lay the dying girl weltering

in blood, with the fatal knife lying near. She was asked if her father

had caused her sad condition, and she made an affirmative gesture and

expired. At that moment the father returned, and stood stupefied with

horror, which was interpreted as a consciousness of guilt; and this was

corroborated by the fact that his shirt sleeve was sprinkled with

blood. In vain he asserted his innocence, and showed that the blood

stains were the result of a bandage having become untied where he had

bled himself a few days before. The words and groans overheard, the

blood, the affirmation of the dying woman, every damning circumstance

constrained the jury to convict him of the murder. He was hung in

chains, and his body left swinging from the gibbet. The new tenant, who

subsequently rented the room, was ransacking the chamber in which the

girl died, when, in a cavity of the chimney where it had fallen

unnoticed, was found a paper written by this girl, declaring her

intention to commit suicide, and closing with the words: 'My inhuman

father is the cause of my death'; thus explaining her dying gestures.

On examination of this document by the friends and relatives of the

girl, it was recognized and identified as her handwriting; and it

established the fact that the father had died innocent of every crime,

except that of trying to save his child from a degrading marriage.

"Now, mark the prompt and satisfactory reparation decreed by justice,

and carried out by the officers of the law. The shrivelled, dishonored

body was lowered from the gibbet, given to his relatives for decent

burial, and the magistrates who sentenced him, ordered a flag waved

over his grave, as compensation for all his wrongs.

"Gentlemen of the jury, to save you from the commission of a wrong even

more cruel, I come to-day to set before you clearly the facts, elicited

from witnesses which the honorable and able counsel for the prosecution

declined to cross-examine. An able expounder of the law of evidence has

warned us that: 'The force of circumstantial evidence being exclusive

in its nature, and the mere coincidence of the hypothesis with the

circumstances, being, in the abstract, insufficient, unless they

exclude every other supposition, it is essential to inquire, with the

most scrupulous attention, what other hypothesis there may be, agreeing

wholly or partially with the facts in evidence.'

"A man of very marked appearance was seen running toward the railroad,

on the night of the twenty-sixth, evidently goaded by some unusual

necessity to leave the neighborhood of X--before the arrival of the

passenger express. It is proved that he passed the station exactly at

the time the prisoner deposed she heard the voice, and the half of the

envelope that enclosed the missing will, was found at the spot where

the same person was seen, only a few moments later. Four days

afterward, this man entered a small station in Pennsylvania, paid for a

railroad ticket, with a coin identical in value and appearance with

those stolen from the tin box, and as if foreordained to publish the

steps he was striving to efface, accidentally left behind him the

trumpet-tongued fragment of envelope, that exactly fitted into the torn

strip dropped at the bridge. The most exhaustive and diligent search

shows that stranger was seen by no one else in X--; that he came as a

thief in the night, provided with chloroform to drug his intended

victim, and having been detected in the act of burglariously

abstracting the contents of the tin box, fought with, and killed the

venerable old man, whom he had robbed.

"Under cover of storm and darkness he escaped with his plunder, to some

point north of X--where doubtless he boarded (unperceived) the freight

train, and at some convenient point slipped into a wooded country, and

made his way to Pennsylvania. Why were valuable bonds untouched?

Because they might aid in betraying him. What conceivable interest had

he in the destruction of Gen'l Darrington's will? It is in evidence,

that the lamp was burning, and the contents of that envelope could have

possessed no value for a man ignorant of the provisions of the will;

and the superscription it was impossible to misread. Suppose that this

mysterious person was fully cognizant of the family secrets of the

Darringtons? Suppose that he knew that Mrs. Brentano and her daughter

would inherit a large fortune, if Gen'l Darrington died intestate? If

he had wooed and won the heart of the daughter, and believed that her

rights had been sacrificed to promote the aggrandizement of an alien,

the adopted step-son Prince, had not such a man, the accepted lover of

the daughter, a personal interest in the provisions of a will which

disinherited Mrs. Brentano, and her child? Have you not now, motive,

means, and opportunity, and links of evidence that point to this man as

the real agent, the guilty author of the awful crime we are all leagued

in solemn, legal covenant to punish? Suppose that fully aware of the

prisoner's mission to X--, he had secretly followed her, and

supplemented her afternoon visit, by the fatal interview of the night?

