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for you to make what deduction you may think proper, on this account, from the weight of his evidence. His conversation with Burns, if Burns is believed, shows two things; first, that he desired Burns not to mention it, if he had seen him on the night of the murder; second, that he wished to fix the charge of murder on Mr. Stephen White. Both of these prove his own guilt.
I think you will be of opinion,, gentlemen, that Brown street was a probable place for the conspirators to assemble, and for an aid to be. If we knew their whole plan, and if we were skilled to judge in such a case, then we could perhaps determine on this point better. But it is a retired place, and still commands a full view of the house; -a lonely place, but still a place of observation. Not so lonely that a person would excite suspicion to be seen walking there in an ordinary manner;-not so public as to be noticed by many. It is near enough to the scene of action in point of law. It was their point of centrality. The club was found near the spot-in a place provided for it-in a place that had been previously hunted out-in a concerted place of concealment. Here was their point of rendezvous-Here might the lights be seen-Here might an aid be secreted-Here was he within call-Here might he be aroused by the sound of the whistle-Here might he carry the weapon-Here might he receive the murderer, after the murder.
Then, gentlemen, the general question occurs, is it satisfactorily proved, by all these facts and circumstances, that the defendant was in and about Brown street, on the night of the murder? Considering, that the murder was effected by a conspiracy;-considering, that he was one of the four conspirators; considering, that two of the conspirators have accounted for themselves, on the night of the murder, and were not in Brown street;-considering that the prisoner does not account for himself, nor show where he was;-considering that Richard Crowninshield, the other conspirator, and the perpetrator, is not accounted for, nor shown to be elsewhere;-considering, that it is now past all doubt that two persons were seen in and about Brown street, at different times, lurking, avoiding observation, and exciting so much suspicion that the neighbours actually watched them;-considering, that if these persons, thus lurking in Brown street, at that hour, were not the murderers, it remains, to this day, wholly unknown who they were, or what their business was; considering the testimony of Miss Jaqueth, and that the club was afterwards found near this place;-considering, finally, that Webster and Southwick saw these persons, and then took one of them for the defendant, and that Southwick then told his wife so, and that Bray and Mirick examined them closely, and now swear to their belief that the prisoner was one of them; it is for you to say, putting these considerations together, whether you believe the prisoner was actually in Brown street, at the time of the murder.
By the counsel for the defendant, much stress has been laid upon the question, whether Brown street was a place in which aid could be given a place in which actual assistance could be rendered in this transaction? This must be mainly decided, by their own opinion who selected the place; by what they thought at the time, according to their plan of operation.
If it was agreed that the prisoner should be there to assist, it is enough. If they thought the place proper for their purpose, according to their plan, it is sufficient.
Suppose we could prove expressly, that they agreed that Frank should be there, and he was there; and you should think it not a well chosen place, for aiding and abetting, must he be acquitted? No-it is not what I think, or you think, of the appropriateness of the place it is what they thought at the time.
If the prisoner was in Brown street, by appointment and agreement with the perpetrator, for the purpose of giving assistance, if assistance should be needed, it may safely be presumed that the place was suited to such assistance, as it was supposed by the parties might chance to become requisite.
If in Brown street, was he there by appointment? was he there to aid, if aid were necessary? was he there for, or against, the murderer? to concur, or to oppose? to favor or to thwart ? Did the perpetrator know he was there-there waiting? If so, then it follows, he was there by appointment. He was at the post, half an hour; he was waiting for somebody. This proves appointment— arrangement-previous agreement; then it follows, he was there to aid, to encourage, to embolden the perpetrator, and that is enough. If he were in such a situation as to afford aid, or that he was relied upon for aid,-then he was aiding and abetting. It is enough, that the conspirator desired to have him there. Besides, it may be well said, that he could afford just as much aid there, as if he had been in Essex street-as if he had been standing even at the gate, or at the window. It was not an act of power against power that was to be done,-it was a secret act, to be done by stealth. The aid was to be placed in a position secure from observation :It was important to the security of both, that he should be in a lonely place. Now, it is obvious, that there are many purposes for which he might be in Brown street.
1. Richard Crowninshield might have been secreted in the garden, and waiting for a signal.
2. Or he might be in Brown street, to advise him as to the time of making his entry into the house.
3. Or to favor his escape.
4. Or to see if the street was clear when he came out.
5. Or to conceal the weapon or the clothes.
6. To be ready for any other unforeseen contingency. Richard Crowninshield lived in Danvers—he would retire the most secret way. Brown street is that way; if you find him there, can you doubt, why he was there!
