January 20.

Mr. Coalter asked for a continuance, which was refused. The following jurors were then selected, after JUDGE STONE had ruled that the opinion formed from rumor, in order to disqualify a juror must be of such a fixed character as to enlist the feelings of the juror either for or against the prisoner and create in the language of the statute a bias or prejudice

5 COALTER, JOHN D. (1818-1864). Born South Carolina and came with his parents to Missouri when they settled in St. Charles Co. Was sent to the College of South Carolina to be educated, and on his return studied law in St. Louis and was admitted to the bar; practiced law in St. Charles and was very successful; represented his county in the Legislature several terms and was a delegate to the Washington, D. C., Convention to devise means to preserve peace, 1860; "He eschewed office and never accepted any public position that he could consistently decline. He made no pretensions to oratory, yet was a forceful, clear and lucid speaker and impressed a jury most favorably. It is questionable if he ever had an enemy, while his friends could be numbered by thousands. He obtained the title of General through services rendered in the State Militia." Bay (W. V. N.), 468.

6 BAY, WILLIAM VAN NESS. (1818-1894). Born Hudson, N. Y. Both his grandfather and father were lawyers in New York, the former a partner of Ambrose Spencer, some time Chief Justice of the State; his great-uncle, Elisha Hall Bay, was a justice of the Supreme Court of South Carolina, and was tendered by Jefferson a seat on the Supreme Bench, which he declined. His brother,

Samuel M. Bay, after studying law with Judge Swayne, of Columbus, Ohio (afterwards a justice of the United States Supreme Court), settled in Union, Missouri, in 1833, was elected to the Legislature, became Attorney General of the State and Supreme Court Reporter, and died of cholera in St. Louis in 1849. William V. N. Bay joined his brother in 1835, studied law with him and was admitted to the bar in 1837. He was a member of the State Legislature (1842-1846), and a Representative in the 31st Congress (1849-1851). He was a Democrat and made but one speech in Congress which a writer of the day describes as follows: "It treated of slavery and the admission of California to the Union. It is a powerful plea for its admission as a free State, according to her overwhelming vote. It is a severe indictment against the Whig administration and a masterful example of a Unionist pleading with the North to desist from aggressions upon the South and a clear notice that his affection for the Union of the States surpasses his ties of union with his brethren of the South." In 1854 he removed to St. Louis, was appointed by Governor Gamble to the Supreme Court, and on June 14, 1865, he, with his colleague, Judge John D. S. Dryden, was forcibly removed by the military by the

against him: Joseph Woodruff (foreman), Thomas E. Renick, David M. Tyree, Burrell Roland, Reuben Bledsoe, Dorsey Waters, George Woodcock, Moses V. Kean, Jeremiah Pierce, William T. O. Dickinson, Jeremiah H. Williams.

MR. COALTER'S OPENING SPEECH.

Mr. Coalter. Gentlemen of the jury: At the request of Mr. Gale, the proscuting attorney of this circuit, I rise, gentlemen, to address to you a few remarks. I do so at his request from my possessing an earlier knowledge of this case, it being one involving a transaction in another county, and which has been brought here by a change of venue. I hold in my hand the indictment which was found in Warren County, when it was brought to this court, and now proceed to read it to you. This indictment is founded upon a statute of your state, declaring two different grades of the crime of murder. The words used in these two sections have been defined accurately by judicial construction. The word "wilful" means that a person intended to kill. It supposes an actual condition of the mind in regard to the killing when the deed takes place; and the words "deliberate" and "premeditated" in the act require that the killing must have been thought of before the act of killing began to take place, and that in order to constitute murder in the first degree, there must be a killing with intent to kill; to do the deed at

order of Governor Fletcher under the ordinance passed by the Convention of 1864, vacating all the judicial offices in the State of Missouri. See 35 Mo. Supreme Court Reports, pp. v-viii. He died at the home of his daughter in Eureka, Mo., and is buried in the Oak Ridge Cemetery, Kirkwood, Mo. For a History of the Bay Family see Schaff's Hist. St. Louis, Vol. 2, p. 1477.

* See 2 Am. St. Rep., 207.

* Statutes of Mo., Vol. 1, pp. 558-9. "Crimes and Punishments," Art. 11, Sec. 1. "Every murder, which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree"; Sec. 2. "All other kinds of murder at common law, not herein declared to be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree."

the time the act took place; and also that previous thereto the murderer intended to commit the deed."

