Now, so long as no other account shall be given of those suspicious persons, so long the inference must remain irresistible that they were the murderers. Let it be remembered that it is already shown that this murder was the result of conspiracy and of concert; let it be remembered that the house, having been opened from within, was entered by stealth from without. Let it be remembered that Brown street, where these persons were repeatedly seen under such suspicious circumstances, was a place from which every occupied room in Mr. White's house was clearly teen; let it be remembered that the place, though thus very near to Mr. White's house, was a retired and lonely place; and let it be remembered that the instrument of death was afterwards found concealed very near the same spot.

But, gentlemen, let us now consider what is | picion. And a man is found the next morning the evidence produced on the part of the gov-murdered in the near vicinity, ernment to prove that John Francis Knapp, the prisoner at the bar, was in Brown street on the night of the murder. This is a point of vital importance in this cause. Unless this be made out beyond reasonable doubt, the law of presence does not apply to the case. The government undertake to prove that he was present, aiding in the murder, by proving that he was in Brown street for this purpose. Now what are the undoubted facts? They are that two persons were seen in that street at several times, during that evening, under suspicious circumstances;-under such circumstances as induced those who saw them to watch their movements. Of this there can be no doubt. Mirick saw a man standing at the post opposite his store, from fifteen minutes before nine until twenty minutes after, dressed in a full frock-coat, glazed cap, &c., in size and general appearance answering Must not every man come to the conclusion to the prisoner at the bar. This person was that these persons, thus seen in Brown street, waiting there; and whenever any one ap- were the murderers? Every man's own judgproached him, he moved to and from the cor-ment, I think, must satisfy him that this must ner, as though he would avoid being suspected or recognized. Afterwards two persons were seen by Webster, walking in Howard street, with a slow, deliberate movement, that attracted his attention. This was about half past nine. One of these he took to be the prisoner at the bar-the other he did not know.

be so. It is a plain deduction of common sense. It is a point on which each one of you may reason like a Hale or a Mansfield. The two occurrences explain each other. The murder shows why these persons were thus lurking at that hour in Brown strect; and their lurking in Brown street shows who committed the murder.

If then the persons in and about Brown street were the plotters and executors of the murder of Capt. White, we know who they were, and you know that there is one of them.

About half past ten a person is seen sitting on the ropewalk steps, wrapped in a cloak. He drops his head when passed, to avoid being known. Shortly after two persons are seen to meet in this street, without ceremony or salu- This fearful concatenation of circumstances tation, and in a hurried manner to converse for puts him to an account. He was a conspirator. a short time; then to separate and run off with He had entered into this plan of murder. The great speed. Now on this same night a gentle-murder is committed, and he is known to have man is slain, murdered in his bed,-his house been within three minutes' walk of the place. being entered by stealth from without; and his He must account for himself. He has attempted house situated within 300 feet of this street. this, and failed. Then, with all these general The windows of his chamber were in plain sight reasons to show he was actually in Brown from this street;-a weapon of death is after-street, and his failures in his alibi, let us see wards found in a place where these persons what is the direct proof of his being there. were seen to pass-in a retired place, around But first, let me ask, is it not very remarkable which they had been seen lingering. It is now that there is no attempt to show where Richard known that this murder was committed by a Crowninshield, jr. was on that night? We hear conspiracy of four persons, conspiring together nothing of him. He was seen in none of his for this purpose. No account is given who usual haunts about the town. Yet, if he was these suspected persons thus seen in Brown the actual perpetrator of the murder, which nostreet and its neighborhood were. Now I ask, body doubts, he was in the town somewhere. gentlemen, whether you or any man can doubt Can you, therefore, entertain a doubt that he that this murder was committed by the persons was one of the persons seen in Brown street? who were thus in and about Brown street? Can And, as to the prisoner, you will recollect that, any person doubt that they were there for pur- since the testimony of the young men has failed poses connected with this murder? If not for to show where he was that evening, the last we this purpose, what were they there for? When hear or know of him, on the day preceding the there is a cause so near at hand, why wander murder, is, that at four o'clock P. M. he was at into conjecture for an explanation? Common his brother's, in Wenham. He had left home sense requires you to take the nearest adequate after dinner, in a manner doubtless designed to cause for a known effect. Who were these sus- avoid observation, and had gone to Wenham, picious persons in Brown street? There was probably by way of Danvers. As we hear nosomething extraordinary about them-some- thing of him after four o'clock, P. M. for the thing noticeable, and noticed at the time-remainder of the day and evening; as he was something in their appearance that aroused sus- one of the conspirators; as Richard Crownin

shield, jr. was another; as Richard Crownin- | shield, jr. was in town in the evening, and yet seen in no usual place of resort, the inference is very fair that Richard Crowninshield, jr. and the prisoner were together, acting in execution of their conspiracy. Of the four conspirators, J. J. Knapp, jr. was at Wenham, and George Crowninshield has been accounted for; so that, if the persons seen in Brown street were the murderers, one of them must have been Richard Crowninshield, jr., and the other must have been the prisoner at the bar. Now, as to the proof of his identity with one of the persons seen in Brown street.

judged by his walk, by his general appearance, by his deportment. We all judge in this manner. If you believe he is right, it goes a great way in this case. But then this person, it is said, had a cloak on, and that he could not, therefore, be the same person that Mirick saw. If we were treating of men that had no occasion to disguise themselves or their conduct, there might be something in this argument. But as it is, there is little in it. It may be presumed, that they would change their dress. This would help their disguise. What is easier than to throw off a cloak, and again put it on? Perhaps he was less fearful of being known when alone, than when with the perpetrator.

