was an immense excitement in Louisville after the OCcurrence, and I participated in it; heard numerous statements that it had been testified in the Police Court that Ward struck Butler first, and it was after this that I went to see Mr. Ward; knowing that Prof. Butler had made a contrary statement to me, deemed it my duty to go and inform him of the fact, that was what prompted me to do it; within half an hour after I left Prof. Butler, I told Mays and Sullivan, and at dinner Mr. and Mrs. Crenshaw, all that Butler had said to me; Mr. Ward never offered me a dollar, I never asked one dime, and I never had any hope, expectation or desire, of any fee or reward for my testimony here either from Mr. Ward or any one else under God's heaven. Mr. Carpenter disclaimed any intimation or insinuation of any thing derogatory to the character of Mr. Robert J. Ward. He had not the pleasure of his personal acquaintance, but knew him well by reputation for a high-toned and honorable gentleman. The Commonwealth, in pursuing their course of cross-examination, had by no means desired or expected to compromise him in the least; it had merely been done to show that the witness had been in the habit of making numerous unreasonable and untrue statements in regard to the whole matter, and was therefore unworthy of credence. James M. Allen. Reside in Yazoo City, Mississippi; was in Louisville in November last; on the day of the accident, in the morning, I was sitting in the of fice of a hydropathic establishment, where I was a patient; when Mr. Sturgus entered and said: "For God Almighty's sake run for a doctor, Prof. Butler has been shot, and is killed!" He ran out, and just then Matt. and William Ward passed the door of the office; Gudgel and myself, went towards the school-house; in the yard in front of it there were some ten or fifteen boys; went in and made some inquiries; one of the lads was Mr. Worthington's boythe other I had frequently seen, having often exercised in the gymnasium with them; they were pupils there; asked where Mr. Butler was; shook hands with young Worthington, and addressed the question to him; he replied that Butler was gone; asker how this happened; the boys were all collected around me and seemed anxious to communicate; several of them answered my question, and Worthington, though he did not speak, nodded his head in assent. Mr. Crittenden. What was the answer which you received? Mr. Allen objected to the question, contending that the expressions of the school-boys could not be evidence unless they were identified as the individual boys who had testified here. As the witness had understood Worthington to assent to the statements made by the other boys at the time, the COURT ruled the question to be legiti mate. Mr. Allen. Several boys spoke at once and replied that Ward came there and cursed Butler; that Butler then struck him and Ward fired; think one of the boys said Butler took hold of Ward. The COURT. I have admitted this evidence only so far as it affected the testimony of Worthington, not as evidence respecting the occurrence. Mr. Helm. Most of the boys, if not all, were present at the time. Some of them remembered those gentlemen coming up. This was part of the res gestae. In the case of Lord Gordon in England, the cries of the mob were admitted. The question of identity is for the jury. The prisoner should not be deprived of this important evidence because the witness could not identify the school boys. The COURT. The evidence is admissible only as impeaching the testimony of the boys. The boys must be proven to be present. The cries of the boys was not part of the res gestae. J. T. Gudgel. Accompanied Mr. Allen to the school-house after the unfortunate affray; Butler had gone, but there were fifteen or twenty boys about there; we inquired how the matter occurred; addressed the inquiry to the whole crowd of boys who were there; five or six answered that Ward had come to demand an apology of Butler; that Butler had refused to give an apology, and ordered him out of doors; all said that Butler had struck the first blow, and Ward had then fired; some of them said Butler had pushed Ward back and nearly thrown him down, and that as he was getting up he fired the pistol; before we reached the school-house, I met a boy whom I think to have been young Benedict; he was crying, and we asked the cause of it; he said that Ward had shot Butler; said he was present, and gave the same account of the matter I have stated; heard the boys reply to Allen's questions; was not acquainted with the Wards at the time; have only met them once or twice since the occurrence. J. J. Hershbell. On the day of the occurrence, saw Matt. Ward; had a music box to repair for him, and he sent a servant for it, who took it away before it was done; he told me if I could get it repaired by the next Monday he would send it again, but that he must have it then, as he was about to leave for Mississippi, or some other point in the South; it was between nine and ten o'clock; he was going in the direction from Gillmore's store to his own house; did not observe any thing angry, or anxious or agitated in his manner; it was that of a courteous, composed gentleman. Mrs. M. A. Beattie. Reside in Louisville; keep a millinery and fancy store; was employed in November last, in furnishing articles of clothing for Mrs. Matt. Ward, preparatory to their departure for the South; late in the afternoon of the day previous to the affray, Mr. Matt. Ward, accompanied by his wife and sister, came into my store, and made purchases; there was a cap to be made for Mrs. Ward, which they said I must have completed very soon, as they were about to leave. Lawrence Richardson. On the evening previous to this affray, overtook defendant and his lady, on the street, and he spoke of their intention to leave for his plantation in Arkansas; they were out making purchases preparatory to going. Capt. Peyton A. Key. Am the Captain of the steamer Belle Key; she descended the Ohio from Louisville on the Tuesday succeeding this affray; the day set for her departure was Monday, and defendant and his wife (who is my daughter) had previously engaged passage on her; they were going to Willoughby, his plantation in Arkansas. Robert Johnson. Made arrangements to descend the river with the defendant, in November last, on the Belle Key; think the boat was to have started on Saturday following this affair, but did not leave until Monday or Tuesday; Mr. Ward was detained, by this occurrence, from going; the arrangements to go had been made some days before the affray; saw defendant on the day of the affray, after