Doubtless he had intended escorting her home, but when the frightful

tragedy was completed, the curse of Cain drove him, in terror, to

instant flight; and he sought safety in western wilds, leaving his

innocent and hapless betrothed to bear the penalty of his crime. The

handkerchief used to administer chloroform, bore her initials; was

doubtless a souvenir given in days gone by to that unworthy miscreant,

as a token of affection, by the trusting woman he deserted in the hour

of peril. In this solution of an awful enigma, is there an undue strain

upon credylity; is there any antagonism of facts which the torn

envelope, the pipe, the twenty-dollar gold pieces in Pennsylvania, do

not reconcile?

"A justly celebrated writer on the law of evidence has wisely said: 'In

criminal cases, the statement made by the accused is of essential

importance in some points of view. Such is the complexity of human

affairs, and so infinite the combinations of circumstances, that the

true hypothesis which is capable of explaining and reuniting all the

apparently conflicting circumstances of the case, may escape the

acutest penetration: but the prisoner, so far as he alone is concerned,

can always afford a clue to them; and though he may be unable to

support his statement by evidence, his account of the transaction is,

for this purpose, always most material and important. The effect may be

to suggest a view, which consists with the innocence of the accused,

and might otherwise have escaped observation.'

"During the preliminary examination of this prisoner in October, she

inadvertently furnished this clue, when, in explaining her absence from

the station house, she stated that suddenly awakened from sleep, 'she

heard the voice of one she knew and loved, and ran out to seek the

speaker'. Twice she has repeated the conversation she heard, and every

word is corroborated by the witness who saw and talked with the owner

of that 'beloved voice'. When asked to give the name of that man, whom

she expected to find in the street, she falters, refuses; love seals

her lips, and the fact that she will die sooner than yield that which

must bring him to summary justice, is alone sufficient to fix the guilt

upon the real culprit.

"There is a rule in criminal jurisprudence, that 'presumptive evidence

ought never to be relied on, when direct testimony is wilfully

withheld'. She shudders at sight of the handkerchief; did she not give

it to him, in some happy hour as a tender Ricordo? When the pipe which

he lost in his precipitate flight is held up to the jury, she

recognizes it instantly as her lover's property, and shivers with

horror at the danger of his detection and apprehension. Does not this

array of accusing circumstances demand as careful consideration, as the

chain held up to your scrutiny by the prosecution? In the latter, there

is an important link missing, which the theory of the defence supplies.

When the prisoner was arrested and searched, there was found in her

possession only the exact amount of money, which it is in evidence,

that she came South to obtain; and which she has solemnly affirmed was

given to her by Gen'l Darrington. We know from memoranda found in the

rifled box, that it contained only a few days previous, five hundred

dollars in gold. Three twenty-dollar gold coins were discovered on the

carpet, and one in the vault; what became of the remain ing three

hundred and twenty dollars? With the exception of one hundred dollars

found in the basket of the prisoner, she had only five copper pennies

in her purse, when so unexpectedly arrested, that it was impossible she

could have secreted anything. Three hundred and twenty dollars

disappeared in company with the will, and like the torn envelope, two

of those gold coins lifted their accusing faces in Pennsylvania, where

the fugitive from righteous retribution paid for the wings that would

transport him beyond risk of detection.

"Both theories presented for your careful analysis, are based entirely

upon circumstantial evidence; and is not the solution I offer less

repugnant to the canons of credibility, and infinitely less revolting

to every instinct of honor able manhood, than the horrible hypothesis

that a refined, cultivated, noble Christian woman, a devoted daughter,

irreproachable in antecedent life, bearing the fiery ordeal of the past

four months with a noble heroism that commands the involuntary

admiration of all who have watched her--that such a perfect type of

beautiful womanhood as the prisoner presents, could deliberately plan

and execute the vile scheme of theft and murder? Gentlemen, she is

guilty of but one sin against the peace and order of this community:

the sin of withholding the name of one for whose bloody crime she is

not responsible. Does not her invincible loyalty, her unwavering

devotion to the craven for whom she suffers, in vest her with the halo

of a martyrdom, that appeals most powerfully to the noblest impulses of

your nature, that enlists the warmest, holiest sympathies lying deep in

your manly hearts? Analyze her statement; every utterance bears the

stamp of innocence; and where she cannot explain truthfully, she

declines to make any explanation. Hers is the sin of silence, the

grievous evasion of justice by non-responsion, whereby the danger she

will not avert by confession recoils upon her innocent head. Bravely

she took on her reluctant shoulders the galling burden of parental

command, and stifling her proud repugnance, obediently came--a fair

young stranger to 'Elm Bluff.' Receiving as a loan the money she came

to beg for, she hurries away to fulfil another solemnly imposed

injunction.

"Gentlemen, is there any spot out yonder in God's Acre, where violets,

blue as the eyes that once smiled upon you, now shed their fragrance

above the sacred dust of your dead darlings; and the thought of which

melts your hearts and dims your vision? Look at this mournful, touching

witness, which comes from that holy cemetery to whisper to your souls,

that the hands of the prisoner are as pure as those of your idols,

folded under the sod. Only a little bunch of withered brown flowers,

tied with a faded blue ribbon, that a poor girl bought with her hard

earned pennies, and carried to a sick mother, to brighten a dreary

attic; only a dead nosegay, which that mother requested should be laid

as a penitential tribute on the tomb of the mother whom she had

disobeyed; and this faithful young heart made the pilgrimage, and left

the offering--and in consequence thereof, missed the train that would

have carried her safely back to her mother--and to peace. On the

morning after the preliminary examination I went to the cemetery, and

found the fatal flowers just where she had placed them, on the great

marble cross that covers the tomb of 'Helena Tracey--wife of Luke

Darringtun.'

"You husbands and fathers who trust your names, your honor, the peace

of your hearts-almost the salvation of your souls--to the women you

love: staking the dearest interest of humanity, the sanctity of that

heaven on earth--your stainless homes--upon the fidelity of womanhood,

can you doubt for one instant, that the prisoner will accept death

rather than betray the man she loves? No human plummet has sounded the

depths of a woman's devotion; no surveyor's chain will ever mark the

limits of a woman's faithful, patient endurance; and only the wings of

an archangel can transcend that pinnacle to which the sublime principle

of self-sacrifice exalts a woman's soul.

"In a quaint old city on the banks of the Pegnitz, history records an

instance of feminine self-abnegation, more enduring than monuments of

brass. The law had decreed a certain provision for the maintenance of

orphans; and two women in dire distress, seeing no possible avenue of

help, accused themselves falsely of a capital crime, and were executed;

thereby securing a support for the children they orphaned.

"As a tireless and vigilant prosecutor of the real criminal, the

Cain-branded man now wandering in some western wild, I charge the

prisoner with only one sin, suicidal silence; and I commend her to your

must tender compassion, believing that in every detail and minutiae she

has spoken the truth; and that she is as innocent of the charge in the

indictment as you or I. Remember that you have only presumptive proof

to guide you in this solemn deliberation, and in the absence of direct

proof, do not be deluded by a glittering sophistry, which will soon

attempt to persuade you, that: 'A presumption which necessarily arises

from circumstances,--is very often more convincing and more

satisfactory than any other kind of evidence; it is not within the

reach and compass of human abilities to invent a train of

circumstances, which shall be so connected together as to amount to a

proof of guilt, without affording opportunities of contradicting a

great part, if not all, of these circumstances.'

"Believe it not; circumstantial evidence has caused as much innocent

blood to flow, as the cimeter of Jenghiz Khan. The counsel for the

prosecution will tell you that every fact in this melancholy case stabs

the prisoner, and that facts cannot lie. Abstractly and logically

considered, facts certainly do not lie; but let us see whether the

inferences deduced from what we believe to be facts, do not sometimes

eclipse Ananias and Sapphira! Not long ago, the public heart thrilled

with horror at the tidings of the Ashtabula railway catastrophe, in

which a train of cars plunged through a bridge, took fire, and a number

of passengers were consumed, charred beyond recognition. Soon

afterward, a poor woman, mother of two children, commenced suit against

the railway company, alleging that her husband had perished in that

disaster. The evidence adduced was only of a circumstantial nature, as

the body which had been destroyed by flames, could not be found.

