At the Mercy of Tiberius

by Augusta J. Evans

  CHAPTER XIX.

  Friday, the fifth and last day of the trial, was ushered in by atempest of wind and rain, that drove the blinding sheets of sleetagainst the court-house windows with the insistence of an icy flail;while now and then with spasmodic bursts of fury the gale heightened,rattled the sash, moaned hysterically, like invisible fiends tearing atthe obstacles that barred entrance. So dense was the gloom pervadingthe court-room, that every gas jet was burning at ten o'clock, when Mr.Dunbar rose and took a position close to the jury-box. The gray pallorof his sternly set face increased his resemblance to a statue of theJulian type, and he looked rigid as granite, as he turned his brillianteyes full of blue fire upon the grave, upturned countenances of thetwelve umpires:

  "Gentlemen of the Jury: The sanctity of human life is the foundation onwhich society rests, and its preservation is the supreme aim of allhuman legislation. Rights of property, of liberty, are merelyconditional, subordinated to the superlative divine right of life.Labor creates property, law secures liberty, but God alone gives life;and woe to that tribunal, to those consecrated priests of divinejustice, who, sworn to lay aside passion and prejudice, and to arraythemselves in the immaculate robes of a juror's impartiality, yetprofane the loftiest prerogative with which civilized society caninvest mankind, and sacrilegiously extinguish, in the name of justice,that sacred spark which only Jehovah's fiat kindles. To the same astuteand unchanging race, whose relentless code of jurisprudence demanded'an eye for an eye, a tooth for a tooth, a life for a life,' we owe theinstructive picture of cautious inquiry, of tender solicitude for theinviolability of human life, that glows in immortal lustre on the pagesof the 'Mechilti' of the Talmud. In the trial of a Hebrew criminal,there were 'Lactees,' consisting of two men, one of whom stood at thedoor of the court, with a red flag in his hand, and the other sat on awhite horse at some distance on the road that led to execution. Each ofthese men cried aloud continually, the name of the suspected criminal,of the witnesses, and his crime; and vehemently called upon any personwho knew anything in his favor to come forward and testify. Have we,supercilious braggarts of this age of progress, attained the prudentialwisdom of Sanhedrim?

  "The State pays an officer to sift, probe, collect and array theevidences of crime, with which the criminal is stoned to death; does itlikewise commission and compensate an equally painstaking, lynx-eyedofficial whose sole duty is to hunt and proclaim proofs of theinnocence of the accused? The great body of the commonwealth iscommitted in revengeful zeal to prosecution; upon whom devolves thedoubly sacred and imperative duty of defence? Are you not here to givejudgment in a cause based on an indictment by a secret tribunal, whereex parte testimony was alone received, and the voice of defence couldnot be heard? The law infers that the keen instinct ofself-preservation will force the accused to secure the strongestpossible legal defenders; and failing in this, the law perfunctorilyassigns counsel to present testimony in defence. Do the scales balance?

  "Imagine a race for heavy stakes; the judges tap the bell; three orfour superb thoroughbreds carefully trained on that track, laboriouslygroomed, waiting for the signal, spring forward; and when the firstquarter is reached, a belated fifth, handicapped with the knowledgethat he has made a desperately bad start, bounds after them. If by dintof some superhuman grace vouchsafed, some latent strain, some mostunexpected speed, he nears, overtakes, runs neck and neck, slowlygains, passes all four and dashes breathless and quivering under thestring, a whole length ahead, the world of spectators shouts the judgessmile, and number five wins the stakes. But was the race fair?

  "Is not justice, the beloved goddess of our idolatry, sometimes soblinded by clouds of argument, and confused by clamor that she failsindeed to see the dip of the beam? If the accused be guilty and escapeconviction, he still lives; and while it is provided that no one can betwice put in jeopardy of his life for the same offence, vicioustendencies impel to renewal of crime, and Nemesis, the retriever ofjustice, may yet hunt him down. If the accused be innocent as thearchangels, but suffer conviction and execution, what expiation canjustice offer for judicially slaughtering him? Are the chances even?

  "All along the dim vista of the annals of criminal jurisprudence, standgrim memorials that mark the substitution of innocent victims forguilty criminals; and they are solemn sign-posts of warning, melancholyas the whitening bones of perished caravans in desert sands. Historyrelates, and tradition embalms, a sad incident of the era of theCouncil of Ten, when an innocent boy was seized, tried and executed forthe murder of a nobleman, whose real assassin confessed the crime manyyears subsequent. In commemoration of the public horror manifested,when the truth was published, Venice decreed that henceforth a criershould proclaim in the Tribunal just before a death sentence waspronounced, 'Ricordatevi del povero Marcolini! remember the poorMarcolini;' beware of merely circumstantial evidence.

