The circ.u.mstance, that the house-keeper was away at the time the murder was committed, as it was agreed she would be, is that, too, a useless piece of the same stuff?

The facts, that the key of the chamber door was taken out and secreted; that the window was unbarred and unbolted; are these to be so slightly and so easily disposed of?

It is necessary, Gentlemen, to settle now, at the commencement, the great question of a conspiracy. If there was none, or the defendant was not a party, then there is no evidence here to convict him. If there was a conspiracy, and he is proved to have been a party, then these two facts have a strong bearing on others, and all the great points of inquiry. The defendant's counsel take no distinct ground, as I have already said, on this point, either to admit or to deny. They choose to confine themselves to a hypothetical mode of speech. They say, supposing there was a conspiracy, _non sequitur_ that the prisoner is guilty as princ.i.p.al. Be it so. But still, if there was a conspiracy, and if he was a conspirator, and helped to plan the murder, this may shed much light on the evidence which goes to charge him with the execution of that plan.

We mean to make out the conspiracy; and that the defendant was a party to it; and then to draw all just inferences from these facts.

Let me ask your attention, then, in the first place, to those appearances, on the morning after the murder, which have a tendency to show that it was done in pursuance of a preconcerted plan of operation.

What are they? A man was found murdered in his bed. No stranger had done the deed, no one unacquainted with the house had done it. It was apparent that somebody within had opened, and that somebody without had entered. There had obviously and certainly been concert and co-operation. The inmates of the house were not alarmed when the murder was perpetrated. The a.s.sa.s.sin had entered without any riot or any violence. He had found the way prepared before him. The house had been previously opened. The window was unbarred from within, and its fastening unscrewed. There was a lock on the door of the chamber in which Mr. White slept, but the key was gone. It had been taken away and secreted. The footsteps of the murderer were visible, out-doors, tending toward the window. The plank by which he entered the window still remained. The road he pursued had been thus prepared for him. The victim was slain, and the murderer had escaped. Every thing indicated that somebody within had co-operated with somebody without. Every thing proclaimed that some of the inmates, or somebody having access to the house, had had a hand in the murder. On the face of the circ.u.mstances, it was apparent, therefore, that this was a premeditated, concerted murder; that there had been a conspiracy to commit it. Who, then, were the conspirators? If not now found out, we are still groping in the dark, and the whole tragedy is still a mystery.

If the Knapps and the Crowninshields were not the conspirators in this murder, then there is a whole set of conspirators not yet discovered.

Because, independent of the testimony of Palmer and Leighton, independent of all disputed evidence, we know, from uncontroverted facts, that this murder was, and must have been, the result of concert and co-operation between two or more. We know it was not done without plan and deliberation; we see, that whoever entered the house, to strike the blow, was favored and aided by some one who had been previously in the house, without suspicion, and who had prepared the way. This is concert, this is co-operation, this is conspiracy. If the Knapps and the Crowninshields, then, were not the conspirators, who were? Joseph Knapp had a motive to desire the death of Mr. White, and that motive has been shown.

He was connected by marriage with the family of Mr. White. His wife was the daughter of Mrs. Beckford, who was the only child of a sister of the deceased. The deceased was more than eighty years old, and had no children. His only heirs were nephews and nieces. He was supposed to be possessed of a very large fortune, which would have descended, by law, to his several nephews and nieces in equal shares; or, if there was a will, then according to the will. But as he had but two branches of heirs, the children of his brother, Henry White, and of Mrs. Beckford, each of these branches, according to the common idea, would have shared one half of his property.

This popular idea is not legally correct. But it is common, and very probably was entertained by the parties. According to this idea, Mrs.