Searching in the debris at the fatal spot, she had found a bunch of

keys, that she positively recognized as belonging to her husband, and

in his possession when he died. One key fitted the clock in her house,

and a mechanic was ready to swear that he had made such a key for the

deceased. Another key fitted a chest she owned, and still another

fitted the door of her house; while strongest of all proof, she found a

piece of cloth which she identified as part of her husband's coat. A

physician who knew her husband, testified that he rode as far as

Buffalo on the same train with the deceased, on the fatal day of the

disaster; and another witness deposed that he saw the deceased take the

train at Buffalo, that went down to ruin at Ashtabula. Certainly the

chain of circumstantial evidence, from veracious facts, seemed

complete; but lo! during the investigation it was ascertained beyond

doubt, to the great joy of the wife, that the husband had never been

near Ashtabula, and was safe and well at a Pension Home in a Western

State.

"The fate of a very noble and innocent woman is now committed to your

hands, and only presumptive proof is laid before you. 'The circumstance

is always a fact; the presumption is the inference drawn from that

fact. It is hence called presumptive proof, because it proceeds merely

in opinion.' Suffer no brilliant sophistry to dazzle your judgment, no

remnant of prejudice to swerve you from the path of fidelity to your

oath. To your calm reasoning, your generous manly hearts, your

Christian consciences, I resign the desolate prisoner; and as you deal

with her, so may the God above us, the just and holy God who has

numbered the hairs of her innocent head, deal here and hereafter with

you and yours."

That magnetic influence, whereby the emotions of an audience are

swayed, as the tides that follow the moon, was in large measure the

heritage of the handsome man who held the eyes of the jurymen in an

almost unwinking gaze; and when his uplifted arm slowly fell to his

side, Judge Dent grasped it in mute congratulation, and Mr. Churchill

took his hand, and shook it warmly.

Mr. Wolverton came forward to sum up the evidence for the prosecution,

and laboriously recapitulated and dwelt upon the mass of facts which he

claimed was susceptible of but one interpretation, and must compel the

jury to convict, in accordance with the indictment.

Upon the ears of the prisoner, his words fell as a harsh, meaningless

murmur; and above the insistent mutter, rose and fell the waves of a

rich, resonant voice, that surrounded, penetrated, electrified her

brain; thrilled her whole being with a strange and inexplicable

sensation of happiness. For months she had fought against the singular

fascination that dwelt in those brilliant blue eyes, and lurked in

every line of the swart, stern face; holding at bay the magnetic

attraction which he exerted from the hour of the preliminary

examination. Of all men, she had feared him most, had shrunk from every

opportunity of contact, had execrated him as the malign

personification, the veritable incarnation of the evil destiny that had

hounded her from the day she first saw X----.

Listening to his appeal for her deliverance, each word throbbing with

the fervent beat of a heart that she knew was all her own, an exquisite

sense of rest gradually stole over her; as a long-suffering child spent

with pain, sinks, soothed at last in the enfolding arms of protective

love. That dark, eloquent face drew, held her gaze with the spell of a

loadstone, and even in the imminence of her jeopardy, she recalled the

strange resemblance he bore to the militant angel she had once seen in

a painting, where he wrestled with Satan for possession of the body of

Moses. Disgrace, peril, the gaunt spectre of death suddenly dissolved,

vanished in the glorious burst of rosy light that streamed into all the

chill chambers of her heart; and she bowed her head in her hands, to

hide the crimson that painted her cheeks.

How long Mr. Wolverton talked, she never knew; but the lull that

succeeded was broken by the tones of Judge Parkman.

"Beryl Brentano, it is my duty to remind you that this is the last

opportunity the law allows you, to speak in your own vindication. The

testimony has all been presented to those appointed to decide upon its

value. If there be any final statement that you may desire to offer in

self-defence, you must make it now."

Could the hundreds who watched and waited ever forget the sight of that

superb, erect figure, that exquisite face, proud as Hypatia's, patient

as Perpetua's; or the sound of that pathetic, unwavering voice?

