or wsudsssd wm£sn9 FOR THE BEFORE CHIEF JUSTICE SPENCER, 1820; AND BEFORE HIS HONOR WILLIAM W. VAN NESS, 1821 ; AT ALLEGANY. embracing a brief outline of the former trial, AND A DETAIL OF THE LATTER. INCLUDING THE TESTIMONY, AND SPEECHES OF MESSRS. COLLIER, QA1GHT, MATTHEWS AND HULBERT, WITH THE CHARGE OF THE JUDGE TO THE JURY. .BY M. T. C GOULD, Stenographer. ALBANY: PRINTER BY WEBSTERS AND SKINNERS, /»,Ai their Bookstore, in the White House, coiner of State and Pearl Streets. 1821. CONTENTS AND ORDER OF THE FOLLOWING WORK. An outline of the former trial, at the Oyer and Terminer in Allegany, 1820. The opinion of the Supreme Court, delivered by Ch. J. Spen- cer, August term, at Albany, 1820. Commencement of the late trial, formation of the jury, &c. OPENING SPEECH BY J. A. COLLIER, FOR THE PEOPLE, TESTIMONY FOR THE PEOPLE. Testimony of Mrs. Elizabeth Barnard, Miss Betsey Leonard, Mrs. Lucy M'Kay, Dr. Lyman N. Cook, Dr. James Faulkner, Dr. Warren Patchen, Dr. Wyllis F. Clark, Dr. Philip Rich, Mr. William Bailey, Peter Gregory, John R. Gansevoort, J. Wilson, Augustus Partridge, "William Sharp, Gadd Sutliff, William Boyland, Aaron Wickham, Horace Morse, David Morse. OPENING SPEECH BY GEN. HAIGHT, FOR THE PRISONER. TESTIMONY FOR THE PRISONER. Testimony of Mr. Daniel M'Kay, Mrs. Lucy M'Kay, Mr. Casey M'Kay, ---- ----(blacksmith,) Orange M'Kay, Dr. Josiah Noyes, Mr. Levi Doty, Dr. Elisha W. Brockway. SPEECHES. Vincent Matthews, John W. Hulbert, John A. Collier, And charge of the judge to the jury. AN OUTLINE OF THE FIRST TRIAL Medad M'Kay was indicted at the general sessions in Alle- gany, for the murder of his wife, by administering arsenic. There being no resident district attorney in that county, the court appointed D. Cruger, Esq. of Steuben county, to perforin that duty. Mr. Cruger prepared the cause for trial ; but his clerk neglected to put a seal to the venire. The cause was brought to trial, at the oyer and terminer in Allegany, 1820, be- fore chief justice Spencer $ and after a long and solemn investiga- tion of the subject the prisoner was convicted The following day he was called on to show cause, if any he had, why judg- ment should not pass upon him. V. Matthews, Esq. one of the prisoner's counsel suggested to the court the probability, that there might be some illegality in the proceedings ; as the statute stated that the venire should be issued by the district attorney, and it appeared there was no resident, or special dis- trict attorney in the county He requested a few moments to look at the statute, and likewise to examine the venire ; which was granted. On an examination of the venire, it was discov- ered that there was no return endorsed by the sheriff, and that it was destitute of a seal. These objections being raised, the chief justice suspended judgment, and "the prisoner was brought up from the county of Allegany, [before the supreme court] on a habeas corpus, and the indictment and proceedings against him in the court of oyer and terminer and gaol delivery, in that county, were returned in obedience to a writ of certiorari di- rected for that purpose." This cause was very ably argued, by Messrs. Oakley, (attorney general) and Collier for the people, and Hudson and Talcott for the prisoner ; after which the opin- ion of the court was delivered by chief justice Spencer, as follows. " It has properly been conceded by the attorney general, that the paper purporting to be a venire, is to be regarded as a nulli- ty, it not having the seal of this court impressed upon it. The points which have been argued, and which the court is called upon to decide, are, 1. Whether the trial was regular without a venire returned and filed ; 2. Whether the fact which appears on the return, that the prisoner peremptorily challenged several jurors, cured the defect of a venire ? It has not been controverted, and it certainly could not be, with effect, that at common law, a venire is essentially necessa- ry to authorise the sheriff to summon a jury ; and that an omis- sion of that process would be a fatal defect. The trial of collat- eral issues, and a jury de medietate linguae, form exceptions to the general rule of the common law. It has, however, been urged, that the provisions of the statute for regulating trials of issues, and for returning able and sufficient jurors, (l R. L. 328) dispense with the necessity of a venire. The nth section 5 of the act authorizes the clerks of counties to draw the names of jurors for the trial of issues, without any venire previously issu- ed, fourteen days previous to the holding of the courts, after giving ten days notice; and after drawing the number required, and completing the pane!, the clerk is to make out, and certify under his hand, a panel of the jurors so drawn, and deliver the same to the sheriff, " whose duty it shall be to summon the sev- eral persons whose names are contained in such panel, at least eight days previous to the sitting of such .court, and to make return in what manner he has served such process." The 16th section of the act concerning the circuit courts and sittings, and the courts of oyer and terminer and gaol delivery, (1 R. L. 139) requires of the sheriffs of each of the counties, to cause to come before the courts of oyer and terminer and gaol delivery, to be held therein, twenty-four good and lawful men, as grand jurors, and likewise, so many good and lawful men of the same cities and counties respectively, duly qualified to serve as jurors therein, as the said courts of oyer and terminer and gaol delivery, or any justice thereof, shall, from time to time, direct ; and it requires the district attorneys, as soon as conveniently may be, after every circuit court shall be appoint- ed to be held, within their respective districts, and at least fifteen days before the time of holding the same, to issue precepts under the seal of the supreme court, directed to the respective sheriffs of the same cities and counties, for the purposes aforesaid) men- tioning the day and place, when and where the said courts are to be held, and commanding the said sheriffs respectively, to do what is required of them. These two statutes being in pari ma- teriu, must both be taken into consideration, in deciding wheth- er the venire was intended to be dispensed with by the first stat- ute. If these are construed together, it is manifest the legisla- ture did not intend to supercede the use of a venire. It cannot be admitted, that in requiring the panel to be delivered to the slierilf, and in requiring the sheriff to make return in what manner he has served such process, the legislature could be guilty of the absurdity of considering the panel, containing only the names of the jurors, their places of abode and addition, as a process. The process referred to must be the venire, under the seal of the supreme court. The only necessity now remaining lor the issuing and placing a venire in the hand of the sheriff, regards the return to be made upon it. The sheriff's return of the manner in which he has performed his duty, must be made on this process, that the court may be officially informed, that the sheriff has duly obeyed its mandate. Inasmuch, then, as a venire was necessary at the common law, and as the statute yet requires it to be issued, the omission to issue it, we must consid- er an error apparent on the record ; and in such a case, affect- ing life, we do not feel ourselves authorized to dispense with a process, required by the common law, and also by the statute, although we may not be able to perceive much use in continu- ing it. We are not of the opinion, that the prisoner's peremptory challenge of jurors was a waiver of his right to object now to the want of a venire. It seems to be an admitted principle, that 6 a challenge to the polls, is a waiver of a challenge to the array ; but the objection now taken is not to the array ; a challenge to the array is an exception to the panel in which the jury are ar- rayed and set in order by the sheriff in his return ; and it may bemade on account of partiality, or of some default in the sher- iff, who arrayed the panel. (Bl. Com. 359.) It is a humane principle, applicable to criminal cases, and especially when life is in question, to consider the prisoner as standing upon all his rights, and waiving nothing on the score of irregularity. We are, therefore, clearly of opinion, that the judgment must be ar- rested. His counsel has suggested a doubt, whether arresting the judgment does not entitle him to be discharged without be- ing subjected to another trial. It will be observed that the judg- ment is arrested on the motion of the prisoner. An act done at the request, and for the benefit of a prisoner, we are clearly of opinion, cannot exonerate him from another trial. A case, an- alogous in principle, occurred in Ontario county, in 1814. A woman of colour was indicted, and tried for murder, and found guilty. The jury had separated, after agreeing on a verdict, and before they came into court; and on that ground a new tri- al was granted, and she was tried again. We know of no case which contains the doctrine, that where a new trial is awarded at the prayer, and in favor of a person who has been found guil- ty, that he shall not be subject to another trial. Let the prisoner be remanded to the gaol of the county of Al- legany, and let proceedings be sent down by procedendo. AT THE OYER AND TERMINER, IN ALLEGANY. June 19 and 20, 1821. Court opened at 8 o'clock. Present, Honorable Wm. W. VAN NESS, one of the justices of the supreme court, of the state of New-York. ; PHILIP CHURCH, ) T , 0 f an „ THOMAS DOLE and i JudZes °J *»&** JOHN GRIFFIN, ) common pleas. Counsel for the people, John A. Collier, Esq. Counsel for the prisoner, Messrs. Samuel S. Haight, Vuvcent Matthews and John W. Hulbert. The prisoner being brought into court, was informed, that the jurors, about to be called, were to pass between the people of the state of New-York, and him upon his life and death, and if he had any objections to make, he must make them previous to their being sworn and he should be heard. The jurors pres- ent, (23 in number) were individually called, and all rejected except 9 : Upon which Mr. Collier prayed a tales. The sheriff proceeded to select from the bystanders, and after the rejection of a number, succeeded in completing a panel as follows. 1 Elijah Butter-field, 2 Prosper Adams, S Tunis Freeman, 4 William Rose, 7 Stephen Smith, 8 Henry M'Heney, 9 Thomas Pratt, 10 Richard N. Porter, 5 Daniel Raymond, 11 James M'Heney, 6 Titus Hulbert, | 12 Reuben Weed, Jun. The jury being formed and sworn, Mr. Collier proceeded to open the cause on the part of the people, as follows. tf the court please, Gentlemen of the Jury* The solemn and painful duty has for the second time de- volved upon me, of presenting the case of Medad M'Kay, the prisoner at the bar, to a jury of the county of Allegany. The prisoner stands charged with tht murder of Lucy M'Kay his wife, to whom, as it is alledged in the indictment, he wil- fully administered poison, in the month of August, 1819, bv which her death was produced. You will see, from the very nature of the charge, that unless some fortuitous cit- cumstauce has exposed the prisoner, we must, on behalf of the 8 people, necessarily rely upon circumstantial testimony to provs his guilt. A man about to commit a crime, and particularly a crime of this magnitude, would neither call witnesses, nor com- mit it openly and in" the face of day. He would, on the contra- ry, seek to veil this deed of darkness, in more than the darkness of midnight. The plan would be formed, matui'ed and carried into execution in secrit—when he supposed no human eye could observe his conduct. But gentlemen, there is an eye which seeth in secret—there is a Superintending Providence, who, as if to manifest his displeasure at this horrid crime, will, sooner, or later, and in his own good time, even on this side the grave, bring the offence and the offender to the light and condemnation of the world. I do not intend, gentlemen, in this stage of the enquiry, to give you the facts, upon which we rely in this case, in detail. The prisoner shall have no reason to complain that your minds have been prejudiced against him in the outset, by the partial or mistaken view of his case, presented by the counsel for the people. You shall have the unvarnished tale from the witnes- ses themselves. ""Your attention will be first directed to the en- quiry, whether the death of the deceased was caused by poison, and if we are able to satisfy you upon this point, the next ques- tion for your consideration will be, whether that poison was ad- ministered by the prisoner at the bar. On the part of the peo- ple, I think we shall be able to produce satisfactory evidence upon both points—and shall present to you such a chain of fact!) and circumstances as will lead your minds irresistably to the conclusion that the alleged crime has been committed, and tiiat the prisoner is the guilty perpetrator. As 1 have alrca \ suggested, the prisoner has been once tri- ed by a jury impannelled for that purpose in this county. We claim nothing, however, from the verdict of that jury—The law has indulgently given the prison -r the benefit of another trial, and in the verdict you are to pronounce, you are to decide and determine for yourselves uninfluenced by the result of the form- er trial. It may be proper, however, to observe, that the pri- soner, whether he be innocent or guilty, comes before you at this time with many advantages. All the testimony on behalf of the prosecution has been spread before him and ample oppor- tunity afforded to explain, as far .is they are capable of expla- nation, every fact and circumstance which appeared and were urged against him on the former trial. If the prisoner had rea- son to fear any thing from the popular feeling or prejudice against him, he may now, after this lapse of time, safely con- clude that such feeling and prejudice have subsided. With these remarks, I shall proceed directly to the examination of the witnesses on behalf of the people. I psesume it is hardly neces- sary for me to impress upon you the importance of giving your serious attention to every word which may fall from the mouths of these witnesses, as every word may be material and have a greater or less influence upon the verdict you are to pronounce. 1 hope there is no necessity of any appeal to you upon this sub- ject. You, doubtless feel that the life of a fellow being is com- mitted to your hands, and are suitably impressed with the vast 9 responsibility of your situation, holding, as you do, life and death in your hands, which you are bound to dispense under the sob mu obligation of the oath you have taken. If it should turn out. gentlemen, that the facts are not sufficient clearly to estab- lish the guilt of the prisoner—if he shall be able to explain sat- isfactorily the circumstances which shall be laid before you, so that you are either satisfied of his innren'e, or have any reasonable doubt of his guilt, it will be your duty to ac- quit him. I sincerely hope he will be able to give us such an explanation as will satisfy us all, and will afford you the pleasure of saying, consistently with a scrupulous and conscien- tious discharge of your duty, that this man is not guilty of the crime with which he stands charged. But if, on the other hand, after a careful examination of his case, you cannot avoid the painful conclusion that he is guilty, then, fearless of all conse- quences, I trust that you will, and I know that you will, without favor or prejudice, pronounce your verdict accordingly, and de- liver the criminal to the justice of that law which he has vio- lated. TESTIMONY ON THE PART OF THE PEOPLE- Elizabeth Barnard was called and sworn. questions by the counsel for the people. Was Lucy M'Kay a relative of yours ? Yes. she was a sister of mine. When did she die? In August, 1819. Did you call to visit her in her last sickness? Yes, I did. Court. Relate the circumstances attending her sickness and death. I understood that she was taken sick about four o'clock on Sunday—I was called up about nine in the evening; and she died on Tuesday, about sun down. People. Who called for you? Daniel M'Kay. What did he say was the matter? He said his mother was sick with the cho- lic. I started to go to the house, and heard her hollowing a g n,d while before I reached there. I went in and asked if she was not very sick, and if she ever had the cholic as bad before. She said she never had. Who did you find in the house? Mr. M'- Kay and his two sons, and son's wife ; one of the sons and son's wife were up. Was your sister lying on th bed She was sometimes on the bed, and sometimes off; being in such agony that she could not keep still any where. Did,she complain of great distress? She.did—she said it was in the pit of her stom- ach. Wns she sick at the stomach ? She was—arjd said she had puked before I got there; and she puked twice or three times after I got there. Did she complain of being thirsty ? She did; and after M'Kay gave her medicine she was very thirsty. I gave her an injection, awl som;> pennyroyal tea—after which, she was some easier, and dropped to sleep. M'Kay went and took down a tumbler, put some warm water in it and stirred it up; observing, that he had given her some medicine, or physic, audit had operated upon her; but he did not know as there was enough : he afterwards said, there was a pretty good dose. He asked me to go with him to give it to her." I was uneasy— I thought it would make her worse—and one of the sons spoke 10 and said, he better not give it her. He said he would give it to her. Did she make any reply when he came to wake her up ? She did— she said, why can't you let me alone ; it makes me worse every time I take it. I think he had not more than got back to the fire, when she began to groan, and kept-growing worse till she got screaming again, and began to puke. She called for drink, and he gave her cold water. Court, Did she call for drink before she took this medicine ? I believe she did not. People. Did M'Kay give her water ? He did. Did she drink plentifully ? She did. M'Kay said he wished she had a quart in her. Did Mrs. M'Kay express any regret at having taken the me- dicine? She did—she said she wondered that he could not let her alone when she vvas ea9y—said every thing he gave her made her worse. I told her I would not take any thing more that he offered. She said if she did not, he would be angry. Describe how the me- dicine affected her. She was taken with puking and a violent pain in the stomach. He asked his son if he should not go after the doctor." I told him he must go, for she could not stand it so. He replied, No, she cannot. Did he start soon for the doctor ? He did as soon as he could get his horse. WLt doctor did he go for X Doctor Luther. How far did he live from M'Kay's ? Something like three mik-s. At what time did he leave the house ? About 10 o'clock—I had been there about an hour, and 1 came at about 9. Did Dr. Luther return with M'Kay? Yes—they came together, a little befere daylight. Was Mrs. M'Kay asleep when the doctor came? I think she was; she had been in dreadful distress till a little while before they came : we sent to Mr. Miller's and got some drops that Mrs. Miller had prepared for a child, and gave her part of a teaspoon full. What vvas it ? 