Beckford, on Mr. White's death without a will, would have been ent.i.tled to one half of his ample fortune; and Joseph Knapp had married one of her three children. There was a will, and this will gave the bulk of the property to others; and we learn from Palmer that one part of the design was to destroy the will before the murder was committed. There had been a previous will, and that previous will was known or believed to have been more favorable than the other to the Beckford family. So that, by destroying the last will, and destroying the life of the testator at the same time, either the first and more favorable will would be set up, or the deceased would have no will, which would be, as was supposed, still more favorable. But the conspirators not having succeeded in obtaining and destroying the last will, though they accomplished the murder, that will being found in existence and safe, and that will bequeathing the ma.s.s of the property to others, it seemed at the time impossible for Joseph Knapp, as for any one else, indeed, but the princ.i.p.al devisee, to have any motive which should lead to the murder. The key which unlocks the whole mystery is the knowledge of the intention of the conspirators to steal the will. This is derived from Palmer, and it explains all. It solves the whole marvel. It shows the motive which actuated those, against whom there is much evidence, but who, without the knowledge of this intention, were not seen to have had a motive. This intention is proved, as I have said, by Palmer; and it is so congruous with all the rest of the case, it agrees so well with all facts and circ.u.mstances, that no man could well withhold his belief, though the facts were stated by a still less credible witness. If one desirous of opening a lock turns over and tries a bunch of keys till he finds one that will open it, he naturally supposes he has found _the_ key of _that_ lock. So, in explaining circ.u.mstances of evidence which are apparently irreconcilable or unaccountable, if a fact be suggested which at once accounts for all, and reconciles all, by whomsoever it may be stated, it is still difficult not to believe that such fact is the true fact belonging to the case. In this respect, Palmer's testimony is singularly confirmed.

If it were false, his ingenuity could not furnish us such clear exposition of strange appearing circ.u.mstances. Some truth not before known can alone do that.

When we look back, then, to the state of things immediately on the discovery of the murder, we see that suspicion would naturally turn at once, not to the heirs at law, but to those princ.i.p.ally benefited by the will. They, and they alone, would be supposed or seem to have a direct object for wishing Mr. White's life to be terminated. And, strange as it may seem, we find counsel now insisting, that, if no apology, it is yet mitigation of the atrocity of the Knapps' conduct in attempting to charge this foul murder on Mr. White, the nephew and princ.i.p.al devisee, that public suspicion was already so directed! As if a.s.sa.s.sination of character were excusable in proportion as circ.u.mstances may render it easy. Their endeavors, when they knew they were suspected themselves, to fix the charge on others, by foul means and by falsehood, are fair and strong proof of their own guilt. But more of that hereafter.

The counsel say that they might safely admit that Richard Crowninshield, Jr. was the perpetrator of this murder.

But how could they safely admit that? If that were admitted, every thing else would follow. For why should Richard Crowninshield, Jr. kill Mr.

White? He was not his heir, nor his devisee; nor was he his enemy. What could be his motive? If Richard Crowninshield, Jr. killed Mr. White, he did it at some one's procurement who himself had a motive. And who, having any motive, is shown to have had any intercourse with Richard Crowninshield, Jr., but Joseph Knapp, and this princ.i.p.ally through the agency of the prisoner at the bar? It is the infirmity, the distressing difficulty of the prisoner's case, that his counsel cannot and dare not admit what they yet cannot disprove, and what all must believe. He who believes, on this evidence, that Richard Crowninshield, Jr. was the immediate murderer, cannot doubt that both the Knapps were conspirators in that murder. The counsel, therefore, are wrong, I think, in saying they might safely admit this. The admission of so important and so connected a fact would render it impossible to contend further against the proof of the entire conspiracy, as we state it.

What, then, was this conspiracy? J.J. Knapp, Jr., desirous of destroying the will, and of taking the life of the deceased, hired a ruffian, who, with the aid of other ruffians, was to enter the house, and murder him in his bed.

As far back as January this conspiracy began. Endicott testifies to a conversation with J.J. Knapp at that time, in which Knapp told him that Captain White had made a will, and given the princ.i.p.al part of his property to Stephen White. When asked how he knew, he said, "Black and white don't lie." When asked if the will was not locked up, he said, "There is such a thing as two keys to the same lock." And speaking of the then late illness of Captain White, he said, that Stephen White would not have been sent for if _he_ had been there.

Hence it appears, that as early as January Knapp had a knowledge of the will, and that he had access to it by means of false keys. This knowledge of the will, and an intent to destroy it, appear also from Palmer's testimony, a fact disclosed to him by the other conspirators.