  "To another instance I invite your attention. A devoted Scotch fatherfinding that his own child had contracted an unfortunate attachment toa man of notoriously bad character, interdicted all communication, andlocked his daughter into a tenement room; the adjoining apartment (withonly a thin partition wall between) being occupied by a neighbor, whooverheard the angry altercation that ensued. He recognized the voicesof father and daughter, and the words 'barbarity,' 'cruelty, 'death,'were repeatedly heard. The father at last left the room, locking hischild in as a prisoner. After a time, strange noises were heard by thetenant of the adjoining chamber; suspicion was aroused, a bailiff wassummoned, the door forced open, and there lay the dying girl welteringin blood, with the fatal knife lying near. She was asked if her fatherhad caused her sad condition, and she made an affirmative gesture andexpired. At that moment the father returned, and stood stupefied withhorror, which was interpreted as a consciousness of guilt; and this wascorroborated by the fact that his shirt sleeve was sprinkled withblood. In vain he asserted his innocence, and showed that the bloodstains were the result of a bandage having become untied where he hadbled himself a few days before. The words and groans overheard, theblood, the affirmation of the dying woman, every damning circumstanceconstrained the jury to convict him of the murder. He was hung inchains, and his body left swinging from the gibbet. The new tenant, whosubsequently rented the room, was ransacking the chamber in which thegirl died, when, in a cavity of the chimney where it had fallenunnoticed, was found a paper written by this girl, declaring herintention to commit suicide, and closing with the words: 'My inhumanfather is the cause of my death'; thus explaining her dying gestures.On examination of this document by the friends and relatives of thegirl, it was recognized and identified as her handwriting; and itestablished the fact that the father had died innocent of every crime,except that of trying to save his child from a degrading marriage.

  "Now, mark the prompt and satisfactory reparation decreed by justice,and carried out by the officers of the law. The shrivelled, dishonoredbody was lowered from the gibbet, given to his relatives for decentburial, and the magistrates who sentenced him, ordered a flag wavedover his grave, as compensation for all his wrongs.

  "Gentlemen of the jury, to save you from the commission of a wrong evenmore cruel, I come to-day to set before you clearly the facts, elicitedfrom witnesses which the honorable and able counsel for the prosecutiondeclined to cross-examine. An able expounder of the law of evidence haswarned us that: 'The force of circumstantial evidence being exclusivein its nature, and the mere coincidence of the hypothesis with thecircumstances, being, in the abstract, insufficient, unless theyexclude every other supposition, it is essential to inquire, with themost scrupulous attention, what other hypothesis there may be, agreeingwholly or partially with the facts in evidence.'

  "A man of very marked appearance was seen running toward the railroad,on the night of the twenty-sixth, evidently goaded by some unusualnecessity to leave the neighborhood of X--before the arrival of thepassenger express. It is proved that he passed the station exactly atthe time the prisoner deposed she heard the voice, and the half of theenvelope that encl
osed the missing will, was found at the spot wherethe same person was seen, only a few moments later. Four daysafterward, this man entered a small station in Pennsylvania, paid for arailroad ticket, with a coin identical in value and appearance withthose stolen from the tin box, and as if foreordained to publish thesteps he was striving to efface, accidentally left behind him thetrumpet-tongued fragment of envelope, that exactly fitted into the tornstrip dropped at the bridge. The most exhaustive and diligent searchshows that stranger was seen by no one else in X--; that he came as athief in the night, provided with chloroform to drug his intendedvictim, and having been detected in the act of burglariouslyabstracting the contents of the tin box, fought with, and killed thevenerable old man, whom he had robbed.

  "Under cover of storm and darkness he escaped with his plunder, to somepoint north of X--where doubtless he boarded (unperceived) the freighttrain, and at some convenient point slipped into a wooded country, andmade his way to Pennsylvania. Why were valuable bonds untouched?Because they might aid in betraying him. What conceivable interest hadhe in the destruction of Gen'l Darrington's will? It is in evidence,that the lamp was burning, and the contents of that envelope could havepossessed no value for a man ignorant of the provisions of the will;and the superscription it was impossible to misread. Suppose that thismysterious person was fully cognizant of the family secrets of theDarringtons? Suppose that he knew that Mrs. Brentano and her daughterwould inherit a large fortune, if Gen'l Darrington died intestate? Ifhe had wooed and won the heart of the daughter, and believed that herrights had been sacrificed to promote the aggrandizement of an alien,the adopted step-son Prince, had not such a man, the accepted lover ofthe daughter, a personal interest in the provisions of a will whichdisinherited Mrs. Brentano, and her child? Have you not now, motive,means, and opportunity, and links of evidence that point to this man asthe real agent, the guilty author of the awful crime we are all leaguedin solemn, legal covenant to punish? Suppose that fully aware of theprisoner's mission to X--, he had secretly followed her, andsupplemented her afternoon visit, by the fatal interview of the night?Doubtless he had intended escorting her home, but when the frightfultragedy was completed, the curse of Cain drove him, in terror, toinstant flight; and he sought safety in western wilds, leaving hisinnocent and hapless betrothed to bear the penalty of his crime. Thehandkerchief used to administer chloroform, bore her initials; wasdoubtless a souvenir given in days gone by to that unworthy miscreant,as a token of affection, by the trusting woman he deserted in the hourof peril. In this solution of an awful enigma, is there an undue strainupon credylity; is there any antagonism of facts which the tornenvelope, the pipe, the twenty-dollar gold pieces in Pennsylvania, donot reconcile?