If, gentlemen, the prisoner went into Brown street, by appointment with the perpetrator, to render aid or encouragement, in any of these ways, he was present, in legal contemplation, aiding and abetting, in this murder. It is not necessary that he should have done anything; it is enough, that he was ready to act, and in a place to act. If his being in Brown street, by appointment, at the time of the murder, emboldened the purpose, and encouraged the heart of the murderer, by the hope of instant aid, if aid should become neces
sary, then, without doubt, he was present, aiding and abetting, and was a principal in the murder.
"I now proceed, gentlemen, to the consideration of the testimony of Mr. Colman. Although this evidence bears on every material part of the cause, I have purposely avoided every comment on it, till the present moment, when I have done with the other evidence in the case. As to the admission of this evidence, there has been a great struggle, and its importance demanded it. The general rule of law is, that confessions are to be received as evidence. They are entitled to great or to little consideration, according to the circumstances under which they are made. Voluntary, deliberate confessions are the most important and satisfactory evidence. But confessions, hastily made, or improperly obtained, are entitled to little or no consideration. It is always to be inquired, whether they were purely voluntary, or were made under any undue influence of hope or fear; for, in general, if any influence were exerted on the mind of the person confessing, such confessions are not to be submitted to a jury.
Who is Mr. Colman? He is an intelligent, accurate, and cautious witness. A gentleman of high and well known character; and of unquestionable veracity. As a clergyman, highly respectable; as a man, of fair name and fame.
Why was Mr. Colman with the prisoner? Joseph J. Knapp was his parishioner; he was the head of a family, and had been married by Mr. Colman. The interests of his family were dear to him. He felt for their afflictions, and was anxious to alleviate their sufferings. He went from the purest and best of motives to visit Joseph Knapp. He came to save, not to destroy; to rescue, not to take away life. In this family, he thought there might be a chance to save one. It is a misconstruction of Mr. Colman's motives, at once the most strange and the most uncharitable, a perversion of all just views of his conduct and intentions, the most unaccountable, to represent him as acting, on this occasion, in hostility to any one, or as desirous of injuring or endangering any one. He has stated his own motives, and his own conduct, in a manner to command universal belief, and universal respect. For intelligence, for consistency, for accuracy, for caution, for candor, never did witness acquit himself better, or stand fairer. In all that he did, as a man, and all he has said, as a witness, he has shown himself worthy of entire regard.
Now, gentlemen, very important confessions made by the prisoner, are sworn to by Mr. Colman. They were made in the prisoner's cell, where Mr. Colman had gone with the prisoner's brother, N. P. Knapp. Whatever conversation took place, was in the presence of N. P. Knapp. Now, on the part of the prisoner, two things are asserted; first, that such inducements were suggested to the prisoner, in this interview, that any confessions by him ought not to be received. Second, that, in point of fact, he made no such confessions, as Mr. Colman testifies to, nor, indeed, any confessions at all. These two propositions are attempted to be supported by the testimony of N. P. Knapp. These two witnesses, Mr. Colman and N. P. Knapp, differ entirely. There is no possibility of reconciling them. No charity can cover both. One or the other has sworn falsely. If N.
P. Knapp be believed, Mr. Colman's testimony must be wholly disregarded. It is, then, a question of credit, a question of belief, between the two witnesses. As you decide between these, so you' will decide on all this part of the case.
Mr. Colman has given you a plain narrative, a consistent account, and has uniformly stated the same things. He is not contradicted by anything in the case, except Phippen Knapp. He is influenced as far as we can see by no bias, or prejudice, any more than other men, except so far as his character is now at stake. He has feelings on this point, doubtless, and ought to have. If what he has stated be not true, I cannot see any ground for his escape. If he be a true man, he must have heard what he testifies. No treachery of memory, brings to memory things that never took place. There is no reconciling his evidence with good intention, if the facts are not as he states them. He is on trial, as to his veracity.