He says that he was informed of this by the Crowninshields on the 2d of April. But then it is said, that Palmer is not to be credited; that by his own confession he is a felon; that he has been in the State prison in Maine; and, above all, that he was intimately a.s.sociated with these conspirators themselves. Let us admit these facts. Let us admit him to be as bad as they would represent him to be; still, in law, he is a competent witness. How else are the secret designs of the wicked to be proved, but by their wicked companions, to whom they have disclosed them? The government does not select its witnesses. The conspirators themselves have chosen Palmer. He was the confidant of the prisoners.

The fact, however, does not depend on his testimony alone. It is corroborated by other proof; and, taken in connection with the other circ.u.mstances, it has strong probability. In regard to the testimony of Palmer, generally, it may be said that it is less contradicted, in all parts of it, either by himself or others, than that of any other material witness, and that every thing he has told is corroborated by other evidence, so far as it is susceptible of confirmation. An attempt has been made to impair his testimony, as to his being at the Half-way House on the night of the murder; you have seen with what success. Mr.

Babb is called to contradict him. You have seen how little he knows, and even that not certainly; for he himself is proved to have been in an error by supposing Palmer to have been at the Half-way House on the evening of the 9th of April. At that time he is proved to have been at Dustin's, in Danvers. If, then, Palmer, bad as he is, has disclosed the secrets of the conspiracy, and has told the truth, there is no reason why it should not be believed. Truth is truth, come whence it may.

The facts show that this murder had been long in agitation; that it was not a new proposition on the 2d of April; that it had been contemplated for five or six weeks. Richard Crowninshield was at Wenham in the latter part of March, as testified by Starrett. Frank Knapp was at Danvers in the latter part of February, as testified by Allen. Richard Crowninshield inquired whether Captain Knapp was about home, when at Wenham. The probability is, that they would open the case to Palmer as a new project. There are other circ.u.mstances that show it to have been some weeks in agitation. Palmer's testimony as to the transaction on the 2d of April is corroborated by Allen, and by Osborn's books. He says that Frank Knapp came there in the afternoon, and again in the evening.

So the book shows. He says that Captain White had gone out to his farm on that day. So others prove. How could this fact, or these facts, have been known to Palmer, unless Frank Knapp had brought the knowledge? And was it not the special object of this visit to give information of this fact, that they might meet him and execute their purpose on his return from his farm? The letter of Palmer, written at Belfast, bears intrinsic marks of genuineness. It was mailed at Belfast, May 13th. It states facts that he could not have known, unless his testimony be true. This letter was not an after-thought; it is a genuine narrative. In fact, it says, "I know the business your brother Frank was transacting on the 2d of April." How could he have possibly known this, unless he had been there? The "one thousand dollars that was to be paid,"--where could he have obtained this knowledge? The testimony of Endicott, of Palmer, and these facts, are to be taken together; and they most clearly show that the death of Captain White was caused by somebody interested in putting an end to his life.

As to the testimony of Leighton, as far as manner of testifying goes, he is a bad witness; but it does not follow from this that he is not to be believed. There are some strange things about him. It is strange, that he should make up a story against Captain Knapp, the person with whom he lived; that he never voluntarily told any thing: all that he has said was screwed out of him. But the story could not have been invented by him; his character for truth is unimpeached; and he intimated to another witness, soon after the murder happened, that he knew something he should not tell. There is not the least contradiction in his testimony, though he gives a poor account of withholding it. He says that he was extremely _bothered_ by those who questioned him. In the main story that he relates, he is entirely consistent with himself. Some things are for him, and some against him. Examine the intrinsic probability of what he says. See if some allowance is not to be made for him, on account of his ignorance of things of this kind. It is said to be extraordinary, that he should have heard just so much of the conversation, and no more; that he should have heard just what was necessary to be proved, and nothing else. Admit that this is extraordinary; still, this does not prove it untrue. It is extraordinary that you twelve gentlemen should be called upon, out of all the men in the county, to decide this case; no one could have foretold this three weeks since. It is extraordinary that the first clew to this conspiracy should have been derived from information given by the father of the prisoner at the bar. And in every case that comes to trial there are many things extraordinary. The murder itself is a most extraordinary one; but still we do not doubt its reality.