I desire in this opening to be very brief, and therefore shall not dwell farther upon mere definitions of law. This indictment contains two counts. The first charges the prisoner, Worrell, with being the principal, who committed the act, and that Bruff was aiding and abetting therein. The second count charges Bruff as principal, and Worrell as accessory. It makes no difference which did it, if both aided and were present. In such case the law considers them both equally guilty, as principals, and the result must be the same to each. As far as I know the facts, they will be as follows:

Basil H. Gordon was an assistant engineer on the North Missouri Railroad. He was a young man from Virginia, the son of a widowed mother, and of a noble, lofty and generous character. In pursuance of his duty, he traveled with Major Walker, the cheif engineer of the road, and Mr. Sturgeon, the president of the railroad company, to the point where its line intersects the Hannibal and St. Joseph Railroad. There they parted. Messrs. Walker and Sturgeon went away to Jefferson City. Mr. Gordon started to come back down the line of road. He did not, however, arrive home. The weather at the time was intensely cold. His friends finally became uneasy at his protracted absence. They then began to make inquiry. They found he had been seen at a certain point with two men. After that the two men were seen without him, mounted and leading a third horse. Search was then made. The neighboring county became aroused, and much excitement began to prevail. There was a general belief there had been foul play. In the main road a little dog began scratching, and under the upper covering of snow found the beneath discolored, as though by blood. Near this spot it was heard a new saddle had been found. One man, in searching, must have stepped on the body. It was found near them, covered with brush and snow, stiff and frozen. A coroner's inquest was held, when it was found he had been shot in the back of his head. The bullet lodged in the brow, having

Bower v. State, 5 Mo. 579.

passed through the brain. Gentlemen, the nature of that wound was such that he must have been summoned in an instant to eternity, without a moment's preparation. Gentlemen, every man, no matter how exalted, how pure, how good, must have time, however short, to meet his God. We all must make our peace with him. Mr. Gordon must have died in half a second. When the body was found all inquiry as to his fate of course ended. Two men having been last seen in his company, where were they? Immediate pursuit was made for them. Inquiry showed they were deserters from the army of the United States, that they had traveled in company with Mr. Gordon; that they also had stayed with him lately at a house about six miles from where the body was found. We, gentlemen, are all in the habit of trusting too much to external circumstances. Men of genteel appearance and pleasing manners sometimes win confidence they do not deserve. Perhaps Mr. Gordon trusted too much to the appearance and manners of these two men when he consented to travel in their company. At that house the prisoner, Worrell, had been seen to load a pistol. On the next morning all three had been seen together on the road. They were last seen with Gordon at a hollow in the edge of a prairie, in a place most convenient for the purpose of a crime. We expect to show that the horse they led was identified by peculiar marks. That this murder was committed on a Friday; that these two men stopped that night at St. Charles, and the next night at St. Louis. That horse, led by them, was the one Mr. Gordon had been riding, and was with them at St. Charles. They crossed the Missouri river there on the ice. They were afterwards traced to Vincennes, Ind. At that place, the prisoner, Worrell, sold Gordon's horse. There these men, whose names are Worrell and Bruff, parted. This prisoner went to Delaware; Bruff to Georgia. Bruff was arrested in Georgia; Worrell was taken at Dover, in Delaware. Worrell was found in possession of Gordon's watch and saddlebags. He not only did not deny, but actually admitted them to have been Gordon's. On his arrest there he was brought back. I will not speak of their respective statements. I will

say nothing of each trying to convict the other. It would make no difference. Both are equally guilty. But, I know from depositions on file in this case, that the main effort in defense of this man will be to show that he is not responsible for his conduct by reason of insanity. After the evidence is before you it will be a hopeless task to endeavor to argue that the defendant did not commit the act charged against him. No human eloquence would suffice to throw a doubt on that point; but the effort will be to show that, although he did the act, he is not responsible, because of insanity. I therefore call your attention to this plea, at this time, and lay down certain legal principles in regard to it. I call your attention to it at this time, because I wish you to view all the circumstances of this case, as they are detailed before you, and from them judge whether the man was insane at the time of the commission of the act. For on this the question will turn: Was he insane at the time of the act done? It is not material how eccentric or even insane he may have been at a previous time, if he was of sound mind at the time of the act done. And I wish you, in judging of this matter, to use your own common sense and knowledge of the human mind. After all the learning which may be displayed the determination of the matter must rest in your common sense and judgment. The question is about the human mind, and every man having a mind is capable of forming some judgment on the subject. It is not sufficient that a man may have had eccentric ancestors or relations, or even crazy ones, or that he may himself have been eccentric and erratic. These things are admissible in evidence only as they bear upon the question as to what was the condition of his mind at the time of an act done. You may call an eccentric man crazy, but he is not. The depositions which the defendant will produce in this case do not prove that he was ever crazy. A drunken man may be said to be crazy, yet when was drunkenness ever held to be an excuse for crime? Men sometimes make themselves voluntary demons. Is this insanity? Is this an excuse for crime? A most convenient cloak for crime would this be for any man to make himself a voluntary demon for that purpose! Mere