Mr. Southwick swears all that a man can swear. He has the best means of judging that could be had at the time. He tells you that he left his father's house at half past ten o'clock, and as he passed to his own house in Brown street, he saw a man sitting on the steps of the ropewalk, &c., &c.-that he passed him three times, and each time he held down his head, so that he did not see his face. That the man had

Mr. Mirick, a cautious witness, examined the person he saw closely in a light night, and says that he thinks the prisoner at the bar is the same person; and that he should not hesitate at all, if he were seen in the same dress. His opinion is formed, partly from his own observation, and partly from the description of others. But this description turns out to be only in regard to the dress. It is said that he is now more confident than on the former trial. If he has varied in his testimony, make such allow-on a cloak, which was not wrapped around him, ance as you may think proper. I do not perceive any material variance. He thought him the same person, when he was first brought to court, and as he saw him get out of the chaise. This is one of the cases in which a witness is permitted to give an opinion. This witness is as honest as yourselves-neither willing nor swift; but he says he believes it was the man"this is my opinion;" and this it is proper for him to give. If partly founded on what he has heard, then his opinion is not to be taken; but if on what he saw, then you can have no better evidence. I lay no stress on similarity of dress. No man will ever be hanged by my voice on such evidence. But then it is proper to notice, that no inferences drawn from any dissimilarity of dress, can be given in the prisoner's favor; because, in fact, the person seen by Mirick was dressed like the prisoner.

The description of the person seen by Mirick answers to that of the prisoner at the bar. In regard to the supposed discrepancy of statements, before and now, there would be no end to such minute inquiries. It would not be strange if witnesses should vary. I do not think much of slight shades of variation. If I believe the witness is honest, that is enough. If he has expressed himself more strongly now than then, this does not prove him false.

Peter E. Webster saw the prisoner at the bar, as he then thought, and still thinks, walking in Howard street at half past nine o'clock. He then thought it was Frank Knapp, and has not altered his opinion since. He knew him well; he had long known him. If he then thought it was he, this goes far to prove it. He observed him the more, as it was unusual to see gentlemen walk there at that hour. It was a retired, lonely street. Now, is there reasonable doubt that Mr. Webster did see him there that night? How can you have more proof than this? He

and a glazed cap. That he took the man to be Frank Knapp at the time; that when he went into his house, he told his wife that he thought it was Frank Knapp; that he knew him well, having known him from a boy. And his wife swears that he did so tell her at the time. What could mislead this witness at the time? He was not then suspecting Frank Knapp of any thing. He could not then be influenced by any prejudice. If you believe that the witness saw Frank Knapp in this position, at this time, it proves the case. Whether you believe it or not, depends upon the credit of the witness. He swears it. If true, it is solid evidence. Mrs. Southwick supports her husband. Are they true? Are they worthy of belief? If he deserves the epithets applied to him, then he ought not to be believed. In this fact, they cannot be mistaken they are right, or they are perjured. As to his not speaking to Frank Knapp, that depends upon their intimacy. But a very good reason is, Frank chose to disguise himself. | This makes nothing against his credit. But it is said that he should not be believed. And why? Because, it is said, he himself now tells you that when he testified before the grand jury at Ipswich, he did not then say that he thought the person he saw in Brown street was Frank Knapp, but that "the person was about the size of Selman." The means of attacking him, therefore, come from himself. If he is a false man, why should he tell truths against himself? They rely on his veracity to prove that he is a liar. Before you can come to this conclusion, you will consider, whether all the circumstances are now known that should have a bearing on this point. Suppose that when he was before the grand jury, he was asked by the attorney this question: "Was the person you saw in Brown street about the size of Selman?" and he answered, yes. This was all true. Suppose

also, that he expected to be inquired of further, | and no further questions were put to him! Would it not be extremely hard to impute to him perjury for this? It is not uncommon for witnesses to think that they have done all their duty, when they have answered the questions put to them. But suppose that we admit that he did not then tell all he knew; this does not affect the fact at all; because he did tell, at the time, in the hearing of others, that the person he saw was Frank Knapp. There is not the slightest suggestion against the veracity or accuracy of Mrs. Southwick. Now, she swears positively, that her husband came into the house and told her that he had seen a person on the ropewalk steps, and believed it was Frank Knapp.