It is argued, that this conversation between Joseph and Frank could not have been as Leighton has testified, because they had been together for several hours before; this subject must have been uppermost in their minds, whereas this appears to have been the commencement of their conversation upon it. Now this depends altogether upon the tone and manner of the expression; upon the particular word in the sentence which was emphatically spoken. If he had said, "When did you _see_ d.i.c.k, Frank?" this would not seem to be the beginning of the conversation.

With what emphasis it was uttered, it is not possible to learn; and therefore nothing can be made of this argument. If this boy's testimony stood alone, it should be received with caution. And the same may be said of the testimony of Palmer. But they do not stand alone. They furnish a clew to numerous other circ.u.mstances, which, when known, mutually confirm what would have been received with caution without such corroboration. How could Leighton have made up this conversation? "When did you see d.i.c.k?" "I saw him this morning." "When is he going to kill the old man?" "I don't know." "Tell him, if he don't do it soon, I won't pay him." Here is a vast amount in few words. Had he wit enough to invent this? There is nothing so powerful as truth; and often nothing so strange. It is not ever suggested that the story was made for him. There is nothing so extraordinary in the whole matter, as it would have been for this ignorant country boy to invent this story.

The acts of the parties themselves furnish strong presumption of their guilt. What was done on the receipt of the letter from Maine? This letter was signed by Charles Grant, Jr., a person not known to either of the Knapps, nor was it known to them that any other person beside the Crowninshields knew of the conspiracy. This letter, by the accidental omission of the word Jr., fell into the hands of the father, when intended for the son. The father carried it to Wenham, where both the sons were. They both read it. Fix your eye steadily on this part of the _circ.u.mstantial stuff_ which is in the case, and see what can be made of it. This was shown to the two brothers on Sat.u.r.day, the 15th of May.

Neither of them knew Palmer. And if they had known him, they could not have known him to have been the writer of this letter. It was mysterious to them how any one at Belfast could have had knowledge of this affair.

Their conscious guilt prevented due circ.u.mspection. They did not see the bearing of its publication. They advised their father to carry it to the Committee of Vigilance, and it was so carried. On the Sunday following, Joseph began to think there might be something in it. Perhaps, in the mean time, he had seen one of the Crowninshields. He was apprehensive that they might be suspected; he was anxious to turn attention from their family. What course did he adopt to effect this? He addressed one letter, with a false name, to Mr. White, and another to the Committee; and to complete the climax of his folly, he signed the letter addressed to the Committee, "Grant," the same name as that which was signed to the letter received from Belfast. It was in the knowledge of the Committee, that no person but the Knapps had seen this letter from Belfast; and that no other person knew its signature. It therefore must have been irresistibly plain to them that one of the Knapps was the writer of the letter received by the Committee, charging the murder on Mr. White. Add to this the fact of its having been dated at Lynn, and mailed at Salem four days after it was dated, and who could doubt respecting it? Have you ever read or known of folly equal to this? Can you conceive of crime more odious and abominable? Merely to explain the apparent mysteries of the letter from Palmer, they excite the basest suspicions against a man, whom, if they were innocent, they had no reason to believe guilty; and whom, if they were guilty, they most certainly knew to be innocent.

Could they have adopted a more direct method of exposing their own infamy? The letter to the Committee has intrinsic marks of a knowledge of this transaction. It tells the _time_ and the _manner_ in which the murder was committed. Every line speaks the writer's condemnation. In attempting to divert attention from his family, and to charge the guilt upon another, he indelibly fixes it upon himself.

Joseph Knapp requested Allen to put these letters into the post-office, because, said he, "I wish to nip this silly affair in the bud." If this were not the order of an overruling Providence, I should say that it was the silliest piece of folly that was ever practised. Mark the destiny of crime. It is ever obliged to resort to such subterfuges; it trembles in the broad light; it betrays itself in seeking concealment. He alone walks safely who walks uprightly. Who for a moment can read these letters and doubt of Joseph Knapp's guilt? The const.i.tution of nature is made to inform against him. There is no corner dark enough to conceal him. There is no turnpike-road broad enough or smooth enough for a man so guilty to walk in without stumbling. Every step proclaims his secret to every pa.s.senger. His own acts come out to fix his guilt. In attempting to charge another with his own crime, he writes his own confession. To do away the effect of Palmer's letter, signed Grant, he writes a letter himself and affixes to it the name of Grant. He writes in a disguised hand; but could it happen that the same Grant should be in Salem that was at Belfast? This has brought the whole thing out.

