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was an immense excitement fice of a hydropathic establishin Louisville after the OC- ment, where I was a patient; currence, and I participated when Mr. Sturgus entered and in it; heard numerous state- said: “For God Almighty's ments that it had been testified sake run for a doctor, Prof, in the Police Court that Ward Butler has been shot, and is struck Butler first, and it was killed !” He ran out, and just after this that I went to see Mr. then Matt. and William Ward Ward; knowing that Prof. But- passed the door of the office; ler had made a contrary state- Gudgel and myself, went towards ment to me, deemed it my duty the school-house; in the yard in to go and inform him of the front of it there were some ten fact, that was what prompted or fifteen boys; went in and made me to do it; within half an hour some inquiries; one of the lads after I left Prof. Butler, I told was Mr. Worthington's boyMays and Sullivan, and at din the other I had frequently seen, ner Mr. and Mrs. Crenshaw, all having often exercised in the that Butler had said to me; Mr. gymnasium with them; they Ward never offered me a dollar, were pupils there; asked where I never asked one dime, and I Mr. Butler was; shook hands never had any hope, expectation with young Worthington, and or desire, of any fee or reward addressed the question to him; for my testimony here either he replied that Butler was gone; from Mr. Ward or any one else asker how this happened; the under God's heaven.
boys were all collected around Mr. Carpenter disclaimed any me and seemed anxious to comintimation or insinuation of any municate; several of them anthing derogatory to the character swered my question, and Worthof Mr. Robert J. Ward. He had ington, though he did not speak, not the pleasure of his personal nodded his head in assent. acquaintance, but knew him well Mr. Crittenden. What was by reputation for a high-toned the answer which you received ? and honorable gentleman. The Mr. Allen objected to the quesCommonwealth, in pursuing their tion, contending that the exprescourse of cross-examination, had sions of the school-boys could by no means desired or expected not be evidence unless they were to compromise him in the least; identified as the individual boys it had merely been done to show who had testified here. that the witness had been in the As the witness had understood habit of making numerous un- Worthington to assent to the reasonable and untrue statements statements made by the other in regard to the whole matter, boys at the time, the COURT and was therefore unworthy of ruled the question to be legiticredence.
mate. James M. Allen. Reside in Mr. Allen. Several boys spoke Yazoo City, Mississippi; was in at once and replied that Ward Louisville in November last; on came there and cursed Butler; the day of the accident, in the that Butler then struck him and morning, I was sitting in the of- 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 Tuesday; Mr. Ward was dewere out making purchases tained, by this occurrence, from preparatory to going.
going; the arrangements to go Capt. Peyton A. Key. Am the had been made some days before Captain of the steamer Belle the affray; saw defendant on the Key; she descended the Ohio day of the affray, after it was from Louisville on the Tuesday over, noticed effects of an injury succeeding this affray; the day set on his cheek, it gave the imfor her departure was Monday, pression of a blow having been and defendant and his wife (who received there; defendant's health is my daughter) had previously has been very feeble for many engaged passage on her; they years; he was laboring under an were going to Willoughby, his attack of rheumatism when this plantation in Arkansas.
affair took place; have often seen Robert Johnson. Made ar- him when he was unable to walk rangements to descend the river at all without the aid of crutches. with the defendant, in November Robert J. Ward. Defendant last, on the Belle Key; think the is my son; was apprized of his boat was to have started on Sat- intention to go to the school on urday following this affair, but second November, and the purdid not leave until Monday or pose 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
plained, and it was important to elicit his real motive in doing so. 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 and had had one difficulty self returned from a trip to Cin- with Mr. Sturgus, he had better cinnati, very unexpectedly; after take some one with him; just we reached my residence, went then Robert came in and he was into my wife's room and found sent with Matt.; Matt exhibited her and my son Matt. conversing no anger or agitation; I assented in regard to the whipping Wil- to him going; from sixteen years liam had received at school, on my son has suffered from feeble the day previous; Matt. re- health, for two months, up to marked that he would go to the two weeks previous, he had been school-house and ask an explana- compelled to use crutches; he tion and apology from Mr. But- was very delicate at the time; ler; I replied that I would go when I entered the house after myself; he said that he would he returned, his wife and mother go, as he had concluded to the were in great distress, and I night before, as Butler was a heard him say to the former, young man and this had been “Would you have me beaten like done during my absence; that he a dog ?” Observed his eye and apprehended no difficulty for cheek were swollen, with apparMr. Butler was a gentleman, and ent marks of a blow; knew Butwould do what was right, by ler well, he was once a private making in the presence of the teacher for twenty months in my school the apology a gentleman family—was a great favorite ought to make: Robert did there; defendant was absent not hear any of this con- travelling in Europe at the time, versation; my wife said that and never met Butler until they as he (Matt.) was feeble 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 peculiarly 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 No vember, 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 q” 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