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liam-which he did very severely Robert Ward, the younger, in -had said that he was compelled Cincinnati, I think on the day to punish him, not only for giv- previous to
this occurrence; ing away chestnuts, but also for know that while in Cincinnati, lying, and that the boy who ate he was in the habit of carrying the chestnuts was not whipped at a Bowie-knife; he was visiting all; Matt. said that he had not my family in Newport, then, allearned these facts of the case most daily; sometimes he visited until late the previous afternoon; it by night; it is very common that Willie, when he related them for strangers in Cincinnati to go to him, rolled up his pants, and armed, and sometimes to be a showed him the marks of the necessary precaution; the part whipping, saying: "Brother, I of the city which he passed to wish you would go around and go to Newport is the darkest and see Mr. Butler about it, I don't most dangerous portion of it. care so much about the whip- Mrs. L. P. Crenshaw. J. M. ping, but I would rather die than Barlow, boarded with me in that he should believe me, or the Louisville, last fall; on the day boys should call me a liar.” Just of Prof. Butler's death he rebefore Matt. started, I told him turned home later than usual, to to be calm, and remember that dinner; had heard that Butler excitement made him sick; he re- was shot, and I asked him if he plied: "I am perfectly calm, I knew it, and he replied that he know Mr. Butler is a just man did; that since the occurrence he and will do what is right; I am had seen Butler, who told him only going to ask a civil question that Matt. Ward had come to his and expect a civil answer"; I school-house, and used insulting suggested that he had better take language towards him, and called some one with him; he replied him a d- d liar; that he then that there was no necessity for struck Ward, and Ward shot it—that he expected no difficulty him; understood him to say that with Mr. Butler; I then said: he heard the pistol when it was “You know Mr. Sturgus is your fired. enemy and you had better take L. P. Crenshaw. On the day some one"; just then Robert of this conflict Barlow told me came in and I suggested to Matt. and my wife, when he came to to take him along; he rather im- his dinner, that he had been to patiently told Robert to get his see Butler; that Butler had said hat and come; in a few minutes to him, while they were undressthey returned; when we knew ing him, in answer to his queswhat had transpired, his wife tions, that Matt. Ward had come was very much excited; he asked to the school-house and used inme to beg her to be calm, and sulting language, and called him said: "Ask Anna if she would a d-d liar; that he (Butler) have her husband beaten like a then struck him, and then Ward dog; I am very feeble and shot him; it was about three had no other alternative"; then hours after the occurrence that noticed that his left cheek and Barlow told me this. eye were bruised.
Lawrence B. White. Am Col, George Hodge. Saw marshal of Louisville, and when I went to his house, Robert came custom in purchasing pistols to to the door; asked where Matt. have them loaded where they are was, and he replied quizzically bought. that he had “vamosed," but Matt. hearing my voice and recogniz
April 21. ing it, came out; told him he John Judt. Was a scholar of must submit to an arrest; he Prof. Butler at the time of the said “Certainly,” and in a few difficulty; Pirtle was also a pupil minutes, as the weather was very at the time; he told me afterinclement, put on his overcoat wards that Mr. Butler had struck and went down to the jail with Mr. Ward. me; have known him from a
Cross-examined. Do not recolboy; he has always borne a most
lect when it was he told me, there irreproachable character.
were several boys present; do Cross-examined. If he had at- not recollect who; do not rememtempted it he might have made ber of Pirtle saying that Ward his escape from the town; there struck Butler first; my father is was time for it. I know of no a preacher; it was some months attempt on the part of defendant after the occurrence that Pirtle to escape from jail; never saw told me this; was in the schoolthe slightest indication of such house while the difficulty OCan intention, though I have curred; did not see either of the watched him closely.
parties strike, but heard the reCapt. James W. Brannon (re- port of the pistol. called.) Believe it is the general Robert Adams.
Mr. Wolfe. Do you know of instances previous to this in which defendant had purchased pistols and had them loaded !
Mr. Allen objected.
Mr. Wolfe. The prosecution had endeavored to leave the impression on the jury that defendant having the pistols loaded before he left the place where he purchased them was remarkable, and inferred an intention to commit violence. We now desire to prove that this was a general custom, and that defendant, on former occasions, had purchased pistols there, and had them loaded, not for any specific purpose, but, as he lived in Louisville and the South, to defend himself in case of an unexpected emergency.
The Court. I have no doubt of the legitimacy of any testimony going to elicit the motives that influenced the mind of the accused; but the introduction of this testimony would open an entirely foreign issue, as the motives that influenced the mind of a man on one occasion, might not at another. The general custom might be proved, but this testimony could not be admitted.
Mr. Allen. The gentlemen have been arguing the case, and I hope the Court will instruct them to omit their pleas till the proper time. I notice that when the defense wishes to get a statement before the jury, they made it in argument to the COURT on some question of law.
Mr. Helm. Such young men as myself and Mr. Crittenden stand in need of instruction.
Mr. Allen. We feel that we are mere swivels arrayed against twenty-four pounders, and we wish their range properly limited.
