Note 32 — FOOTNOTES: (continued 2)

Mr. Nott gives the following illustration from an actual trial:

"Take, for example, a certain case tried in the Criminal Branch of the Supreme Court in the January term of 1902. The jury saw the defendant, a stalwart, open-faced laboring man of nearly sixty years, on trial for murder in the first degree; they heard a bartender and a smooth-shaven, bullet-headed witness describe how the defendant in the saloon became involved in a dispute with the deceased, caused by the defendant's bad taste in reminding him that he had done time for killing his own father; and they heard him of the bullet-head admit on cross-examination that a scar adorning his neck had been inflicted by the deceased some two years before; they heard the two witnesses describe how the deceased left, breathing threatenings and slaughter, and how a few minutes later the defendant, in the room back of the saloon, was approaching the rear door, cutting a plug of tobacco with his knife, which he had providentially drawn for that purpose, when the deceased leaped upon him from the door and tried to stab him, whereupon a fight ensued, in which the defendant was cut, and after which the deceased left, followed a few minutes later by the defendant and the bullet-headed, who saw naught further of him. To mar the symmetry of this tale of self-defence (proved by the prosecution's own case), but two jarring facts appeared—first, the saloon proper (not the rear room) was found soaked in blood, and, second, the deceased was found shortly after the defendant's departure at three A.M. lying on the sidewalk in plain sight of the rear door, with his throat cut from ear to ear. No evidence was put in for the defence, the defendant modestly refrained from taking the stand, and of course an acquittal was inevitable.

"From behind the scenes, however, the facts assumed a different aspect. The frank-faced defendant was one 'Red,' who had served time for robbery and other offences; the bullet-head surmounted shoulders upon which rested a heavy load of crime and violence, their owner having served the State several times and been implicated in numerous crimes, including murder; the bartender would have considered it quite as safe, and far more comfortable, to put a bullet through his head than to testify against this choice pair; while it was true that the deceased had killed his own father, the act was performed while parent and son were in a drunken fight, by striking the old man on the head with a water pitcher, and had occasioned great mortification to the son when he became sober; and it was true that defendant and the bullet-headed were both bitter enemies of the deceased. On this statement of facts, there is little doubt that the deceased was murdered in the saloon where the blood was found, and his body thrown out on to the sidewalk, and the story arranged, the defendant shouldering the quarrel because he had received a cut in the course of the fight. As the defendant did not take the stand, his record and character could not be shown; as the State was compelled to call the bartender and the other witness (they being the sole witnesses to the occurrence), it could not impeach their veracity nor attack their character. To the prosecuting officer, therefore, was presented the choice of recommending the 'turning out' of a desperate criminal without a trial, or of putting in what facts the law permitted to be shown, and leaving the jury to acquit, while marvelling that such a weak case should be presented to them."