of I testified before the Grand Jury; when Ward called for Butler a boy went for him; when Ward entered observed his right hand was in his in his pocket, or wrapped in his coat; he held his hat in his left hand; all the boys in Mr. Sturgus room rushed for the door when they saw the Wards enter; he called us back, when I asked to be excused; he granted the request, and I went out, while the other boys returned into the room; those who remained there could not see the occurrence; can give the names of some of the boys who composed the class, and remained in the room; Robert Trimble and William Fagan were two them; there were about forty pupils in the school; with the exception of those in the recitation rooms, the boys were then in the school room; when Ward asked the questions, heard Butler reply, in a low tone, "I don't feel disposed"-this was all I heard him say; all I have related about inviting him into his study, etc., has been told me since; thought Ward struck Butler; thought so, because I saw Ward bring down his left hand with a gesture, and Butler fall back; Butler then sprang forward and laid his hand on his shoulder; it was not done gently; did not see Butler strike at all; know he did not strike after he was shot; Butler had not beaten Ward down, before the pistol was fired; did not hear Ward say to Butler that he had a little matter to settle with him; only heard him say; "I wish to see you;" could not hear the replies of Butler, he spoke so low: all that I heard from him was: "I don't feel disposed;" the remark about the chestnuts, alluded to the punishment of William Ward the day before; the only thing I heard Robert Ward say to Sturgus, was: "Stand off;" immediately on the report of the pistol, Sturgus came out of the recitation room into the large hall; Butler was then on the floor; Sturgus had nothing in his hand when he came out of his recitation room; did not hear Butler invite Ward into his recitation room, now I have thought of it more fully, did not see Sturgus in his room, when Butler went in there, after he was shot; think he had run out of the window before that time; have said he was one of the worst frightened men I ever saw. To Mr. Carpenter. I said in my examination in chief that I saw the Wards coming in the hall; said that I wished to be excused and left the room, and that I saw Butler come out of the room. Mr. Marshall. I must object to this line of examination. The COURT has already ruled that only one lawyer shall cross-examine a witness. I now request a ruling limiting the extent to which gentlemen are allowed to repeat, word for word, the questions which they asked the witness on the examination in chief. Such a course gives an advantage to the side which pursues it, and gains the last lick, and will also render this case absolutely interminable. The defense will have to cross-examine again and the boy will not live long enough to finish his testimony. Mr. Carpenter. I have no desire to obtain any "last lick," have simply wished to save time, as I desire to recall the attention of this witness to a single point. It is my intention to seek no unfair advantage, but to conduct this case on high, professional and honorable principles. Mr. Marshall. I suppose the gentleman in boasting of his highly honorable and lofty method of practice (which we have not impeached-as yet), intends to cast no imputation on other gentlemen in the case, as pursuing a contrary course? Mr. Carpenter. Certainly not. Mr. Marshall. Ah! Then the self-advertisement of the gentleman's numerous virtues was quite unnecessary, and given in advance of any demand for it. I renew my request to the COURT, as proper and necessary. I am sorry to see so much excitement so early in the trial and trust it will not be repeated. The COURT. The witness may be questioned only on new matter brought out in the cross-examination, and re-examined on points in regard to which he had not been so explicit as to be clearly understood. Knight. Ward struck Butler first; Prof. Butler went into the recitation room of Sturgus, after he was shot; thought Butler made a motion as if to invite Ward into his study. William Worthington. Was in the schoolroom when William Ward entered; he went to the seat he had formerly occupied, and I then looked around; saw Matt. and Robert Ward standing in the hall, and Mr. Butler came out of his room; heard Matt. say: "Which do you think is the more to be despised, the contemptible little puppy who begs chestnuts and then about it, or my brother William, who gave him the chestnuts?" lies Butler replied: "If you will walk into my room I believe I can explain the matter satisfactorily;" Ward refused; the next thing I heard was Ward asking: "Well, if you will not answer that question, will you tell me whether you called my brother a liar?" Butler replied, "I cannot answer this, unless I am allowed to explain;" did not hear all the conversation, as Prof. Butler had often requested us not to look around when people came in, and my back was towards the door; next thing I heard was a slight stamping; turned around again, just as the pistol was fired and Butler was falling; ran out at the nearest door, and when I returned, Ward had gone, and the boys were just assisting Butler away; am eighteen years old. Cross-examined. There was no other boy of my name in school; suppose it is about ten feet from the door of Mr. Sturgus' recitation-room to the point where Prof. Butler fell; Butler spoke in a very low voice; heard his replies distinctly, however; (did not hear the expressions d- scoundrel or d liar at all) only a few of the boys in the school-room could see into Butler's recitation-room; did not see Butler after I went out; the boys scattered in every direction, after the firing; my seat was between thirty and forty feet from the parties. Mr. Marshall. Did you not hear the boys there, one and all, inform Mr. Allen that Butler struck Ward first? Mr. Carpenter. We object to this method of examination. Mr. Marshall. I do not ask the question that the answer may be admitted as proof that Butler did actually strike the first blow; but I am conducting a cross-examination, and propound it to test the memory