Friday, the fifth and last day of the trial, was ushered in by a tempest of wind and rain, that drove the blinding sheets of sleet against 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 at the obstacles that barred entrance. So dense was the gloom pervading the 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 pallor of his sternly set face increased his resemblance to a statue of the Julian type, and he looked rigid as granite, as he turned his brilliant eyes full of blue fire upon the grave, upturned countenances of the twelve umpires:
"Gentlemen of the Jury: The sanctity of human life is the foundation on which society rests, and its preservation is the supreme aim of all human legislation. Rights of property, of liberty, are merely conditional, 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 divine justice, who, sworn to lay aside passion and prejudice, and to array themselves in the immaculate robes of a juror's impartiality, yet profane the loftiest prerogative with which civilized society can invest mankind, and sacrilegiously extinguish, in the name of justice, that sacred spark which only Jehovah's fiat kindles. To the same astute and 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 the instructive picture of cautious inquiry, of tender solicitude for the inviolability of human life, that glows in immortal lustre on the pages of the 'Mechilti' of the Talmud. In the trial of a Hebrew criminal, there were 'Lactees,' consisting of two men, one of whom stood at the door of the court, with a red flag in his hand, and the other sat on a white horse at some distance on the road that led to execution. Each of these men cried aloud continually, the name of the suspected criminal, of the witnesses, and his crime; and vehemently called upon any person who knew anything in his favor to come forward and testify. Have we, supercilious braggarts of this age of progress, attained the prudential wisdom of Sanhedrim?
"The State pays an officer to sift, probe, collect and array the evidences of crime, with which the criminal is stoned to death; does it likewise commission and compensate an equally painstaking, lynx-eyed official whose sole duty is to hunt and proclaim proofs of the innocence of the accused? The great body of the commonwealth is committed in revengeful zeal to prosecution; upon whom devolves the doubly sacred and imperative duty of defence? Are you not here to give judgment in a cause based on an indictment by a secret tribunal, where ex parte testimony was alone received, and the voice of defence could not be heard? The law infers that the keen instinct of self-preservation will force the accused to secure the strongest possible legal defenders; and failing in this, the law perfunctorily assigns counsel to present testimony in defence. Do the scales balance?
"Imagine a race for heavy stakes; the judges tap the bell; three or four superb thoroughbreds carefully trained on that track, laboriously groomed, waiting for the signal, spring forward; and when the first quarter is reached, a belated fifth, handicapped with the knowledge that he has made a desperately bad start, bounds after them. If by dint of some superhuman grace vouchsafed, some latent strain, some most unexpected speed, he nears, overtakes, runs neck and neck, slowly gains, passes all four and dashes breathless and quivering under the string, a whole length ahead, the world of spectators shouts the judges smile, and number five wins the stakes. But was the race fair?
"Is not justice, the beloved goddess of our idolatry, sometimes so blinded by clouds of argument, and confused by clamor that she fails indeed to see the dip of the beam? If the accused be guilty and escape conviction, he still lives; and while it is provided that no one can be twice put in jeopardy of his life for the same offence, vicious tendencies impel to renewal of crime, and Nemesis, the retriever of justice, may yet hunt him down. If the accused be innocent as the archangels, but suffer conviction and execution, what expiation can justice offer for judicially slaughtering him? Are the chances even?
"All along the dim vista of the annals of criminal jurisprudence, stand grim memorials that mark the substitution of innocent victims for guilty criminals; and they are solemn sign-posts of warning, melancholy as the whitening bones of perished caravans in desert sands. History relates, and tradition embalms, a sad incident of the era of the Council of Ten, when an innocent boy was seized, tried and executed for the murder of a nobleman, whose real assassin confessed the crime many years subsequent. In commemoration of the public horror manifested, when the truth was published, Venice decreed that henceforth a crier should proclaim in the Tribunal just before a death sentence was pronounced, 'Ricordatevi del povero Marcolini! remember the poor Marcolini;' beware of merely circumstantial evidence.