1 think it was laudanum. Did Dr. Luther leave any medicine ? He did leave some in M'Kay's care to give her. After he had dealt out the medicine, he was about starting away—I told him he had best examine her pulse, &c. I psked him if cold water was good for her; he said a little would not hurt her. I asked what she should use for her steady drink- be said she might use water gruel while the physic was operating, which he left there. What time did you leave the house ? It was after breakfast in the morning. Witness did not know whether the medicine was given or not; she was in the house all the time till after breakfast. Did you understand from Mr. M'Kay, that he had given her any thing before you got there ? He said he had given her a portion of physic, but did not know that he had enough for another portion—when stirring up the water in the cup, he said he had enough for a good portion. When did you return to the house again ? It was after dinner. In what situation did you find her ? She was on the bed, and talking about her children. M'Kay was up atairs shoemaking—he came down, I think with one shoe on his foot. Did he offer her any more medicine ? I think not. Did he speak to her about taking any more medicine while you were there? He did. Was she in bed ? She was—I think she could not leave her bed. When did you call again ? In the evening—I went in and M'Kay was walking across the floor. He said she was not so well as in the day time. What time was this ? Day light was not gone. 'Did she complain of any pain ? She did—she vvas in pain above heF H knees and in her stomach. How long did you stay on Monday eve/- jing ? Not very long.- Did M'Kay offer her any thing in the eve- ning ? He did : she was trying to eat something; he came and warned her to take medicine; she said she wis eating, itnd did not want it then. He came again after she had done eating, and she appeared to take it—I could not say positively. ! left her in bed—u does appear to me, however, that six got up whilst I was there. M'Kay w;s talking about making her a pair of shoes to go to quarterly meeting. The next morning before sun rise the boy came to my house; I was about getting up; he said his mother was worse. Myself and husband went up. The boy said that his mother could not live. Before I got to the house I met M'Kay— he said his wife was just gone. How far from the h use was this! Abput five rods: he was walking from the house. When I went in she look, d as if she was dying—I concluded she was gasping her last. He came in and concluded to go for the doctor. Did he start foi the doctor? He did, a little after sun ii.e—he went on horseback—he said he would go for Doctor bhull, but he returned with Dr. Cook. What time? The sun a;ou- two hours high at night. What distance did these doctors live from M'Kay's ? At Danville, about 12 miles. What was the si'uatiu.n of Mrs. M'Kay during his absence? Sometimes she was partly blind < nd speech.- (ess, at other times she was deaf; then she would seem to revive again. 1 told her I thought she might recover, but they had liked to have killed her She said, who wants to kill me I I sajd it wag M'Kay that gave her the drops. Court. Did you mean the drops that were got at Millei's ? I did. She said she thought he gave her a great deal. Did she complain of pain that day ? She did—she said it w.s at the pit of her stom- ach. When Doctor Cook came, he found her dying. I asked him if she was dying? he said he could not tell yet. I believe he gave her some medicine, and set us to rubbing her feet and hi.nds, which had been cold all day, and never got warm till she died. With what did you rub them ? With vinegar, pepper and salt. What time did she die ? In the evening ; day light was about gone. Were you there when she was laid out ? 1 was. Did you discover any spots? I did—her legs were SRotted. What colour? I should say they were daik red spots—there were some on h, r shoulders. When was she buried? Wednesday afternoon, the 11 th of August. Have you lived much in the family ? I have a great deal. Had they both been married before they married each other? They had, and both had children—she had one son just married. How long had M'Kay and your sister been married ? Eight or nine years. On what terms did they live ? They lived very unhappily —a very disagreeable life. Did you ever see any quarrels between them ? I have, several. Did he ever offer violence to her in your presence ? He did not. He said he could not, and would not live so. Did you ever hear M'Kay say any tiling about a quarrel im • mediately preceding the illness and death of his wife ? I heard him say since he was in gaol, that they had not slept together for more, than a week before her death. He said she was a strange woman ; she would not sleep with him. Did you hear him say he had struck at her twice with a chair ? I did—he said he did it to stop her scold- ing. Did M'Kay keep medicine about the house ? He did* 12 Cross examination by prisoner's counsel. How far do you live from M'Kay's ? Auout hail a mile. What time did they come af- ter you ? About 9 o'clock. W hen did he rive ihe stiff in the cup ? It vvcs after I had given the injection. How long after you went there, was it, befoie she went to sleep ? Pethaps half an hour. Did M'Kay give medicine more than once that evening ? I think not. Did you know what it was ? He said it was some hing that he kept there for physic. How came you to object to it ? Because she had often saiu his medicines never did her any good Did you ever take any medicine out of that cup ? I believe I have. Did it tver hurt you ? 1 do not know that it did. V\ hich of the sons was pres- ent ? Daniel. And he objected to his giving it ? He did—he said he had given her enough before. What time did M'Kay go for the doctor ? About 10 o'clock ? Why did you think it was about 10 ? Becau-e I had been there about an hour. Was M'Kay there when she vvas in a doze ? He was. Did he wake her up to give her the medicine ? He did. What was the injection that you gave her ? It was sweetened urine. Did she purge at any time while you were there ? *he did, but hot till the injection worked. You told her that they had been trying to kill her ? N", I said that they had like to have killed her ; I did not think at that time that he intend- ed to kill her, he said he had gi*en her drops out if the same phial that came from Miller's. When did he tell you so ? I he next morning, which was Tuesday morning. llid he tell how many drops he had given her ? He said about 15 ; I thought by the looks of the phial he had given twice 15 Why did you think so ?. Because she was .o stupid. W7as she not quite easy the next day when you went there ? No, she ne>er was quite easy. Did you see M'Kay give any medicine on Monday evening ? He offered to give her something ; she refused at first because she was eating; afterwards it appe red as if she took it. Was this the medicine that Luther left ? I^do not know what it was : I don't know whether Luther's medicine was taken or not. Did M'Kay give any reas ns why he wi-.hed a quart of water down her ? He did not at that time, since that I have heard him say, that his mother used to use it for the chohc. You have seen your sister have the cholic before ? I have. Did not M'Kay give water in that case ? I never knew him to. What lime did M'tvay go after Shull ? About sunrise. Had he not sent by his son ? He said he had. When was it you had a conversation vvi-h M'Kay in the gaol ? can't tell exactly. Why did you go to the gaol to him ? 1 went to see him about a house to live in. Did you go there to Ihe ? I did not, because we had a house of our own. Had not you ana your sister had some difficulty ? We bad. Did you not complain to the church of your sister ? 1 never did. When did you settle the dispute? It vvas on her death-bed. Was it at the time you came here as a witness against M'Kay, that you conversed with him in gaol ? I never was litre at any other time. How many times have you been here as a witness ? Twice. Was it the first or last time ? I believe the first. Were you called as a witness ? No, I was bound over. Were you swoin before the coron- er ? No, I was sworn before three justices. Was M'Kay present ? He was. 13 Betsey Leonard sworn. People. Where did you live at the time of Mrs. M'Kay's death ? At Mr. Miller's. Who came for you ? Daniel M'Kay came over alter a phial of laudanum ; Mr. and Mrs. Miller, said they heard htr hollowing, and cou-d not lie there and hear her in such distress ; they got up, and we went over about 12 o'clock—she was in great distress. How did she complain ? I think she complained of pain. in the stomach ; she could not sit still or stand still ? I put a chair on the bed and a pillow on it, but she could nut lie on it; she tried to lie on her side but could not We asked what they had been giving her, she said M'Kay had been doctoring her. I tried to lead her across the floor, she said she could not live ; she would give the whole world that she could have one moment's ease. They gave her some of the drops that they got at Miller's. What did they called it ? Laudanum ; she complained of thirst and puked several limes while I was there. Court. D;d she speak of being thirsty ? She called for water. How long were you there before she got to sleep ? About 2 hours. Did she toss herself about on the b*.d ? She did ; once she fell down on the fluor and leaned her head on my lap, and lay perhaps a minute. We staid about 2 hours before we went away ; she lay down on her foce, in the bed, and got still; we then went home. We went again the next morning about sunrise ; Mr. M'K3y was up stairs, he came down and made a stop at the foot of the stairs, by a table behind the door ; so that I could not tell what he did—1 was standing by the bed ; he came to the bed with medicine in a table-spoon and gave it to her. It seemed to put her in great distress, she wanted me to raise her up, and I did so. How did it affect her afterwards? It put her in extreme pain and set her to puking, soon after I raised her up. How long did you remain this time ? About an hour. Court. Was Mis. Ijarnard there ? She was. Did you call again that day ? I did ; it was not quite sundown. Mrs. Barnard was not there. Where was Mrs. Biinard when M'Kay came down stairs? I believe she was out the door picking a chicken. People- When did you go over again ? Tuesday morning. M'Kay's son came along, and said his mother could not live but a short time. Mrs. Miller went over, but soon returned and brought the same news : I went over myself ; she appeared to be very thirs- ty, and looked as if she was dying ; her hands were cold, she lodked out of her eyes very wildly, they observed that she could not hear unless I spoke loud. She asked for drink frequently, and as soon as it was taken, away, she would ask again ; I staid there about an hour and a half, and then went home ; I came over again at^ 10 o'clock, found her about as when I went awav—we got some vine- gar and rubbed her with it. Was her stomach swollen ? I did not notice; we took a sprig of green sage ami wet it, and laid it between her lips. M'Kay was gone; I staid this time about an hour—went home and came over again in the afternoon, I think about 1 or 2 o'clock ; I went home once after that, but did not stay long. What time did M'Kay come home? I he sun was one and a half or two hours high in the afternoon. Did Dr. Cook come with him ? He did__M'Kav said he did not expect to find her alive. He%ent to 14 the bed and asked her where her distress was, if it was in her stom, ach. She said it was ; he went out the back door, and Dr. Cook fol- lowed him. When he came in, I asked him what Dr. Cook said, he said, he told him that she was failing fast ; he called for his dinner, and sat du\vn to it—1 went home, and when I came in again he was feeding lier with some watermelon. Was any one in the room at that time ? There wasWilliam Merril's wife and Lucy Pilbert. Was it a whole walermellon ? No, it was a piece ; she grabbed it and put it in her mouth ; some one tried to get it out of her mouth Dr. Cook directed us to take a spoon and get it out. I continued there till she died, which vvas about dark. He sat down on the bed by her—she took hold of his shirt and pulled him down to her, and said, I want, I want. I asked him why he did not ask her what she wanted ; he did ask, and she answered that she wanted to get well. (Here wit- ness said something that was not understood.) Did M'Kay pretend to be a kind of physican ? I believe he did. Did M'Kay tell what it was in the spoon ? He said it was peppermint drops—The spoon was about full, of some kind of liquid ; do not know wtu ther it had any colour, and did not discover any smell of peppermint—I discov- ered spots on heron Tuesday afternoon; when she turned in bed they could be discovered very plain upon her face and arms ; I think there Were some upon her legs ; her knees were very blue. Jury. Did she call for cold water or only drink ? The warm dr'nk did not seem to satisfy her—she appeared to have a high fever. Cross examination by the prisoner's counsel. Did she puke Sun- day evening ? ->he did ; I do not rememt-er whether she puked Mon- day afternoon or Tuesday ; I had no thoughtsof his giving anv thing to hurt her, and was not so particular to recollect about it. When did he give the medicine in the spoon ? It was Monday morning about sunrise How large vvas that room ? It was not very large. Did he see you when he came down stairs ? It is possible he did ; af» though he could not very well, because the door stood open. Still you could see him ? I saw him come down. Did you see him take the medicine from the table ? I did not. Did you see any medicine on the table ? I did; I do not know whether it was paregoric, or what it was. Did you see him give the medicine ? I did. Did she puke immediately after ? She did. Where were you ? I stood by the side of the bed near her. Was Mrs. Barnard in the house when you came on Monday morning ? She was, and M'Kay vvas up atairs—shp stepped out, and while she was out, he came down and gave the medicine. What time did you come to M'Kay's Sunday evening ? About 12 o'clock. Mrs. Barnard had given her an injec- tion she said ; and she observed further, that M'Kay had given her medicine twice, and it had made her worse. Court. Did you think they were drops which came from Mil- ler's ? I did not. Did you know, or hear the family say, that Dr. Luther had left medicine ? I did not. I asked the family what ail- ed her, and they said the cholic. Who was in the room when he gave her the medicine ? I think no one but myself and M'Kay. (jHere witness described the room, &c.} Lfcy M'Kay sworn. Stated that she married Casey M'Kay, a son to the prisoner—that she lived in the house, and was at home at the commencement, and 15 during the illness of the deceased—The first she discovered of he? being ill was on Sunday about 4 o'clock, P. M. she saw her on her hands and knees upon a chest; she said she believed she vvas going to have a turn of the bilious cholic. Witness did not recollect that any one was there except Daniel, Casey, and the prisoner $ did not know of her taking any thing previous to her being on the chest- Soon after which, prisoner came in and shaved off sbme kind of bard substance which he called castor, mixed it with water or liquor, and gave it to her—she continued to grow worse all the time* and com- plained of great pain and sickness at the stomach ; does not recol- lect that he gave any more medicine that day except some butter- nut piils—In the evening he poured some warm water into the tin cup which had contained the physic, rinsed it round and gave it to her ; this was after Mrs. Barnard came in. She observed soon af- ter she took the stuff, that she thought it made her feel worse ; wit- ness does not lecollect of her being thirsty that night; it was late vvaen prisoner started for Dr. Luther, and he returned with him be- fore daylight. Witness remained at the house till the death of Mrs. M'Kay, except going occasionally to the neighbors of an errand ; and thinks the deceased was veiy thirsty through the day, Monday, and asked for drink frequently ; prisoner and wife lived very unhappily to- gether, and quarrelled frequently: they had a quarrel but a short time before, never saw him offer any violence—thinks a candle was burn- ing in the room when the stuff vvas given from the cup—herself and Mrs. Barnard were present, did not set up much Monday night,but slept in the same room, and got up early Tuesday morning, found deceased very low, could not talk plain, and appeared to be in great pain—Husband, (Casey) got up early and started to Danville, for Dr. Shull—he did not come J sun half an hour high prisoner started to go himself, and returned sun one and a half or two hours high, at night —thinks prisoner eat some dinner—Discovered purple spots on Heck of deceased on Wednesday, but none before ; remembevs Erisoner's giving cold water to deceased, and observing it would not urt her—2 or 3 days after her death prisoner said he was in hopes he should live better than he had done. Cross examined. Deceased had been out on Sunday morning'and returned about noon ; appeared much fatigued and went up stairs ; she was subject to the cholic. I supposed it was a turn of the cholic ; she requested that prisoner should come in and give her something —I do not know that she was taken any worse than commen, for she was always as bad as she could be—her pains were not constant, •r she could not have lived as long as she did. Did not see any med- icine given Monday morning—there was a phial standing on the win- dow with laudanum—it was said that Dr. Luther left some pepper- mint ; I did not see it, for I went up stairs and laid down, as soon as he came. The tin cup spoken of was used expressly for butternut physic. Dr. Lymajt N. Cook sworn. Testified as follows: I reside at Danville, about twelve miles from the house of Mr. M'Kay. August 10, 1819, Mr. M'Kay call- ed on me between one and two o'clock P. M, and said he wanted me to take a ride. I asked him if he was in haste—he baid not in le great haste, biit would like to get there as quick as we could con- veniently. We started in about filieen or twenty minutes. We rode past Dr. Shuli's house a few rods, and then he rode back—I saw him conversing with Mrs. Shull. He then rode on and over- took me. He said he rode back to inform them that he had obtain- ed a physician. We then rode on pretty fast for about a mile and a half—after that we rode slowly. I asked him if his wife was very sick—he said not very sick; he said she had a turn of the hysteric cholic, (as he called it) to which she was very subject. We con- tinued to ride quite slow. The prisoner observed that he professed to be something of a doctor himself—they called him a root doc- tor. He said that he had given his wife such medicines as had re- lieved her generally ; but you know if I were ever so good a doc- tor, I should not like to doctor ray own wife, because, if she should happen to die, people would talk about it. He got off of his horse once or twice and got some roots, and brought some of them to me. I should say we were then not less than one, nor over three miles from his house. After giving me some, he said he would dig some more for his own use. He spoke of using them in cases of fever, and asked if I knew the root. I did not. I should say he was from ten to twenty minutes in getting them. We reached his house the sun about two hours high at night. WThen we first went into the house, prisoner went to the bed and had some conversation which I did not hear, and then passed out at the door. I sat down by the bed side—found that she was speechless—the extremities cold—the.body covered with a cold sweat—the tongue swollen—-a considerable degree'of restlessness—s great prostration of muscu- lar strength. She was throwing her hands about, and I think she turned over once in bed. I spoke to her a number of times—-.he attempted to answer, but I could not distinguish any articulate sounds. I observed that she was looking earnestly at some drink standing near the bed. I vvas told that she could not drink. I or- dered her mouth to be wet. She continued looking wishfully and making motions, as I supposed, for drink—her countenance was ve- ry ghastly. I passed out, and found the prisoner leaning on the fence. I sat down on a log, and requested him to come and set down. I told him that his wife was sinking, or dying—it was not worth while to give her any thing. I inquired of him whether she had not altered considerable since he left home : he said he thought she had some. I inquired of him what he had given her: he avoid- ed an answer at first; but on repeating the question, he said he had given her a pill of our own native ingredients. My impression at that time was, that butternut vvas the principal and most powerful part of the composition. I talked of returning: he said I had bet- ter stay till she died, and give some medicine which would be more satisfactory to the family. We then passed into the house. ^ I told the women they might make some external applications of vinegar, pepper, &c. and give some little stimulants—I think some brandy sling was made. I do not recollect seeing any spots on the skin ; there was a dark livid appearance, which is generally visible pre- vious to dissolution. Prisoner asked me for some bilious pill •—af- ter the death of Mrs. M'Kay, he stated that he wanted them 'or himself. He told me that he had obtained from Dr. Luther some peppermint and castor. 