Evidently he did it, because he has adopted the same style. Evidently he did it, because he speaks of the price of blood, and of other circ.u.mstances connected with the murder, that no one but a conspirator could have known.

Palmer says he made a visit to the Crowninshields, on the 9th of April.

George then asked him whether he had heard of the murder. Richard inquired whether he had heard the music at Salem. They said that they were suspected, that a committee had been appointed to search houses; and that they had melted up the dagger, the day after the murder, because it would be a suspicious circ.u.mstance to have it found in their possession. Now this committee was not appointed, in fact, until Friday evening. But this proves nothing against Palmer; it does not prove that George did not tell him so; it only proves that he gave a false reason for a fact. They had heard that they were suspected; how could they have heard this, unless it were from the whisperings of their own consciences? Surely this rumor was not then public.

About the 27th of April, another attempt was made by the Knapps to give a direction to public suspicion. They reported themselves to have been robbed, in pa.s.sing from Salem to Wenham, near Wenham Pond. They came to Salem and stated the particulars of the adventure. They described persons, their dress, size, and appearance, who had been suspected of the murder. They would have it understood that the community was infested by a band of ruffians, and that they themselves were the particular objects of their vengeance. Now this turns out to be all fict.i.tious, all false. Can you conceive of any thing more enormous, any wickedness greater, than the circulation of such reports? than the allegation of crimes, if committed, capital? If no such crime had been committed, then it reacts with double force upon themselves, and goes very far to show their guilt. How did they conduct themselves on this occasion? Did they make hue and cry? Did they give information that they had been a.s.saulted that night at Wenham? No such thing. They rested quietly that night; they waited to be called on for the particulars of their adventure; they made no attempt to arrest the offenders; this was not their object. They were content to fill the thousand mouths of rumor, to spread abroad false reports, to divert the attention of the public from themselves; for they thought every man suspected them, because they knew they ought to be suspected.

The manner in which the compensation for this murder was paid is a circ.u.mstance worthy of consideration. By examining the facts and dates, it will satisfactorily appear that Joseph Knapp paid a sum of money to Richard Crowninshield, in five-franc pieces, on the 24th of April. On the 21st of April, Joseph Knapp received five hundred five-franc pieces, as the proceeds of an adventure at sea. The remainder of this species of currency that came home in the vessel was deposited in a bank at Salem.

On Sat.u.r.day, the 24th of April, Frank and Richard rode to Wenham. They were there with Joseph an hour or more, and appeared to be negotiating private business. Richard continued in the chaise; Joseph came to the chaise and conversed with him. These facts are proved by Hart and Leighton, and by Osborn's books. On Sat.u.r.day evening, about this time, Richard Crowninshield is proved, by Lummus, to have been at Wenham, with another person whose appearance corresponds with Frank's. Can any one doubt this being the same evening? What had Richard Crowninshield to do at Wenham, with Joseph, unless it were this business? He was there before the murder; he was there after the murder; he was there clandestinely, unwilling to be seen. If it were not upon this business, let it be told what it was for. Joseph Knapp could explain it; Frank Knapp might explain it. But they do not explain it; and the inference is against them.

Immediately after this, Richard pa.s.ses five-franc pieces; on the same evening, one to Lummus, five to Palmer; and near this time George pa.s.ses three or four in Salem. Here are nine of these pieces pa.s.sed by them in four days; this is extraordinary. It is an unusual currency; in ordinary business, few men would pa.s.s nine such pieces in the course of a year.

If they were not received in this way, why not explain how they came by them? Money was not so flush in their pockets that they could not tell whence it came, if it honestly came there. It is extremely important to them to explain whence this money came, and they would do it if they could. If, then, the price of blood was paid at this time, in the presence and with the knowledge of this defendant, does not this prove him to have been connected with this conspiracy?

Observe, also, the effect on the mind of Richard of Palmer's being arrested and committed to prison; the various efforts he makes to discover the fact; the lowering, through the crevices of the rock, the pencil and paper for him to write upon; the sending two lines of poetry, with the request that he would return the corresponding lines; the shrill and peculiar whistle; the inimitable exclamations of "Palmer!