"To another instance I invite your attention. A devoted Scotch father finding that his own child had contracted an unfortunate attachment to a man of notoriously bad character, interdicted all communication, and locked his daughter into a tenement room; the adjoining apartment (with only a thin partition wall between) being occupied by a neighbor, who overheard the angry altercation that ensued. He recognized the voices of father and daughter, and the words 'barbarity,' 'cruelty, 'death,' were repeatedly heard. The father at last left the room, locking his child in as a prisoner. After a time, strange noises were heard by the tenant of the adjoining chamber; suspicion was aroused, a bailiff was summoned, the door forced open, and there lay the dying girl weltering in blood, with the fatal knife lying near. She was asked if her father had caused her sad condition, and she made an affirmative gesture and expired. At that moment the father returned, and stood stupefied with horror, which was interpreted as a consciousness of guilt; and this was corroborated by the fact that his shirt sleeve was sprinkled with blood. In vain he asserted his innocence, and showed that the blood stains were the result of a bandage having become untied where he had bled himself a few days before. The words and groans overheard, the blood, the affirmation of the dying woman, every damning circumstance constrained the jury to convict him of the murder. He was hung in chains, and his body left swinging from the gibbet. The new tenant, who subsequently rented the room, was ransacking the chamber in which the girl died, when, in a cavity of the chimney where it had fallen unnoticed, was found a paper written by this girl, declaring her intention to commit suicide, and closing with the words: 'My inhuman father is the cause of my death'; thus explaining her dying gestures. On examination of this document by the friends and relatives of the girl, it was recognized and identified as her handwriting; and it established 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, dishonored body was lowered from the gibbet, given to his relatives for decent burial, and the magistrates who sentenced him, ordered a flag waved over his grave, as compensation for all his wrongs.
"Gentlemen of the jury, to save you from the commission of a wrong even more cruel, I come to-day to set before you clearly the facts, elicited from witnesses which the honorable and able counsel for the prosecution declined to cross-examine. An able expounder of the law of evidence has warned us that: 'The force of circumstantial evidence being exclusive in its nature, and the mere coincidence of the hypothesis with the circumstances, being, in the abstract, insufficient, unless they exclude every other supposition, it is essential to inquire, with the most scrupulous attention, what other hypothesis there may be, agreeing wholly 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 unusual necessity to leave the neighborhood of X—before the arrival of the passenger express. It is proved that he passed the station exactly at the time the prisoner deposed she heard the voice, and the half of the envelope that enclosed the missing will, was found at the spot where the same person was seen, only a few moments later. Four days afterward, this man entered a small station in Pennsylvania, paid for a railroad ticket, with a coin identical in value and appearance with those stolen from the tin box, and as if foreordained to publish the steps he was striving to efface, accidentally left behind him the trumpet-tongued fragment of envelope, that exactly fitted into the torn strip dropped at the bridge. The most exhaustive and diligent search shows that stranger was seen by no one else in X—; that he came as a thief in the night, provided with chloroform to drug his intended victim, and having been detected in the act of burglariously abstracting the contents of the tin box, fought with, and killed the venerable old man, whom he had robbed.
"Under cover of storm and darkness he escaped with his plunder, to some point north of X—where doubtless he boarded (unperceived) the freight train, and at some convenient point slipped into a wooded country, and made his way to Pennsylvania. Why were valuable bonds untouched? Because they might aid in betraying him. What conceivable interest had he 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 have possessed no value for a man ignorant of the provisions of the will; and the superscription it was impossible to misread. Suppose that this mysterious person was fully cognizant of the family secrets of the Darringtons? Suppose that he knew that Mrs. Brentano and her daughter would inherit a large fortune, if Gen'l Darrington died intestate? If he had wooed and won the heart of the daughter, and believed that her rights had been sacrificed to promote the aggrandizement of an alien, the adopted step-son Prince, had not such a man, the accepted lover of the daughter, a personal interest in the provisions of a will which disinherited Mrs. Brentano, and her child? Have you not now, motive, means, and opportunity, and links of evidence that point to this man as the real agent, the guilty author of the awful crime we are all leagued in solemn, legal covenant to punish? Suppose that fully aware of the prisoner's mission to X—, he had secretly followed her, and supplemented her afternoon visit, by the fatal interview of the night? Doubtless he had intended escorting her home, but when the frightful tragedy was completed, the curse of Cain drove him, in terror, to instant flight; and he sought safety in western wilds, leaving his innocent and hapless betrothed to bear the penalty of his crime. The handkerchief used to administer chloroform, bore her initials; was doubtless a souvenir given in days gone by to that unworthy miscreant, as a token of affection, by the trusting woman he deserted in the hour of peril. In this solution of an awful enigma, is there an undue strain upon credylity; is there any antagonism of facts which the torn envelope, the pipe, the twenty-dollar gold pieces in Pennsylvania, do not reconcile?