  "A justly celebrated writer on the law of evidence has wisely said: 'Incriminal cases, the statement made by the accused is of essentialimportance in some points of view. Such is the complexity of humanaffairs, and so infinite the combinations of circumstances, that thetrue hypothesis which is capable of explaining and reuniting all theapparently conflicting circumstances of the case, may escape theacutest penetration: but the prisoner, so far as he alone is concerned,can always afford a clue to them; and though he may be unable tosupport his statement by evidence, his account of the transaction is,for this purpose, always most material and important. The effect may beto suggest a view, which consists with the innocence of the accused,and might otherwise have escaped observation.'

  "During the preliminary examination of this prisoner in October, sheinadvertently furnished this clue, when, in explaining her absence fromthe station house, she stated that suddenly awakened from sleep, 'sheheard the voice of one she knew and loved, and ran out to seek thespeaker'. Twice she has repeated the conversation she heard, and everyword is corroborated by the witness who saw and talked with the ownerof that 'beloved voice'. When asked to give the name of that man, whomshe expected to find in the street, she falters, refuses; love sealsher lips, and the fact that she will die sooner than yield that whichmust bring him to summary justice, is alone sufficient to fix the guiltupon the real culprit.

  "There is a rule in criminal jurisprudence, that 'presumptive evidenceought never to be relied on, when direct testimony is wilfullywithheld'. She shudders at sight of the handkerchief; did she not giveit to him, in some happy hour as a tender Ricordo? When the pipe whichhe lost in his precipitate flight is held up to the jury, sherecognizes it instantly as her lover's property, and shivers withhorror at the danger of his detection and apprehension. Does not thisarray of accusing circumstances demand as careful consideration, as thechain held up to your scrutiny by the prosecution? In the latter, thereis an important link missing, which the theory of the defence supplies.When the prisoner was arrested and searched, there was found in herpossession only the exact amount of money, which it is in evidence,that she came South to obtain; and which she has solemnly affirmed wasgiven to her by Gen'l Darrington. We know from memoranda found in therifled box, that it contained only a few days previous, five hundreddollars in gold. Three twenty-dollar gold coins were discovered on thecarpet, and one in the vault; what became of the remain ing threehundred and twenty dollars? With the exception of one hundred dollarsfound in the basket of the prisoner, she had only five copper penniesin her purse, when so unexpectedly arrested, that it was impossible shecould have secreted anything. Three hundred and twenty dollarsdisappeared in company with the will, and like the torn envelope, twoof those gold coins lifted their accusing faces in Pennsylvania, wherethe fugitive from righteous retribution paid for the wings that wouldtransport him beyond risk of detection.

  "Both theories presented for your careful analysis, are based entirelyupon circumstantial evidence; and is not the solution I offer lessrepugnant to the canons of credibility, and infinitely less revoltingto every instinct of honor able manhood, than the horrible hypothesisthat a refined, cultivated, noble Christian woman, a devoted daughter,irreproachable in antecedent life, bearing the fiery ordeal of the pastfour months with a noble heroism that commands the involuntaryadmiration of all who have watched her--that such a perfect type ofbeautiful womanhood as the prisoner presents, could deliberately planand execute the vile scheme of theft and murder? Gentlemen, she isguilty of but one sin against the peace and order of this community:the sin of withholding the name of one for whose bloody crime she isnot responsible. Does not her invincible loyalty, her unwaveringdevotion to the craven for whom she suffers, in vest her with the haloof a martyrdom, that appeals most powerfully to the noblest impulses ofyour nature, that enlists the warmest, holiest sympathies lying deep inyour manly hearts? Analyze her statement; every utterance bears thestamp of innocence; and where she cannot explain truthfully, shedeclines to make any explanation. Hers is the sin of silence, thegrievous evasion of justice by non-responsion, whereby the danger shewill not avert by confession recoils upon her innocent head. Bravelyshe took on her reluctant shoulders the galling burden of parentalcommand, and stifling her proud repugnance, obediently came--a fairyoung stranger to 'Elm Bluff.' Receiving as a loan the money she cameto beg for, she hurries away to fulfil another solemnly imposedinjunction.