17 Cross examination. Witness said the" road from Danville to M'Kay's was very good, except three or four miles next M'Kay's. He said he dealt out camphor an : opium, and believed they were not given, but were left on the table. He recollected saying to M'K iv <* What the devif have you been giving her?" but thinks it was when they were sitting out the door While in rhe house, he discovered a watermelon seed in the mouth of the deceased, and re- quested the women to take a spoon and get it out. Recollects no- thing more. Dr. James Faulkner sworn. People. Were you present at the time the body of Mrs. M'Kay was di interred ? ( was not at the time the grave was opened. What time wa> she taken up? I think it was the 17th of August^ 1819. Did you have any conversation with the prisoner, while th'ey were taking up the body of his wife ? When we arrived at Ossian, there w< re perhaps 70 people collected. It was thoui^ht advisable, before we proceeded to eximine the body, to make some inquiry of M'- Kay : we accordingly got together in a room, and asked him what the prescriptions were, which he made for his wife ? He observed that he had some knowledge of medicine himself, and mentioned over the ingredients of which the pills were composed—I think butter- nut was the strongest and principal ingredient. I stated to M'Kay that suspicions were existing in the minds of the people, and the, best method would be for him to request to have his wife taken up. We urged him considerably on that point He expressed a wil- lingness that it should be done, but did not incline to make a re- quest. Doctor Clark and some others thought best to suggest to him, that he should object to the raising of his wife. I rather dis-# couraged the measure. Several persons went up for the purpose of opening the grave. Mr. M'Kay ei'her sent or came to me, re- questing an interview. We walked off four or five rods from any person : M'Kay said, I don't say that you will not find poison in her—but I say, if you do find poison there, I know I did not put it there: I blame her sister for it, as they were at variance. Now, said he, I have one request to make, and that is, that when the body is taken up, the sister and myself may both go up to the corpse and touch it; and if either of us is the murderer, a chop of fresh blood will follow the finger. I told h;m I would not make such a request. He asKed if 1 bad any objections, if the parties agreed to it. I told him 1 had none. Did M'Kay see the body? He did Was the bo- dy opened in your presence ? It wis : we took out the stomach—it was put into an earthen vessel, and given to the charge of Doctors Luther and Rich. Dr. Philip P. Rich called and sworn. Were you present at the time spoken of ? I was—I took the stomach, part of the liver, and the membranous matter attached to the stomach, put them in a vessel, and kept them in my possession till the next day. Where did you get this substance that you speak of? It lay near the diaphragm, contiguous to the liver, and attached to the stomach. They were put into a chamber-pot, and given to myself and Dr. Luther. I carried it down to the house, put a doth 3 18 over it, and tied a string round it. Dr. Luther and myself rode to Danville with it. It was not opened till in the presence of Doctors Putchin, Cook. Clark Luther, Faulkner, and myself. Cross examined. What was done with this pot, after you arrived at Danville ? L was left under a barrel in the barn—a half bushel was >et on the barrel, and the barndoor locked. Which lobe of the liver did you take ? I can't tell; because the operation was partly gone through with before it vvas suggested to take a part of the liv- er—so that it would be difficult to identify the particular portion of the liver. Dr. Warren Patchin sworn. Were you present at a time when some experiments were tried upon the contents of the stomach spoken of ? I was. Did you ex- amine the stomach yourself? I did. Describe what you know of it. W hat I saw of it was in an earthen vessel. The stomach externally was of a dark appearance, owing probably to the time that the sub- ject had been dead. On opening the stomach, the lower part of the three internal coats, the bilious, muscular and nervous, or rather posterior part, was destroyed. In the superior, or upper part of the stomach, the coats were remaining, except the internal one. The outward coat of the lower part of the stomach, near where it leads into the intestines was per ft r ted. There was one spot of a dark red colour, where there appeared to be sufficient substance to sup- port it in the inferior part: and in the superior part I discovered a portion of a dark red countenance, and a streak of about three fourths of an inch in width, of the same colour. I was not present during the first experiment, but was informed of the result by Dr. Clark. This experiment was by adding one grain of sal soda, to 4 ounces of water, with a portion of the suspect- ed matter, and that submitted to boiling heat; after the boiling heat, it was permitted to stand for a few minutes, and then was introduc- ed a portion of the nitrate of silver ; the result was a yellow precip- itate, very conspicuous. What is this test called ? It is called Hume's test. Is it highly recommended by medical writers ? It is. Did you try the same experiment upon real arsenic ? I cannot say that we did the first time,but we did several times after that; and it produc- ed the same result; the similarity was such, that we could not distin- guish the difference. We tried one experiment upon the matter contained in the stomach, which produced a darker precipitate. Did these experiments satisfy you that the stomach contained arsenic ? They did. Is there such a test as Bergman's test ? There is ; we tried that likewise, and the result went to confirm the result of the former experiments. We tried Bergman's test, as laid clown in Thomas, and Hume's, as laid down in the New-England medical journal. From these experiments were you satisfied beyond a doubt, that the stomach contained arsenic ? I was satisfied, by the exact similar- ity which was exhibited between the results of the suspected mat- ter, and the real arsenic. I have always thought there might be some mistakes in these tests ; therefore, I was particular to use real arsenic, and set the vessels side by side, that I might not be deceiv- ed ; in addition to which, we had the curiosity to shift the vessels, 19 in order to place the accuracy of the results beyond all doubt. Did you discover any substance in the stomach or on the liver, which resembled arsenic ? We discovered a white gritty substance oppo- site the holes through the stomach, which appeared to have drained through onto the liver, and adhered to it, making a conspicuous ap- pearance—Knowing the relative position of the stomach and liver, we thought this a rational conclusion. Were you ever called to at- tend on a similar occasion ? I have been. I never saw the symp- toms, but was called to the di section of a person who had died with the effects of arsenic. (Here witness related the circumstances of that case ) From your experience in that case, do you think the appearances were similar ? I do ; although that subject had not been interred so long. From the knowledge you have gained by reading medical books, what should you consider the most common symptoms re- sulting from the effect of arsenic ? The common symptoms are puking, a burning sensation at the pit of the stomach, heat, thirst, parched tongue, purging most generally a watery mucous matter ; after a certain time, the bowels become inflated, very sensible to the touch, a ghastly appearance of the countenance, great restlessness, and in a majority of cases, coldness of the extremities—Some wri- ters have spoken of loss of sight, and hearing, as common symp- toms, and in the last stages, livid spots. There are, however, cases in which but few of these symptoms appear, and but few cases in which all appear. Sometimes nothing but nausia and faintness, at others vomiting and purging. Is arsenic a corroding substance ? I am of the opinion that it is, in a certain measure ; although I have been so strongly warned about the use of it, by medical writers, that I never have ttied enough of it to determine satisfactorily ; still I be- lieve it is considered corrosive. Ha^e you heard the symptoms of Mrs. M'Kay ? I have. From these symptoms, with your experi- ence, what is your opinion of the death of this woman ? I have no kind of doubt, that the woman came to her death by arsenic. Had there not been so perfect a resemblance, between the results of our experiments upon the suspected matter of the stomach, and the re- al arsenic, there would have been more room for doubts; but as they appeared, I cannot think otherwise. Do you rely in this opinion upon your experiments alone, or in connection with the symptoms and circumstances of the case ? I have undoubtedly taken all into consideration ; still, I do not know, that it is possible, for my confi- dence to be increased, by the circumstances or symptoms, after seeing and feeling the substance, and finding in so many of the exper- iments, the result to correspond with real arsenic. Where did you procure the nitrate of silver ? I think it was at Dr. Clark's. How did you try to ascertain whether'this substance was gritty ? I put it on a knife blade, and drawed my finger over it—I mashed some of it on a slate, and tried it in the same way. Did you find enough, suppose it had been arsenic, so produce death ? I think there vvas enough to have produced 2 or 3 deaths. Cross examined. Were you present when the stomach was taken out of the body ? I was not; the first I aw, was at Dr. Clark's store chamber. How long had the body been dead ? I believe about 8 days, from information. I think appearances are not so much to, be relied on, so long after death. We are unable to deter* 2d mine in what manner the gastric juices operate after death. It is said by some medical writers, that the gastric juice frequently becomes so vitiated as to corrode the stomach ; still there may be cases, in which the stomach is not corroded—I think there was nothing very extraordinary in the appearance of that spot, because spots have been seen in many subjects not brought to their death by arsenic. These vitiated substances commonly pro- duce the greatest effect upon the lower part of the stomach— Arsenic is heavy, and would be likely to find its way to the low- er par; of the stomach—1 think it operates as a caustic upon living animal matter, although it is denied by some modern writers—1 have known it to destroy dumb flesh. Please to give your opinion, as to the manner in which arsenic finds its way into the coats of the stomach. (Dr Patchen proceeded to explain his views of the subject ; which, however, from some- unavoidable omission, do not appear in our notes, and are pro- bably not very material ; as they served only to corroborate his previous assertions, that arsenic does indeed corrode Hie stom- achy Are not the symptoms resulting from arsenic extremely va- rious ? They are. Would not the symptoms of a person dying with arsenic, be similar to those of a person dying with the bil- ious cholic ? I think the symptoms of the cholera morbus, would more nearly resemble those of arsenic. How soon after taken into the stomach, would arsenic probably produce vomiting ? It would depend on the situation of the stomach, and the quantity taken—If the quantity was small, and the stomach contained much mucillaginous matter, it would not produce vomiting immediately. I do not know, that 1 have ever read of a case of arsenic, in which purging was not a consequence. Is it remar- kable for a person to be thirsty in the bilious cholic ? It is not common in the first stages of it, it might afterwards be a con- sequence. Was the water you used in the experiments distill- ed ? It vvas not. What part of the liver was it that was taken out ? It was the left lobe. I scraped the substance from the liv- er, and it appeared to be; almost puse arsenic Did you wait for the water to cool, before you introduced the nitrate of sil- ver ? We waited a number of minutes—it was nearly cool. In your first experiment, what was the colour of the precipitate ? It was a bright yellow. There vvas a small quantity of matter in the stomach of about the consistency of molasses, on which we tried an experiment, and found the precipitate to be rather darker than that produced from real arsenic You used sal soda and not ammonia? We did. Did you examine it to see that it was free from all impurities ? Only by the eye—we did not test it. What was the colour of the suspected matter when prepared, and before receiving the nitrate of silver? The colour was not changed any more than we supposed vvas produced by the con- tents of the stomach ; indeed it differed but little in appearance from water—The suspected matter before diluted, was of a darkish colour. Do you not know that Dr. Marsett has deter- mined that sal soda is not a perfect test ? I have satisfied my- self that Mai-sett's improvement was intended more particularly for detecting minute quantities. Why did you not try other cx- nts ? Because we were satisfied that it was arsenic, in so 21 much that there was not a doubt remained in our minds on the subject. Did the matter taken from the stomach and liver read- ily dissolve ? We could not tell, because when it was introduced into the phial, it was put into boiling water, and we did not look at it till after it was dissolved. Have you ever studied chymis- try ? I never have, any further than was necessary to the com- position and decomposition of medicines. Then you rely upon what you have read on the subject altogether ? I think we may rely upon what we read respecting chymistry, as well, as upon other subjects. Were you present at all the experiments ? I be- lieve 1 vvas at all except with the water—There was a number tried in both ways ; with the real arsenic and the contents of the stomach in my presence. Should a similar case come un- der your inspection, would you not be disposed to carry your experiments further ? [ might, the better to satisfy the world and the jury. Did I understand that you had any doubts in jour mind, as to their being arsenic in that stomach ? Had I resorted to all the tests in the world, I could not have been bet- ter satisfied. Dr. Cook called again. Dr. Cook—where did you obtain the water, with which those experiments were tried ? It was taken from a large cistern sunk into the ground and cov end over. Was the cistern full ? It was, or nearly so—We tested the purity of the water by dropping in the nitrate of silver ; it did not produce any visible colour—If to the water we added a little of the sal soda, it turned it a milky cast; and that satisfied my mind that it was sufficiently pure to answer our purpose. We tried all the experiments after Dr. Patchen arrived, except that upon the water. You have heard what he has said, as to these experiments, do you concur with him in his opinion ? I do—I recollect, however, that in trying Hume's test, the first time it gave a bright yellow precipitate ; in trying it at other times, it did not always produce the same bright yellow precipitate. In trying Bergman's test we did not get so great a variety of shades of green. From the experi- ments tried were you not satisfied that the stomach contained arsenic ? I was satisfied that it did, and it was my strong be- lief that the woman came to her death by arsenic Court. On what do you found that belief? I form it from the symptoms, the appearance of the stomach, and the tests upon the suspected matter. Cross examined. Don't you know that it is advisable to have distilled water to perform these experiments ? I do know that it is recommended by chymists; but in the tests from which wc made our experiments, 1 believe there is nothing mentioned about distilled water; still 1 jthink Hume insists on it. In speaking of Bergman's test did you mean that which produces Scheele's green ? I did. What was the colour of the solution into which you put the sulphate of copper ? I think it vvas near- ly colourless. Did it produce a bright green ? Jt did. Would not 8 days be a sufficient time for putrefaction to make very ma- ferial changes in the appearance of the stomach, at this hot sen 22 sou of the year ? I think they would. Do you not know that pu- trefaction takes place in exact proportion to the quantity of fluids remaining in the body? I do not think it does always in exact proportion, it probably does to a certain degree. What is sulphate of copper ? It is generally known by the name ot bluo vitriol. Wyllis Clark sworn. Testified that he was, present at the dissection of the body, and at the time the experiments were made upon the contents of the stomach ; and from the symptoms before death, the appear- ances after death, and the tests made upon the suspected matter, in his presence, he was of opinion, that the woman came to her death by poison, and that poison vvas arsenic Cross examination. Witness stated, that this was the first ami last experiment of the kind that he had ever witnessed; but was very confident that he saw the same experiments tried, and same results produced, upon the suspected matter, and the real arsenic—which, to him, was satisfactory. He was not a chym- ist, but had studied chymistry some. On being asked if he had ever sold arsenic to the prisoner, he stated as follows : I cannot say positively that I have sold him arsenic, but I believe I have. He used to come and buy articles, and I am very confident that among others he bought arsenic 1 recollect one time in parti- cular, he spoke to me of curing cancers, and said he had a pa- tient who had a black cancer, and that he made use of arsenic. Court. Did you say you had sold him arsenic ? 1 think I have sold him arsenic, two or three times. 