Mournfully, yet steadily, she raised her great grey eyes, darkened by

the violet shadows suffering had cast, and looked at her judges.

"I am guiltless of any and all crime. I have neither robbed, nor

murdered; and I am neither principal, nor accomplice in the horrible

sin imputed to me. I know nothing of the chloroform; I never touched

the andiron; I never saw Gen'l Darrington but once. He gave me the gold

and the sapphires, and I am as innocent of his death, and of the

destruction of his will as the sinless little children who prattle at

your firesides and nestle to sleep in your arms. My life has been

disgraced and ruined by no act of mine, for I have kept my hands, my

heart, my soul, as pure and free from crime as they were when God gave

them to me. I am the helpless prey of suspicion, and the guiltless

victim of the law. O, my judges! I do not crave your mercy--that is the

despairing prayer of conscious guilt; I demand at your hands, justice."

The rushing sound as of a coming flood filled her ears, and her words

echoed vaguely from some immeasurably distant height. The gaslights

seemed whirling in a Walpurgis maze, as she sat down and once more

veiled her face in her hands.

When she recovered sufficiently to listen, Mr. Churchill had risen for

the closing speech of the prosecution.

"Gentlemen of the Jury: I were a blot upon a noble profession, a

disgrace to honorable manhood, and a monster in my own estimation, if I

could approach the fatal Finis of this melancholy trial, without

painful emotions of profound regret, that the solemn responsibility of

my official position makes me the reluctant bearer of the last stern

message uttered by retributive justice. How infinitely more enviable

the duty of the Amicus Curiae, my gallant friend and quondam colleague,

who in voluntary defence has so ingeniously, eloquently and nobly led a

forlorn hope, that he knew was already irretrievably lost? Desperate,

indeed, must he deem that cause for which he battles so valiantly, when

dire extremity goads him to lift a rebellious and unfilial voice

against the provisions of his foster-mother, Criminal Jurisprudence, in

whose service he won the brilliant distinction and crown of laurel that

excite the admiration and envy of a large family of his less fortunate

foster-brothers. I honor his heroism, applaud his chivalrous zeal, and

wish that I stood in his place; but not mine the privilege of mounting

the white horse, and waving the red flag of the 'Lactees.' Dedicated to

the mournful rites of justice, I have laid an iron hand on the

quivering lips of pity, that cried to me like the voice of one of my

own little ones; and very sorrowfully, at the command of conscience,

reason and my official duty, I obey the mandate to ring down the black

curtain on a terrible tragedy, feeling like Dante, when he confronted

the doomed--

"'And to a part I come, where no light shines.'"

So clearly and ably has my distinguished associate, Mr. Wolverton,

presented all the legal points bearing upon the nature and value of the

proof, submitted for your examination, that any attempt to buttress his

powerful argument, were an unpardonable reflection upon your

intelligence, and his skill; and I shall confine my last effort in

behalf of justice, to a brief analysis and comparison of the hypothesis

of the defence, with the verified result of the prosecution.

"Beautiful and sparkling as the frail glass of Murano, and equally as

thin, as treacherously brittle, is the theory so skilfully manufactured

in behalf of the accused; and so adroitly exhibited that the ingenious

facets catch every possible gleam, and for a moment almost dazzle the

eyes of the beholder. In attempting to cast a lance against the shield

of circumstantial evidence, his weapon rebounded, recoiled upon his

fine spun crystal and shivered it. What were the materials wherewith he

worked? Circumstances, strained, well nigh dislocated by the effort to

force them to fit into his Procrustean measure. A man was seen on the

night of the twenty-sixth, who appeared unduly anxious to quit

X--before daylight; and again the mysterious stranger was seen in a

distant town in Pennsylvania, where he showed some gold coins of a

certain denomination, and dropped on the floor one-half of an envelope,

that once contained a will. In view of these circumstances (the

prosecution calls them facts), the counsel for the defence PRESUMES

that said stranger committed the murder, stole the will; and offers

this opinion as presumptive proof that the prisoner is innocent. The

argument runs thus: this man was an accepted lover of the accused, and

therefore he must have destroyed the will that beggared his betrothed;

but it is nowhere in evidence, that any lover existed, outside of the

counsel's imagination; yet Asmodeus like he must appear when called

for, and so we are expected to infer, assume, presume that because he

stole the will he must be her lover. Does it not make your head swim to

spin round in this circle of reasoning? In assailing the validity of

circumstantial evidence, has he not cut his bridges, burned his ships

behind him?