  "Gentlemen, is there any spot out yonder in God's Acre, where violets,blue as the eyes that once smiled upon you, now shed their fragranceabove the sacred dust of your dead darlings; and the thought of whichmelts your hearts and dims your vision? Look at this mournful, touchingwitness, which comes from that holy cemetery to whisper to your souls,that the hands of the prisoner are as pure as those of your idols,folded under the sod. Only a little bunch of withered brown flowers,tied with a faded blue ribbon, that a poor girl bought with her hardearned pennies, and carried to a sick mother, to brighten a drearyattic; only a dead nosegay, which that mother requested should be laidas a penitential tribute on the tomb of the mother whom she haddisobeyed; and this faithful young heart made the pilgrimage, and leftthe offering--and in consequence thereof, missed the train that wouldhave carried her safely back to her mother--and to peace. On themorning after the prelimi
nary examination I went to the cemetery, andfound the fatal flowers just where she had placed them, on the greatmarble cross that covers the tomb of 'Helena Tracey--wife of LukeDarringtun.'

  "You husbands and fathers who trust your names, your honor, the peaceof your hearts-almost the salvation of your souls--to the women youlove: staking the dearest interest of humanity, the sanctity of thatheaven on earth--your stainless homes--upon the fidelity of womanhood,can you doubt for one instant, that the prisoner will accept deathrather than betray the man she loves? No human plummet has sounded thedepths of a woman's devotion; no surveyor's chain will ever mark thelimits of a woman's faithful, patient endurance; and only the wings ofan archangel can transcend that pinnacle to which the sublime principleof self-sacrifice exalts a woman's soul.

  "In a quaint old city on the banks of the Pegnitz, history records aninstance of feminine self-abnegation, more enduring than monuments ofbrass. The law had decreed a certain provision for the maintenance oforphans; and two women in dire distress, seeing no possible avenue ofhelp, accused themselves falsely of a capital crime, and were executed;thereby securing a support for the children they orphaned.

  "As a tireless and vigilant prosecutor of the real criminal, theCain-branded man now wandering in some western wild, I charge theprisoner with only one sin, suicidal silence; and I commend her to yourmust tender compassion, believing that in every detail and minutiae shehas spoken the truth; and that she is as innocent of the charge in theindictment as you or I. Remember that you have only presumptive proofto guide you in this solemn deliberation, and in the absence of directproof, do not be deluded by a glittering sophistry, which will soonattempt to persuade you, that: 'A presumption which necessarily arisesfrom circumstances,--is very often more convincing and moresatisfactory than any other kind of evidence; it is not within thereach and compass of human abilities to invent a train ofcircumstances, which shall be so connected together as to amount to aproof of guilt, without affording opportunities of contradicting agreat part, if not all, of these circumstances.'

  "Believe it not; circumstantial evidence has caused as much innocentblood to flow, as the cimeter of Jenghiz Khan. The counsel for theprosecution will tell you that every fact in this melancholy case stabsthe prisoner, and that facts cannot lie. Abstractly and logicallyconsidered, facts certainly do not lie; but let us see whether theinferences deduced from what we believe to be facts, do not sometimeseclipse Ananias and Sapphira! Not long ago, the public heart thrilledwith horror at the tidings of the Ashtabula railway catastrophe, inwhich a train of cars plunged through a bridge, took fire, and a numberof passengers were consumed, charred beyond recognition. Soonafterward, a poor woman, mother of two children, commenced suit againstthe railway company, alleging that her husband had perished in thatdisaster. The evidence adduced was only of a circumstantial nature, asthe body which had been destroyed by flames, could not be found.Searching in the debris at the fatal spot, she had found a bunch ofkeys, that she positively recognized as belonging to her husband, andin his possession when he died. One key fitted the clock in her house,and a mechanic was ready to swear that he had made such a key for thedeceased. Another key fitted a chest she owned, and still anotherfitted the door of her house; while strongest of all proof, she found apiece of cloth which she identified as part of her husband's coat. Aphysician who knew her husband, testified that he rode as far asBuffalo on the same train with the deceased, on the fatal day of thedisaster; and another witness deposed that he saw the deceased take thetrain at Buffalo, that went down to ruin at Ashtabula. Certainly thechain of circumstantial evidence, from veracious facts, seemedcomplete; but lo! during the investigation it was ascertained beyonddoubt, to the great joy of the wife, that the husband had never beennear Ashtabula, and was safe and well at a Pension Home in a WesternState.

  "The fate of a very noble and innocent woman is now committed to yourhands, and only presumptive proof is laid before you. 'The circumstanceis always a fact; the presumption is the inference drawn from thatfact. It is hence called presumptive proof, because it proceeds merelyin opinion.' Suffer no brilliant sophistry to dazzle your judgment, noremnant of prejudice to swerve you from the path of fidelity to youroath. To your calm reasoning, your generous manly hearts, yourChristian consciences, I resign the desolate prisoner; and as you dealwith her, so may the God above us, the just and holy God who hasnumbered the hairs of her innocent head, deal here and hereafter withyou and yours."