1 am as strongly impres- std with that belief, as I could be with the belief of any fact, which occurred so long ago. People. At the time that Mrs. M'Kay was about to be disin- terred, did M'Kay say any thing to you about poison ? He said, ■* It may be, or it is possible you may find poison there, but somebody besides me put it there," and added something about Mrs. Barnard. Dr. James Faulkxer called. Stated that lie w.is present during the experiments above spo- ken of, and agreed in opinion with Dr. Patchin, that the woman came to her death by arsenic. He formed his opinion upon the result of the tests—which were the same with the substance found in the stomach, and the pure arsenic. He relied with perfect confidence on the accuracy of the tests, being personally ac- quainted with tiie talents and experience of the gentlemen who had recommended the same. He did not know but the symp- toms and appearances might have had some effect on his mind, but was well convinced from the tests alone. He said the lower part of tiie stomach, near the orifice which leads into the intes- tines, was corroded; it had the appearance of net-work; it was highly inflamed, exhibiting strong marks of putrefaction. The inner coat was totally destroyed; and on holding it to the light, twenty or thirty small holes could be discovered. On the liver and on the coats of the stomach, was a white substance, resem- 23 bling arsenic to the eye, and on rubbing it between the fingers, appeared to be quite gritty. Experiments were tried upon these particles, and again upon real arsenic, and the result was the same. Cross examination. How long had this woman been dead? I was informed that she had been dead about eight days. Would arsenic be likely to remain in the stomach eight days, amidst all the decomposition of the parts, and the putrefaction which had already began ? I think it might, when taken in a large quantity. How much do you imagine was taken by this wo- man? Perhaps from fifteen .to thirty grains. What quantity would be sufficient to destroy life, if taken into the stomach ? I think five or six grains ; and it is probable that four might. Did \ou discover this" substance upon the liver? I did: arid I said likewise that the stomach, on holding it up, appeared like a rid- dle. Do you not know, that the gastric juice becomes vitiated immediately after death, and always destroys the lower part of the stomach? 1 do not. Do you not know, that after a person has been dead eight days, the appearances of the stomach are such as to render it impossible to determine whether it contain- ed arsenic or not? No, I do not; nor do I think it is the case. Did you ever read Dr. Cooper on that subject? I never did. What is the composition of nitrate of silver? It is produced from nitric acid and silver. Do you practise physic ? I do not. How long did you ever practise ? About four years. Dr. Rich called again. Stated, that he vvas present when the before mentioned expe- riments were tried, and concurred in opinion with the other phy- sicians. He had some conversation with M'Kay the day that his wife was disinterred: prisoner said something of arsenic, but denied that he knew it, or its use—thinks he said something about the probability of finding arsenic in the stomach, but is not positive of the fact. Cross examination. Did you ever study chemistry? I never did, scientifically. You founded your opinion on the appearances of the stomach and the tests? I did. Do you not think it un- safe to pronounce an opinion from appearances so long after death ? I think it would depend on the quantity of fluid in the stomach, and the quantity of arsenic taken. I think the ap- pearance of the stomach, together with other corroborating cir- cumstances in this case, sufficient to confirm the opinion which I have expressed. (Here a number of questions and answers passed between the counsel and witness, respecting the proprie- ty of depending on the sight and touch, to determine the prop- erties of a whitish spiculous substance, which witness said was found on the liver, and with which the experiments were tried.; William Bailey sworn. Witness said that he had a conversation with the prisoner, the day that his wife was taken up; in which prisoner stated the circumstances attending the illness of bis wife. He said that she had been out hunting for her boy, and came in very 24 much fatigued. He kept the tincture of castor to give her in such cases, to prevent the cholic, as she was subject to it. He fixed a dose and gave her—she went up stairs and lay down. Lucy M'Kay got dinner ready, and called her to come down— but she would not come down. After dinner, he and some men from number 4, were conversing together out at the bars—a boy came to him and said his wife had the cholic; he went in, and sure enough she had got it. He said the stuff did not ope- rate as it had usually done. He said he vvas not without his fears that there was poison in her; but it would be a query to find out who put it there. I asked him if it did not comfort him ? He said it did. Cross examination. Did he not say, that he did not put it there? I do not recollect. Were there people nearby? There were people all round—I do not know whether they heard the conversation. Do you think your memory is so good as to re- member the very words? I do. Did he say any one was in the room when he gave the castor? He did not: he said he gave her another dose after she was first taken. Did he say that- was castor ? He did not, in particular: I supposed, however, that it was. Peter Gregory sworn. Stated, that he was one of the keepers over M'Kay after he was taken, and had considerable conversation with him. He said he wished there might be a more skillful set of physicians called—that they were enemies to him... He said he never had seen any arsenic, and did not know what it was—unless he might have seen it when he was a boy, and lived with a mer- chant. He was put into my care the night after his wife was taken up, and remained with me about three days. 1 do not know that I had heard the subject of arsenic mentioned till M'- Kay began the conversation. The first night that I had the care of him, we lay on the bed together ; he turned over to me and said he was not without his doubts, that poison might be found in her ; but it was not him that put it there—he had ene- mies who might have done it to injure him. He said, he wanted to go over to Miller's and get a phial, and try an experiment on a chicken. We went over to Miller's ; he went in and took down a phial, and handed it to me ; I put it in my pocket, and kept it till the doctors came from Danville, and gave it to one of them. Cross examination. Witness thinks the prisoner referred to his neighbours, when he said, he had enemies who might have done it. Prisoner did not ask for the phial at Miller's, but went and took it down himself; they did not object to it. John R. Gansevoort sworn. I had a conversation with a man in prison, whom I suppose to be the present prisoner at the bar; at the time when he was in- dicted, lie enquired of me, whether I vvas acquainted with Dr. Clark ; and said he understood Dr. Clark was going to swear that he had bought arsenic from him more thtm three times ; if 25 he did, he would perjure himself; for he never had bought it but three times. He said he had been twice himself, or sent his son twice, and been once himself. Cross examination. Where do you live, Mr. Gansevoort ? At Bath. How did you come to have this conversation with the prisoner ? I was attending the court, and happened to be walking past the prison door, when the prisoner began this con- versation, at the door. Did you go up and speak through the door ? I did. \\ as M'Kay alone ? I think there was one with him. Do you pretend to swear positively, to the very words which were used two years ago ? I think I can—I am very pos- itive he said arsenic. Is it not possible that you were talking about poison, and he said corrosive-sublimate ? I think not. W hen the life of a fellow being is at stake, will you venture to think this or that, when you are not perfectly confident' 1 am very confident. As considerable was said in town about his poisoning his wife, might not this impression have arisen from that cir- cumstance ? I think it could not. Court. Are you positive those were the words used by the prisoner ? I am, I mentioned the circumstance at Mr. Cruger's, on my return home. J. Wilson, Sheriff, sworn. Said, that M'Kay and Partridge were both indicted, at the term of October, above alluded to. M'Kay has told me that he never saw any arsenic except when he was a small boy. Augustus Partridge, (the person alluded to by Mr. Ganse- voort, as being with M'Kay in prison, and who is still a pri- soner,) called and sworn. Said, that he never saw Dr. Clark to his knowledge, or knew him ; that he never had any such conversation with Mr. Ganse- voort at the prison door as had been related—he never had bought or dealt in arsenic at all. Cross examination. Were you in prison with M'Kay ? I was. Do you recollect M'Kay's talking through the diamond to any'' one on the subject of Dr. Clark swearing falsely ? I do not recol- lect it. I have heard him say that he sent for corrosive-sublimate to cure a horse ; but he did not know what arsenic was. Wit- ness recollected M'Kay's counsel being at the door; but did not recollect seeing Mr. Gansevoort that day. William Sharp sworn. Stated, that on the day that Mrs. M'Kay was dug up, M'Kay said to him, I will not say that they won't find arsenic in her ; hut if they do I did not put it there ; for I have enemies enough to put it there. M'Kay began the conversation himself—wit- ness made no answer at all. Gadd Sutlifp sworn. Was Mrs- M'Kay your sister ? She was. Did you ever have a conversation with the prisoner respecting curing a horse of a 4 26 poll evil ? Yes, we had a conversation in which he said he had made use of arsenic in a former time, for that purpose ; but he found that it left the neck stiff, and he had discovered a bet- ter way. This was about the time that he cured Mr. Doty's horse. Cross examination. Did you subpoena the witnesses at the last court ? 1 did. Did you not make a declaration, that you had done all you could to get M'Kay hung ? I never did. Aaron Wickham sworn. Did you ever hear M'Kay say any thing about using arsenic ? I did. I asked him where he got the arsenic, that he poisoned his wife with—he said, he never had any but once, and that he got to cure a poll evil on a horse. * Cross examination. Where was this conversation? It was at the gaol door—I was at work at the gaol, and he was dancing inside, probably to keep himself warm. Was any one in with li^jn ? Yes, there was an Irishman. Horace Morse sworn. Stated, that he was a son to the deceased ; that he had lived in the house with prisoner and her; that they lived very disagreea- bly together. He once saw the prisoner strike at his mother with a chair; he did not hit her, but struck above her head. Witness does not recollect what was said at the time. At another time they had a dispute—mother was near the back door; he catched hold of her throat, or mouth, as I supposed, and she fell down ; his son went and got some water and threw in her face, and she came to. They used frequently to have hard quarrels, but I do not recollect the words that passed. Cross examination. Witness said he had lived in the house with prisoner and his mother about 5 years, during which time he did not recollect that the prisoner used any violence, but twice ; and that was about 3 years ago. Was she not scolding when he put his hand on her mouth ; and did he not do it to stop her ? I did not take it in that light. Daniel Morse sworn. Are you a son of the deceased ? I am. Did you ever hear the •prisoner threaten your mother ? I have. I heard him say he would dash her brains out $ but I thought he did not heed what he said. OPENING SPEECH BY GEN. HAIGHT, FOR THE PRISONER. •May it please the court, Gentlemen of the jury—You are now placed in the most im- portant, as well as the most responsible situation which you ever occupied, or perhaps, ever will again occupy. You, gen- 27 tlcmen, have been selected from the county to decide by your verdict whether the prisoner at the bar, whose life is in your hands, shall suffer an ignominious death upon the gallows, or he restored to his liberty, and the bosom of his' family and friends. You, gentlemen, cannot but feel the solemnity of your situation, when you reflect upon the awful consequences which may result from your deliberations. Your situation is truly im- portant and all interesting; both as it respects the public, and the unfortunate prisoner at the bar. Gentlemen, 1 need not tell you that this case requires your most serious and candid delibera- tions ; although the situation you arc now placed in, as jurors, to decide between the people and the prisoner, is neither enviable or desirable ; still, the trial by jury is one of the greatest blessings and privileges of which our country can boast No man can be convicted of a crime, unless by a jury of his country. The poor, the rich, the high, the low, all have an equal right to make this appeal, and it is a privilege of which they cannot be deprived. The wisdom of our laws has provided this made of trial, in which, justice may be distributed with judgment and impartial- ity. Jurors are now selected in a way different from what they were formerly ; a way in which they cannot be tampered with, or misled by intrigue, art, or deception. The names of such in- dividuals, in each county, as are qualified to serve as jurors, are put in a box by the clerk of the county, who previous to the court draws a sufficient number of names to make out a panel of jurors, for the trial of all causes : these jurors are summoned by the sheriff—He has no choice in making a selection, from the number thus drawn—Twelve are again selected, who make the jury, to try any one cause. Gentlemen, although there is now no opportunity given for intrigue, in selecting a jury, who are par- tial to either of the parties ; still, when I reflect upon the cir- cumstance of my client, having been once tried, and found guil- ty, by a jury of this county ; and that more than a year ago : all of which is well known to every individual in this court; I cannot but be apprehensive, that the most unfavorable impres- sions have been raised against him, by almost every individual in the county. Gentlemen, you have been already told, that you are to try this cause, without regard to any thing which might have taken place at the former trial. You, gentlemen, are to be governed by the testimony which shall now appear before you, wholly discarding every thing that relates to the former trial, or which may have come to your knowledge previous to the commencement of the present trial. From the particular atten- tion which you have already paid during the investigation on the part of the people, I think, ljiave a pledge, that you will con- tinue to give that attention which the subject merits, until you shall have heard the whole of the testimony. Gentlemen, we shall rely on two grounds for a verdict in fa- vour of the prisoner. The first ground is this, we shall endea- vour to show, that the tests made by the physicians upon the contents of the stomach of the deceased, were not such as ought to be relied on. Whether we shall make out this point or not I cannot tell. We shall introduce as a witness, Dr. Noycs, profes- sor of chymistry, at Hamilton College, who is justly celebrated 28 as one of the most profound chymists in our country—He is present, and has heard the testimony of the country doctors who made the chymical experiments, upon the substance taken out of the stomach of the deceased, for the purpose of discover- ing arsenic. Should we be so fortunate as to have this learned professor's opinion, in our favor ; we feel confident that it will have more influence on your minds, than the opinions of forty country physicians, whose opportunities have been limited, and who themselves acknowledge that they know nothing of chymis- try. Dr. Noves is ..otonly a man of general science, but a man completely master of that branch of science to which' this sub- ject particularly belongs. On the other hand, should he agree with the physicians who made the experiments ; and say, that the tests are satisfactory, and the stomach did in reality contain arsenic ; we shall then, in the second place contend that it is necessary on the part of the prosecution, to make out clearly, and conclusively, beyond any reasonable doubt, that the prison- er was the. person who administered the poison to the deceased. Gentlemen, you must now be satisfied, that if you convict the prisoner on the testimony advanced by the people, you must con» vict him on presumptive testimony only. This kind of testimo- ny is too dangerous to be relied on, when the life of a fellow mor«- tal is at stake. I shall now proceed briefly to state, what we shall expect to prove on the part of the prisoner, in order to repel the presump- tive testimony which you have already heard on tbepart of the people. On Saturday, the day previous to Mrs. M'Kay's being taken ill, her son went into the woods to hunt for cows, and did not return ; she was very much distressed on account of his ab- sence. The next morning Mrs. M'Kay and young Daniel M'Kay went in pursuit of the boy, and rambled through the woods till about 12 o'clock, when Mrs. M*Kay returned to the house fatigued and almost exhausted. On their return they found M'Kay sitting in the house with two or three neighbour* ing men—Mrs. M'Kay remained in the room a short time and then retired to her chamber, in which were two of M'Kay's sons —M'Kay and these men with several of tire family remained in the room below—Dinner vvas prepared and they sat down to eat. Mrs- M'Kay complained of being much fatigued, and declined coming down to dinner. Immediately after dinner M'Kay and his neighbours took a walk into the field, 15 or 20 rods; they had then been there but a short time when Mrs- M'Kay came out of the chamber, apparently in the greatest distress, and re- quested her husband to come in, for she was violently attacked with the bilious cholic, a complaint to which she was subject. He came in, and in presence of the family, gave her some butter- nut pills from a cup, which stood on a shelf, and was devoted to that use—This was the medicine which slie was in a habit of tak- ing, for the same disorder—He vvas seen to take the pills from the cup and give them to her. We shall show farther, that M'Kay went, or sent, for two or three physicians, and apparently showed as much anxiety for the recovery of his wife, as men generally do: We shall show that soon after Mrs. M'Kay was taken ill Jier neighbours came in, as well as physicians who were sent for by 29 M'Kay. If wc make these facts appear, as I am instructed to in- form you we shall, they will completely repel the presumptive testimony that has been given on the part of the people. If M'Kay poisoned his wife at all, it must have been immediately previous to her being taken ill ; and no reasonable man can sup- pose, that, if lie had given her medicine before she was taken ill, which had produced this illness, she would have remained silent on the occasion, and even requested him to give her more. And can you as men of sense, for one moment suppose, that he administered arsenic to her after she was so violently taken, and the neighbours bad come in to see and attend her ; and after the physicians had been sent for, who were to attend her to her death ? If so, you must suppose him a complete idiot, first to give his wife a dose of arsenic, ami then immediately apply for med- ical aid, which must inevitably lead to a detection, especially, if such a dose vvas administered as our learned physicians say they found in her stomach, enough to have killed a dozen men. No, gentlemen, this is altogether improbable. The learned advocate for the people has observed, that acts like this are always done in secret: He says a person who is about to commit a crime like this, never calls in witnesses. If my statement is correct, it will appear, that if M'Kay did poison his wife, he not only called in witnesses, but he called physi- cians, who were capable of detecting him. This gentleman fur- ther says, there is a Providence that exposes the guilt of such of- fenders : 1 admit the fact, that there is a Providence which ex- poses the guilty ; and that same Providence shields and protects the innocent. Have we not a striking example of the interposi- tion of Providence in this case ? Do we not find that this man has, by that same Providence been rescued from the hand of death ? When he was found guilty of this offence, thrown into a gloomy prison, without money and without friends ; when he was proclaimed through every part of the state, as a vile wretch who ought not to live : that he had poisoned his wife, the partner of his bosom, one whom he was bound to cherish and protect. When these learned physicians had taken arsenic enough from the stomach of his wife, to kill at least twenty persons, when, Uiis was proclaimed far and wide, when public prejudice was at its meridian, the prisoner vvas compelled to submit to a trial, which resulted as might be expected : lie was found guilty ! Here, I need not tell my learned friend, the advocate lot} the people, that the hand of Providence was visible, in rescuing this unfortnuate man from the grasp of the executioner and ihe arms of death ! Gentlemen, we shall now proceed with the testimony on the part of the prisoner, relying with the utmost confidence in the belief that you will continue to listen with the same patience, and apparent disinterestedness, that you have done, through the former part of the trial, till you sliall have heard the whole. And when you retire, all we wish, is for you to give such a verdict as will satisfy your consciences, that you have done riglit, in the sight of that Being, whom you liavc invoked for the strict impartiality, and rectitude of the verdict you are to pro nuunce. 