"A justly celebrated writer on the law of evidence has wisely said: 'In criminal cases, the statement made by the accused is of essential importance in some points of view. Such is the complexity of human affairs, and so infinite the combinations of circumstances, that the true hypothesis which is capable of explaining and reuniting all the apparently conflicting circumstances of the case, may escape the acutest penetration: but the prisoner, so far as he alone is concerned, can always afford a clue to them; and though he may be unable to support his statement by evidence, his account of the transaction is, for this purpose, always most material and important. The effect may be to 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, she inadvertently furnished this clue, when, in explaining her absence from the station house, she stated that suddenly awakened from sleep, 'she heard the voice of one she knew and loved, and ran out to seek the speaker'. Twice she has repeated the conversation she heard, and every word is corroborated by the witness who saw and talked with the owner of that 'beloved voice'. When asked to give the name of that man, whom she expected to find in the street, she falters, refuses; love seals her lips, and the fact that she will die sooner than yield that which must bring him to summary justice, is alone sufficient to fix the guilt upon the real culprit.
"There is a rule in criminal jurisprudence, that 'presumptive evidence ought never to be relied on, when direct testimony is wilfully withheld'. She shudders at sight of the handkerchief; did she not give it to him, in some happy hour as a tender Ricordo? When the pipe which he lost in his precipitate flight is held up to the jury, she recognizes it instantly as her lover's property, and shivers with horror at the danger of his detection and apprehension. Does not this array of accusing circumstances demand as careful consideration, as the chain held up to your scrutiny by the prosecution? In the latter, there is an important link missing, which the theory of the defence supplies. When the prisoner was arrested and searched, there was found in her possession only the exact amount of money, which it is in evidence, that she came South to obtain; and which she has solemnly affirmed was given to her by Gen'l Darrington. We know from memoranda found in the rifled box, that it contained only a few days previous, five hundred dollars in gold. Three twenty-dollar gold coins were discovered on the carpet, and one in the vault; what became of the remain ing three hundred and twenty dollars? With the exception of one hundred dollars found in the basket of the prisoner, she had only five copper pennies in her purse, when so unexpectedly arrested, that it was impossible she could have secreted anything. Three hundred and twenty dollars disappeared in company with the will, and like the torn envelope, two of those gold coins lifted their accusing faces in Pennsylvania, where the fugitive from righteous retribution paid for the wings that would transport him beyond risk of detection.
"Both theories presented for your careful analysis, are based entirely upon circumstantial evidence; and is not the solution I offer less repugnant to the canons of credibility, and infinitely less revolting to every instinct of honor able manhood, than the horrible hypothesis that a refined, cultivated, noble Christian woman, a devoted daughter, irreproachable in antecedent life, bearing the fiery ordeal of the past four months with a noble heroism that commands the involuntary admiration of all who have watched her—that such a perfect type of beautiful womanhood as the prisoner presents, could deliberately plan and execute the vile scheme of theft and murder? Gentlemen, she is guilty 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 is not responsible. Does not her invincible loyalty, her unwavering devotion to the craven for whom she suffers, in vest her with the halo of a martyrdom, that appeals most powerfully to the noblest impulses of your nature, that enlists the warmest, holiest sympathies lying deep in your manly hearts? Analyze her statement; every utterance bears the stamp of innocence; and where she cannot explain truthfully, she declines to make any explanation. Hers is the sin of silence, the grievous evasion of justice by non-responsion, whereby the danger she will not avert by confession recoils upon her innocent head. Bravely she took on her reluctant shoulders the galling burden of parental command, and stifling her proud repugnance, obediently came—a fair young stranger to 'Elm Bluff.' Receiving as a loan the money she came to beg for, she hurries away to fulfil another solemnly imposed injunction.
