At the meeting of the court this morning, some delay was occasioned by the absence of the leading counsel for the prisoner.
Mr. SAYLES, junior counsel for the prisoner, said—May it please the Court, my associate, Mr. Graves, is not present. I have learned that he went to Twenty-seventh street to see his uncle last night, and I have not seen him since. I would therefore ask a short delay.
The COURT.—There may have been some accident; you had better send and inquire. The Court will wait a few minutes.
Mr. C. H. Hunt, the Assistant District Attorney, said, if the Court please, this will not, of course, prevent our doing all we proposed to do. We have to inform the Court that Capt. Nickerson, whose testimony we were anxious to obtain, has not arrived, and we do not suppose we shall have his testimony to-day. It is proper I should state, also, that we have never regarded his testimony as indispensable in any sense, for if we had we would not have consented to proceed with the trial without his being present. We have, however, regarded his testimony as very important, as giving completeness to the chain of facts which we had it in our power to present to the Court and jury; and in this view of the case perhaps we were anxious that the testimony should not be submitted on the part of the government without that link in the chain; and we were desirous of doing what, as I understand it, is the duty of the government, of presenting all the facts that it is in our power to present, before calling upon the prisoner for his defence. These are the reasons which influenced the prosecution in asking for the delay which has been granted; and we now feel that we have done all we could to procure this testimony, in order to give the evidence such completeness as is in our power, and we do not now feel like asking the Court for any further delay in order to procure the testimony of Capt. Nickerson. We are obliged to the Court for granting the delay asked for yesterday, and we now, under the circumstances, rest the case on the part of the government, and leave the evidence for the prosecution as it now stands.
The COURT.—It appears that Mr. Graves, the senior counsel for the prisoner, is not in attendance, and for some reason probably for which he is not responsible. The Court will wait a reasonable time for him.
Ex-Judge ROOSEVELT, United States District Attorney, said—During this short interval I should remark, in addition to what has been said by Mr. Hunt, that upon looking over this case, although I took no part in it in open court, that the prosecution came to the conclusion that this testimony was entirely unnecessary, though relevant; and the only reason why any delay should have been asked, and the only reason why any delay should have been granted, was to follow out the usage founded on good sense and on humanity—that usage which has been regarded, not by strict law, but by a species of courtesy, that the government, being the stronger party, should not, at the outset, take sides, as it were, but develop the entire case, whether they lay before the court items which may be deemed by them not to be very important, because it might so happen to the mind of the court and the minds of the jurors, that those items, which we might deem not important, should seem to be very necessary to make out the case. I did not consider the testimony of Captain Nickerson in any other light than in completing the history of the case. On the other side, they had a right to object to the introduction of what Captain Nickerson had sworn to before the commissioner, and it was perfectly proper they should do so, unless the evidence was introduced in the regular way. On our part we have endeavored to do our full duty to the court, to the prisoner, and to the public. We have tried to give every element, every item of evidence in the case that had the slightest bearing upon it; and I would now say, to avoid any misapprehension, that it does not arise from any idea of the weakness of the case by any means; but it is to fill out, if possible, the usage of the courts in criminal cases. But we are unable to procure this witness; he probably is on the ocean now, for he sailed from Philadelphia for Boston last week, and is now at sea. If, however, he should arrive in the course of the day, it will be for the court to say whether it will take his testimony or not, and for the prisoner’s counsel as to whether they will object to it or not.
The COURT.—It appears to me that this is a proper view of the case taken by the United States Attorney. It is the duty of the government, especially in a case of high crime—such a case as the prisoner is charged with—to lay before the court and jury all the evidence they have in their power, or that they are cognizant of, which has any connection with or bearing on the case; and, as the court intimated yesterday, whatever may be its opinions in relation to the necessity of the evidence, such as Captain Nickerson’s might be, it would be very improper for the court to intimate it at this stage of the trial.