30 TESTIMONY ON THE PART OF THE PRISONER. Daniel M'Kay, son of the prisoner, sworn. Stated, that a son to the deceased went into the woods after cows, and did not return : deceased was very much alarmed about him, and said that the family cared nothing about it. We told her that he had probably gone to his brother's ; but this did not satisfy her, she continued very uneasy, and refused to eat supper. In the morning she was about going after him ; father told her she had better eat some breakfast ; she sat down to the table and eat a mouthful or two, and started and said she would go after him. I was afraid she would get lost and went with her ; she worried herself considera- ble, travelling and hollowing for him It was a wet morning ; we could not find him, shcsaid, she did not think we should ever see him again. We went home and found that my father and oldest brother had been out in search, and had just returned. They had heard of the boy before we got home. We had been at home but a short time when three men came in. One of these men is at Ba- tavia, and the other two have gone down the Vllegany river. I and my brother went up stairs, and it was not many minutes before mother came up likewise. My brother had been buying a lot of land, and was going on to it. I talked of going on to it with him ; but she told me not to go for she did not want to have me go- I be- lieve she lay down on the bed for she was very much fatigued. I went down to dinner. Soon after dinner mv father and these men went out, and were talking by the bars when mother came down, and got on to the chest. I believe I stood by the door, and mother said, she was going to have a turn of the bilious cholic, and wanted. father to come in. He came in and got the castor—I did not see him give it to her. This castor had been in the house for many years ; I believe ever since they had been married, and was gener- ally given to her for the same complaint. It was usually kept in the till of a chest. She appeared to be in as great pain as a person could be in and live. This was before my father came in. I did not see him give her any medicine before these men went away. She con- tinued very bad, and about 9 or 10 o'clock, I went after Mrs. Bar- nard. She got up and took some pennyroyal, which she said, she would take over. Soon after we came into the house, father took down the cup, and said he had given her some physic, but he did not know as there was enough ; and he would rinse the cup and give her some more : he rinsed and scraped the cup ; and I believe she took a part*of it, but not all. I do not recollect objecting to his administering it, as was stated by Mrs. Barnard. I saw nothing more given to her that night, except some laudanum which was pro- cured at Mr. Millet's. Father asked if he should not go after a doctor, and got up his horse for. that purpose : Mrs. Barnard said he had better wait a while, perhaps she would get easier ; as it was considered only the chodc. He probably waited half an hour, and then went for the doctor. I should suppose it was near 12 o'clock when he went. Aftei he was gone I went to Mr. Miller's, and got some laudanum, she ook some of it and got easier, so that she dropped to sleep—I went to bed. In the morning I was up stairs at 31 N work, shoemaking, and father came up and took down a runnet, en* shaved some off, which he said he was going to give her. I think he went down stairs with it in his hand. I continued about my work up stairs, through the day : Tuesday morning I got up about sunrise, and went to the bed where she lay. I concluded she was worse. Father said she was worse, and my brother had gone to Danville, after Dr. vihull. I do not know what time father start- ed to go, but I know the women came in and concluded she vvas worse, and were fearful that Shull would not come, and he concluded he would go himself. I do not recollect seeing him give any medi- cine that morning, and 1 think I should have seen it, if he had given any. Witness related that he had lived with his father and the de- ceased, nearly all the time since they were married ; that they fre- quently disputed pretty severely, and at one time when they were disputing, he told her to stop her mouth, and she would not; he put his hand on her mouth, and she stopped ; she either sat dovvn, or fell down on thesfloor, some water was got for her, and she come to. Witness being asked respecting the administering of the pills, thinks there was a candle burning in the room, and that there was three pills made, but he did not see them administered. On Monday witness was up stairs all day to work, and thinks his father worked in the harvest field; as they supposed his mother was getting better. On Tuesday morning his brother Casey started for Danville before he got up : he got up pretty early, but his father did not start till the neighbors had come in—the sun was probably an hour high. Witness stated that he had frequently seen her have turns of the cholic, but did not recollect that he ever saw her vomit on such occasions—her turns ol cholic did not generally last more than a day, and then she would get well. He did not know that she appeared to be in any more pain, at this time, than had been com- mon with the cholic before. Witness said the cup spoken of, held about half a pint, and was devoted exclusively to butternut physic— he thinks the physic was about out at the time his father rinsed the cup. He s id his father was not in the habit of sending for a phy- sician on such occasions. He thinks it was about a week before she was taken ill, that his father and she had a quarrel. It was about two years before this, that he put his hand on her mouth. Witness did not recollect their sleeping apart but one night, and then his mother slept with his brother's wife. He thinks they had had a quarrel the day before they slept apart. Lucy M'Kay was called, And testified, that she was not gone from home the day that the deceased was taken sick—she was in the house at the time she ar- rived from the search after the boy. She did not see or hear any thing said about medicine, previous to Mrs. M'Kay's going up stairs. She thinks deceased did not eat any supper, and in the morning did not eat much breakfast, but drank a cup of tea. She says that the prisoner was out of the door four or five rods from the house, when deceased came down stairs. She got on to the chest and appeared to be in distress, and said she believed she was going to have the chol- ic, and sent for prisoner to come in and give her something. Her turns of cholic did jtiot generally last her more than one night. They 32 used to leave her very weak ; but I do not know that I evet4 saw her vomit with one of those turns. Witness heard something said in the evening about giving her water—prisoner said it would not hurt her. Mie said the deceased had a turn of the cholic about three or four weeks previous to her last illness; and two turns within three mmihs. Deceased vomited frequently in her last sickness. Witness recollects that Mrs. Barnard went out the back door to pick a chicken, Monday morning, but does not know who was in the house at the time. She said that the deceased used to sleep with her some times—but not more than two nights at a time. It had been the case about a week before. She said Casey M'Kay, who went to Danville, was her husband, and at t^iat time was living at Danville, and did not expect to return immediately. They were fearful that Dr. bhull would not come, and it was thought advisable for the prisoner to go himself. He started pretty early in the mor- ning—Casey had probably arrived there. She heard prisoner tell her husband to send Dr. Shull immediately. Casey M'Kay sworn. Said he returned home on Sunday morning from Danville, and learnt thar the boy had been gone all night. The deceased was ve- ry uneasy about him, and supposed he had lain in the woods all the time. The family tried to pacify her, and told her that he was probably at his brother's: but nothing would do—she started off in pursuit, and one of my brothers went with her. About meeting time, some one came along and told us that he had not been to his brother's. My father and I then started off ourselves in pursuit, and continued searching till about 12 o'clock, and then returned home : on our way home we learnt that he was at Mr. Carpenter's, with his boys. Soon after we got home, two men came in ; after that, Mr. Leonard came in—we sat talking when mother came home. Father told her she had better eat something, as she had eaten no supper the night before, and no breakfast in the morning. My wile went to getting dinner, and I went up stairs. Soon after this, my oldest brother came up; and in a short time mother came up, and told us we must go down to dinner. We went down, and mother remained up stairs. About this time there was a shower; and after that was over, the men concluded to start. It was then about four o'clock. They went out with my father, and stood by the bars: I was standing in the door. At this time mother came down, and was very sick; she requested father should come in and give her something. I did the errand to him myself—he came in, and after considerable search for the castor, found it in the till of a chest. Witness did not see him prepare the medicine, but saw it after it was prepared, and thinks it was given, ^he continued to grow worse, and appeared to be in great pain—constantly rolling and tunbling in the bed. Witness said he never had seen her have a turn of the cholic. as he had always lived from home. Witness snid he and his faher came home about noon, and he remained in the room till after the men came in.. When witness went up stairs, two of the men sat near the bed, and his father against the door: when he came down, they were in the same position. Two of these men had gone down the Ohio, and the other was in prison at Ba? 33 tavia the last he beard of Aim. Witness remained at home all da* on Monday, and his brother was with him the greatest part of the day, in the chamber* He said his father took dovvn a runnet that was nanging in the chamber, und shaved off some, and put the run- net back again where he found it. Sunday night about twelve o'clock, witness went to bed beldvv, and after his father had started for Dr> Luther, he was called up to go to bed in the chamber, as they were iabout to administer an injection. He got up between day light and sun rise on Monday mo-ning—.deceased was pretty easy all day Monday, but was taken worse in the evening, and com- plained of a severe pain in her legs. Tuesday morning he got up as soon as.he could see any light, and his father requested him id go to Danville as quick as possible, and send Dr. Shull; for his another was worse. Dr. Shull was considered a very skilful man, but vvas apt to drink too much. Witness went to the house of Dr. Shull, but he was gone from home about seven miles to visit a pa* tient. It vvas then about eight o'clock, and he was not expected to return till noon. Witness went to his shop, but had not been long there, when his father came and inquired if he hachsecn Dr. Shull. On being informed that he was gone from home, prisoner said he would go and see his wife, and went away—which was the last wit- ness saw of him till about two o'clock; when he saW him and Dr. Cook ride past his shop pretty fast. Witness heard no more, till Dr. Cook returned.and informed him that his mother was dead. He thinks it would take about three hours to ride from his father's to Danville—he was about four hours walking it. He says he vvas in the house the whole of bunday evening, but did not see any medi- cine given from the cup—thinks he should have seen it, if any had been given. Father said he had given some butternut pills, but concluded he had not given enough, and would give her some more. Witness saw deceased vomit on Sunday evening, for the first time* Blacksmith, at Danville, sworn. Stated, that prisoner came to his shop on Tuesday, the day that his wife died, and requested him to shoe his horse. He said his case was very urgent—he had left his wife very sick, and was wait- ing for a doctor. I told him if he was a customer I would try to wait on him ; but as he was not, I could not leave my other work. He went away from the shop and vvas gone abcut half an hour, and then returned and urged me again: he said the shoes that were on would not do. I kept to my work: he was gone a short time and returned again—I finally told him if he would help me turn the shoes. I would try to do his work. I inquired of him what the mat- ter was with his wife-—he said she had the hysteric cholic, and puk- ed constantly. He said she was taken the night before, about mid- night, and continued to vomit till he left home. I told him if his wife was so bad, he had better call on Dr. Cook, Faulkner or Ciurk, as she could not stand it long in that way. I. mentioned to him, likewise, that Dr. Shull was a drinking man. He said he did not like Clark very well, from what he had heard of him, althout^h he had never employed him. He said the people generally did not like him very well. He was unacquainted with Dr. Cook, and warned to know what for a man he was. He remarked that Faulkner did not prac- tice. I showed him the house of Dr. Cook, and he went up there-** 1- 34 when he came back, his horse was shod and he started away. This was about one o'clock P. M. He came to my shop between nine and ten He appeared to express considerable anxiety to get Ms- horse shod, so that he could return. Orange M'Kay sworn. Stated every circumstance so nearly like his brother's, that it is thought unnecessary to give it in detail. He thinks he saw the cas- tor administered; and with respect to the butternut pills; he saw them scraped from the cup—something was said respecting the best way of taking them, and he said he had as lieve take them in cod water as any way—but he thinks they were given in cream or pudding. . Cross examination. Witness said he had seen his father- and mothi r quart el some : at one time when they were scolding, he told her to hold her tongue—she said she would say what she vvas a mind to—his father stepped up and put his hand on her mouth, and said he would stop it, Sec. At another time she was sitting by the chimney, and he lold her to bo'd »er tongue ; but she would not, and he took a chair and struck over her head twice, against the boards. He diJ not recollect that they had quarrelled any the week before :;he was taken ill. His father remarked on Sunday evening, that he hud done all he could for her—he had given all that he had been, ac- customed to give on such occasions. Witness said his father had sent him to Messrs. Clark and fJiOvkway's, at Danville, to buy cor- rosive-sublimate, to cure a horse of a poll-evil—and he says the stuff used about Mr. Doty's house was the same to appearance. Dr. Noyes sworn and questioned by Mr. Hulbert. Have you examined the experiments made by the physicians to, detect the presence of arsenic in the stomach of Mrs. M'Kay, after her death ? 