"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 fragrance above the sacred dust of your dead darlings; and the thought of which melts your hearts and dims your vision? Look at this mournful, touching witness, 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 hard earned pennies, and carried to a sick mother, to brighten a dreary attic; only a dead nosegay, which that mother requested should be laid as a penitential tribute on the tomb of the mother whom she had disobeyed; and this faithful young heart made the pilgrimage, and left the offering—and in consequence thereof, missed the train that would have carried her safely back to her mother—and to peace. On the morning after the preliminary examination I went to the cemetery, and found the fatal flowers just where she had placed them, on the great marble cross that covers the tomb of 'Helena Tracey—wife of Luke Darringtun.'
"You husbands and fathers who trust your names, your honor, the peace of your hearts-almost the salvation of your souls—to the women you love: staking the dearest interest of humanity, the sanctity of that heaven on earth—your stainless homes—upon the fidelity of womanhood, can you doubt for one instant, that the prisoner will accept death rather than betray the man she loves? No human plummet has sounded the depths of a woman's devotion; no surveyor's chain will ever mark the limits of a woman's faithful, patient endurance; and only the wings of an archangel can transcend that pinnacle to which the sublime principle of self-sacrifice exalts a woman's soul.
"In a quaint old city on the banks of the Pegnitz, history records an instance of feminine self-abnegation, more enduring than monuments of brass. The law had decreed a certain provision for the maintenance of orphans; and two women in dire distress, seeing no possible avenue of help, 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, the Cain-branded man now wandering in some western wild, I charge the prisoner with only one sin, suicidal silence; and I commend her to your must tender compassion, believing that in every detail and minutiae she has spoken the truth; and that she is as innocent of the charge in the indictment as you or I. Remember that you have only presumptive proof to guide you in this solemn deliberation, and in the absence of direct proof, do not be deluded by a glittering sophistry, which will soon attempt to persuade you, that: 'A presumption which necessarily arises from circumstances,—is very often more convincing and more satisfactory than any other kind of evidence; it is not within the reach and compass of human abilities to invent a train of circumstances, which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part, if not all, of these circumstances.'
"Believe it not; circumstantial evidence has caused as much innocent blood to flow, as the cimeter of Jenghiz Khan. The counsel for the prosecution will tell you that every fact in this melancholy case stabs the prisoner, and that facts cannot lie. Abstractly and logically considered, facts certainly do not lie; but let us see whether the inferences deduced from what we believe to be facts, do not sometimes eclipse Ananias and Sapphira! Not long ago, the public heart thrilled with horror at the tidings of the Ashtabula railway catastrophe, in which a train of cars plunged through a bridge, took fire, and a number of passengers were consumed, charred beyond recognition. Soon afterward, a poor woman, mother of two children, commenced suit against the railway company, alleging that her husband had perished in that disaster. The evidence adduced was only of a circumstantial nature, as the body which had been destroyed by flames, could not be found. Searching in the debris at the fatal spot, she had found a bunch of keys, that she positively recognized as belonging to her husband, and in 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 the deceased. Another key fitted a chest she owned, and still another fitted the door of her house; while strongest of all proof, she found a piece of cloth which she identified as part of her husband's coat. A physician who knew her husband, testified that he rode as far as Buffalo on the same train with the deceased, on the fatal day of the disaster; and another witness deposed that he saw the deceased take the train at Buffalo, that went down to ruin at Ashtabula. Certainly the chain of circumstantial evidence, from veracious facts, seemed complete; but lo! during the investigation it was ascertained beyond doubt, to the great joy of the wife, that the husband had never been near Ashtabula, and was safe and well at a Pension Home in a Western State.
"The fate of a very noble and innocent woman is now committed to your hands, and only presumptive proof is laid before you. 'The circumstance is always a fact; the presumption is the inference drawn from that fact. It is hence called presumptive proof, because it proceeds merely in opinion.' Suffer no brilliant sophistry to dazzle your judgment, no remnant of prejudice to swerve you from the path of fidelity to your oath. To your calm reasoning, your generous manly hearts, your Christian consciences, I resign the desolate prisoner; and as you deal with her, so may the God above us, the just and holy God who has numbered the hairs of her innocent head, deal here and hereafter with you and yours."
That magnetic influence, whereby the emotions of an audience are swayed, as the tides that follow the moon, was in large measure the heritage of the handsome man who held the eyes of the jurymen in an almost unwinking gaze; and when his uplifted arm slowly fell to his side, Judge Dent grasped it in mute congratulation, and Mr. Churchill took 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 he claimed was susceptible of but one interpretation, and must compel the jury to convict, in accordance with the indictment.
