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him to be calm-that the physicians thought he would recover, but that every thing depended on his being kept quiet; he said, "No, Lizzie-don't deceive yourself-I am dying"; he thought, until his death, that the wound was fatal.

The Counsel for the Defense declined asking Mrs. Butler any question, remarking that they had no desire to inflict suffering upon her by calling her mind to the details of the unhappy oc

currence.

Dr. D. D. Thomson. Reside in Louisville and practise my profession there; shortly after ten, on the morning of second November, was called to Col. Harney's residence to see Prof. Butler; he was deathly pale and faint, he asked me if he was not a dead man; told him I hoped not, but could not tell until I had examined the wound; we took off his coat and tore open his shirt; the wound was on the left side, about inch and half obliquely above the left nipple; it was much burned with powder around it; attempted to probe it but failed to do so, being unable to follow the wound; I then asked him in what position he stood when he received the ball; he replied that they were clinched said Ward had come to see him, they had had a conversation in which Ward called him a d-d liar, and struck him; that he struck back and was shot, but did not see who fired the pistol; Dr. Caldwell came in, and assisted, but we succeeded in tracing the direction of the ball only a short distance, as probing was very painful; we did not pursue it further, and gave him

something to allay the pain; some fifteen or twenty minutes after, a noise proceeded from the wound. Dr. Flint said that the ball had passed into the cavity, and forced the air out through the blood, causing the noise; Butler then said he was a dead man; about four o'clock in the afternoon he seemed better, and we hoped a reaction would take place; but he soon commenced failing again, and continued to do so until he died; he seemed fully convinced all the time after I saw him, that he was dying; we deemed it useless to punish him by probing further; Prof. Butler was a man who would weigh about 135 or 140 pounds; his right hand was disabled, so that it could not be straightened after his death; there can be no doubt the wound caused his death.

When I ar

Cross-examined. rived at Col. Harney's, several boys and some ladies were in the room with Prof. Butler; saw Mr. Sturgus, after I had been there awhile; recollect seeing no other man there except him-two or three boys assisted me in stripping Prof. Butler; think Knight was one of them; think Dr. Yandell came in while I was probing the wound; Dr. Caldwell came in shortly after; at his suggestion we attempted to probe the wound while Prof. Butler's arm was held up, thinking that his hand must have been raised while he was clinched with Ward, and supposing that we could ascertain the direction of the ball more successfully, while his arm was in the same position; while Butler was speaking about the matter, Drs. Yandell and Caldwell

were both in the room, and near enough to hear him distinctly.

Mr. Wolfe. Is it customary in Louisville for young men to go armed? I do not know.

Mr. Wolfe. Are you not armed now, sir? Did you not arm yourself before you left Louisville? I shall decline to answer unless I am directed to do so by the COURT. The COURT. The witness is not compelled to answer the question unless he sees fit.

Dr. L. P. Yandell. Am a practising physician in Louisville; saw Prof. Butler shortly after he was shot, he seemed to be mortally wounded; Dr. Thomson was attempting to probe the wound, and when Dr. Caldwell came in, he attempted to assist; the probes did not seem to penetrate the chest, and we expressed hope that the wound might not be fatal; shortly after, however, I heard the blood issue from it in a manner that convinced me the ball had entered the cavity; I asked him the position he was in as he received the wound, he replied that they were clinched; that Ward called him a dd liar or scoundrel, and raised his hand; that he (Butler) then struck Ward-they clinched, and he was immediately shot; Butler did not state in my hearing, that Ward had struck him at all.

Dr. Muguet. Went to see Prof. Butler after he was shot, and remained until his death; was present at the post mortem examination; was well acquaint

ed with Prof. Butler; his right hand was always disabled; he could not open or close the fingers of it.

Patrick Joyce. Prof. Butler could not open the fingers of his right hand; first knew from observing once in the French Assembly, that when a lady asked him to point out Cavaignac or Lamartine, he indicated the place where he sat with his arm, but his fingers were pointed in quite another direction, nearly at a right angle, he misled the lady, who followed, with her eye, the direction of his fingers instead of his arm.