  That magnetic influence, whereby the emotions of an audience areswayed, as the tides that follow the moon, was in large measure theheritage of the handsome man who held the eyes of the jurymen in analmost unwinking gaze; and when his uplifted arm slowly fell to hisside, Judge Dent grasped it in mute congratulation, and Mr. Churchilltook his hand, and shook it warmly.

  Mr. Wolverton came forward to sum up the evidence for the prosecution,and laboriously recapitulated and dwelt upon the mass of facts which heclaimed was susceptible of but one interpretation, and must compel thejury to convict, in accordance with the indictment.

  Upon the ears of the prisoner, his words fell as a harsh, meaninglessmurmur; and above the insistent mutter, rose and fell the waves of arich, resonant voice, that surrounded, penetrated, electrified herbrain; thrilled her whole being with a strange and inexplicablesensation of happiness. For months she had fought against the singularfascination that dwelt in those brilliant blue eyes, and lurked inevery line of the swart, stern face; holding at bay the magneticattraction which he exerted from the hour of the preliminaryexamination. Of all men, she had feared him most, had shrunk from everyopportunity of contact, had execrated him as the malignpersonification, the veritable incarnation of the evil destiny that hadhounded her from the day she first saw X----.

  Listening to his appeal for her deliverance, each word throbbing withthe fervent beat of a heart that she knew was all her own, an exquisitesense of rest gradually stole over her; as a long-suffering child spentwith pain, sinks, soothed at last in the enfolding arms of protectivelove. That dark, eloquent face drew, held her gaze with the spell of aloadstone, and even in the imminence of her jeopardy, she recalled thestrange resemblance he bore to the militant angel she had once seen ina painting, where he wrestled with Satan for possession of the body ofMoses. Disgrace, peril, the gaunt spectre of death suddenly dissolved,vanished in the glorious burst of rosy light that streamed into all thechill chambers of her heart; and she bowed her head in her hands, tohide the crimson that painted her cheeks.

  How long Mr. Wolverton talked, she never knew; but the lull thatsucceeded was broken by the tones of Judge Parkman.

  "Beryl Brentano, it is my duty to remind you that this is the lastopportunity the law allows you, to speak in your own vindication. Thetestimony has all been presented to those appointed to decide upon itsvalue. If there be any final statement that you may desire to offer inself-defence, you must make it now."

  Could the hundreds who watched and waited ever forget the sight of thatsuperb, erect figure, that exquisite face, proud as Hypatia's, patientas Perpetua's; or the sound of that pathetic, unwavering voice?Mournfully, yet steadily, she raised her great grey eyes, darkened bythe violet shadows suffering had cast, and looked at her judges.

  "I am guiltless of any and all crime. I have neither robbed, normurdered; and I am neither principal, nor accomplice in the horriblesin imputed to me. I know nothing of the chloroform; I never touchedthe andiron; I never saw Gen'l Darrington but once. He gave me the goldand the sapphires, and I am as innocent of his death, and of thedestruction of his will as the sinless little children who prattle atyour firesides and nestle to sleep in your arms. My life has beendisgraced and ruined by no act of mine, for I have kept my hands, myheart, my soul, as pure and free from crime as they were when God gavethem to me. I am the helpless prey of suspicion, and the guiltlessvictim of the law. O, my judges! I do not crave your mercy--that is thedespairing prayer of conscious guilt; I demand at your hands, justice."

  The rushing sound as of a coming floo
d filled her ears, and her wordsechoed vaguely from some immeasurably distant height. The gaslightsseemed whirling in a Walpurgis maze, as she sat down and once moreveiled her face in her hands.

  When she recovered sufficiently to listen, Mr. Churchill had risen forthe closing speech of the prosecution.

  "Gentlemen of the Jury: I were a blot upon a noble profession, adisgrace to honorable manhood, and a monster in my own estimation, if Icould approach the fatal Finis of this melancholy trial, withoutpainful emotions of profound regret, that the solemn responsibility ofmy official position makes me the reluctant bearer of the last sternmessage uttered by retributive justice. How infinitely more enviablethe duty of the Amicus Curiae, my gallant friend and quondam colleague,who in voluntary defence has so ingeniously, eloquently and nobly led aforlorn hope, that he knew was already irretrievably lost? Desperate,indeed, must he deem that cause for which he battles so valiantly, whendire extremity goads him to lift a rebellious and unfilial voiceagainst the provisions of his foster-mother, Criminal Jurisprudence, inwhose service he won the brilliant distinction and crown of laurel thatexcite the admiration and envy of a large family of his less fortunatefoster-brothers. I honor his heroism, applaud his chivalrous zeal, andwish that I stood in his place; but not mine the privilege of mountingthe white horse, and waving the red flag of the 'Lactees.' Dedicated tothe mournful rites of justice, I have laid an iron hand on thequivering lips of pity, that cried to me like the voice of one of myown little ones; and very sorrowfully, at the command of conscience,reason and my official duty, I obey the mandate to ring down the blackcurtain on a terrible tragedy, feeling like Dante, when he confrontedthe doomed--

  "'And to a part I come, where no light shines.'"