Upon the ears of the prisoner, his words fell as a harsh, meaningless murmur; and above the insistent mutter, rose and fell the waves of a rich, resonant voice, that surrounded, penetrated, electrified her brain; thrilled her whole being with a strange and inexplicable sensation of happiness. For months she had fought against the singular fascination that dwelt in those brilliant blue eyes, and lurked in every line of the swart, stern face; holding at bay the magnetic attraction which he exerted from the hour of the preliminary examination. Of all men, she had feared him most, had shrunk from every opportunity of contact, had execrated him as the malign personification, the veritable incarnation of the evil destiny that had hounded her from the day she first saw X——.
Listening to his appeal for her deliverance, each word throbbing with the fervent beat of a heart that she knew was all her own, an exquisite sense of rest gradually stole over her; as a long-suffering child spent with pain, sinks, soothed at last in the enfolding arms of protective love. That dark, eloquent face drew, held her gaze with the spell of a loadstone, and even in the imminence of her jeopardy, she recalled the strange resemblance he bore to the militant angel she had once seen in a painting, where he wrestled with Satan for possession of the body of Moses. Disgrace, peril, the gaunt spectre of death suddenly dissolved, vanished in the glorious burst of rosy light that streamed into all the chill chambers of her heart; and she bowed her head in her hands, to hide the crimson that painted her cheeks.
How long Mr. Wolverton talked, she never knew; but the lull that succeeded was broken by the tones of Judge Parkman.
"Beryl Brentano, it is my duty to remind you that this is the last opportunity the law allows you, to speak in your own vindication. The testimony has all been presented to those appointed to decide upon its value. If there be any final statement that you may desire to offer in self-defence, you must make it now."
Could the hundreds who watched and waited ever forget the sight of that superb, erect figure, that exquisite face, proud as Hypatia's, patient as Perpetua's; or the sound of that pathetic, unwavering voice? Mournfully, yet steadily, she raised her great grey eyes, darkened by the violet shadows suffering had cast, and looked at her judges.
"I am guiltless of any and all crime. I have neither robbed, nor murdered; and I am neither principal, nor accomplice in the horrible sin imputed to me. I know nothing of the chloroform; I never touched the andiron; I never saw Gen'l Darrington but once. He gave me the gold and the sapphires, and I am as innocent of his death, and of the destruction of his will as the sinless little children who prattle at your firesides and nestle to sleep in your arms. My life has been disgraced and ruined by no act of mine, for I have kept my hands, my heart, my soul, as pure and free from crime as they were when God gave them to me. I am the helpless prey of suspicion, and the guiltless victim of the law. O, my judges! I do not crave your mercy—that is the despairing prayer of conscious guilt; I demand at your hands, justice."
The rushing sound as of a coming flood filled her ears, and her words echoed vaguely from some immeasurably distant height. The gaslights seemed whirling in a Walpurgis maze, as she sat down and once more veiled her face in her hands.
When she recovered sufficiently to listen, Mr. Churchill had risen for the closing speech of the prosecution.
"Gentlemen of the Jury: I were a blot upon a noble profession, a disgrace to honorable manhood, and a monster in my own estimation, if I could approach the fatal Finis of this melancholy trial, without painful emotions of profound regret, that the solemn responsibility of my official position makes me the reluctant bearer of the last stern message uttered by retributive justice. How infinitely more enviable the duty of the Amicus Curiae, my gallant friend and quondam colleague, who in voluntary defence has so ingeniously, eloquently and nobly led a forlorn hope, that he knew was already irretrievably lost? Desperate, indeed, must he deem that cause for which he battles so valiantly, when dire extremity goads him to lift a rebellious and unfilial voice against the provisions of his foster-mother, Criminal Jurisprudence, in whose service he won the brilliant distinction and crown of laurel that excite the admiration and envy of a large family of his less fortunate foster-brothers. I honor his heroism, applaud his chivalrous zeal, and wish that I stood in his place; but not mine the privilege of mounting the white horse, and waving the red flag of the 'Lactees.' Dedicated to the mournful rites of justice, I have laid an iron hand on the quivering lips of pity, that cried to me like the voice of one of my own little ones; and very sorrowfully, at the command of conscience, reason and my official duty, I obey the mandate to ring down the black curtain on a terrible tragedy, feeling like Dante, when he confronted the 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 the proof, submitted for your examination, that any attempt to buttress his powerful argument, were an unpardonable reflection upon your intelligence, and his skill; and I shall confine my last effort in behalf of justice, to a brief analysis and comparison of the hypothesis of the defence, with the verified result of the prosecution.