It is said that Mr. Southwick is contradicted, also, by Mr. Shillaber. I do not so understand Mr. Shillaber's testimony. I think what they both testify is reconcilable, and consistent. My learned brother said, on a similar occasion, that there is more probability in such cases that the persons hearing should misunderstand, than that the person speaking should contradict himself. I think the same remarks applicable here.

You have all witnessed the uncertainty of testimony, when witnesses are called to testify what other witnesses said. Several respectable counsellors have been called on, on this occasion, to give testimony of that sort. They have, every one of them, given different versions. They all took minutes at the time, and without doubt intend to state the truth. But still they differ. Mr. Shillaber's version is different from every thing that Southwick has stated elsewhere. But little reliance is to be placed on slight variations in testimony, unless they are manifestly intentional. I think that Mr. Shillaber must be satisfied that he did not rightly understand Mr. Southwick. I confess I misunderstood Mr. Shillaber on the former trial, if I now rightly understand him. I therefore did not then recall Mr. Southwick to the stand. Mr. Southwick, as I read it, understood Mr. Shillaber as asking him about a person coming out of Newbury street, and whether, for aught he knew, it might not be Richard Crowninshield, jr. He answered that he could not tell. He did not understand Mr. Shillaber as questioning him as to the person whom he saw sitting on the steps of the ropewalk. Southwick, on this trial, having heard Mr. Shillaber, has been recalled to the stand, and states that Mr. Shillaber entirely misunderstood him. This is certainly most probable, because the controlling fact in the case is not controverted; that is, that Southwick did tell his wife, at the very moment he entered his house, that he had seen a person on the ropewalk steps, whom he believed to be Frank Knapp. Nothing can prove, with more certainty than this, that Southwick, at the time, thought the person whom he thus saw to be the prisoner at the bar.

Mr. Bray is an acknowledged accurate and

intelligent witness. He was highly compli-
mented by my brother, on the former trial,
although he now charges him with varying his
testimony. What could be his motive? You
will be slow in imputing to him any design of
this kind. I deny altogether that there is any
contradiction. There may be differences, but
not contradiction. These arise from the differ-
ence in the questions put; the difference be-
tween believing and knowing. On the first
trial, he said he did not know the person, and
now says the same. Then we did not do all
we had a right to do. We did not ask him
who he thought it was. Now, when so asked,
he says he believes it was the prisoner at the
bar. If he had then been asked this question,
he would have given the same answer.
he has expressed himself stronger, I admit; but
he has not contradicted himself. He is more
confident now; and that is all. A man may
not assert a thing, and still not have any doubt
upon it. Cannot every man see this distinc-
tion to be consistent? I leave him in that at-
titude; that only is the difference. On ques-
tions of identity, opinion is evidence. We may
ask the witness either if he knew who the per-
son seen was, or who he thinks he was.
he may well answer, as Capt. Bray has answer-
ed, that he does not know who it was, but that
he thinks it was the prisoner.

That

And

We have offered to produce witnesses to prove that, as soon as Bray saw the prisoner, he pronounced him the same person. We are not at liberty to call them to corroborate our own witness. How then could this fact of the prisoner's being in Brown street be better proved? If ten witnesses had testified to it, it would be no better. Two men, who knew him well, took it to be Frank Knapp, and one of them so said, when there was nothing to mislead them. Two others, that examined him closely, now swear to their opinion that he is the man.

Miss Jaqueth saw three persons pass by the ropewalk, several evenings before the murder. She saw one of them pointing towards Mr. White's house. She noticed that another had something which appeared to be like an instrument of music; that he put it behind him, and attempted to conceal it. Who were these persons? This was but a few steps from the piace where this apparent instrument of music tof music such as Richard Crowninshield, jr. spoke of to Palmer) was afterwards found. These facts prove this a point of rendezvous for these parties. They show Brown street to have been the place for consultation and observation; and to this purpose it was well suited.

Mr. Burns's testimony is also important. What was the defendant's object in his private conversation with Burns? He knew that Burns was out that night; that he lived near Brown street, and that he had probably seen him; and he wished him to say nothing. He said to Burns, "if you saw any of your friends out that night, say nothing about it; my brother Jo

and I are your friends." This is plain proof that he wished to say to him, if you saw me in Brown street that night, say nothing about it. But it is said that Burns ought not to be believed, because he mistook the color of the dagger, and because he has varied in his description of it. These are slight circumstances, if his general character be good. To my mind they are of no importance. It is 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.

ster 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 placeit 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

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-previous agreement; then it follows, he was 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 neighbors 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 Web-| VOL. II.-27

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 views of his conduct and intentions, the most the house.

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 any thing; 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 necessary, 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.

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 any thing 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 testiWho is Mr. Colman? He is an intelligent, fies. No treachery of memory brings to memaccurate and cautious witness. A gentleman ory things that never took place. There is no of high and well known character; and of un-reconciling his evidence with good intention, if questionable veracity. As a clergyman, highly the facts are not as he states them. He is on respectable; as a man, of fair name and fame. trial as to his veracity. 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

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