The relation in which the other witness stands, deserves your careful consideration. He is a member of the family. He has the lives of two brothers depending, as he may think, on the effect of his evidence; depending, on every word he speaks. I hope he has not another responsibility, resting upon him. By the advice of a friend, and that friend Mr. Colman, J. Knapp made a full and free confession, and obtained a promise of pardon. He has since, as you know, probably by the advice of other friends, retracted that confession, and rejected the offered pardon. Events will show, who of these friends and advisers, advised him best, and befriended him most. In the meantime, if this brother, the witness, be one of these advisers, and advised the retraction, he has, most emphatically, the lives of his brothers, resting upon his evidence, and upon his conduct. Compare the situation of these two witnesses. Do you not see mighty motive enough on the one side, and want of all motive on the other? I would gladly find an apology for that witness, in his agonized feelings, in his distressed situation;-in the agitation of that hour, or of this. I would gladly impute it to error, or to want of recollection, to confusion of mind, or disturbance of feeling.—I would gladly impute to any pardonable source, that which cannot be reconciled to facts, and to truth; but, even in a case calling for so much sympathy, justice must yet prevail, and we must come to the conclu sion, however reluctantly, which that demands from us.
It is said, Phippen Knapp was probably correct, because he knew he should be called as a witness. Witness-to what? When he says there was no confession, what could he expect to bear witness of? But I do not put it on the ground that he did not hear; I am compelled to put it on the other ground-that he did hear, and does not now truly tell what he heard.
If Mr. Colman were out of the case, there are other reasons why the story of Phippen Knapp should not be believed. It has in it inherent improbabilities. It is unnatural, and inconsistent with the accompanying circumstances. He tells you that they went "to the cell of Frank, to see if he had any objection to taking a trial, and suffering his brother to accept the offer of pardon:" in other words, to obtain Frank's consent to Joseph's making a confession; and in case this consent was not obtained, that the pardon would be offered
to Frank, &c. Did they bandy about the chance of life, between these two, in this way? Did Mr. Colman, after having given this pledge to Joseph, after having received a disclosure from Joseph, go to the cell of Frank for such a purpose as this? It is impossible; it cannot be so.
Again: We know that Mr. Colman found the club the next day; that he went directly to the place of deposit, and found it at the first attempt, exactly where he says he had been informed it was. Now Phippen Knapp says, that Frank had stated nothing respecting the club, that it was not mentioned in that conversation. He says, also, that he was present in the cell of Joseph all the time that Mr. Colman was there, that he believes he heard all that was said in Joseph's cell; and that he did not himself know where the club was, and never had known where it was, until he heard it stated in court. Now, it is certain, that Mr. Colman says, he did not learn the particular place of deposit of the club from Joseph; that he only learned from him that it was deposited under the steps of the Howard street meeting-house, without defining the particular steps. It is certain, also, that he had more knowledge of the position of the club, than this-else how could he have placed his hand on it so readily?—and where else could he have obtained this knowledge, except from Frank? [Here Mr. Dexter said that Mr. Colman had had other interviews with Joseph, and might have derived the information from him at previous visits. Mr. Webster replied, that Mr. Colman had testified that he learned nothing in relation to the club until this visit. Mr. Dexter, denied there being any such testimony. Mr. Colman's evidence was then read from the notes of the judges, and several other persons, and Mr. Webster then proceeded.]-My point is, to show that Phippen Knapp's story is not true, is not consistent with itself. That taking it for granted, as he says, that he heard all that was said to Mr. Colman in both cells, by Joseph, and by Frank; and that Joseph did not state particularly where the club was deposited; and that he knew as much about the place of deposit of the club, as Mr. Colman knew; why then, Mr. Colman must either have been miraculously informed respecting the club, or Phippen Knapp has not told you the whole truth. There is no reconciling this, without supposing Mr. Colman has misrepresented what took place in Joseph's cell, as well as what took place in Frank's cell.
Again: Phippen Knapp is directly contradicted by Mr. Wheatland. Mr. Wheatland tells the same story as coming from Phippen Knapp, as Mr. Colman now tells. Here there are two against one. Phippen Knapp says that Frank made no confessions, and that he said he had none to make. In this he is contradicted by Wheatland. He, Phippen Knapp, told Wheatland, that Mr. Colman did ask Frank some questions, and that Frank answered them. He told him also what these answers were. Wheatland does not recollect the questions or answers, but recollects his reply; which was, "Is not this premature? I think this answer is sufficient to make Frank a principal." Here Phippen Knapp opposes himself to Wheatland, as well as to Mr. Colman. Do you believe Phippen Knapp, against these two respectable witnesses-or them against him?