"Beautiful and sparkling as the frail glass of Murano, and equally as thin, as treacherously brittle, is the theory so skilfully manufactured in behalf of the accused; and so adroitly exhibited that the ingenious facets catch every possible gleam, and for a moment almost dazzle the eyes of the beholder. In attempting to cast a lance against the shield of circumstantial evidence, his weapon rebounded, recoiled upon his fine spun crystal and shivered it. What were the materials wherewith he worked? Circumstances, strained, well nigh dislocated by the effort to force them to fit into his Procrustean measure. A man was seen on the night of the twenty-sixth, who appeared unduly anxious to quit X—before daylight; and again the mysterious stranger was seen in a distant town in Pennsylvania, where he showed some gold coins of a certain denomination, and dropped on the floor one-half of an envelope, that once contained a will. In view of these circumstances (the prosecution calls them facts), the counsel for the defence PRESUMES that said stranger committed the murder, stole the will; and offers this opinion as presumptive proof that the prisoner is innocent. The argument runs thus: this man was an accepted lover of the accused, and therefore he must have destroyed the will that beggared his betrothed; but it is nowhere in evidence, that any lover existed, outside of the counsel's imagination; yet Asmodeus like he must appear when called for, and so we are expected to infer, assume, presume that because he stole the will he must be her lover. Does it not make your head swim to spin round in this circle of reasoning? In assailing the validity of circumstantial evidence, has he not cut his bridges, burned his ships behind him?
"Gentlemen, fain would I seize this theory were it credible, and setting thereon, as in an ark, this most unfortunate prisoner, float her safely through the deluge of ruin, anchor her in peaceful security upon some far-off Ararat; but it has gone to pieces in the hands of its architect. Instead of rescuing the drowning, the wreck serves only to beat her down. If we accept the hypothesis of a lover at all, it will furnish the one missing link in the terrible chain that clanks around the luckless prisoner. The disappearance of the three hundred and twenty dollars has sorely perplexed the prosecution, and unexpectedly the defence offers us the one circumstance we lacked; the lover was lurking in the neighborhood, to learn the result of the visit, to escort her home; and to him the prisoner gave the missing gold, to him intrusted the destruction of the will. If that man came to 'Elm Bluff' prepared to rob and murder, by whom was he incited and instigated; and who was the accessory, and therefore particeps criminis? The prisoner's handkerchief 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 of the railroad bridge, which was far out of her way from 'Elm Bluff'; but the defence gives the most satisfactory solution: she was there, dividing her blood-stained spoils with the equally guilty accomplice—her lover. The prosecution brings to the bar of retribution only one criminal; the defence not only fastens the guilt upon this unhappy woman, by supplying the missing links, but proves premeditation, by the person of an accomplice. Four months have been spent in hunting some fact that would tend to exculpate the accused, but each circumstance dragged to light serves only to swell the dismal chorus, 'Woe to the guilty'. To-day she sits in the ashes of desolation, condemned by the unanimous evidence of every known fact connecred with this awful tragedy. To oppose this black and frightful host of proofs, what does she offer us? Simply her bare, solemnly reiterated denial of guilt. We hold our breath, hoping against hope that she will give some explanation, some solution, that our pitying hearts are waiting so eagerly to hear; but dumb as the Sphinx, she awaits her doom. You will weigh that bare denial in the scale with the evidence, and in this momentous duty recollect the cautious admonition that has been furnished to guide you: 'Cosceding that asseverations of innocence are always deserving of consideration by the executive, what is there to invest them with a conclusive efficacy, in opposition to a chain of presumptive evidence, the force and weight of which falls short only of mathematical demonstration?' The astute and eloquent counsel for defence, has cited some well-known cases, to shake your faith in the value of merely presumptive proof.
