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I testified before the Grand not strike after he was shot; Jury; when Ward called for But- Butler had not beaten Ward ler a boy went for him; when down, before the pistol was fired; Ward entered observed his right did not hear Ward say to Butler hand was in his pocket, or that he had a little matter to wrapped in his coat; he held his settle with him; only heard him hat in his left hand; all the boys say; "I wish to see you;'' in Mr. Sturgus room rushed for could not hear the replies of the door when they saw the Butler, he spoke so low: all that Wards enter; he called us back, I heard from him was: "I don't when I asked to be excused; he feel disposed;" the remark about granted the request, and I went the chestnuts, alluded to the out, while the other boys re- punishment of William Ward turned into the room; those who the day before; the only thing I remained there could not see the heard Robert Ward say to Sturoccurrence; can give the names gus, was: “Stand off ;” immediof some of the boys who com- ately on the report of the pisposed the class, and remained in tol, Sturgus came out of the recthe room; Robert Trimble and itation room into the large hall; William Fagan were two of Butler was then on the floor; them; there were about forty Sturgus had nothing in his hand pupils in the school; with the when he came out of his recitaexception of those in the recita- tion room; did not hear Butler tion rooms, the boys were then invite Ward into his recitation in the school room; when Ward room, now I have thought of it asked the questions, heard But- more fully, did not see Sturgus ler reply, in a low tone, “I don't in his room, when Butler went in feel disposed”—this was all I there, after he was shot; think heard him say; all I have related he had run out of the window beabout inviting him into his study, fore that time; have said he was etc., has been told me since; one of the worst frightened men thought Ward struck Butler; I ever saw. thought so, because I saw Ward To Mr. Carpenter. I said in bring down his left hand with a my examination in chief that I gesture, and Butler fall back; saw the Wards coming in the Butler then sprang forward and hall; said that I wished to be exlaid his hand on his shoulder; it cused and left the room, and that was not done gently; did not see I saw Butler come out of the Butler strike at all; know he did 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 Butler replied: "If you will first; Prof. Butler went into the walk into my room I believe I recitation room of Sturgus, after can explain the matter satisfache was shot; thought Butler torily;" Ward refused; the next made a motion as if to invite thing I heard was Ward asking: Ward into his study.
"Well, if you will not answer William Worthington. Was in that question, will you tell me the schoolroom when William whether you called my brother a Ward entered; he went to the liar?” Butler replied, "I canseat he had formerly occupied, not answer this, unless I am aland I then looked around; saw lowed to explain;" did not hear Matt. and Robert Ward stand all the conversation, as Prof. ing in the hall, and Mr. Butler Butler had often requested us not came out of his room; heard to look around when people Matt. say: "Which do you think came in, and my back was tois the more to be despised, the wards the door; next thing I contemptible little puppy who heard was a slight stamping; begs chestnuts and then lies turned around again, just as the about it, or my brother William, pistol was fired and Butler was who gave him the chestnuts ?” falling; ran out at the nearest door, and when I returned, Ward heard his replies distinctly, howhad gone, and the boys were just ever; (did not hear the expresassisting Butler away; am eigh- sions - scoundrel or dteen years old.
liar at all) only a few of the Cross-examined. There was boys in the school-room could no other boy of my name in see into Butler's recitation-room; school; suppose it is about ten did not see Butler after I went feet from the door of Mr. out; the boys scattered in every Sturgus' recitation-room to the direction, after the firing; my point where Prof. Butler fell; seat was between thirty and Butler spoke in a very low voice; 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 “ideas of justice;" and "chestyears of age; was in school on nuts," during the conversation second November; saw Mr. Ward had his hat in his left Ward come and inquire for Mr. hand. Butler; heard him ask which was Cross-examined. Could not the worst, a contemptible puppy, hear what Mr. Butler said, durwho begged the chestnuts and ing the conversation; saw that told a lie, or the one who gave he had his arms extended; did them to him; Butler said he not see Butler strike Ward; my would explain, if Ward desired back was towards them; did not it; he replied he wanted his ques- tell any one that Butler struck tion answered; and the next Ward the first blow. thing I heard, was the expres- Minor Pope. Am Seventeen sion, “Whoever calls my brother years of age; was in Prof. a liar," then heard the pistol Butler's school, on the second discharged, and saw Butler fall, November; Matt., Robert, and when I ran out, as I went in William Ward came to the again, saw Robert Ward come school house, and while William back, and pick up a pistol laying went into the school room, Matt. on the floor, and carry it away; inquired for Butler; went for the first words I heard from Butler, and told him two Ward were something about gentlemen wished to see him; he came out, and bade Matt.
April 19. good morning; he returned the
John A. Campbell. Am twenty salutation, and said: “I have a years of age; was present in the matter to settle with you."
school-room; when the Wards Butler replied, “Step into my came William entered the schoolroom"; Ward said, "No, sir- room and Matt. inquired for answer my question; why did
Butler; when he came, they bade you call my brother William a each good morning: Matt. said liar ?” Butler declined answer
something about a little matter ing; some other words passed be- to settle: heard Ward ask. tween them, while I continued an “Which is the more to blame, my exercise I was writing, when I brother or the contemptible little looked up again, Ward had a
puppy who begs the chestnuts of pistol, and discharged it; think him" did not hear Butler's rehe took it from his pantaloons
ply; then heard Ward say, "If pocket; noticed his right hand
you will not answer that quesin his pocket when he entered; tion, I have another for you. after Butler was shot, he ex
Did you call my brother a liar ?" claimed, "My poor wife and
The only portion of Butler's anchild.” They were very close to
swer that I heard, was, “Well, gether when the pistol was fired; Mr. Ward_"; Butler spoke very noticed that Butler raised his
low; Robert Ward was standing hand just as the pistol was fired;
near, and as I feared he might observed Ward make one or two use some unfair weapons or gesticulations with his left hand,
something of the kind, I turned during their conversation; But
around to pick up a pair of ler was between Ward and my- tongs and prevent it: while I was self.
turned, heard Ward call ButCross-examined. Could not ler a d d liar; shortly after, see the parties without turning; heard the pistol fired; not more did not pay particular attention than six seconds passed between to the conversation; Ward ap- this expression and the firing of peared to be somewhat excited; the pistol; the boys all ran out am sure his hand was in his then; saw Robert flourishing a pantaloons pocket (when Butler knife; did not observe the posiraised his arms, he sprang to- tion of Ward's hands when he enwards Ward).
tered; he seemed excited-spoke
a little above his ordinary tone; Mr. Caldwell. Did not Butler
did not see Butler strike Ward; strike Ward when he sprang up
do not think he struck, but he on him, before the pistol was
made some motion towards fired?
Ward; Butler's back was to me; Pope. Am unable to state, as I turned around to look, just as the change in his position pre- I heard the expression d- d vented me from seeing; saw no liar; knew there would be a fight blow struck between the two; the then; it was just after that, that distance between the parties Butler made a movement towards when the pistol was fired, was Ward; assisted in taking Butler three or four feet.
to Col. Harney's, and remained