Mr. Helm. Some of your swivels will hardly pay the cost of transportation here.
Mr. Carpenter. The presence of these swivels seems to trouble you much.
The COURT. Gentlemen, order. There is enough to do without spending time in these remarks.
Mr. Helm. I know it. But when the gentleman talks of cannon and swivels, we have a right to retort.
Mr. Marshall. This seems like being shot.
Mr. Crittenden. I prove by Mrs. R. J. Ward a single fact as explanatory of the necessity of this defendant arming himself; this fact is, that some months prior to the occurrence of the fact we are now investigating, Mr. Sturgus, the assistant teacher of Prof. Butler, had become so much embittered against this defendant, that he had left with her a threatening message against him, and desired her to deliver it. The Court would not feel inclined to censure the accused for desiring to have every fact made known in any way connected with, or having any bearing upon, a matter in which his liberty, his life and his honor, were so deeply concerned.
The Court held, that though the fact might have an indirect bearing on the case, it was so remote that it would be incompetent testimony. Robert J. Ward, Jr., called. Mr. Gibson. I object to Mr. Ward being called as a wit
ness, as he is jointly indicted as a principal, with the defendant.
Mr. Crittenden. The defense are no strangers to the cases cited by Mr. Gibson. But it was admitted in them all that if the indictments were separate, persons indicted for the same crime could be witnesses for each other. But this made no difference in principle—the fact that their names were on the same instead of different pieces of paper. But these were higher and older authorities than those the gentlemen had cited and which placed the question beyond doubt.
Some crimes require more than one to commit, as a riot. In such cases, there was a community of guilt, and whether the criminals were indicted separately or jointly, they could not be witnesses for each other. But where the crime could be committed by one, this reason for excluding another impleaded for the same crime, did not exist. Mr. Crittenden commented severely on the opinion of Lord Ellenborough, that the jury would be imposed on by an accomplice, and vindicated the ability of the jury to discriminate between truth and error.
Mr. Wintersmith cited Russell on Crimes, in support of the point-that a witness could not be excluded because he stood in the same relation as the criminal.
Mr. Gibson. This is the first time that a motion is deliberately made to throw aside all the books, all authorities, all precedents, and trust to the mere personal opinion of the Judge. As the gentleman has sneered at English authorities, and referred to Kentucky authorities, I will give him a Kentucky authority, one not spoiled by being put in a book. I referred to the case of the two Kelleys, tried in Hart County, where the Judge refused such a motion. There was also another objection to this admission. R. J. Ward, Jr., was indicted as an accessory, and his testimony might acquit the principal, and of course acquit himself.
The COURT. The majority of Kentucky decisions is in favor of the admission of the witness. The weight of English authorities is against it, but they had been much modified by practice, without legislative authorities, and were originally founded on technicalities. The object of a trial was to ascertain the guilt or innocence of the prisoner, and all evidence not directly inadmissible ought to be admitted. The practice was different in different states, but Kentucky decisions were in favor of the admission. The credibility of the witness must be left to the jury. He is competent as far as his admission is concerned.
Robert J. Ward, Jr.. I arrived the matter about which I wish home from Cincinnati early on to speak with you occurred here, the morning of this occurrence;
and this is the proper place to saw my brother Matt., his wife speak it: Mr. Butler, what are and mother, at the front door; your ideas of justice-which do Matt. told me to get my hat and you think the worse, the little come with him, said he was go- boy who begs chestnuts and scating around to ask an apology of ters the hulls on the floor, or my Mr. Butler for whipping Wil- brother William who gives them liam very unjustly and severely; to him ?” Butler replied: “I William was with us; on the way will not be interrogated, sir,” at Matt. told me he did not wish the same time buttoning his coat me to interfere either by word up to his throat, and putting the or action; William said to Matt., pencil in his pocket; Matt. said: “You know, brother, that Mr. I have asked a civil question, Butler is a stronger man that and have a right to a civil anyou are, and Mr. Sturgus has a swer, which is the worse, the big stick there"; Matt. replied, contemptible little puppy who "I apprehend no difficulty; Í begs chestnuts and then lies believe Mr. Butler to be a just about it, or my brother William man, and have always found him who gave them to him ?” Butler such"; he told me again not to answered: “There is no such interfere unless both Sturgus and boy here.” Matt. said: “Then Butler attacked him; met Lucy that matter is settled, I have Stone on the way, in Bloomer another question to ask, You costume, and we talked of that called my brother a liar, and I among other matters; when we must have an apology for it." reached the school-house William Butler answered:
“I have no went in for his books; and on apology to make.” Matt. asked: being called for, Prof. Butler“Is you mind fully made up came out of his room with a lead about that?" He replied: "It pencil in his hand; we bade him is, I have no apology whatever good morning, and he bowed, in to make.” Matt. then said: reply; Matt. then said: "I have “Then you must hear my opinion called around, Mr. Butler, to
d-d have a litle conversation with scoundrel and a coward.” Butler yon”; he replied: “Walk into my sprang forward, pushed my private room"; Matt. said: "No, brother back against the door,