it was over, noticed effects of an injury on his cheek, it gave the impression of a blow having been received there; defendant's health has been very feeble for many years; he was laboring under an attack of rheumatism when this affair took place; have often seen him when he was unable to walk at all without the aid of crutches. Robert J. Ward. Defendant is my son; was apprized of his intention to go to the school on second November, and the purpose for which he went. Mr. Gibson. I object to any statements made by the accused, to the witness, prior to his going to the school house, being detailed. The charge here was wilful, deliberate murder, and the statements he made before the transaction could no more be made competent evidence, than statements which he might have made afterwards. Mr. Crittenden. It is both proper and important to show for what purpose this defendant visited the school room of Prof. Butler. It was simply this we desired to elicit, and nothing more. Mr. Carpenter was aware of no rule of law or reason by which the conversation of a defendant could be introduced as testimony in his favor. His acts spoke for themselves, and only conversations which took place during the acts themselves, and thus formed a part of the res gestae, could be admitted. If the witness knew of his own knowledge, the purpose of the defendant, there could be no objection to him stating it; but not from any statements made by the defendant to him. A prisoner cannot manufacture his evidence for himself. The COURT. The Commonwealth had proved defendant to have gone to the school room. This circumstance was unex so. plained, and it was important to elicit his real motive in doing The COURT was aware of no more ready method of learning his purpose, than declarations which he made at the time of going. Whether the motives there expressed were true or feigned, was a question for the jury to decide. The rule in regard to admitting declarations could not be specifically limited, but must be left in a great degree to the discretion of the COURT. Declarations in regard to the intention of the accused, are admissible, if they are confined to the time occupied in preparing for the act. Mr. Ward. My wife and my. self returned from a trip to Cincinnati, very unexpectedly; after we reached my residence, went into my wife's room and found her and my son Matt. conversing in regard to the whipping William had received at school, on the day previous; Matt. remarked that he would go to the school-house and ask an explanation and apology from Mr. Butler; I replied that I would go myself; he said that he would go, as he had concluded to the night before, as Butler was a young man and this had been done during my absence; that he apprehended no difficulty for Mr. Butler was a gentleman, and would do what was right, by making in the presence of the school the apology a gentleman ought to make: Robert did not hear any of this conversation; my wife said that he (Matt.) was feeble as and had had one difficulty with Mr. Sturgus, he had better take some one with him; just then Robert came in and he was sent with Matt.; Matt exhibited no anger or agitation; I assented to him going; from sixteen years my son has suffered from feeble health, for two months, up to two weeks previous, he had been compelled to use crutches; he was very delicate at the time; when I entered the house after he returned, his wife and mother were in great distress, and I heard him say to the former, "Would you have me beaten like a dog?" Observed his eye and cheek were swollen, with apparent marks of a blow; knew Butler well, he was once a private teacher for twenty months in my family-was a great favorite there; defendant was absent travelling in Europe at the time, and never met Butler until they both returned from Europe. Mr. Crittenden said he wished to prove that Mr. Ward had made a special agreement with Mr. Butler that his children. should not be whipped in school; if they did not behave with propriety they should be sent home and he would correct them; that this second whipping, under the circumstances, was pecu liarly aggravating and would explain the cause of the excitement felt by the family. Mr. Helm said what they would prove was that one of the boys, on a previous occasion, had been maltreated by Sturgus, the assistant teacher, and that had led to a specific arrangement with Prof. Butler, by which the condition of the boys remaining in the school was that they should not be whipped. The whipping of the boy again, and that in such a severe and unreasonable manner, by Prof. Butler himself, constituted an aggravation which accounted for and explained the necessity of some one going to demand an explanation. The COURT. Testimony in regard to this previous whipping is incompetent and cannot be received. Our Court of Appeals has ruled that previous insults cannot be pleaded as justification for a subsequent attack. The COURT ruled out so much of the testimony of Mr. Ward as did not relate to the declarations of the defendant, or the state of his health. Mrs. Robert J. Ward. Had returned home from Cincinnati on the morning of second November, noticed my son William was not at school, and further that his countenance bore a distressed expression; asked him if he was sick, and why he was not at school; his eyes filled with tears and he said brother Matt. would tell me; Matt. then said he intended to go around to the school-house and ask an explanation of Mr. Butler of his extraordinary and outrageous conduct; he explained that Prof. Butler had whipped Willie severely, and called him a liar in the presence of the school the day before; was much surprised, and exclaimed: "William Butler whip William Ward, and call him a liar?" Matt. said Willie when he entered the school-room had some nuts in his pocket, and gave some of them to several of the boys who asked for them; that he had just given all away, when Prof. Butler gave the signal for order, and the hours for study commenced; that after a short time Prof. Butler seeing the hulls on the floor inquired what boys had eaten the nuts; that one of the boys refused to tell, when Prof. B. sent into the other room for his strap, and said he would ascertain who had eaten them, and whipped the one who would not inform him; one of the boys said that Willie gave him the chestnuts after the recitation order was given; Willie said that he did not, but the boy persisted that he had; another little boy spoke up and said that Willie gave him chestnuts, but that it was before the signal for order had been given; that Mr. Butler, before he whipped Wil |