"I offer for your consideration, an instance of the fallibility of merely bare, unsupported denial of guilt on the part of the accused. A priest at Lauterbach was suspected, arrested and tried for the murder of a woman, under very aggravated circumstances. He was subjected to eighty examinations; and each time solemnly denied the crime. Even when confronted at midnight with the skull of the victim murdered eight years before, he vehemently protested his innocence; called on the skull to declare him not the assassin, and appealed to the Holy Trinity to proclaim his innocence. Finally he confessed his crime; testified that while cutting the throat of his victim, he had exhorted her to repentance, had given her absolution, and that having concealed the corpse, 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 believe coexists with justice, even in the omnipotent God we worship; yet in the face of incontrovertible facts elicited from reliable witnesses, of coincidences which no theory of accident can explain, can we stifle convictions, solely because she pleads 'not guilty'? Pertinent, indeed, was the ringing cry of that ancient prosecutor: 'Most illustrious Caesar! if denial of guilt be sufficient defence, who would ever be convicted?' You have been assured that inferences drawn from probable facts eclipse the stupendous falsehood of Ananias and Sapphira! Then the same family strain inevitably crops out, in the loosely-woven web of defensive presumptive evidence—whose pedigree we trace to the same parentage. God forbid that I should commit the sacrilege of arrogating His divine attribute—infallibility—for any human authority, however exalted; or claim it for any amount of proof, presumptive or positive. 'It is because humanity even when most cautious and discriminating is so mournfully fallible and prone to error, that in judging its own frailty, we require the aid and reverently invoke the guidance of Jehovah.' In your solemn deliberations bear in mind this epitome of an opinion, entitled to more than a passing consideration: 'Perhaps strong circumstantial evidence in cases of crime, committed for the most part in secret, is the most satisfactory of any from whence to draw the conclusion of guilt; for men may be seduced to perjury, by many base motives; but it can scarcely happen that many circumstances, especially if they be such over which the accuser could have no control, forming altogether the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous.'
"Gentlemen of the jury: the prosecution believes that the overwhelming mass of evidence laid before you proves, beyond a reasonable doubt, that the prisoner did premeditatedly murder and rob Robert Luke Darrington; and in the name of justice, we demand that you vindicate the majesty of outraged law, by rendering a verdict of 'guilty'. All the evidence in this case points the finger of doom at the prisoner, as to the time, the place, the opportunity, the means, the conduct and the motive. Suffer not sympathy for youthful womanhood and wonderful beauty, to make you recreant to the obligations of your oath, to decide this issue of life or death, strictly in accordance with the proofs presented; and bitterly painful as is your impending duty, do not allow the wail of pity to drown the demands of justice, or the voice of that blood that cries to heaven for vengeance upon the murderess. May the righteous God who rules the destinies of the universe guide you, and enable 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 countenance of the Judge. Mr. Dunbar had seated himself at a small table, not far from Beryl, and resting his elbow upon it, leaned his right temple in the palm of his hand, watching from beneath his contracted black brows the earnest, expectant faces of the jurymen; and his keen, glowing eyes indexed little of the fierce, wolfish pangs that gnawed ceaselessly at his heart, as the intolerable suspense drew near its end.
Judge Parkman leaned forward.