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a man of very fair strength in
his
he was in the habit of
arms;
exercising with his arms, in the
gymnasium; think he was strong-
er than the average of young
men, who frequented the gym-
nasium; once crossed the ocean
with him, and had an oppor-
tunity to notice that he had much
more strength than I had; have
seen him show great alacrity in
climbing ropes, hand over hand,
and other feats of dexterity on
ship-board; have also seen him
suspend himself by his hands
upon horizontal poles in the
gymnasium, and then draw up
his body.

Mrs. Frank Carter. Assisted in gloving Prof. Butler's hands after he was dead; it was impossible to open his right hand, which was much contracted; saw no gentleman there but Dr. Thomson, when I entered.

TESTIMONY FOR THE DEFENSE. Dr. W. B. Caldwell. Was called to see Prof. Butler, soon

after he was shot; Dr. Thomson and Dr. Yandell were with

him, and
some other persons
whom I do not recollect; asked
him his position at the time he
received the shot; Butler replied
he did not know which one shot
him, as they were engaged at
the time; the probe would not
penetrate, until the

arm was

raised, as a man's would naturally be, when engaged in conflict; did not hear Butler say that Ward struck him.

A number of witnesses, eleven in all, testified here to the good character and peaceable disposition of the prisoner. Among them were Rev. E. W. Sehon, an Episcopal Minister of Louisville, J. Perkins and William Preston, members of Congress from Louisiana and Kentucky, James Guthrie, Secretary of the Treasury, George D. Prentice of the Louisville Journal, Isaac H. Sturgeon, St. Louis, Mo. Some of them spoke of him as not robust and in poor health.

April 20.

Dr. J. B. Flint (called by the

State). Am a physician residing in Louisville; had known Prof. Butler some ten years; one of his hands were crippled by a burn when he was young, so that the fingers were contracted; he could not open his hand wide, nor close it so as to grasp; nor double his fist exactly like other men; was called to see him on the day he was shot, about 10 o'clock; attended the post mortem examination; the ball was extracted from the back bone where it was imbedded; while Butler lived Dr. Thomson remained with him during my absence, and I staid with him while Dr. T. was absent; did not hear Butler converse with any one I did not know, while I was in the room.

George D. Prentice. About five hours after the difficulty with Butler, saw Matt. Ward, a portion of the cheek and the eye were unusually red and appeared swollen; should not have inferred that a severe blow, but some injury, had been received.

Mr. Wolfe. Will you tell the jury whether it is the ordinary custom in Louisville to carry arms?

Mr. Carpenter objected.

Mr. Helm. We desire to prove the custom with a view to rebut and repel any presumption of malice on the part of the defendant. It is usual to carry arms, especially in large cities.

Mr. Carpenter. An illegal custom cannot be shown to justify a wrong. There are many bad customs which it is the object of the law to break up. The custom of shooting persons is too common. If it could be shown that every man in Louisville was in the habit of bearing arms, it could be no mitigation in this case. A custom could not justify a breach of law.

The COURT. The Commonwealth had shown defendant to have procured pistols on that day; the question now at issue was, whether this killing was done in self-defense, in the heat of passion, or maliciously. Any facts tending to show the motives of the accused were legitimate. If the defense could show that it was the custom in Louisville to carry arms, it might remove imputation of malice. The carrying arms for defense was not illegal. The question is proper.

Mr. Prentice. My impression is that the proportion of those citizens who bear arms habitually, is small. Nevertheless, almost every young man, if he is expecting an interview which is unpleasant and may result in collision, especially with a person of superior strength, arms himself. Have known numerous instances in which it has been done not to commit violence, but to prevent disgrace.

Maj. T. L. Alexander. Am an officer in the U. S. Army; saw defendant about half an hour after this difficulty; saw on his left cheek the appearance of a blow; have often known arms borne on the person in Louisville; do not know that it is always done, but it is usually the case when a difficulty is anticipated; have done it myself; it has universally been done for purpose of defense, not assault.