  So clearly and ably has my distinguished associate, Mr. Wolverton,presented all the legal points bearing upon the nature and value of theproof, submitted for your examination, that any attempt to buttress hispowerful argument, were an unpardonable reflection upon yourintelligence, and his skill; and I shall confine my last effort inbehalf of justice, to a brief analysis and comparison of the hypothesisof the defence, with the verified result of the prosecution.

  "Beautiful and sparkling as the frail glass of Murano, and equally asthin, as treacherously brittle, is the theory so skilfully manufacturedin behalf of the accused; and so adroitly exhibited that the ingeniousfacets catch every possible gleam, and for a moment almost dazzle theeyes of the beholder. In attempting to cast a lance against the shieldof circumstantial evidence, his weapon rebounded, recoiled upon hisfine spun crystal and shivered it. What were the materials wherewith heworked? Circumstances, strained, well nigh dislocated by the effort toforce them to fit into his Procrustean measure. A man was seen on thenight of the twenty-sixth, who appeared unduly anxious to quitX--before daylight; and again the mysterious stranger was seen in adistant town in Pennsylvania, where he showed some gold coins of acertain denomination, and dropped on the floor one-half of an envelope,that once contained a will. In view of these circumstances (theprosecution calls them facts), the counsel for the defence PRESUMESthat said stranger committed the murder, stole the will; and offersthis opinion as presumptive proof that the prisoner is innocent. Theargument runs thus: this man was an accepted lover of the accused, andtherefore he must have destroyed the will that beggared his betrothed;but it is nowhere in evidence, that any lover existed, outside of thecounsel's imagination; yet Asmodeus like he must appear when calledfor, and so we are expected to infer, assume, presume that because hestole the will he must be her lover. Does it not make your head swim tospin round in this circle of reasoning? In assailing the validity ofcircumstantial evidence, has he not cut his bridges, burned his shipsbehind him?

  "Gentlemen, fain would I seize this theory were it credible, andsetting thereon, as in an ark, this most unfortunate prisoner, floather safely through the deluge of ruin, anchor her in peaceful securityupon some far-off Ararat; but it has gone to pieces in the hands of itsarchitect. Instead of rescuing the drowning, the wreck serves only tobeat her down. If we accept the hypothesis of a lover at all, it willfurnish the one missing link in the terrible chain that clanks aroundthe luckless prisoner. The disappearance of the three hundred andtwenty dollars has sorely perplexed the prosecution, and unexpectedlythe defence offers us the one circumstance we lacked; the lover waslurking in the neighborhood, to learn the result of the visit, toescort her home; and to him the prisoner gave the missing gold, to himintrusted the destruction of the will. If that man came to 'Elm Bluff'prepared to rob and murder, by whom was he incited and instigated; andwho was the accessory, and therefore particeps criminis? The prisoner'shandkerchief was the medium of chloroforming that venerable old man,and can there be a reasonable doubt that she aided in administering it?

  "The prosecution could not explain why she came from the direction ofthe railroad bridge, which was far out of her way from 'Elm Bluff'; butthe defence gives the most satisfactory solution: she was there,dividing her blood-stained spoils with the equally guiltyaccomplice--her lover. The prosecution brings to the bar of retributiononly one criminal; the defence not only fastens the guilt upon thisunhappy woman, by supplying the missing links, but provespremeditation, by the person of an accomplice. Four months have beenspent in hunting some fact that would tend to exculpate the accused,but each circumstance dragged to light serves only to swell the dismalchorus, 'Woe to the guilty'. To-day she sits in the ashes ofdesolation, condemned by the unanimous evidence of every known factconnecred with this awful tragedy. To oppose this black and frightfulhost of proofs, what does she offer us? Simply her bare, solemnlyreiterated denial of guilt. We hold our breath, hoping against hopethat she will give some explanation, some solution, that our pityinghearts are waiting so eagerly to hear; but dumb as the Sphinx, sheawaits her doom. You will weigh that bare denial in the scale with theevidence, and in this momentous duty recollect the cautious admonitionthat has been furnished to guide you: 'Cosceding that asseverations ofinnocence are always deserving of consideration by the executive, whatis there to invest them with a conclusive efficacy, in opposition to achain of presumptive evidence, the force and weight of which fallsshort only of mathematical demonstration?' The astute and eloquentcounsel for defence, has cited some well-known cases, to shake yourfaith in the value of merely presumptive proof.