"Gentlemen, fain would I seize this theory were it credible, and

setting thereon, as in an ark, this most unfortunate prisoner, float

her safely through the deluge of ruin, anchor her in peaceful security

upon some far-off Ararat; but it has gone to pieces in the hands of its

architect. Instead of rescuing the drowning, the wreck serves only to

beat her down. If we accept the hypothesis of a lover at all, it will

furnish the one missing link in the terrible chain that clanks around

the luckless prisoner. The disappearance of the three hundred and

twenty dollars has sorely perplexed the prosecution, and unexpectedly

the defence offers us the one circumstance we lacked; the lover was

lurking in the neighborhood, to learn the result of the visit, to

escort her home; and to him the prisoner gave the missing gold, to him

intrusted the destruction of the will. If that man came to 'Elm Bluff'

prepared to rob and murder, by whom was he incited and instigated; and

who was the accessory, and therefore particeps criminis? The prisoner's

handkerchief was the medium of chloroforming that venerable old man,

and can there be a reasonable doubt that she aided in administering it?

"The prosecution could not explain why she came from the direction of

the railroad bridge, which was far out of her way from 'Elm Bluff'; but

the defence gives the most satisfactory solution: she was there,

dividing her blood-stained spoils with the equally guilty

accomplice--her lover. The prosecution brings to the bar of retribution

only one criminal; the defence not only fastens the guilt upon this

unhappy woman, by supplying the missing links, but proves

premeditation, by the person of an accomplice. Four months have been

spent in hunting some fact that would tend to exculpate the accused,

but each circumstance dragged to light serves only to swell the dismal

chorus, 'Woe to the guilty'. To-day she sits in the ashes of

desolation, condemned by the unanimous evidence of every known fact

connecred with this awful tragedy. To oppose this black and frightful

host of proofs, what does she offer us? Simply her bare, solemnly

reiterated denial of guilt. We hold our breath, hoping against hope

that she will give some explanation, some solution, that our pitying

hearts are waiting so eagerly to hear; but dumb as the Sphinx, she

awaits her doom. You will weigh that bare denial in the scale with the

evidence, and in this momentous duty recollect the cautious admonition

that has been furnished to guide you: 'Cosceding that asseverations of

innocence are always deserving of consideration by the executive, what

is there to invest them with a conclusive efficacy, in opposition to a

chain of presumptive evidence, the force and weight of which falls

short only of mathematical demonstration?' The astute and eloquent

counsel for defence, has cited some well-known cases, to shake your

faith in the value of merely presumptive proof.

"I offer for your consideration, an instance of the fallibility of

merely bare, unsupported denial of guilt on the part of the accused. A

priest at Lauterbach was suspected, arrested and tried for the murder

of a woman, under very aggravated circumstances. He was subjected to

eighty examinations; and each time solemnly denied the crime. Even when

confronted at midnight with the skull of the victim murdered eight

years before, he vehemently protested his innocence; called on the

skull to declare him not the assassin, and appealed to the Holy Trinity

to proclaim his innocence. Finally he confessed his crime; testified

that while cutting the throat of his victim, he had exhorted her to

repentance, had given her absolution, and that having concealed the

corpse, he had said masses for her soul.

"The forlorn and hopeless condition of the prisoner at this bar,

appeals pathetically to that compassion which we are taught to believe

coexists with justice, even in the omnipotent God we worship; yet in

the face of incontrovertible facts elicited from reliable witnesses, of

coincidences which no theory of accident can explain, can we stifle

convictions, solely because she pleads 'not guilty'? Pertinent, indeed,

was the ringing cry of that ancient prosecutor: 'Most illustrious

Caesar! if denial of guilt be sufficient defence, who would ever be

convicted?' You have been assured that inferences drawn from probable

facts eclipse the stupendous falsehood of Ananias and Sapphira! Then

the same family strain inevitably crops out, in the loosely-woven web

of defensive presumptive evidence--whose pedigree we trace to the same

parentage. God forbid that I should commit the sacrilege of arrogating

His divine attribute--infallibility--for any human authority, however

exalted; or claim it for any amount of proof, presumptive or positive.