Palmer! Palmer!" All these things prove how great was his alarm; they corroborate Palmer's story, and tend to establish the conspiracy.

Joseph Knapp had a part to act in this matter. He must have opened the window, and secreted the key; he had free access to every part of the house; he was accustomed to visit there; he went in and out at his pleasure; he could do this without being suspected. He is proved to have been there the Sat.u.r.day preceding.

If all these things, taken in connection, do not prove that Captain White was murdered in pursuance of a conspiracy, then the case is at an end.

Savary's testimony is wholly unexpected. He was called for a different purpose. When asked who the person was that he saw come out of Captain White's yard between three and four o'clock in the morning, he answered, Frank Knapp. It is not clear that this is not true. There may be many circ.u.mstances of importance connected with this, though we believe the murder to have been committed between ten and eleven o'clock. The letter to Dr. Barstow states it to have been done about eleven o'clock; it states it to have been done with a blow on the head, from a weapon loaded with lead. Here is too great a correspondence with the reality not to have some meaning in it. Dr. Peirson was always of the opinion, that the two cla.s.ses of wounds were made with different instruments, and by different hands. It is possible that one cla.s.s was inflicted at one time, and the other at another. It is possible that on the last visit the pulse might not have entirely ceased to beat, and then the finishing stroke was given. It is said, that, when the body was discovered, some of the wounds wept, while the others did not. They may have been inflicted from mere wantonness. It was known that Captain White was accustomed to keep specie by him in his chamber; this perhaps may explain the last visit. It is proved, that this defendant was in the habit of retiring to bed, and leaving it afterwards, without the knowledge of his family; perhaps he did so on this occasion. We see no reason to doubt the fact; and it does not shake our belief that the murder was committed early in the night.

What are the probabilities as to the time of the murder? Mr. White was an aged man; he usually retired to bed at about half-past nine. He slept soundest in the early part of the night; usually awoke in the middle and latter part; and his habits were perfectly well known. When would persons, with a knowledge of these facts, be most likely to approach him? Most certainly, in the first hour of his sleep. This would be the safest time. If seen then going to or from the house, the appearance would be least suspicious. The earlier hour would then have been most probably selected.

Gentlemen, I shall dwell no longer on the evidence which tends to prove that there was a conspiracy, and that the prisoner was a conspirator.

All the circ.u.mstances concur to make out this point. Not only Palmer swears to it, in effect, and Leighton, but Allen mainly supports Palmer, and Osborn's books lend confirmation, so far as possible, from such a source. Palmer is contradicted in nothing, either by any other witness, or any proved circ.u.mstance or occurrence. Whatever could be expected to support him does support him. All the evidence clearly manifests, I think, that there was a conspiracy; that it originated with Joseph Knapp; that defendant became a party to it, and was one of its conductors, from first to last. One of the most powerful circ.u.mstances is Palmer's letter from Belfast. The amount of this is a direct charge on the Knapps of the authorship of this murder. How did they treat this charge; like honest men, or like guilty men? We have seen how it was treated. Joseph Knapp fabricated letters, charging another person, and caused them to be put into the post-office.

I shall now proceed on the supposition, that it is proved that there was a conspiracy to murder Mr. White, and that the prisoner was party to it.

The second and the material inquiry is, Was the prisoner present at the murder, aiding and abetting therein?

This leads to the legal question in the case. What does the law mean, when it says, that, in order to charge him as a princ.i.p.al, "he must be present aiding and abetting in the murder"?

In the language of the late Chief Justice, "It is not required that the abettor shall be actually upon the spot when the murder is committed, or even in sight of the more immediate perpetrator of the victim, to make him a princ.i.p.al. If he be at a distance, co-operating in the act, by watching to prevent relief, or to give an alarm, or to a.s.sist his confederate in escape, having knowledge of the purpose and object of the a.s.sa.s.sin, this in the eye of the law is being present, aiding and abetting, so as to make him a princ.i.p.al in the murder."

"If he be at a distance co-operating." This is not a distance to be measured by feet or rods; if the intent to lend aid combine with a knowledge that the murder is to be committed, and the person so intending be so situate that he can by any possibility lend this aid in any manner, then he is present in legal contemplation. He need not lend any actual aid; to be ready to a.s.sist is a.s.sisting.