  "I offer for your consideration, an instance of the fallibility ofmerely bare, unsupported denial of guilt on the part of the accused. Apriest at Lauterbach was suspected, arrested and tried for the murderof a woman, under very aggravated circumstances. He was subjected toeighty examinations; and each time solemnly denied the crime. Even whenconfronted at midnight with the skull of the victim murdered eightyears before, he vehemently protested his innocence; called on theskull to declare him not the assassin, and appealed to the Holy Trinityto proclaim his innocence. Finally he confessed his crime; testifiedthat while cutting the throat of his victim, he had exhorted her torepentance, had given her absolution, and that having concealed thecorpse, he had said masses for her soul.

  "The forlorn and hopeless condition of the prisoner at this bar,appeals pathetically to that compassion which we are taught to believecoexists with justice, even in the omnipotent God we worship; yet inthe face of incontrovertible facts elicited from reliable witnesses, ofcoincidences which no theory of accident can explain, can we stifleconvictions, solely because she pleads 'not guilty'? Pertinent, indeed,was the ringing cry of that ancient prosecutor: 'Most illustriousCaesar! if denial of guilt be sufficient defence, who would ever beconvicted?' You have been assured that inferences drawn from probablefacts eclipse the stupendous falsehood of Ananias and Sapphira! Thenthe same family strain inevitably crops out, in the loosely-woven webof defensive presumptive evidence--whose pedigree we trace to the sameparentage. God forbid that I should commit the sacrilege of arrogatingHis divine attribute--infallibility--for any human authority, howeverexalted; or claim it for any amount of proof, presumptive or positive.'It is because humanity even when most cautious and discri
minating isso mournfully fallible and prone to error, that in judging its ownfrailty, we require the aid and reverently invoke the guidance ofJehovah.' In your solemn deliberations bear in mind this epitome of anopinion, entitled to more than a passing consideration: 'Perhaps strongcircumstantial evidence in cases of crime, committed for the most partin secret, is the most satisfactory of any from whence to draw theconclusion of guilt; for men may be seduced to perjury, by many basemotives; but it can scarcely happen that many circumstances, especiallyif they be such over which the accuser could have no control, formingaltogether the links of a transaction, should all unfortunately concurto fix the presumption of guilt on an individual, and yet such aconclusion be erroneous.'

  "Gentlemen of the jury: the prosecution believes that the overwhelmingmass of evidence laid before you proves, beyond a reasonable doubt,that the prisoner did premeditatedly murder and rob Robert LukeDarrington; and in the name of justice, we demand that you vindicatethe majesty of outraged law, by rendering a verdict of 'guilty'. Allthe evidence in this case points the finger of doom at the prisoner, asto the time, the place, the opportunity, the means, the conduct and themotive. Suffer not sympathy for youthful womanhood and wonderfulbeauty, to make you recreant to the obligations of your oath, to decidethis issue of life or death, strictly in accordance with the proofspresented; and bitterly painful as is your impending duty, do not allowthe wail of pity to drown the demands of justice, or the voice of thatblood that cries to heaven for vengeance upon the murderess. May therighteous God who rules the destinies of the universe guide you, andenable you to perform faithfully your awful duty."

  Painfully solemn was the profound silence that pervaded the court-room,and the eyes of the multitude turned anxiously to the grave countenanceof the Judge. Mr. Dunbar had seated himself at a small table, not farfrom Beryl, and resting his elbow upon it, leaned his right temple inthe palm of his hand, watching from beneath his contracted black browsthe earnest, expectant faces of the jurymen; and his keen, glowing eyesindexed little of the fierce, wolfish pangs that gnawed ceaselessly athis heart, as the intolerable suspense drew near its end.

  Judge Parkman leaned forward.