'It is because humanity even when most cautious and discriminating is

so mournfully fallible and prone to error, that in judging its own

frailty, we require the aid and reverently invoke the guidance of

Jehovah.' In your solemn deliberations bear in mind this epitome of an

opinion, entitled to more than a passing consideration: 'Perhaps strong

circumstantial evidence in cases of crime, committed for the most part

in secret, is the most satisfactory of any from whence to draw the

conclusion of guilt; for men may be seduced to perjury, by many base

motives; but it can scarcely happen that many circumstances, especially

if they be such over which the accuser could have no control, forming

altogether the links of a transaction, should all unfortunately concur

to fix the presumption of guilt on an individual, and yet such a

conclusion be erroneous.'

"Gentlemen of the jury: the prosecution believes that the overwhelming

mass of evidence laid before you proves, beyond a reasonable doubt,

that the prisoner did premeditatedly murder and rob Robert Luke

Darrington; and in the name of justice, we demand that you vindicate

the majesty of outraged law, by rendering a verdict of 'guilty'. All

the evidence in this case points the finger of doom at the prisoner, as

to the time, the place, the opportunity, the means, the conduct and the

motive. Suffer not sympathy for youthful womanhood and wonderful

beauty, to make you recreant to the obligations of your oath, to decide

this issue of life or death, strictly in accordance with the proofs

presented; and bitterly painful as is your impending duty, do not allow

the wail of pity to drown the demands of justice, or the voice of that

blood that cries to heaven for vengeance upon the murderess. May the

righteous God who rules the destinies of the universe guide you, and

enable you to perform faithfully your awful duty."

Painfully solemn was the profound silence that pervaded the court-room,

and the eyes of the multitude turned anxiously to the grave countenance

of the Judge. Mr. Dunbar had seated himself at a small table, not far

from Beryl, and resting his elbow upon it, leaned his right temple in

the palm of his hand, watching from beneath his contracted black brows

the earnest, expectant faces of the jurymen; and his keen, glowing eyes

indexed little of the fierce, wolfish pangs that gnawed ceaselessly at

his heart, as the intolerable suspense drew near its end.

Judge Parkman leaned forward.