Mr. SAYLES (prisoner’s counsel).—I experienced some reluctance in asking the court a further delay for the purpose of this trial. It has already been delayed, on the part of the government, for an entire day. I would, however, on the present occasion, ask the court to take a recess until twelve o’clock, to accommodate the defendant, in order that I may ascertain where my partner is, or that I may procure counsel to associate with me. Mr. Graves went last evening to see his uncle in Twenty-seventh street, and I have not seen or heard of him. I would say, in addition, that Mr. Graves has my brief in his possession.
The JUDGE said that the Court was very indulgent to both sides, in consequence of the importance of the case, both to the public and the prisoner, and although he is very anxious to dispose of the case as soon as practicable, yet he would grant a delay until twelve o’clock.
On the reassembling of the Court, Mr. Sayles said he expected his associate every minute, and he desired to consult with him as to the production of witnesses. He would now call Mr. Commissioner White as to the testimony of a witness named Downes, in describing the position of the sloop.
KENNETH G. WHITE, United States Commissioner, called and examined by Mr. Sayles, deposed—My impression is that a witness named Downes was before me on the preliminary examination; I cannot recollect the particulars of his testimony without referring to my minutes. (Minutes produced.) I do not see in my minutes any designation made by Mr. Downes as to where the vessel was; there are two marks on the chart, one of which was made by Mr. Downes in court.
EDWARD BARNES, called for defence, deposed—He resides in Keyport; knew Capt. Burr; gave him $100 for oysters; this was on the 15th of March; I gave him the money in quarters and halves, and ten and five cent pieces; I do not know what amount of money he had with him; he told me Mr. Simmons gave him $200.
The COURT said that was not evidence.
He put it in a bag; it made the bag about half full; I cannot identify the bag.
Mr. SAYLES then said they had no other witness for the defence, and he then proceeded to address the Court and jury on behalf of the prisoner. He commenced by describing the sensation created in this city by the intelligence of this transaction, and that the public press had given a description of and directed the eye of the community to this one man. He then suggested that this tragedy may have been perpetrated by river thieves who have been driven to the lower bay by the Harbor Police, and who, perhaps, committed a similar one on another sloop on the same night. Counsel said, in cases of admiralty this court had a limited and special jurisdiction, derived from the laws of Congress passed under the Constitution of our country, which gives power to define and punish felony and piracy on the high seas. This court, therefore, had so much power, and no more. It had no common law jurisdiction. (He then cited several authorities.) He claimed that a portion of that act of Congress was unconstitutional; that Congress had no right to define and punish felonies on the high seas; it has no power to take away the rights of individual States to punish the crime for which this man stands charged. It was committed beyond the jurisdiction of the court, and it had no power to punish for this felony. He then read a reported case where an act of piracy had been committed in Boston harbor, and in which it was held that it should be tried in the courts of that State.
The COURT remarked that this was not a question for the jury, but should have been raised on demurrer, or might be brought up on a motion in arrest of judgment.
Mr. SAYLES submitted that the jury were the judges of the law and the facts.
The COURT.—Not on questions of jurisdiction. Those questions are always for the Court—for its decision.
Mr. SAYLES contended that “on the high seas” meant either in the harbor of some foreign country, or beyond any portion of a coast where the sea ebbs and flows.
The COURT remarked that this was the opinion of English lawyers, but did not apply to American laws.
Mr. SAYLES said—We have adopted the English common law.
The COURT.—Only to a limited extent.
Mr. SAYLES then cited from “Chitty’s Criminal Law,” vol. iii., which says, “that the piracy must be distinctly proved to have been committed on the high seas, or the defendant is entitled to an acquittal.” According to that law the admiralty had no jurisdiction within the limits of any county or city. The counsel then proceeded to appeal to the reason of the jury, and lay the facts before them. It was a case of great importance, not only to the federal government and to the community, but also to the unfortunate prisoner at the bar, and he called upon the jury to elevate their minds above outside prejudices. A supposed tragedy had been committed in the lower bay, and the government had undertaken to show, by circumstantial evidence, that this is the man who perpetrated it. Counsel referred to the nature of circumstantial evidence, and alluded to the recent case in this court, where some half dozen witnesses swore positively to a man named Williams for post-office robbery, and subsequently swore as positively against another man, who was convicted.
