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every thing which distinguishes the man from the child. See Wills' Lec. vol. 2. p. 64.

If by a concatenation of circumstances an innocent man may have been convicted and executed upon circumstantial evidence, how many, it may be asked, have been sacrificed by the positive testimony of perjured witnesses? The argument applies with equal force in each case, and only proves the imperfection of human nature in the couduct and intercourse of man with man. It by no means weakens the force of circumstantial testimony. Chitty, in his valuable treatise on criminal law, vol. 1. p. 459.) says, "From the obscurity with which some kinds of crime are frequently covered, the jury must often be compelled to receive evidence which is merely circumstantial and presumptive. It would be to little purpose to detail the curious distinctions which some of the older writers have taken, and the multifarious instances with which they have endeavoured to explain them. It seems, however, to be a good general rule, that no one ought to be convicted before a felony is known to have been actually committed; so that no man should be found guilty of murder before the death of the party is actually ascertained, nor of stealing goods, unless the owner is known, merely because he cannot give an account in what way they came into his possession. But the circumstance, that individuals have cccasionally suffered on presumptive testimony, whose innocence has been afterwards ascertained, ought not to prevent juries from attending, with caution and deliberation, to this species of evidence; for the evil is comparatively small to that general impunity which the worst offenders might obtain, if this kind of proof were never to be regarded." See farther the law upon this subject, 1 St. Tr. p. 181. 3 St. Tr. 939. 4 Black. Comm. 352. 2 Hale P. C. 260, 289, 290. McNally's Ev. 398, 399, 400. 1 Hays, 436.

[Church was called out of his bed at 1 o'clock in the morning, by a person pretending to have a letter for him, and as he opened the door, was shot dead on the spot.

A summary of the circumstances upon which the prisoner was found guilty of this murder are as follows:

1st. He had frequently complained of Church's conduct to him in defrauding him of his property, &c.

2d. He had used threats against Church to a number of people. And on one occasion had threatened to take his life.

3d. He had endeavored to persuade a person to assist him to put Church out of the way.

4th. He had threatened to shoot him.

5th. He was proved to have been lurking a few evenings before the murder, with his rifle, and endeavouring to conceal it.

6th. He left the village of Angelica the same evening, and in time to have committed the murder.

7th. He had something under his coat, exhibiting the appearance of a rifle.

8th. His suspicious conduct in the evening of the murder.

9th. In the morning, the horse upon which he rode on the evening of the murder was found wet with sweat.

10th. His false statements about his horse being sick.

11th. The ball with which prisoner was shot matching the one found in the prisoner's rifle box.

12th. The lint and horse hair found adhering to the rifle.

13th. The patch and tow wadding found in the house of the deceased near where he lay, &c,]

OYER AND TERMINER.

ALLEGANY COUNTY, (N. Y.) FEB. 1824.

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Present-Hon. Wm. B. Rochester, Circuit Judge.

Hon. John Griffin, Vial Thomas,
Sylvanus Merriam, Clark
Crandall, and Thomas Dole,

Judges of

Allegany

Com. Pl.

Counsel for the people, Samuel S. Haight, Daniel Cruger, and John C. Spencer, Esqrs.

Counsel for the prisoner, Fletcher M. Haight, Alvin Burr, and Felix Tracy, Esqrs.

On Tuesday, February 3d, the prisoner was arraigned on an indictment for the murder of Othello Church, to which he pleaded not guilty. On being asked if he was ready for trial, he answered in the negative, as he had not sufficient counsel, and was unable to employ others. The court informed him that if he had any choice in counsel he could then make his election: prisoner requested that Fletcher M. Haight and Felix Tracy, Esqrs. might be assigned him to assist Alvin Burr, Esq. who was employed, which was accordingly done. Prisoner

*This report was copied from the minute book of Judge Rochester, and may therefore be considered as correct. I acknowledge, with pride, the civility of his honor the judge, and S. S. Haight, Esq. The case is one of great importance, as depending entirely upon circumstantial testimony, and furnishes another instance, (if another is necessary,) of the strong character of this kind of proof.

was informed that the next morning his case would ALLEGANY, Feb. 1824. be called on.

V.

Wednesday, Feb. 4. Counsel for prisoner requested The People a few hours longer to send for witnesses, which was granted, and the cause was set down for 12 o'clock Dav. D. How. that day.

At the time appointed, the prisoner was brought into court, and after several challenges, the following jurors were sworn:

Daniel Scott, Isaac Smith, Amasa Hall, Peter Bacon, William Rose, Luke Maxon, George G. Paterson, Joseph Haynes, Ephraim Rowley, Joseph H. Root, Simon Williams, Horace Whitney.

Samuel S. Haight, Esq. opened the cause on the part of the people.

TESTIMONY ON THE PART OF THE PEOPLE.

Abraham Aldrich sworn.-The notes shown were executed by prisoner, Othello Church, (the deceased,) Luther Adams, and witness; one for 475, and the other for 50 dollars, dated Dec. 23, 1822; they were given to raise money for prisoner.