  "Gentlemen of the jury: before entering that box, as the appointedministers of justice, to arbitrate upon the most momentous issue thatcan engage human attention--the life or death of a fellow creature--youcalled your Maker to witness that you would divest your minds of everyshadow of prejudice, would calmly, carefully, dispassionately consider,analyze and weigh the evidence submitted for your investigation; andirrespective of consequences, render a verdict in strict accordancewith the proofs presented. You have listened to the testimony of thewitnesses, to the theory of the prosecution, to the theory of thecounsel for the defence; you have heard the statement of the accused,her repeated denial of the crime with which she stands charged; andfinally you have heard the arguments of counsel, the summing up of allthe evidence. The peculiar character of some of the facts presented asproof, requires on your part the keenest and most exhaustive analysisof the inferences to be drawn from them, and you 'have need ofpatience, wisdom and courage'. While it is impossible that you cancontemplate the distressing condition of the accused without emotionsof profound compassion, your duty 'is prescribed by the law, whichallows you no liberty to indulge any sentiment, inconsistent with itsstrict performance'. You should begin with the legal presumption thatthe prisoner is innocent, and that presumption must continue, until herguilt is satisfactorily proved. This is the legal right of theprisoner; contingent on no peculiar circumstances of any particularcase, but is the common right of every person accused of a crime. Thelaw surrounds the prisoner with a coat of mail, that only irrefragableproofs of guilt can pierce, and the law declares her innocent, unlessthe proof you have heard on her trial satisfies you, beyond areasonable doubt, that she is guilty. What constitutes reasonabledoubt, it becomes your duty to earnestly and carefully consider. It ischarged that the defendant, on the night of the twenty-sixth ofOctober, did wilfully, deliberately, and premeditatedly murder RobertLuke Darrington, by striking him with a brass andiron. The legaldefinition of murder is the unlawful killing of another, with maliceaforethought; and is divided into two degrees. Any murder committedknowingly, intentionally and wantonly, and without just cause orexcuse, is murder in the first degree; and this is the offence chargedagainst the prisoner at the bar. If you believe from the evidence, thatthe defendant, Beryl Brentano, did at the time and place named,wilfully and premeditatedly kill Robert Luke Darrington, then it willbecome your duty to find the defendant guilty of murder; if you do notso believe, then it will be your duty to acquit her. A copy of thelegal definition of homicide, embracing murder in the first and seconddegrees, and of manslaughter in the first and second degrees, will befurnished for your instruction; and it is your right and privilegeafter a careful examination of all the evidence, to convict of a lessercrime than that charged in the indictment, provided all the evidence inthis case, should so convince your minds, to the exclusion of areasonable doubt.

  "In your deliberations you will constantly bear in memory, thefollowing long established rules provided for the guidance of jurors:

  "'I.--The burden of proof rests upon the prosecution, and does notshift or change to the defendant in any phase or stage of the case.

  "'II.--Before the jury can convict the accused, they must be satisfiedfrom the evidence that she is guilty of the offence charged in theindictment, beyond a reasonable doubt. It is not sufficient that theyshould believe her guilt only probable. No degree of probabilitymerely, will authorize a conviction; but the evidence must be of suchcharacter and tendency as to produce a moral certainty of theprisoner's guilt, to the exclusion of reasonable doubt.

  "'III.--Each fact which is necessary in the chain of circumstances toestablish the guilt of the accused, must be distinctly proved bycompetent legal evidence, and if the jury have reasonable doubt as toany material fact, necessary to be proved in order to support thehypothesis of the prisoner's guilt, to the exclusion of every otherreasonable hypothesis, they must find her not guilty.

  "'IV.--If the jury are satisfied from the evidence, that the accused isguilty of the offence charged, beyond reasonable doubt, and no rationalhypothesis or explanation can be framed or given (upon the wholeevidence in the cause) consistent with the innocence of the accused,and at the same time consistent with the facts proved, they ought tofind her guilty. The jury are the exclusive judges of the evidence, ofits weight, and of the credibility of the witnesses. It is their dutyto accept and be governed by the law, as given by the Court in itsinstructions.'

  "The evidence in this case is not direct and positive, but presumptive;and your attention has been called to some well known cases of personsconvicted of, and executed for capital crimes, whose entire innocencewas subsequently made apparent. These arguments and cases only provethat, 'all human evidence, whether it be positive or presumptive in itscharacter, like everything else that partakes of mortality, isfallible. The reason may be as completely convinced bycircumstantial--as by positive evidence, and yet may possibly notarrive at the truth by either.'

  "The true question, therefore, for your consideration, is not the kindof evidence in this case, but it is, what is the result of it in yourminds? If it has failed to satisfy you of the guilt of the accused, andyour minds are not convinced, vacillate in doubt, then you must acquither, be the evidence what it may, positive or presumptive; but if theresult of the whole evidence satisfies you, it you are convinced thatshe is guilty, then it is imperatively your duty to convict her, evenif the character of the evidence be wholly circumstantial." Such is thelaw.

  "In resigning this case to you, I deem it my duty to direct yourattention to one point, which I suggest that you consider. If theaccused administered chloroform, did it indicate that her originalintention was solely to rob the vault? Is the act of administering thechloroform consistent with the theory of deliberate and premeditatedmurder? In examining the facts submitted by counsel, take thesuggestion
just presented, with you, and if the facts and circumstancesproved against her, can be accounted for on the theory of intended,deliberate robbery, without necessarily involving premeditated murder,it is your privilege to put that merciful construction upon them.

  "Gentlemen of the jury, I commit this mournful and terrible case toyour decision; and solemnly adjure you to be governed in yourdeliberations, by the evidence as you understand it, by the law asfurnished in these instructions, and to render such verdict, as yourreason compels, as your matured judgment demands, and your conscienceunhesitatingly approves and sanctions. May God direct and control yourdecision."