John O. Bullock. Saw defendant within an hour after the difficulty with Prof. Butler; one of his cheeks was much redder than the other; it was my belief that he had received a blow; never heard character of defendant questioned; he has uniformly been considered of a remarkably peaceable and quiet disposition, both as boy and man; his health is very feeble,

and has been delicate for years; he weighed 111 pounds.

J. M. Barlow. Reside in Louisville; am a carpenter; am a married man; was born in Kentucky, Harrison county; on second November, passed the Louisville High School, met Mr. Rauson's little boy; noticed that the boys were all out, some without their caps on, and wondered what was the cause; the little lad told me that Matt. Ward had killed Mr. Butler; asked if he was dead yet, and he replied, No; saw the boys taking Prof. Butler to Col. Harney's; followed them there, but did not go in; returned to the school-house, and while I stood there Dr. Thomson came up; asked if he was going up to attend Prof. Butler; he replied that he was, and I went with him; we entered and found him lying on a rug in the middle of the floor in front of the fireplace; the doctor commenced fumbling over him, and I suggested that it would be well to take off his coat; we did so; a young man there, whose name I did not know, assisted in taking off his coat; while we were doing so, I asked him, "Who done this?" He replied, "Matt. Ward did it"; I then asked, "What for, sir?" He said, "I had been correcting one of the boys for disobeying

the regulations of the school, and they both came to the schoolhouse; Matt. said he had come to seek for an explanation, and in the conversation, he gave me the d- -d lie; I struck him for it, and in the fuss, he threw his right hand round against my breast and fired; the pistol stuck in my coat, and I afterwards knocked it out."

When we had got the coat off, Dr. Thomson cut open his shirts with a pair of scissors; Drs. Yandell and Caldwell came in a moment after, and they attempted to probe the wound; they did not succeed, however, the probe going up towards the arm-pit; the wound was about an inch and three quarters from the left nipple; Dr. Thomson remarked that the wound was not dangerous, and I then left; called again at one o'clock, and Dr. Thomson told me he was very poorly, that they had found the ball had entered the cavity of the heart; saw Butler no more after this; Dr. Thomson was in the room while I was conversing with Butler, he had not then commenced to work on Butler, as his clothes were not taken off; Butler had on a black, half-sack coat, and a satin vest; a black silk handkerchief on his neck; he wore a dickey.

Cross-examined. Never saw Prof. Butler until that day; had known Dr. Thomson by sight for two years; am thirty-six years of age; have talked with Mr. Mays in regard to this matter, told him on that day that it was a most aggravated murder, or something to that effect; told Mr. Ward himself, that I was as much against him at first as any

one; went to see Mr. Robert J. Ward six weeks after the occurrence; have spoken to Mays and Sullivan about the matter; asked Mr. Ward if it would do any good to have a witness who would prove that Butler struck Ward first; he said that was the evidence they wanted; told him I was one who could prove it; he asked me if I would meet him at Mr. Wolfe's office the next morning; told him my business was such that it kept me the whole day; he told me I should lose nothing by going; I told him I did not wish to be understood in that way, only that I was compelled to work for my living and could not lose my time; never told Mays or Sullivan that he told me I should be ten times repaid, or amply repaid; it was between nine and ten o'clock when I passed the school-house that morning; it was twenty minutes of eleven that morning when I got back to the shop; Dr. Thomson had his case of instruments in his hand as we walked from the school-house to Col. Harney's; he sent out for some brandy, and gave Prof. Butler some; have never bet that Matt. Ward would be cleared here by this jury; never offered to bet Mr. Sullivan $25 that this would be the case; first went to see Mr. Ward of my own accord, and because I considered it a duty; have said I expected to go to California after this trial; may have told Mays and Sullivan that I had played cards in jail with Matt. Ward and Mrs. Ward for amusement.

Direct examination resumed. Never bet a five cent piece on the result of this trial; there

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