John Ayres-Saw Othello Church last fall after wheat was harvested, which was raised by How, take possession of it and corn and exercise over it acts of ownership.

Stephen Smith-Saw prisoner's family resides at the Dautrement farm. How afterwards told witness that Church had all the property on the Dautrement place-had full scope, and hoped he would be satisfied. This conversation was last fall after How was liberated from the goal limits. On second consideration, does not know but this conversation was before How was confined.

Alexander Dautrement.-In September How told witness he was going to settle with Mr. Church-he and Church had a conversation; they appeared to be irritated, and could not agree on settlement. Some time after, perhaps November, witness asked How if he had settled with Mr. Church, and How replied that he expected it would be settled. The last time witness spoke with How, the latter said Church was damned foolish, and did not do as he wanted him to do. How did not appear to be irritated. A few days before Mr. Church was killed, How said he could not settle with Mr. Church. On one occasion How said that Mr. Church, Mr.

Feb. 1824.

ALLEGANY, Wilson, Col. Hull and Mr. Palmer had leagued together to ruin him, and he would have revenge out of some of them. This was a few days before Mr. Church's death. How The People reckoned that these four had combined to ruin him. This conversation took place in reference to Church's having his Dav. D. How- property as security, and to his complaints against the others. He complained that Church was hauling away his grain.

V.

Cross examined.-Says this conversation was at witness's house he mentioned the names of all those four persons. He said they had stripped him of his money and property; that he had the means of revenging himself, and if he could not one way he could in another. In the first or second conversation How said he had money, and could buy judgments against these persons.

Mrs. Dautrement.-About the middle of October How complained that the sheriffs and Mr. Church had stripped him of every thing-that they had got all his money, and now he was as bad off as ever. He mentioned Wilson, and Palmer, and Church, and Aldrich, whom he thought as bad as any. When he first came home in September, he said he had money and could buy judgments.

Adeline Dautrement-Does not recollect any thing but his abusing Mr. Hull very much-never heard him abuse Church.

Elijah Osgood-How and witness have frequently conversed together; in the last conversation, between the 10th and 15th October, How said that Church had then gotten his property, pretty much in his own hands, and that he had been trying to make arrangements so as to get his property into his own hands. He said Church was a difficult man to get along with; though if he could get his property in his own hands, he could make such arrangements as to pay Davenport, who held the demand against him in which Church was security.

David Crandall.—The week before Church's death How said, that if it had not been for his family he would have used powder and ball among the seven devil tribe; this was when talking of certain mills that were burnt, belonging to Mr. Palmer. Mr. Church's name, and no other person's name, was mentioned.

Moses Thompson.-Three or four weeks before-Church's death, witness fell in company with How, who said some person was fetching grain from his place. How said he should be under the necessity of taking a musket to the damned rascals. This was in Angelica village. No names were mentioned.

Amos Freeman-Knows prisoner. On 23d December ALLEGANY last How came to witness on the Dautrement farm, where Feb. 1824. witness had charge of Othello Church's property. How

came just after daylight, and invited him to a private in- The People terview in the barn, when How took ont a bottle of whiskey

sy.

V.

and said, if you will be my friend, I will tell you what we Dav. D. How. will do with Aldrich and Church. Witness replied he did not care much for Aldrich, but he would not do any thing to injure Othello Church. How said poh! come take a good drink, for I have come to take a serious talk with you take a drink and I will tell you. He then took witness by the hand and asked him if he could swear eternal secreWitness says he hesitated. How then asked him if he was a mason. Witness answered no. How said you know what I mean, you can keep a secret. Witness then promised How that he would never divulge any thing he would tell him. Mr. How then took him by the hand and said, you swear. How then said that Aldrich and old Othello were two of the greatest rascals he knew. How then continued: Now I mean to have my revenge. Had previously said that revenge could not be got by fair means. Oh then, says How, Freeman, it is worse than death. Spoke of Church's cattle, and eating the corn and pumpkins, and said he could not stand it: told witness to keep the keys of the farm. Now, Freeman, says he, I will put a stop to this, and if you will befriend me I will put $250 or $300 in your way. Freeman said that he would not be willing to injure Church for half the property on the farm.

After taking another drink, How asked witness if he thought Church his friend, and doubted whether he knew how he talked about him. How spoke of the crops and the debt that Church had to pay out of it. How estimated the debt at $500. Witness told How that Church estimated it at $900.

He then said that Church was a cursed villain, the greatest enemy he had, and would go any length to injure him. How complained of Church taking away onions and straw. How then began to appear irritated, and said, I am determined on revenge, and I will have it soon; and if you will be my friend you shall have half the property. Witness asked him in what way he would go to work? How replied, Freeman, if you will be my friend, we will soon have old Othello out of the way, and then there will be nobody to molest us.

Freeman then got up to go away; How took him by the hand, and wanted him to stay. On going to the house, How

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