Mr. HUNT, in reply, directed the court in support of the jurisdiction of the United States courts over the lower bay.
Mr. GRAVES, for the defence, referred to the case of the two Bournes, in Vermont, who confessed to the crime of murder, but were afterward proved to be innocent. The evidence against Hicks was entirely circumstantial, and of such a character as to render it very uncertain; but the most astonishing thing about the prosecution was the charge that this one man should kill these three men, powerful as they were, and not receive a single scratch. There must have been a terrible struggle; blood was spattered over the ceiling, blood everywhere, but no blood on him, no mark of violence on his person.
Mr. HUNT remarked that the only questions of law upon which there had been any dispute, were ruled upon by the Court, and he had nothing further to say.
Mr. DWIGHT then proceeded to sum up on the part of the government. He had hoped that there might have been some chance of the innocence of the prisoner found in the course of the trial. But he had been disappointed; nothing which had been asserted by the witnesses for the prosecution had been contradicted. No attempt had been made to break any one link in the chain of the evidence. The defence would endeavor to induce the jury to believe that Capt. Burr parted with his watch, which he had carried for nine years, to a pawnbroker; that Smith Watts had parted with the clothes which his aged mother had put up for him; that Oliver Watts had parted with the daguerreotype of the girl he loved. The time had not yet come when Yankee sailor boys gave up the pictures of “the girls they left behind them” without a struggle. Mr. Dwight then clearly and concisely reviewed the whole case and the testimony, giving a painful but graphic description of that dread night when this triple deed of blood was perpetrated, and concluded thus: Gentlemen, I have occupied your time longer than I intended, and I have but one word further to say. If this prisoner is not proven guilty of the crime against him, he is of course an innocent man. If there is in the breast of any of you one doubt concerning his guilt—one reasonable doubt as to his having committed this robbery of George H. Burr, as set forth in the indictment, in God’s name give him the benefit of that doubt. It is his sacred privilege, and it is just as much his right as he has a right to his life or his liberty. If you have any doubt upon considering the evidence, give him the benefit of that doubt, or any which you may have. But, gentlemen, if through the five days of this trial there has crept into your minds a conviction that he is the man, and if that conviction has been strengthened by the evidence which has been adduced and placed before you—that no other but he had committed this crime, then I say that his conviction is the property of the government, and I charge you to give it to the government. Here, in your seats, where you have sat during these five days listening to the opening and the testimony, and the closing upon the part of the government—here, in your very seats, I charge you to give the benefit of your conviction to the government, and I charge you to do this in your jury box without any hesitation. Gentlemen, there was no hesitation on his part; with that sharp axe he cut down the fair-haired boy, Watts; and then returned and felled the other: and then the death struggle with the captain occurred. Gentlemen, there was no hesitation there; and if you are convinced of his guilt, let there be no hesitation in your rendering in your jury box a verdict against him. There cries from the sands of Islip, “justice;” from that widow and from that mother. There comes up from the depths of the Atlantic, “from all the ships that float on it, and all that go down in the great deep”—there comes the cry of “justice.” The prisoner equally calls upon you to do justice; and gentlemen, I ask you, in the name of the government, if you believe him guilty of this crime, which he committed speedily, summarily and devilishly, that you will let your verdict be speedy, summary and just.
During the whole of Mr. DWIGHT’S address, which occupied nearly an hour, the prisoner was still unmoved; he never winced, but coolly twisted and turned a pen in his hand, pointing it to the table, and scarcely once looked up.
JUDGE SMALLEY said it was now past four o’clock, and he desired to look into some authorities which had been referred to; he would not charge the jury until morning.
The COURT then adjourned to Saturday morning, at ten o’clock. The prisoner was removed, in irons, by Deputy Marshals De Angelis and Dugan, who had special charge of him, and who kept a sharp watch that he should have no means of suicidal death at hand, nor make any effectual effort to escape.
The court-room was, as it had been every day during this extraordinary trial, densely crowded.