1 have. Will you please to relate what you know of this subject ? I hav~ seen a statement of the experiments, but have not repeated them with the same materials As to the first exper- iment made with the nitrate of silver, what is your opinion with re- gard to its ai curacy, and as to its proving the certainty of arsenic in the stomach ? When used with particular attention, and by those who are experienced in chemical experiments, it has, till lately, been considered as a very delicate test, provided the materials be pure ; but it is not at present considered an infallible one, by some of.the best chemical writers The principal objections to those experi- ments consist in a want of a knowledge pf the purity of the water, of the purity of the nitrate of silver, of the colour of the solution of the suspected matter to which the tests were added ; besidcs,the sal soda is not the alkali recommended—ammonia being considered better. There was no evidence of the purity of the sal soda- But had all these substances been pure, still the experiment could not be con- sidered as conclusive, as other substances,besides arsenic, might be found in the stomach, which are s.iid to produce nearly the same colour ; for instance, phosphoric acid, phosphate of soda, and pro- bably most of the alkaline and earthy phosphites. The phos hate of soda is a constituent of the bile, and j>robablv of the gastric juice. With this the nitrate of silver would produce the phosphate of silvery 35 which exhibits a yellowish appearance, similar to that produced Ly arsenic ; and as it is difficult to define the colour of a precipiale, there being an indefinite number of shades, which by different per- sons might be called yellow, or bright yellow, I should be unwilling to place much confidence in that experiment. One of the reasons which influence me in forming this opinion asises from the nature of the gastric juice. This fluid is secreted by the stomach for the purpose of promoting digestion. When it is taken fr>m an empty and healthy stomach and separated from all other ubsiances, it is said to precipitate the nitrate of silver ; and although of a lighter colour than yellow, yet in the stomach of a person labouring under disease, this juice must alwuysbe impure in itself, besides being mixed with the contents of the stomach. Suppose butternut pills and castor to be in the stomach, what colour would they produce ? The colour would probably be an olive brown ; it might be rather deeper, or, if the pills were properly made, there might be a tinge of yellow. Iron has a tendency to produce a black. Would it be safe to pro- nounce upon the appearance of the stomach eight days after death ? It is stated by good authority, that no reliance ought to be placed on appearances of the stomach so long after death. It is possible there may be cases in which they ought to be considered as circum- stances. Has it not been proved that at Ibis warm season of the year the gastric juice, whether vitiated or not, does corr mence the dissolution of the stomach immediately after death ? It has. The stomach after death, becomes liable to the same action with the other dead animal matter. It is the living principle in the stomach that prevents this action before death. Cases, however, are recorded in which it becomes sensible even before death, as in extreme hun- ger, &c. Would it not naturally destroy the lower parts of the stomach first ? That might depend on the position of the body. I think, however, the gastric juice would be accumulated in the lower part. Dr. Hunter was one of the greatest anatomists of his age Do you know his opinion about pronouncing upon appearances after death ? I do not recollect precisely his observations, but am confi- dent that he savs the stomach is not corroded by mineral poisons. It is agreed that arsenic operates by inflaming the internal coats of the stomach, is it not ? I do not think it would corrode the stomach of a living person, at.all. My experience, however, on this point is small. I have seen it applied to cancers, and to tumors on horses, and although it appears to possess some corrosive powers on diseas- ed or fungous flesh, yet I never knew it operate as a caustic on healthy parts. I cannot say what particular cause produced the ap- pearance on the stomach. If might have been gangrene. Have you heard the physicians testify respecting the purple appearances ? I have. Would those be extraordinary in a common case ? I would not say it would be common in ordinary cases of death ; but in many cases it might arise from the duplicature, or folds of the stomach, afterdeath. When inflammation rises very high, gangrene frequent- ly succeeds. Indeed I consider it as generally following excessive, inflammationof the stomach. What do you mean by gangrene ? The death of the part affected. Has it not been laid down by some au- thors that the whole alimentary canal ought to be examined ? When a small quantity only isWaken, and the disease is attended with puk- ing, and large quantities of liquids have been administered, I do not 38 think it would be useful, as the arsenic would undoubtedly be dis. solved. Is it not necessary to discover the morbid appearances ? ft might be in some instances, but I do not think ii useful in general, so long after death ; as the changes might be produced without ar- senic. In the case of this woman, putrifaction would probably take place about as soon, as in a case of sudden death ; as the body was not emaciated by disease. Do you think the appearances, as stated by the phvgicians, ought to be relied on ? I do not think any confi-r dence ought to be placed in the diseased appearances, so long after death. Is it not considered that Marcet's improvement of the silver test is an important one 2 Would Hume's test, if properly applied, determine whether there was arsenic in the stomach or not ? I think it would not, because there might be other substances in tht stom- ach, which would pioduce nearly the same appearances. Marcel's improvement renders the teg' more delicate. It might make a little difference, but it has been lately asserted by very high authority that both are imperfect, as the phosphoric acid, and phosphate of soda, will produce the same colour. Philips says, that the difference of colour cannot be distinguished, except by an experienced eye. Have you made any experiments to produce the same appearances, without the presence of arsenic ? I have made one, by which a col- our lesemoling Scheele?s green was produced. I am satisfied that a colour may be produced, which could not be distinguished from it, except by one of considerable experience Did you make any experiment with the silver test, snd was you satisfied with the re- sult ? I did, and was perfectly satisfied that a yellow colour may be found without arsenic, differing so li'tle from that produced by ar- senic, that one might be mistaken for the other, by those who are not familiar with such experiments. I cannot, however^ vouch for the purity of the materials wheh I used, but have no doubt t'liey were pure. In all such experiments, the water ought to be known to be pure. The water might contain en thy substances—it mitrht contain phosphate of lime, or even arsenic. Rain water is t considered to be very pure ; still it ought not to be relied on, till it has been properly examined, and known to be so. Would not the substance taken from the stomach affect the colour of the solution J May not two colours be so mixed, as to produce an intermediate on« ? A blue and yellow mixtd in proper proportions, will produce a green. Indeed, almost any two colours may be so combined, as to produce an intermediate shade, where no chemical effect takes place. I do not consider it impossible that the colour described in this case might be produced in this way. I have had an instance, in which I added the sulphate of copper to some of the contents of the; stomach of a man known to be poisoned by arsenic, but was unable to discover the least appearance of Scheele's green, on account, pro- bably, of the colour of the solution ; althbugh great care had been taken in filtering it, so as to deprive it as far as possible of colouring matter ; and on using the nitrate of silver, with all the precautions recommended, no yellow precipitate could be discovered. Is it not necessary that the nitrate of silver be very pure ? and how do yoij know when it is pure ? I always prepare it myself, from materials which 1 know to be pure Why is it necessary lobe so particular ? It is necessary on account of the practice of some who prepare it and :Tiake use of common coin, or silver plate, which contains generalJjr 3T j^th of copper. How do you prepare Scheele's green ? The pro- cess whicti I have geneially used, and cO'.sidt-r suflii iently accurate, consists in boiling 64 grains of aiseneous acid, or common white ar- senic with the same quantity ofs ;b-carbonale of potash, in a pint of distilled water ; to which, while warm, I add a warm solution of sulphate of copper as long as any precipitate appears. What is sulphate of copper ? It is a neutral combination of the sulphuric acid and copper. Would not the shades of green depend on the quanti- ties of materials used ? Tht colour ol ti.e solution would be affected by the quantity of sulphate of copper, but probably not the precipi- tate after washing and drying. Do you not know that Scheele's gr< en is considered to be an unsafe test ? I have considered it so, exctpt in the hands of tho^e who are acquainted with chemical experiments. Jt is an indication of the presence of arsenic, but not conciusive evi- dence of it. Are there n^t various matters, which might produce the samerts ult ? As I have already stated, the sulphate of cop- per added to a solution of phosphate of soda produced a colour, which might be mistaken for Scheele's green, by those who are unacquainted with that substance. On adding a little laudanum the resemblance was much increased. You say you tried phos- phite of soda ; now, is not the p'o phate of sr.da- a matter na- turely found in the stomach ? I do not recollect the exact analysis of the gastric juice. I think, however, it must contain phosphate of soda, as it is found in the bile, which is often found in the stomach, especially in bilious complaints. I he phosphoric acid combined with lime is found in the bones of all land animals. The phosphate of lime exists in the porportion of nearly 43 per cent of the dryed bones. Most animal fluids, which have been examined, contain phosphoric acid, either in a free or combined state. In Scheele's green, do you not know that it is necessary before you can deter- mine the shade of colour, that the materials be nicely weighed ? I think Doctor Henry, who has given a good process for obtaining Scheele'-- green recommends weighing. From the knowledge which you have of chemistry, would you dare to pronounce a posi- tive opinion in this case, without going farther with the experiments ? I should like to be excused from answering that question. Would you dare, from the account of the experiments which you have heard, pronounce a confident opinion ? 1 should not place perfect confi- dence, in such experiments, unless I new the purity of the water, the purity of the tests, and the colour of the solution to which the tests were added. As a reason for this opinion I would observe, that these tests have not been tryed on all known substances ; and we do not know but that there may be substances formed in the stomach, which would produce the same colour. To den onstrate the presence of arsenic, I consider it necessary to revive the metal. I would not say that in all cases it is impossible to pronounce a con- fident opinion without obtaining the metal. How should the exper- iments be made, to detect arsenic in the stomach ? The contents of the stomach should be carefully examined, and if any parts appear more like a senic than others, they should tie separated, ai.ci exam- ined by themselves. Whether the matter be in a solid or liquid form, distilled water should be added, and a quantity of potash, equal to the supposed quantity of arsenic, and the whole boiled for a lew minutes. It should then be filtered, and suffered to stand till it be- pomes as clear as possibly. Te a small quantity at a time the teit 38 should then be r.trded whether the precipitate be yellow or green. To be fully convinced of the presence of arsenic, it should be collect- ed, washed and dryed at a temperature not exceeding toiling wa- ter. After this it should be mixed with a little finely puLeiized charcoal, and a small quantity of potash may be added, and passed gently into the bottom of a small glass tube herme;ica!ly sealed at the lower end. That part of the tube containing the materials should be exposed to nearly a red heat, while the top of it should be kept cold. In a short lime the arsenic will be sublimed in its metaiic state, which requires a temperature only of about 360 of F. thermometer, and will be found lining the tube in a chrystaljne form, exhibiting a metaiic lustre nearly of a silvery whiteness. No other known substance can be made to exhibit the same phenomena by the same process. But for still farther satisfaction, a little of the white substance from the tube should be placed on a burning coal, by which it will be immediately invested into a dense white smoke exhibiting a strong garlic smell. No other evidence can be requir- ed, to provt the presence of arsenic May not puking be occasion- ed bj great anxiety of mind, or great extortion of body ? Puking arises from almost an infinite variety of causes. It may arise from fear, from substances taken into the stomach, and it frequently takes place without any known cause Is it not the case, with persons la- bouring under the cholic vomit ? I have had cases of cholic, in which vomiting vvas one of the most troublesome symptoms. It frequent- ly happens, but not always. How does corrosive sublimate appear ? It generally appeals in the form of a white powder mixed with large an ' small lumps. You say it consists of lumps, and fine powder ? I have been in the habit of making it, and of se ling it in that form, and have always seen it in that form in the shops. It is necess irily so from the manner of manufacturing it, it being sublimed general- ly in glass vessels, which are afterwards broken, by which some of it is ground to a fine powder, while the remainder is only broken in- to large and small pieces. Cross examined- What are the symptoms of poison by arsenic ? My knowledge on this point is derived from ihe authority of others, except a single instance. The information which I most rely on, except this single case, is obtained from the testimony of living wit- nesses There is a great variety in the symptoms. But constant and violent puking, severe pain in the stomach and bowels, swelling of the face end extremities, and a difficulty of keeping any thing on the stomach I consider as strong symptoms, although they are com- mon to this and some other diseases. Cases, however, are record- ed, in which these symptoms have not occurred. Many other symp>- toms might be enumerated, but I consider these the most strikingc Is a ghastly appearance a symptom of arsenic ? I do not recollect its being mentioned as generally occurring, except at the close of life. I think other causes capable of producing it, as well as arsenic. It is said by some, that the tongue and face are always swollen, the body and extremities frequently—the bowels and stomach very painful, and that cathartic effects frequently take place. Is deaf- ness a symptom ? I think it may be, but not necessarily ; neither is blindness or delirium a peculiar symptom of arsenic, as they fre- quently attend other violent diseases, near the close of life. Is the power of articulation affected by it ? It must be by this, as well e* 39 liy many other causes, just before the person expires. Is there not a perceptable difference between the experiments wtiere arsenic is used and where it is not? In a careful examination, a difference in the foi m of the precipitate may be perceived ; but were the experi- ments made in two phials placed near each other, I think it would be difficult for those not much experienced to distinguish them, mere- ly by the color. Suppose there had been a sufficient quantity of the suhstance on the liver, and the experiments had been properly made, wl'St would you sav ? From the account of it which 1 have heard, I should not think it could be safely asserted that it was ar- senic : because I cannot conceive how it could get there, or how it could be separated, without some coloring matter. Might it not be concluded vb.it the substance scraped from the liver was arsenic, if it was free Irom color, and the same experiments were tried, as on real arsenic? If the solution of suspected matter was free from col- or, 1 should consider it as a strong circumstance ; but, for the rea- sons already given, I do not consider the tests as infallable. Do you know of any other white powder which would, with the same tests, p.oduce the same result? I do not know of any such as has been described. Not knowing of any other, and not having ever heard of any other, would not that experiment be sufficient to satis- fy your mind ? it would have some influence, if I were certain that the white powder was unmixed with any other substance; as the phosphate of soda would not be likely to be found in that state, al- though, possibly, the phosphate of lime, which might be in the form of a white powder, might. You speak of the necessity of testing the purity of the water—how do yon test its purity? By distillation. Are there no other ways of testing it? what would you recommend in order to test its purity ? There are various ways of testing its pu- rity, but when rain water is carefully distilled in glass vessels, it has been found to be sufficiently pure. By usiiig real arsenic, would not that prove that both the water and nitrate of silver were pure ? It would not amount to demonstration, because both might be impure, and still produce the yellow precipitate. The nitrate of silver might contain arsenic, and produce no effect on pure or im- pure water. But judging from such evidence as men generally re- ly on, from every thing you have heard, what is your opinion, was there arsenic or not ? 1 should hesitate in saying it is proved by the experiments which have been described. What is your opinion, adding to the tests the symptoms beginning on Sunday, and the ap- pearances of the stomach after death, what should you conclude from the state of facts exhibited? I cannot conceive that the stomach was perforated before the subject was buried. I do not know how much of the white substance was found on the liver—whether it was dry or humid. Dr. Noyes requested to question Dr. Patchin, who answered a* follows: We scraped up what would lie upon the point of a knife—it was no more moist than the substance of ihe liver. There was a suffi- cient quantity of moisture to keep it from blowing away. Its color was not sufficient to alter it from what we call white. Did it appear in the form of small grains or particles? There appeared to ben number of them, which we put into a phial and that into a vessel. I. thinK there was no color. 43 To Dr. JVoyes. What do you think of this circumstance ? I think it might be evt* idence of arsenic, or of some phosphate. It might be arsenic, but it is not very probable that it would get on the surface of the liver, so as to appear in that form, unless an immense quantity had been ta- ken. It has been stated by Le Grange and some others, that arsen- ic is much more soluble than has been generally supposed—a pint of water being sufficient to dissolve nearly an ounce. Arsenic is generally obtained from the shops in a fine powder, and when small quantities only are taken, I cannot conceive that it would remain long undissolved in the stomach, especially when much water had been given, and the stomach much agitated by puking But still this gentleman swears, and all the physicians com ur in stating, that on the liver there was a white substance—taking all tlm into view, how far should you suppose this evidence of arsenic ? I should not feel myself war ranted in saying that it was arsenic. It might possi- bly be some phosphate, or some other substance produced there. Do you suppose there are any grounds of doubt on the subject ? I consider it as circumstantial evidence, and were there other strong circumstances, I should consider this as coiroborating them consid- erably, because, setting all other things aside, arsenic would be more iikely to produce such effects, than any other known substance. The physicians stated that they tried the substances both from the stomach and liver, as well as real arsenic. Had potash been used instead of soda, and all the materials been pure, it would have been a strong indication of arsenic. I do not know that soda w uld pro- duce a different result from potash, nor do I know but it might con- tain some substance which would product the effect described ; but potash is the alkali recommended in making Scheele's green. Tak- ing the symptoms as represented, were they such as should be ex- pected from the effects of arsenic ? They are common to the ef- fects of arsenic, and several other diseases. This woman was well on Saturday and on Sunday afternoon, and taking for granted what has been said of the symptoms and on the examination of the stom- ach, would you pay no attention to the symptoms of this woman f The swelling of the face, which is represented as generally a syvrp- tom in this case, was absent, and the pain was too much confined to the stomach. I should think the bowels, and indeed the whole course of the intestines, would have been affected,as well as the stomach. The nitrate of silver might have been pure or impure, and yet not hi*(ake.l 41 SPEECH OF VIINCENT MATTHEWS. Wednesday, 2 o'clock P. M. the testimony being closed on both sides, Mr. Matthews rose and addressed the jury as follows : Gentlemen of the jury—I rise to address you on this subject, sot so much with the expectation of casting any great light on it, or of occupying any ground which will not he explored by the gentleman who is about to follow me, as of giving him an op- portunity of looking over his notes and being the better prepar- ed to address you. It is possible, however, that I may advance some ideas, which would not occur to him ; you will therefore;, have the goodness to hear me with patience. It has been stated to you by both the opening counsel, tuat this is a case of vast importance ; it is truly so ; it cannot be too frequently repeat- ed, that you have the life of a fellow being in your hands—It is a case, therefore, that requires your most candid and serious at- tention and deliberation. In the investigation of the testimony which has been given in, you will giie due weight to the argu- ments of counsel on both sides, as well as the charge which you will receive from this honorable court. I am well aware, that the prisoner appears before you under disadvanta.i'ous circumsi aucc .