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liam-which he did very severely —had said that he was compelled to punish him, not only for giving away chestnuts, but also for lying, and that the boy who ate the chestnuts was not whipped at all; Matt. said that he had not learned these facts of the case until late the previous afternoon; that Willie, when he related them to him, rolled up his pants, and showed him the marks of the whipping, saying: "Brother, I wish you would go around and see Mr. Butler about it, I don't care so much about the whipping, but I would rather die than that he should believe me, or the boys should call me a liar." Just before Matt. started, I told him to be calm, and remember that excitement made him sick; he replied: "I am perfectly calm, I know Mr. Butler is a just man and will do what is right; I am only going to ask a civil question and expect a civil answer"; I suggested that he had better take some one with him; he replied that there was no necessity for it-that he expected no difficulty with Mr. Butler; I then said: "You know Mr. Sturgus is your enemy and you had better take some one"; just then Robert came in and I suggested to Matt. to take him along; he rather impatiently told Robert to get his hat and come; in a few minutes they returned; when we knew what had transpired, his wife was very much excited; he asked me to beg her to be calm, and said: "Ask Anna if she would have her husband beaten like a dog; I am very feeble and had no other alternative"; then noticed that his left cheek and eye were bruised.

Col. George Hodge. Saw

Robert Ward, the younger, in Cincinnati, I think on the day previous to this occurrence; know that while in Cincinnati, he was in the habit of carrying a Bowie-knife; he was visiting my family in Newport, then, almost daily; sometimes he visited it by night; it is very common for strangers in Cincinnati to go armed, and sometimes to be a necessary precaution; the part of the city which he passed to go to Newport is the darkest and most dangerous portion of it.

Mrs. L. P. Crenshaw. J. M. Barlow, boarded with me in Louisville, last fall; on the day of Prof. Butler's death he returned home later than usual, to dinner; had heard that Butler was shot, and I asked him if he knew it, and he replied that he did; that since the occurrence he had seen Butler, who told him that Matt. Ward had come to his school-house, and used insulting language towards him, and called him a d- -d liar; that he then struck Ward, and Ward shot him; understood him to say that he heard the pistol when it was fired.

L. P. Crenshaw. On the day of this conflict Barlow told me and my wife, when he came to his dinner, that he had been to see Butler; that Butler had said to him, while they were undressing him, in answer to his questions, that Matt. Ward had come to the school-house and used insulting language, and called him a d-d liar; that he (Butler) then struck him, and then Ward shot him; it was about three hours after the occurrence that Barlow told me this.

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I went to his house, Robert came to the door; asked where Matt. was, and he replied quizzically that he had "vamosed," but Matt. hearing my voice and recognizing it, came out; told him he must submit to an arrest; he said "Certainly," and in a few minutes, as the weather was very inclement, put on his overcoat and went down to the jail with me; have known him from a boy; he has always borne a most irreproachable character.

Cross-examined. If he had attempted it he might have made his escape from the town; there was time for it. I know of no attempt on the part of defendant to escape from jail; never saw the slightest indication of such an intention, though I have watched him closely.

Capt. James W. Brannon (recalled.) Believe it is the general

custom in purchasing pistols to have them loaded where they are bought.

April 21.

John Judt. Was a scholar of Prof. Butler at the time of the difficulty; Pirtle was also a pupil at the time; he told me afterwards that Mr. Butler had struck Mr. Ward.

Cross-examined. Do not recollect when it was he told me, there were several boys present; do not recollect who; do not remember of Pirtle saying that Ward struck Butler first; my father is a preacher; it was some months after the occurrence that Pirtle told me this; was in the schoolhouse while the difficulty occurred; did not see either of the parties strike, but heard the report of the pistol.

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 prac

tice, 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 home from Cincinnati early on the morning of this occurrence; saw my brother Matt., his wife and mother, at the front door; Matt. told me to get my hat and come with him, said he was going around to ask an apology of Mr. Butler for whipping William very unjustly and severely; William was with us; on the way Matt. told me he did not wish me to interfere either by word or action; William said to Matt., "You know, brother, that Mr. Butler is a stronger man that you are, and Mr. Sturgus has a big stick there"; Matt. replied, "I apprehend no difficulty; I believe Mr. Butler to be a just man, and have always found him such"; he told me again not to interfere unless both Sturgus and Butler attacked him; met Lucy Stone on the way, in Bloomer costume, and we talked of that, among other matters; when we reached the school-house William went in for his books; and on being called for, Prof. Butler came out of his room with a lead pencil in his hand; we bade him good morning, and he bowed, in reply; Matt. then said: "I have called around, Mr. Butler, to have a litle conversation with you"; he replied: "Walk into my private room"; Matt. said: "No,

“I

the matter about which I wish to speak with you occurred here, and this is the proper place to speak it: Mr. Butler, what are your ideas of justice-which do you think the worse, the little boy who begs chestnuts and scatters the hulls on the floor, or my brother William who gives them to him?" Butler replied: will not be interrogated, sir," at the same time buttoning his coat up to his throat, and putting the pencil in his pocket; Matt. said: "I have asked a civil question, and have a right to a civil answer, which is the worse, the contemptible little puppy who begs chestnuts and then lies about it, or my brother William who gave them to him?" Butler answered: "There is no such boy here." Matt. said: "Then that matter is settled, I have another question to ask, You called my brother a liar, and I must have an apology for it." Butler answered: "I have no apology to make." Matt. asked: "Is you mind fully made up about that?" He replied: "It is, I have no apology whatever to make." Matt. then said: "Then you must hear my opinion

of you. You are a d-d

scoundrel and a coward." Butler sprang forward, pushed my brother back against the door,

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