There are two sorts of murder; the distinction between them it is of essential importance to bear in mind: 1. Murder in an affray, or upon sudden and unexpected provocation. 2. Murder secretly, with a deliberate, predetermined intention to commit the crime. Under the first cla.s.s, the question usually is, whether the offence be murder or manslaughter, in the person who commits the deed. Under the second cla.s.s, it is often a question whether others than he who actually did the deed were present, aiding and a.s.sisting therein. Offences of this kind ordinarily happen when there is n.o.body present except those who go on the same design. If a riot should happen in the court-house, and one should kill another, this may be murder, or it may not, according to the intention with which it was done; which is always matter of fact, to be collected from the circ.u.mstances at the time. But in secret murders, premeditated and determined on, there can be no doubt of the murderous intention; there can be no doubt, if a person be present, knowing a murder is to be done, of his concurring in the act. His being there is a proof of his intent to aid and abet; else, why is he there?

It has been contended, that proof must be given that the person accused did actually afford aid, did lend a hand in the murder itself; and without this proof, although he may be near by, he may be presumed to be there for an innocent purpose; he may have crept silently there to hear the news, or from mere curiosity to see what was going on.[2]

Preposterous, absurd! Such an idea shocks all common sense. A man is found to be a conspirator to commit a murder; he has planned it; he has a.s.sisted in arranging the time, the place and the means; and he is found in the place, and at the time, and yet it is suggested that he might have been there, not for co-operation and concurrence, but from curiosity! Such an argument deserves no answer. It would be difficult to give it one, in decorous terms. Is it not to be taken for granted, that a man seeks to accomplish his own purposes? When he has planned a murder, and is present at its execution, is he there to forward or to thwart his own design? is he there to a.s.sist, or there to prevent? But "Curiosity"! He may be there from mere "curiosity"! Curiosity to witness the success of the execution of his own plan of murder! The very walls of a court-house ought not to stand, the ploughshare should run through the ground it stands on, where such an argument could find toleration.[3]

It is not necessary that the abettor should actually lend a hand, that he should take a part in the act itself; if he be present ready to a.s.sist, that is a.s.sisting. Some of the doctrines advanced would acquit the defendant, though he had gone to the bedchamber of the deceased, though he had been standing by when the a.s.sa.s.sin gave the blow. This is the argument we have heard to-day.

The court here said, they did not so understand the argument of the counsel for defendant. Mr. Dexter said, "The intent and power alone must co-operate."

No doubt the law is, that being ready to a.s.sist is a.s.sisting, if the party has the power to a.s.sist, in case of need. It is so stated by Foster, who is a high authority. "If A happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoreth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behavior of his, though highly criminal, will not of itself render him either princ.i.p.al or accessory." "But if a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespa.s.s, to which A in the case last stated had consented, and he had gone in order to give a.s.sistance, if need were, for carrying it into execution, this would have amounted to murder in him, and in every person present and joining with him." "If the fact was committed in prosecution of the original purpose which was unlawful, the whole party will be involved in the guilt of him who gave the blow. For in combinations of this kind, the mortal stroke, though given by one of the party, is considered in the eye of the law, and of sound reason too, as given by every individual present and abetting. The person actually giving the stroke is no more than the hand or instrument by which the others strike." The author, in speaking of being present, means actual presence; not actual in opposition to constructive, for the law knows no such distinction. There is but one presence, and this is the situation from which aid, or supposed aid, may be rendered. The law does not say where the person is to go, or how near he is to go, but that he must be where he may give a.s.sistance, or where the perpetrator may believe that he may be a.s.sisted by him. Suppose that he is acquainted with the design of the murderer, and has a knowledge of the time when it is to be carried into effect, and goes out with a view to render a.s.sistance, if need be; why, then, even though the murderer does not know of this, the person so going out will be an abettor in the murder.

It is contended that the prisoner at the bar could not be a princ.i.p.al, he being in Brown Street, because he could not there render a.s.sistance; and you are called upon to determine this case, according as you may be of opinion whether Brown Street was, or was not, a suitable, convenient, well-chosen place to aid in this murder. This is not the true question.

The inquiry is not whether you would have selected this place in preference to all others, or whether you would have selected it at all.