—In the first place, he is accused of a crime of the deepest die : He is accused of a crime, which if true, is exceeded by none in enormity : He is accused of the murder of his wife ; one whom he was bound by the laws of God and man to protect.— I am persuaded from that circum- stance alone, many prejudices havebeen created against him. Every feeling and innocent man in community, when he hears of a crime of this kind ; naturally and unavoidably, receives a bias against the perpetrator of a deed so enormous. There are other grounds upon which the prisoner comes before you under embarrassing circumstances—It is a long time, since the sad tale of the prisoner's supposed guilt, first began to ring in the ears of community*; and having once gained currency, it has very probably, like other stories, accumulated by exaggeration. Every faculty has been put into operation, to prejudice the pub- lic mind against this man : But another circumstance of great- er importance, is the fact of his having been once tried by a ju- ry of his country, for the same charge, and found guilty—There is no gentleman on this jury, who does not know this fact j but if any impression has been made on your minds in consequence of this fact I beg that you will discard it. It has been justly said, that jurors ought to come into their boxes, with their minds as 6 42 free from previous impressions, as a piece of white paper—they ought to know no facts belonging to the case, except such a» they are enabled to deduce from the testimony as it flows from the lips of the witnesses. Although this man may have been tried by a jury of this county, and convicted by them, it is no reason that you should convict him ; the testimony may be dif- ferent now from what it was then—besides, you are not to try liin) by the consciences of others, but by your own, and by th© testimony which has now been given. Gentlemen, I do not stand here to prove the innocence of the prisoner : It is not my business—It is the business on the side, oPthe prosecutor, to make out a clear case of the prisoner's guilt—It is your duty to make out a clear case divested of all doubt on the subject. If the pub- He prosecutor does not succeed in establishing his charges, so far as to banish every reasonable doubt from your minds, it will be your duty to acquit him. This is the law on the subject ; it is a maxim as old as the law itself, that it is better that ninety- nine guilty ones should escape, than that one innocent man should suffer. In order that this may not rest on my dictum, I will read a case or two on the subject. " The impression on the mind of the jury, in a criminal case, must be, not that the prisoner is probably guilty, but that he re- ally and absolutely is so;—where they doubt, they are to acquit.'* Now, gentlemen, from what I have read to you, you can see what is your duty in this case—You must have evidence which is clear and satisfactory ; such as will not lea^e a doubt, of the prisoner's guilt, before you can convict him. I beg that you will remember this maxim throughout the investigation of this case. There is another circumstance to which I would call your attention ; and that is, if you convict this man at all, you must convict him upon circumstantial testimony ; for there is no posi- tive testimony whatever. It has been said that circumstantial testimony is the best, for it cannot lie ; I think however, that Philips in his treaties on evidence has shown Very clearly, that it can and does lie. I will read two or three examples to show,. that many innocent men have been brought to the gallows by such testimony. Jonathan Bradford, who was executed at Oxford, for the mur- der of Christopher Hayes, Esq. in the year 1756. *'Jonathan Bradford kept an inn, in Oxfordshire, on the Lon- don road to Oxford. He bore a very unexceptionable character. 48 jur. aayea, a gentleman of fortune, being on his way to oxftnd, on a visit to a relation, put up at Bradford's. He there joined company with two gentlemen, with whom he supped, and, in conversation, unguardedly mentioned that he had then about him a sum of money. In due time they retired to their respec- tive chambers ; the gentlemen to a two-bedded room, leaving, as is customary with many, a candle burning in the chimney corner. Some hours after they were in bed, one of the gentle-. men, being awake, thought he heard a deep groan in an adjoin- ing chamber ; and this being repeated, he softly awaked his friend. They listened together, and the groans increasing, as of one dying and in pain, they both instantly arose, and pro- ceeded silently to the door of the next chamber, from whence they had heard the groans, and, the door being a-jar, saw a light in the room. They entered, but it is impossible to paint their consternation, on perceiving a person weltering in his blood in the bed, and a man standing over him, with a dark lan- thern in one hand, and a knife in the other ! The man seemed as petrified as themselves, but his terror carried with it all the terror of guilt. The gentlemen soon discovered that the murdered per- son was the stranger with whom they had that night supped, and that the man who was standing over him was their host. They seized Bradford directly, disarmed him of his knife, and charged him with being the murderer. He assumed, by this time, the air of innocence, positively denied the crime, and as- serted, that he came there with the same humane intentions as themselves ; for that hearing a noise, which was succeeded by a groaning, he got out of bed, struck a light, armed himself with a knife for his defence, and was but that minute entered the room before them. These assertions were of little avail; he was kept in Close custody till the morning, and then taken before a neigh- bouring justice of the peace. Bradford still denied the murder, but, nevertheless, with such apparent indications of guilt, that the justice hesitated not to make use of this most extraordinary expression, on writing out his mittimus—"Mr.Bradford,either you or myself committed this murder.*' " This extraordinary affair was the conversation of the whola country. Bradford was tried and condemned, over and over again in every company. In the midst of all this predettr '- nation, came on the assizes at Oxford. Bradford was brought to trial; he pleaded—not guilty. Nothing could be stronger 'than the evidence of the two gentlemen. They testified to the finding Mr. tiajQs murdered in his bed ; Bradford at the sidt 44 of the body with a light and a knife ; that knife, and the hand which held it, bloody ; that on their entering the room, he be- trayed all the signs of a guilty man ; and that, but a few mo- ments preceding, that they had heard the groans of the de- ceased. "Bradford's defence on his trial was the same as before the gentlemen : he had heard a noise ; he suspected some villany was transacting ; he struck a light ; he snatched the knife, flic only weapon near him, to defend himself; and the tenors he discovered, were merely the terrors of humanity, the natural ef- fects of innocence as well as guilt, on beholding such a horrid scene. " This defence, however, could be considered but as weak, con- ' trasted with the several powerful circumstances against him. Never was circumstantial Gvidence more strong ! There was little need of the prejudice of the county against the murderer to strengthen it; there was little need left of comment from the judge, in summing up of the evidence ; no room appeared for ex- tenuation ; and the jury brought in the prisoner guilty, even without going out of their box. " Bradford was executed shortly after, still declaring that he was not the murderer, nor privy to the murder of Mr. Hayes ; but he died disbelieved by all. " Yet were these assertions not untrue ! The murder was actu- ally committed by Mr. Hayes's footman : who immediately on stabbing his master, rifled his breeches of his money, gold watch, and snuff-box, and escaped back to his own room ; which could have been, from the after circumstances, scarcely two seconds before Bradford's entering the unfortunate gentleman's chamber. The world owes this knowledge to a remorse of conscience in the footman, (eighteen months after the execution of Bradford,) on a bed of sickness. It was a death-bed repentance, and by that death the law lost its victim. " It is much to be wished that this account could close here, but it cannot ! Bradford, though innocent, and not privy to the murder, was nevertheless, tke murderer in design : he had heard, as well as the footman, what Mi*. Hayes declared at sup- per, as to the having a sum of money about him ; and he went to the chamber of the deceased with the same diabolical inten- tions as the servant. He was struck with amazement! he could not believe his senses ! and, in turning buck the bed-clothes, to assure himself of the fact, be, in his agitation, dropped his knife on the bleeding body, by which both his hands and the knife be- 45 ■>: came bloody. These < ircuinstances Bradford acknowledged to the clergyman who attended him after his sentence." There are, gentlemen, a varkiv of other cases in this book which show that men have been condemned and actually executed on circumstantial testimony, when afterwards it has been clearly shown, that they were innocent. Now, gentlemen, as 1 remark- ed to you bei'-ire, all the evidence in this case, is circumstan- tial ; and white I admit that circumstantial evidence is sufficient to convict; yet 1 insist that it should be connected, and all tend- ing to esta!;.ish one point. If* the circumstances of this case do not all concur, i The body should be inspected in the presence of other surgeons, and the appearances noted down on the spot ; and however suspi- cious they may be, we should bear in mind the possibility that the same effects being produced by very different causes, and where tht re is the lea-t doubt, be careful that our evidence does not tend to attach suspicion to an innocent person. We ought to bear in our minds the maxim, that it is better that many guilty escape, than one innocent man suffer ; and where the evidence is not satisfactory and conclusive, we should deliver our testimony in favor of the suspect- ed person. A medical man should found his evidence onlyOn demon- strative proof ; for his declaration, whether founded on experiment or not. is assumed by the jury as a fact, merely on his authority as a professional man—Page 119, .20. Unless all the different viscera are examined, it is doubtful how far surgical evidence is admissible in a court of justice. We should be careful not to give an opinion that a person has been poisoned, without being able to produce irrefragable evidence of the fact.— Page 128. Arsenic does not act chemically, as a caustic, either on living or dead animal matter___Page 151. Erosion of the stomach from this cause (arsenic) is seldom seen ; but •' there are few stomachs," says Mr. J. Hunter, " which are not at the gieal end, in some degree, di. ested after death ;" but these instances have occurred almost only in those persons, who, while in good health, have died suddenly from accident, apoplexy, hanging, or the iike. It is possible a case of this kind might be mistaken for the effect of poison. I have be^-n present at the dissection of a woman, who took a quarter of a pound of arsenic in coarse powder, which killed her in four hours ; but there was no erosion ; nor should erosion alone, if discovered, be deemed a proof of poison having been taken ; it may be the effect of suppuration.—P-enic produces in a solution of nitrate of silver, exactly- resembled that which flhosfl/ia- * No appearances whatever amount to proof of poison, but the exhibition of it in sub-un< e, or the decided appearances produced by chemical trsts, a phy. •ician, who is not a chemist, deserves to be reprimanded for ignorance. T. C. 8 58 rtc acid occasions, and that both are soluble in ammonia. Mr. Bran- de concludes, that in any case of importance no reliance should be placed on the above test.—Page 425. The only thing to be relied on in the opinion of the best chemists, is the exhibition of the metal itself in its meldlic lustre and state. A given quantity of the white powders is to be mixed with three times its weight of black flux, and carefully put into a tube of thin glass, eight or nine inches long, a quarter of an inch wide, and coat- ed at its lower end, which should be hermetically closed, for one or two inches. The upper end should be loosely stopped, and the coated end placed upright in a chaffing-dish of red hot coals. In a little time, if there be arsenic in the tube, it rises with its metallic lustre ; and adheres to the side of the tube. The tube should be brokrn as soon as coolj and the reduced metal laid on a hot iron ; a dense smoke then arises, and a smell of garlic is perceived. Ihe arsenic might next be further identified by putting a small quantity between two polished plates of copper, surrounded by pow- de ed chaixojd, and exposing them to a low red heat. If the in- cluded substance be arsenic, a white stain will be left on the copper. In this way every part supports another, and there is no possible am- biguity.^—Page 426, 427. Beside the above processes of ancient date among chemists, en- deavors have been used to detect arsenic, by forming Scheele's green arseniate of copper, but the juice of onions added to sulphate of copper, will produce a green color, hardly distinguishable from some of the usual shades of Scheele's green —Page 432. In the month of May, 1809, Mr. Hume, of Longacre, announced in the Philosophical Magazine of that month, the nitrate of silver as a test of arsenic. Recommending a solution of lunar caustic in distilh d water, and a solution of the arsenic in sub-carbonate of soda. In a paper of May 14, and of July 13, 1810, inserted in the London Medical and Physical Journal, he proposes converting the arsenic into an arseniate of potash. He published experiments on these his proposed tests, in the Philosophical Magazine, Oct. 14, 1812. Af- terwards Doctor Marcet, an excellent chemist, proposed joining the alkalies of potash or ammonia, to the nitrate of siver. Thus, to a solution of white arsenic in distilled water, add a few drops of sub- carbonate of potash, and then a small portion of nitrate of silver ; or to such a solution of white arsenic in distilled water, add by means of a glass rod, a drop or two of a solution of nitrate of silver, and then a drop of common carbonate of ammonia ; in either mode of performing the experiment, a bright yellow precipitate will be form- ed. After this, Mr. Hume, in the Medical and Physical Journal, and in the Philosophical Magazine, August 9 and 10, 1812, publish- ed experiments on the utility of this combined test. In the annals of Philosophy, however, vol. 7, p. 236, and vol. 8, p. 153, the accuracy of this test is brough into doubt. Mr. W. Phil- ips, in a letter to Doctor Thompson, in the book and page last cited, speaks as folows: "In the annals of Philosophy, vol. 7, p. 236, you also mention that the experiment of a student at Guy's hospital, had occasioned a doubt whether the yellow color of arseniate ot silver is sufficiently characteristic of that substance, to prevent it being confounded with phosphate of silver." 59 " I have made many comparative experiments on the subject, and I am warranted by the results, in asserting that it is impossible, in many cases, to distinguish arseniate from phosphate of silver. 1 do not mean to deny, that by special management, those who are pre- viously acquainted with the nature of the substances on which they are experimenting, may produce slight shades of difference ; but whilst engaged in investigating the subject, I repeatedly obtained without any care as to proportion in either case, precipitates of ar- seniate of silver and phosphate of silver, which so perfectly resembled each other, that to distinguish them was impracticable ; consequent- ly it seems to me, that silver can no longer be admitted as a test of the presence of arsenious acid, without the corroboration of addition- al evidence. I ramain, See." . R. PHILIPS. Pages 432, 433. I consider (says Dr. Cooper,) Mr. Hume's test, expecially as improved by that judicious and very able chemist, Dr. Marcet, as a very valuable mean among others, to detect the presence of arsenic. Still, however, great doubt hangs over this and every other test, the sublimed metal excepted.—Page 439. Under these circumstances of doubt and difficulty, as to the exhi- bition of arsenic, and the evidence of its presence, the jury ought to require either the actual production of metallic arsenic sublimed in a glass tube, or some satisfactory reason why that test is not ex- hibited. Such a reason may be the smallnes of the quantity, and iis entanglement in the coats or contents of the stomach. But where death arises from the exhibition of arsenic, many grains have proba- bly been taken.—Page 442. ..►►#§►«*.- After reading the foregoing extracts, Mr. Hulbert proceeded to address the jury in substance as follows. Gentlemen of the Jury. Life and death are now in your hands. The verdict, which you shall this day give, will restore to liberty and light, or will consign to an ignominious grave, one of your fellow beings— Could I for a moment believe that the evidence in this case would require you to condemn this long suffering and unhappy man, I should consider your condition painful and distressing in the extreme ; for surely nothing could be more afflicting to men of feeling and benevolent hearts, than to be obliged to perform even the sacred duty, which, under such circumstances, the laws of their country, and their oaths, would enjoin. But when I re- flect that this important and interesting case will afford you a just and proper opportunity,*™ indulge the best feelings of your nature ; that you will now have the delightful privilege ot win- ing away the tears and terminating the sufferings of a miserable man, I cannot but think your situation most enviable and happy. For where can felicity be found on earth, equal to that, which must spring from the blessed employment of giving joy to the wretched ? It has been said, that the most glorious and desira- ble attribute, even of the Deity himself, is the power of wiping away all tears from all eyes. 60 Gentlemen, the prisoner stands charged with one of the black- est and most attrocious crimes, that ever stained the history of human guilt. He is charged with murder ; yes, with the mur- der of his own wife ! I know you must be struck with horror at the very mention of this accusation ; but while you shudder at the thought of such a crime, remember that the improbability of its having been committed is in direct proportion to its enormi- ty ; and that the strength and clearness of the evidence, which should be required for the conviction of the accused, should be in the same proportion. 