14 Helm, George A. Caldwell,15 Nathaniel Wolfe,16 Thomas W. Riley, Charles G. Wintersmith,18 James W. Hayes, and R. B. Hayes, for the Defense. The COURT made an order prohibiting the reporters, who were furnished with seats by the Court, from publication of testimony during the progress of the case, deeming such publication prejudicial to the interests of justice, and likely to interfere with a fair and impartial trial. The Counsel on both sides who were not members of the Hardin County Bar, appeared and were duly qualified by taking the prescribed oath. At nine o'clock the prisoners were brought into the court room, accompanied by their friends. The elder-Matt. F. Ward-was in a very feeble and reduced condition, induced by a severe attack of neuralgia, from which he had been suffering for several months. He was unable to walk without the assistance of crutches. The Counsel both for the Commonwealth and the Defense expressed themselves in readiness to proceed to trial. islature 1832-1851. Member of United States Congress 1841-1843. A contemporary writer calls him "the foremost Kentuckian orator of his time and for that matter any time, since his time, including the first orators Kentucky has produced." He was popularly known as "Tom Marshall of the Silver Tongue.” 14 HELM, John L. (1802-1867.) Born Kentucky. Practised law. Member State Legislature 1826-1837. Speaker 1835. State Senator 1844-1848. Governor of Kentucky 1850, 1867. 15 CALDWELL, George A. Born in Kentucky. Representative in Congress 1843-1845 and 1845-1851. Died 1866. 16 WOLFE, Nathaniel. (1810-1865.) Born Richmond, Va. Graduated University of Virginia. Practiced law in Kentucky 18391852. Commonwealth Attorney 1852. State Senator 18531855. Member Legislature (Louisville) 1859-1863. Member Union Constitutional Convention 1861. "Achieved great pecuniary success at the bar and a high reputation as a lawyer and pleader, being regarded as one of the most able and eloquent lawyers in the United States." 17 RILEY, Thomas W. Member Louisville Bar. Mayor Louisville 1859. Representative State Legislature 1835-1849. Speaker 1849. Presidential elector 1841. Died 1872. 18 WINTERSMITH, Charles G. Member House of Representatives 1838-1847, and 1851-1855. Speaker of Kentucky House 1854. Presidential elector 1841. Mr. Helm moved that the prisoners be tried separately. The COURT granted a severance, but left to the Commonwealth Attorney the privilege of deciding which of the prisoners should first go to trial. Mr. Allen decided that Matthews F. Ward, as the principal in the case, should be tried first. The Prisoner entered a plea of Not Guilty. The empanelling of the jury was commenced. A majority of those called had formed and expressed an opinion on the case, from public rumor and newspaper reports, and were therefore incompetent to try it. When the regular panel was exhausted, therefore, only five jurors had been selected; and the Sheriff was directed to bring in bystanders until the full complement should be procured. The jury was at last declared full, after fifty-one had been excused from serving, being incapacitated by the cause alluded to above. There was but one peremptory challenge made by the counsel for the defense. The others were excluded by the COURT as disqualified or having formed an opinion. It consisted of the following gentlemen, who were duly empanelled and Greene Walker, Thomas M. Yates, James Crutcher, George Stump, Raleigh McIntire, John Young, Thomas Thurston, Isaac C. Chenoweth, Asa Buckles, William Eidson, Abraham Neighbors, Richard Pierce. The indictment was read to the jury by the Clerk. JUDGE KINCHELOE. Gentlemen: The defendant in this case has been arraigned and has entered a plea of Not Guilty, throwing himself upon God and his country for trial. You are to try him, according to your oaths, upon this indictment. If you find him Guilty, you will say so: if Not Guilty, you will thus return him to the Court. In case the killing shall be proved to have been done by the defendant, under the influence of excitement and passion, you may find him guilty of manslaughter, under this indictment, and will do so. Should it appear that the killing was done in self-defense, it was not an act of voluntary manslaughter, and you will find him Not Guilty. Mr. Wolfe asked that the Court permit no witnesses for the Commonwealth to remain in the court room during the progress of the trial except the one under examination. Mr. Allen made a similar motion in regard to the witnesses for the accused. He desired to sail under equal colors here, and from the well-known reputation of the gentlemen engaged on the other side, he had no doubt that they would concur in such a wish. Mr. Wolfe objected. He desired to have the case tried in the most fair and impartial manner; but in the course of a criminal practice of fifteen years, he had heard such a motion made only three times, and in each instance it had been promptly overruled by the Court. At the present stage of the proceedings it would be impossible to furnish a complete list of the witnesses for the defense, and some might be called, during the progress of the trial, who were not yet subpoenaed. It might be necessary that some one or more witnesses for the defense, should be present during the examination of the witnesses for the Commonwealth, that they might identify them for reasons thereafter to be assigned. The motion supposed the universal depravity of the whole human race. The COURT remarked that the question was exclusively one of practice, and left to the discretion of the Court. When such orders were made, it was done to promote the ends of justice, and founded, not on the hypothesis of the total depravity of the whole human race; but simply