"Gentlemen of the jury: before entering that box, as the appointed ministers of justice, to arbitrate upon the most momentous issue that can engage human attention—the life or death of a fellow creature—you called your Maker to witness that you would divest your minds of every shadow of prejudice, would calmly, carefully, dispassionately consider, analyze and weigh the evidence submitted for your investigation; and irrespective of consequences, render a verdict in strict accordance with the proofs presented. You have listened to the testimony of the witnesses, to the theory of the prosecution, to the theory of the counsel for the defence; you have heard the statement of the accused, her repeated denial of the crime with which she stands charged; and finally you have heard the arguments of counsel, the summing up of all the evidence. The peculiar character of some of the facts presented as proof, requires on your part the keenest and most exhaustive analysis of the inferences to be drawn from them, and you 'have need of patience, wisdom and courage'. While it is impossible that you can contemplate the distressing condition of the accused without emotions of profound compassion, your duty 'is prescribed by the law, which allows you no liberty to indulge any sentiment, inconsistent with its strict performance'. You should begin with the legal presumption that the prisoner is innocent, and that presumption must continue, until her guilt is satisfactorily proved. This is the legal right of the prisoner; contingent on no peculiar circumstances of any particular case, but is the common right of every person accused of a crime. The law surrounds the prisoner with a coat of mail, that only irrefragable proofs of guilt can pierce, and the law declares her innocent, unless the proof you have heard on her trial satisfies you, beyond a reasonable doubt, that she is guilty. What constitutes reasonable doubt, it becomes your duty to earnestly and carefully consider. It is charged that the defendant, on the night of the twenty-sixth of October, did wilfully, deliberately, and premeditatedly murder Robert Luke Darrington, by striking him with a brass andiron. The legal definition of murder is the unlawful killing of another, with malice aforethought; and is divided into two degrees. Any murder committed knowingly, intentionally and wantonly, and without just cause or excuse, is murder in the first degree; and this is the offence charged against the prisoner at the bar. If you believe from the evidence, that the defendant, Beryl Brentano, did at the time and place named, wilfully and premeditatedly kill Robert Luke Darrington, then it will become your duty to find the defendant guilty of murder; if you do not so believe, then it will be your duty to acquit her. A copy of the legal definition of homicide, embracing murder in the first and second degrees, and of manslaughter in the first and second degrees, will be furnished for your instruction; and it is your right and privilege after a careful examination of all the evidence, to convict of a lesser crime than that charged in the indictment, provided all the evidence in this case, should so convince your minds, to the exclusion of a reasonable doubt.
"In your deliberations you will constantly bear in memory, the following long established rules provided for the guidance of jurors:
"'I.—The burden of proof rests upon the prosecution, and does not shift or change to the defendant in any phase or stage of the case.
"'II.—Before the jury can convict the accused, they must be satisfied from the evidence that she is guilty of the offence charged in the indictment, beyond a reasonable doubt. It is not sufficient that they should believe her guilt only probable. No degree of probability merely, will authorize a conviction; but the evidence must be of such character and tendency as to produce a moral certainty of the prisoner's guilt, to the exclusion of reasonable doubt.
"'III.—Each fact which is necessary in the chain of circumstances to establish the guilt of the accused, must be distinctly proved by competent legal evidence, and if the jury have reasonable doubt as to any material fact, necessary to be proved in order to support the hypothesis of the prisoner's guilt, to the exclusion of every other reasonable hypothesis, they must find her not guilty.
"'IV.—If the jury are satisfied from the evidence, that the accused is guilty of the offence charged, beyond reasonable doubt, and no rational hypothesis or explanation can be framed or given (upon the whole evidence in the cause) consistent with the innocence of the accused, and at the same time consistent with the facts proved, they ought to find her guilty. The jury are the exclusive judges of the evidence, of its weight, and of the credibility of the witnesses. It is their duty to accept and be governed by the law, as given by the Court in its instructions.'
"The evidence in this case is not direct and positive, but presumptive; and your attention has been called to some well known cases of persons convicted of, and executed for capital crimes, whose entire innocence was subsequently made apparent. These arguments and cases only prove that, 'all human evidence, whether it be positive or presumptive in its character, like everything else that partakes of mortality, is fallible. The reason may be as completely convinced by circumstantial—as by positive evidence, and yet may possibly not arrive at the truth by either.'
"The true question, therefore, for your consideration, is not the kind of evidence in this case, but it is, what is the result of it in your minds? If it has failed to satisfy you of the guilt of the accused, and your minds are not convinced, vacillate in doubt, then you must acquit her, be the evidence what it may, positive or presumptive; but if the result of the whole evidence satisfies you, it you are convinced that she is guilty, then it is imperatively your duty to convict her, even if the character of the evidence be wholly circumstantial." Such is the law.
"In resigning this case to you, I deem it my duty to direct your attention to one point, which I suggest that you consider. If the accused administered chloroform, did it indicate that her original intention was solely to rob the vault? Is the act of administering the chloroform consistent with the theory of deliberate and premeditated murder? In examining the facts submitted by counsel, take the suggestion just presented, with you, and if the facts and circumstances proved 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 to your decision; and solemnly adjure you to be governed in your deliberations, by the evidence as you understand it, by the law as furnished in these instructions, and to render such verdict, as your reason compels, as your matured judgment demands, and your conscience unhesitatingly approves and sanctions. May God direct and control your decision."
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