"Gentlemen of the jury: before entering that box, as the appointed

ministers of justice, to arbitrate upon the most momentous issue that

can engage human attention--the life or death of a fellow creature--you

called your Maker to witness that you would divest your minds of every

shadow of prejudice, would calmly, carefully, dispassionately consider,

analyze and weigh the evidence submitted for your investigation; and

irrespective of consequences, render a verdict in strict accordance

with the proofs presented. You have listened to the testimony of the

witnesses, to the theory of the prosecution, to the theory of the

counsel for the defence; you have heard the statement of the accused,

her repeated denial of the crime with which she stands charged; and

finally you have heard the arguments of counsel, the summing up of all

the evidence. The peculiar character of some of the facts presented as

proof, requires on your part the keenest and most exhaustive analysis

of the inferences to be drawn from them, and you 'have need of

patience, wisdom and courage'. While it is impossible that you can

contemplate the distressing condition of the accused without emotions

of profound compassion, your duty 'is prescribed by the law, which

allows you no liberty to indulge any sentiment, inconsistent with its

strict performance'. You should begin with the legal presumption that

the prisoner is innocent, and that presumption must continue, until her

guilt is satisfactorily proved. This is the legal right of the

prisoner; contingent on no peculiar circumstances of any particular

case, but is the common right of every person accused of a crime. The

law surrounds the prisoner with a coat of mail, that only irrefragable

proofs of guilt can pierce, and the law declares her innocent, unless

the proof you have heard on her trial satisfies you, beyond a

reasonable doubt, that she is guilty. What constitutes reasonable

doubt, it becomes your duty to earnestly and carefully consider. It is

charged that the defendant, on the night of the twenty-sixth of

October, did wilfully, deliberately, and premeditatedly murder Robert

Luke Darrington, by striking him with a brass andiron. The legal

definition of murder is the unlawful killing of another, with malice

aforethought; and is divided into two degrees. Any murder committed

knowingly, intentionally and wantonly, and without just cause or

excuse, is murder in the first degree; and this is the offence charged

against the prisoner at the bar. If you believe from the evidence, that

the defendant, Beryl Brentano, did at the time and place named,

wilfully and premeditatedly kill Robert Luke Darrington, then it will

become your duty to find the defendant guilty of murder; if you do not

so believe, then it will be your duty to acquit her. A copy of the

legal definition of homicide, embracing murder in the first and second

degrees, and of manslaughter in the first and second degrees, will be

furnished for your instruction; and it is your right and privilege

after a careful examination of all the evidence, to convict of a lesser

crime than that charged in the indictment, provided all the evidence in

this case, should so convince your minds, to the exclusion of a

reasonable doubt.

"In your deliberations you will constantly bear in memory, the

following long established rules provided for the guidance of jurors:

"'I.--The burden of proof rests upon the prosecution, and does not

shift or change to the defendant in any phase or stage of the case.

"'II.--Before the jury can convict the accused, they must be satisfied

from the evidence that she is guilty of the offence charged in the

indictment, beyond a reasonable doubt. It is not sufficient that they

should believe her guilt only probable. No degree of probability

merely, will authorize a conviction; but the evidence must be of such

character and tendency as to produce a moral certainty of the

prisoner's guilt, to the exclusion of reasonable doubt.

"'III.--Each fact which is necessary in the chain of circumstances to

establish the guilt of the accused, must be distinctly proved by

competent legal evidence, and if the jury have reasonable doubt as to

any material fact, necessary to be proved in order to support the

hypothesis of the prisoner's guilt, to the exclusion of every other

reasonable hypothesis, they must find her not guilty.

"'IV.--If the jury are satisfied from the evidence, that the accused is

guilty of the offence charged, beyond reasonable doubt, and no rational

hypothesis or explanation can be framed or given (upon the whole

evidence in the cause) consistent with the innocence of the accused,

and at the same time consistent with the facts proved, they ought to

find her guilty. The jury are the exclusive judges of the evidence, of

its weight, and of the credibility of the witnesses. It is their duty

to accept and be governed by the law, as given by the Court in its

instructions.'

"The evidence in this case is not direct and positive, but presumptive;

and your attention has been called to some well known cases of persons

convicted of, and executed for capital crimes, whose entire innocence

was subsequently made apparent. These arguments and cases only prove

that, 'all human evidence, whether it be positive or presumptive in its

character, like everything else that partakes of mortality, is

fallible. The reason may be as completely convinced by

circumstantial--as by positive evidence, and yet may possibly not

arrive at the truth by either.'

"The true question, therefore, for your consideration, is not the kind

of evidence in this case, but it is, what is the result of it in your

minds? If it has failed to satisfy you of the guilt of the accused, and

your minds are not convinced, vacillate in doubt, then you must acquit

her, be the evidence what it may, positive or presumptive; but if the

result of the whole evidence satisfies you, it you are convinced that

she is guilty, then it is imperatively your duty to convict her, even

if the character of the evidence be wholly circumstantial." Such is the

law.

"In resigning this case to you, I deem it my duty to direct your

attention to one point, which I suggest that you consider. If the

accused administered chloroform, did it indicate that her original

intention was solely to rob the vault? Is the act of administering the

chloroform consistent with the theory of deliberate and premeditated

murder? In examining the facts submitted by counsel, take the

suggestion just presented, with you, and if the facts and circumstances

proved against her, can be accounted for on the theory of intended,

deliberate robbery, without necessarily involving premeditated murder,

it is your privilege to put that merciful construction upon them.

"Gentlemen of the jury, I commit this mournful and terrible case to

your decision; and solemnly adjure you to be governed in your

deliberations, by the evidence as you understand it, by the law as

furnished in these instructions, and to render such verdict, as your

reason compels, as your matured judgment demands, and your conscience

unhesitatingly approves and sanctions. May God direct and control your

decision."

At the Mercy of Tiberius · 第 19 / 35 章