on the common sympathy universally existing, and to enable every witness to detail facts as they had been communicated to his own senses, and with no reference to any statements which might have been made by others. In this case the COURT deemed the order necessary, and would make it; though it was not so stringent as to exclude testimony which might be made known during the progress of the trial, but of which the counsel were not yet aware. Mr. Crittenden said that there were many witnesses pres ent who had been called simply to prove character, and were anxious to be in the room during the progress of the trail. The COURT said that the rule might be waived in regard to such witnesses. As the procuring of a full list of the witnesses would consume considerable time, the Court took a noon recess. Prior to adjournment, however, the Court instructed the jury thus: You have been empanelled and sworn, gentlemen, to try a case of peculiar importance, both to the Commonwealth and the defendant. The Court has deemed it its duty, therefore, to make such arrangements that you will not be separated during the progress of the trial. You will not, of course, converse with any one, or listen to any conversation in regard to this case, and should any person persist in addressing you upon it, you will report their names to the Court at once. Neither will you converse with any one upon any subject whatever, unless in presence of the Sheriff, or by special permission of the Court. On the opening of court in the afternoon, Mr. Allen said that he observed on the list of witnesses for the defense, the names of Mr. and Mrs. Robert J. Ward (the parents of the accused). They must necessarily feel a deep interest in the progress of the trial, and the Commonwealth had no desire that the rule in regard to the exclusion of witnesses should apply to them. All witnesses both for the Commonwealth and the defense who were to be procured were brought in and sworn collectively. WITNESSES FOR THE COMMONWEALTH. Edward W. Knight. Am sixteen years old; was a student in Prof. Butler's schoolroom on November 2, 1853; in the morning, about half-past nine o'clock, a negro came over to the schoolroom and took home all the books of Victor and William, (the two younger brothers); about ten o'clock saw Matt., Robert and William come to the building; was in Mr. Sturgus' recitation room, but went out to see what would take place; saw Matt. speak to Mr. Butler; he told him he had a little matter to settle with him; Mr. Butler said something in a low tone, which I understood to be to invite him to come into his study; Matt. said "No," and asked him which was the more to blame, the little con lie temptible puppy who begged chestnuts and then told a about it, or his brother William; Mr. Butler asked him to step into his study, but he refused again, and said if he could not answer there he did not want an answer; he then asked him why he called his brother William a liar; I then heard Matt. call Butler a d-d liar and a d-d scoundrel; Matt. appeared to be very much excited; saw that they drew nearer together, and Butler approached Ward; do not think Butler struck him but I observed a moment after that Butler had his hand on Matt's shoulder; Matt. drew his right hand from his pocket, while he and Butler were clinched, and drew out a pistol with it; he presented it immediately to Butler's left lung, and fired; Butler dropped immediately; Matt. then drew another pistol, and Robert drew a knife which he flourished about, and when Mr. Sturgus, one of the other teachers, came in, Robert said to him, "Come on," and approached him; Mr. Sturgus retired to his own room, but came out a moment after, when Robert chased him with the knife back into his room, and Sturgus made his absence out of the window; one or two of the other scholars and myself assisted Butler to walk away; when we had gone one square he wished to lay down, and could not walk; we took him into Mr. Harney's residence; Butler knocked the pistol from his breast, after it was fired, and went into Sturgus' recitation room; he came out a moment after, and motioned to the scholars that he was done for; think Matt. Ward struck Butler first; Butler then stepped forward and laid his right hand on Matt's left shoulder; did not hear Butler make any remark to Ward, except asking him to step into the office, and replying to his question, that he did not feel like answering it without giving an explanation; it was then Ward replied by calling him a liar and a scoundrel; when Butler fell, he exclaimed, "I am killed: May God forgive me! My poor wife and child!" After he fired the pistol, Ward pointed the one he drew afterwards around the schoolroom for a few minutes, and then left; he walked away very deliberately; he left the pistol he had fired on the floor; it was a small selfcocking pistol, with a walnut handle; think this is one of the same description; Butler did not seem much agitated; he replied in a low tone to the questionhe always spoke low; Ward's voice was loud; he appeared agitated after he had spoken to Butler, though not before; noticed by the working of his right hand that he was very nervous at the time; there were only three of the other pupils assisted Butler to Col. Harney's; no one else entered the house with us I think, but I was much agitated; after we were in the house noticed another gentleman there whose name I did not know before Dr. Thomson came in; we had laid Prof. Butler down, and he told us to set him up; should know the gentleman were I to see him; do not think the whole affair occupied more than ten minutes. Cross-examined. When Ward came Butler was in his recitation room with several of the boys; do not recollect who they were; |