and veracity of this witness. The testimony that he has given is of considerable magnitude. If I can show, therefore, that an important event then and there occurred, which he either does not recollect or denies here, it will show he was in such a state of mind at the time that no reliance can be placed on his account of the circumstances. The COURT. I understand the rule to be that questions may be asked in regard to any matter outside the one at issue, to test the recollection of the witness; but there is no rule of law by which illegal testimony can be introduced, or collateral issues proved in testing the credibility of a witness. Worthington. Have no recollection of seeing Mr. Allen on that day. Attend church some times; have been in the Sabbath School a few times. Mr. Marshall. Does the gentleman desire to prove that his witness is an infidel, and that his religious education has been entirely neglected? If so, we readily admit it. The COURT. Such questions seem to be unnecessary, and I trust will be omitted in the examination. Mr. Carpenter. Certainly, if they are deemed improper. And this seems to be hardly the place for the theatrical performances we have just witnessed. Mr. Marshall. There is a great variety of theatres in this world, and you have performed characters in some of them that are by no means enviable. Mr. Carpenter. So have you, sir. The COURT. I must insist that the gentlemen refrain from remarks of this character. Mr. Marshall. I desire to treat the Court with all due respect, but, sir, the gentleman has addressed a personal charge to me, and I felt bound to retort. He has accused me of assuming theatrical airs, which I must certainly repel. Why, sir, my manners are the most natural in the world, and have been too long worn to be thrown off at this late day. And when a personal and insulting remark is made commenting upon them, I need not say that it is offensive. Mr. Carpenter. I intended no insult to Capt. Marshallit was merely a side-bar remark. The COURT. Let the case proceed without further interruption. James S. Pirtle. Am thirteen years of age; was in school on second November; saw Mr. Ward come and inquire for Mr. Butler; heard him ask which was the worst, a contemptible puppy, who begged the chestnuts and told a lie, or the one who gave them to him; Butler said he would explain, if Ward desired it; he replied he wanted his question answered; and the next thing I heard, was the expression, "Whoever calls my brother a liar" then heard the pistol discharged, and saw Butler fall, when I ran out, as I went in again, saw Robert Ward come back, and pick up a pistol laying on the floor, and carry it away; the first words I heard from Ward were something about "ideas of justice;" and "chestnuts," during the conversation Ward had his hat in his left hand. Cross-examined. Could not hear what Mr. Butler said, during the conversation; saw that he had his arms extended; did not see Butler strike Ward; my back was towards them; did not tell any one that Butler struck Ward the first blow. Minor Pope. Am seventeen years of age; was in Prof. Butler's school, on the second November; Matt., Robert, and William Ward came to the school house, and while William went into the school room, Matt. inquired for Butler; went for Butler, and told him two gentlemen wished to see him; he came out, and bade Matt. good morning; he returned the salutation, and said: "I have a matter to settle with you." Butler replied, "Step into my room"; Ward said, "No, sir— answer my question; why did you call my brother William a liar?" Butler declined answering; some other words passed between them, while I continued an exercise I was writing, when I looked up again, Ward had a pistol, and discharged it; think he took it from his pantaloons pocket; noticed his right hand in his pocket when he entered; after Butler was shot, he exclaimed, "My poor wife and child." They were very close together when the pistol was fired; noticed that Butler raised his hand just as the pistol was fired; observed Ward make one or two gesticulations with his left hand, during their conversation; Butler was between Ward and myself. Could not Cross-examined. see the parties without turning; did not pay particular attention to the conversation; Ward appeared to be somewhat excited; am sure his hand was in his pantaloons pocket (when Butler raised his arms, he sprang towards Ward). Mr. Caldwell. Did not Butler strike Ward when he sprang upon him, before the pistol was fired? Pope. Am unable to state, as the change in his position prevented me from seeing; saw no blow struck between the two; the distance between the parties when the pistol was fired, was three or four feet. April 19. or John A. Campbell. Am twenty years of age; was present in the school-room; when the Wards came William entered the schoolroom and Matt. inquired for Butler; when he came, they bade each good morning; Matt. said something about a little matter to settle; heard Ward ask, "Which is the more to blame, my brother or the contemptible little puppy who begs the chestnuts of him"; did not hear Butler's reply; then heard Ward say, "If you will not answer that question, I have another for you. Did you call my brother a liar?" The only portion of Butler's answer that I heard, was,. "Well, Mr. Ward-"; Butler spoke very low; Robert Ward was standing near, and as I feared he might use some unfair weapons something of the kind, I turned around to pick up a pair of tongs and prevent it; while I was turned, heard Ward call Butler a dd liar; shortly after, heard the pistol fired; not more than six seconds passed between this expression and the firing of the pistol; the boys all ran out then; saw Robert flourishing a knife; did not observe the position of Ward's hands when he entered; he seemed excited-spoke a little above his ordinary tone; did not see Butler strike Ward; do not think he struck, but he made some motion towards Ward; Butler's back was to me; I turned around to look, just as I heard the expression d- -d liar; knew there would be a fight then; it was just after that, that Butler made a movement towards Ward; assisted in taking Butler to Col. Harney's, and remained |