1 am fully aware of the peculiar and painful embarrassments, under which the prisoner comes before you. It is now almost two years, since he was first arrested and committed to prison, upon this charge, a thousand injurious reports were instantly in circulation against him, and popular prejudice pronounced him guilty. During this state of public excitement, he was brought to trial, and condemned by a jury of his country. He was after- wards carried in chains to the capital of your state, and exhibit- ed to thousands, as a convicted felon. In a word, he has been pronounced a cold blooded murderer," till with his tainted name the winds grow sick." You have been reminded by the learned counsel for the people, that there is an all seeing Providence, that drags the guilty to punishment, even in this world. Gentlemen, it is truly so ; and it has been justly remarked by my learned friend and associate counsel, that that same Providence shields and protects the in- nocent. Yes, it is that Providence, that refused a seal to tiie conviction of this man ; saved him from the verdict of the for- mer jury, and now allows him to hope for deliverance and joy at your hands. Gentlemen, you will not participate in the public prejudice against the prisoner. You will try him upon the evidence alone, which you have now heard. It has been said by a celebrated Writer, that every criminal prosecution may be considered the war of a nation against an individual. You will take care that you guard with watchful jealousy the rights of this man ; you will not deliver him over to the vengeance of the law, until the people shall produce the most indisputable proof in support of their accusation. You have heard the sentiments of Sir Edward Coke. They are such as might have been expected from that great and learned judge. In favor of life, he exhorts jurors not to give their verdict against a prisoner, without plain, di- rect and manifest proof of his guilt. And it is a maxim, holden sacred in all our courts of justice, that no one shall ever be con- demned, so long as a reasonable doubt of his guilt can be enter- tained. 1 come before you the advocate of one who has always trod- den the humble walks of life ; one who has neither riches nor power. I rejoice, therefore, in the confident belief, that you look upon the whole race of man, as belonging to one great fami- ly, and that the very face of a human being in distress cannot fail of being a passport to your hearts. You will not believe, that because this man is poor, and of humble condition, he has no heart-strings to quiver at the touch of distress ; nor will you 61 believe, that his existence is of no importance in his own view. " As in looking upward, each beholder thinks himself the renire of the sky, so nature has formed her individuals, that each m-:st think himself the centre of being"— \nd who stands alone, in this world ? Wlm shall go down ti infamy and despair, and drag not with him others, who are indissohibly bound to him by " the link of nature" ? You see crowding around this unhappy man his affectionate kindred, waiting, with throbbing hearts, your all-decisive verdict. 1 rejoice that his conduct in life has been such, as to endear him to'them ; and that those who k e>w him best cannot believe him guilty of the foul crime, -whi< h is charged upon him, but cling to him at this critical and awful hour. I rejoice in the hope, that your verdict will soon give him back to those who love him. Gentlemen, the great and important question, which you are first to decide, is whether the deceased came to her death by poison. If you shall have any doubts on this point, if you shall not consider the evidence perfectly clear, ami irresistibly con- clusive, you will be bound liy your oaths, and by all the sacred principles of humanity, to acquit the prisoner. It is true, that the physicians, who have testified on behalf of the prosecution, have pronounced a decided opinion, that the death of the deceased vvas caused by arsenic. And they declare that they ground their opinion upon the experiments, which they made upon the contents of the stomach, and the matter found on the liver; upon the symptoms, which attended the disease; and upon the appearances of the body, after death. It will be necessary to consider the several grounds of their opinion. ... ... A• . , 1 deny that the tests used by these physu mns, even it tried with the utmost skill and precaution, could afford any conclusive evidence of the presence of arsenic. And 1 .assert, that the ex- periments wore made in a very unskilful and defective manner. In their first experiment, they endeavored to use the test re- commended by Doct. Hume, of London. This test is, undoubt- edly, an ingenious one, and may, in the hands of skilful men, to use the language of Doct. Cooper, he a very valuable mean, among others, for the detection of arsenic. But it has been found that the yellow precipitate, on which the inventor of the test relied, as certain proof of the presence of arsenic, may be produced by other substances, as well as by that poison. And this test has been examined by some of the most learned chem- ists of the age. and pronounced to be fallible and unsatisfactory. 1 will consider the first experiment, as it has been stated by the physicians. To use their own language, one gram of sal soda was put into four ounces of cold water, a small quantity of the suspected matter, taken from the external surface of the liv- er, vvas added, to which was put a small quantity of the nitrate of silver A bright yellow precipitate appeared. I acknowledge that it struck me quite ludicrously, that they should have gone to the liver, to look for arsenic, which was ta- ken into the stomach. They have, however, attempted an ex- planation. How well they have succeeded, will be for you to determine. They say the lower part of the stomach was much 62 corroded, and had many holes in it, and they think the arsenic must have passed through these holes, and fallen upon the liver. Unfortunately for the cause of truth, these gentlemen adopted the notion that arsenic operates on animal matter, as a caustic. They began the examination of the body expecting to find poi- son. The moment they found the inner coats of the stomach de- stroyed, and the outer one perforated, they took it for granted that these were the effects of arsenic, and when they discovered the matter on the liver, why, of course, it was that accursed poi- son for which they were looking, and which had eaten its way through the stomach. Now, 1 have shewn you from the high- est authority, that arsenic does not act as a caustic on animal; matter, and that it could not have perforated the stomach, in the manner described. Undoubtedly, these appearances of the stomach were produced by the natural process of dissolution, the deceased having been dead eight days. From the testimony of Dr. Noyes, it must be manifest to you, that he does not believe that any arsenic w:is found upon ^ liver. He thinks it possi- ble that it was the phosphate of linie, which was found there. There are many objections to this experiment. Instead of sal soda, the alkalies of potash, or ammonia, should have been used. This improvement was discovered by Dr. Marcei, and was long since adopted and recommended by Hume himself. It vvas ei- ther not known to these witnesses, or they we»eextremely care- less and neglectful, in not using it. There is no evidence that the sal soda and the nitrate of silver, which Were used, were not impure. Dr. Noyes says that they ought to have been tested, and their purity ascertained ; and he informs you, that the fluid suspected to contain arsenic should have been filtered, before the test was applied. But these precautions were wholly omitted. You learn from Doctor Patchen, that the composition, which they boiled, was not suffered to stand until it vvas cold, before the nitrate of silver was applied. This witness says, it was allowed to stand a few minutes, and was cool, but not cold. Now, Hume directs that care should be taken to have it quite cold. But a still more gross and dangerous departure from the in- structions of Hume is manifested hi their not making use of dis- tilled water. It is considered indispensibly necessary that the water should be pure, and perfectly free from all coloring mat- ter ; and it is, therefore recommended, not only by Hume, but by all good chemists, that the water should be distilled. Yet these witnesses, in a case of the highest importance, could be satisfi- ed with water, which was taken from a cistern, with ail the im- purities, whirh would be washed from the roof of the building, and which might get into it in many other ways. Can it be possible that these men can expect, or wish, that you should have any confidence in this experiment ? Are they not conscious that they have committed errors ? And do they not know that a single error might prove fatal to an innocent man ? But what result was produced by this experiment ? They tell you that a bright yellow precipitate appeared. I deny that this can afford any clear evidence of the agency of arsenic, since there are other substances, that may produce a like result. It 63 has already been shewn to you from Doctor Cooper's publica- tion, that phosphate of soda will produce the same colored pre- cipitate, as will be made by arsenic; and you find it asserted by high authority, that this substance is always to be found in greater or less quantities, in the human stomach. Doctor Noyes is of opinion that not only phosphate of soda, but phosphoric acid, and most of the alkaline and earthy phosphates, might be found in the stomach ; and he tells you that these substances are considered capable of producing a precipitate strongly re- sembling that which is effected by arsenic ; and that the shades of color might be varied by coloring matter in the stomach. It also appears from the statement of this witness, that the gastric juice, even when taken from the stomach of a healthy person, and separated from all other substances, will precipitate the ni- trate of silver. And who can say that a precipitate, so formed, might not, in the case we are considering, have received a bright yellow color from the impurity of the water used in the experi- ment, or from some coloring medicine, food, drink, or other matter tak«n into the stomach of the deceased, or formed there? You will bear in mind, that in these experiments with Hume's test, different shades of yellow were exhibited. If the test is in- fallible, and the experiments were properly made, how came these differences ? You are told that in the two next experiments, the matter ta- ken from the internal surface of the stomach, and from the oeso- phagus, or windpipe, was tried, and that a dead yellow precipi- tate appeared. Why a dead yellow ? Do these physicians wish you to understand that so much of the arsenic had escaped from the stomach, and lodged on the liver, that there was not enough left to produce a bright yellow precipitate ? They think the mat- ter they found on the liver was arsenic in substance. It is well known, that, where that poison is taken in substance, it is found adhering to the coats of the stomach ; and it is idle to suppose, that if enough had been given to the deceased to produce death, there would not be sufficient left in the stomach for a full and fair experiment. Dot tor Hume thinks that a mere atom of ar- senic, the very fraction of a grain, would be a valuable ac- quisition for evidence. Gentlemen, 1 think the different shades of color, which have been mentioned by these physicians, cannot fail to satisfy you of the fallibility of the test they used, or of the experiments they made ; and they must forcibly remind you of the declaration of Doctor M'Neven, which J have read to you, that in a capital case, he would not like to convict upon a shade of color. Gentlemen, I will dwell no longer on these experiments. I will not doubt that you are fully convinced of then' insufficiency. I will hasten to the two which remain, and which were made where the sulphate of copper was used as a test. We need con- sider only one of them, for we are informed tliat both produced the same result. The physicians state, that a small quantity of the suspected matter was added to a solution of sal soda, to which was added a solution of sulphate of copper, and that a beautiful green vvas produced. They inform you that the composition to which the- 64 test was applied, was not boiled, but that cold water was used. I take their written and certified statement. If ihe test be fallacious, the experiments, however accurately made, tan prove nothing. And what confidence can \mi have in this test, when you find that the same result, which is produc- ed by arsenic, maybe produced hy other substances ? Doctor M'iNeven declares that he took the expressed juice of onions, and added to it a solution of the sulphate of copper, and that im- mediately the whole was turned to a beautiful green, not to be distinguished in appearance from that of Scheele's green. And Doctor Noyes tes-ifies that the sulphate of copper added toa so- lution of the phosphate of soda, produced a color, which the in* experienced might mistake for Scheele's green ,* and that a lit- tle laudanum being added, the resemblance was much increased. You will' remember that laudanum was frequently given to the deceased during her illness, and that it is said that the phosphate of soda is always to be found in the stomach. And who can tell how many other substances may be taken into the stomach, or be formed there, whuh might produce a like appearance? I think you will find no difficulty incoming to the conclusion that this test is an unsafe one, and cannot afford vou any satisfactory evidence. But objections do not end here. The experiments were not made in a manner proper to obtain Scheele's green. The materials were not all weighed, and proportioned, and Dr. Noyes informs you that the shades of green would vary with the different quantities of materials used. Potash should have been used, instead of sal soda. The water was not distilled. The composition was not boiled before the test was applied to it; and it was not filtered; and I do not recollect that any attempt was made to free it from coloring matters. The sul- phate of cop,.-i was not proved to be pure. But these witnesses say they obtained a beautiful green. The question is not, how beautiful it was, but whether it was Scheele's green. And how could they determine that question ? They had never before made any experiment with this test, nor had they seen any made. You are further told by the physicians, that they tried both tests on real arsenic, as well as on the solutions of the matter taken from the stomach and liver, and that the same results were produced. Granting this to be strictly a fact, and that the witnesses were not deceived from their want of experience, still it gives you no evidence on which you will dare to rely, w hen you shall recol- lect that there are several known substances which, with these tests, will exhibit the same results as would be produced by re- al arsenic; and when yon shall also consider that there is no evidence of the purity of the materials, which were used. Gentlemen, the latter part of Dr. Patchen's testimony is wor- thy of special notice. Being asked whether, in a like ras'ewitb that of the deceased, he would now be content with making only such experiments as those we have been considering, he tetia you, that although he should be entirely snusfiei himself, yet for the satisfaction of a jury, and of ihe. public, h*. \oul I now go further—he would endeavor to procure the sublimed metal, the 65 garlic smell, and the white stain upon copper. This is exactly what he ought to have done, before he should have dared to ut- ter the confident opinion, which you have heard hi;n express. This witness admits that there is a difference of opinion among leaned tmn, respecting the tests which were used in this case. Certainly, then, this is enough to shew you that implicit confi- dence in their proceedings would be improper and dangerous. Wbo shall decide when doctors disagree? You will never give your verdict against the prisoner upon doubtful evidence. A single fa. I, stated by Dr Patchen, is quite sufficient to prove the indscreet and precipitate mariner in which these phy- sician0 proceeded. He acknowledges that they bad copperplates pivpKivd to try the suspected matter, but tells you they were so perfectly satisfied with the experiments they had made, that they thought it useless to go any further. It is not a matter of the greatest surprise, that these men should have formed a hasty and ill grounded conclusion ; it was in some degree to be expected from their want of experience and learning at the time they made the investigation. But I cannot retrain from expressing my astonishment, that after the oppor- tunity they have now had for examining the subject, they should continue to declare that they have no doubt of the correctness of the opinion which they first formed. I have the consolation, however, of knowing that you, and not they, are to decide the fate of my client. Let us now attend to the symptoms of that disease, which proved fatal to the deceased, and see if they afford any substan- tial evidence in support of this prosecution. 1 do not deny that some of them are such as would ordinarily attend the case of a person poisoned by arsenic. I assert, however, that none of them belong exclusively to such a case, and that they are all common toother diseases: and I assert still further, that seve- ral of the symptoms, which are considered as almost inseperable from sickness occasioned by arsenical poison, were absent in this case. The witnesses say that when she was first attacked, she com- plained of violent pain in the stomach; that during her sickness, principally in the fore part of it, she puked several times; that she often appeared to be thirsty, and seemed to have a fever, and was frequently quite restless. Mrs. Barnard says that on Tuesday morning, the day of her death, she appeared to be blind, deaf, speechless and deranged. And that Uefore death, she discovered dark red spots on her hands and shoulders. Miss Leonard tells you that on Tuesday afternoon, she noticed large bluish spots on the face and arms of the deceased, and thinks she saw some on her legs, and says her hands were very blue. Dr. Cook saw the patient about two hours before lier death. He testifies that he found her speechless; that her extremities were cold to the body ; that she was in a cold sweat; that her tongue was somewhat swollen ; that she vvas restless, and manifested a prostration of muscular strength ; that her countenance was ve- ry ghastly, and her fingers had a dark livid appearance, such as he thinks is usual at dissolution. 9 66 If nly recollection be correct, these are all the symptoms, of any importance, which have been mentioned by the witnesses. Gentlemen, I will frankly acknowledge, that my heart has foiled within me, when I have seen you, after listening to the story of this woman's distress, turn your eyes upon my unhappy client. I knew that you could not but be nverw helmed by a tor- rent of feeling, and l" feared that the first impulse of your nature might hurry you into indignation against the accused, without your even waiting for evidence of his guilt. But my strength and confidence returned, when I considered that your verdict Would be the result of cool and deliberate judgment; that yon Would reflect that pain and death are the lot of humanity, and that while you should feel for the sufferings of the deceased, you Woiild take care to demand the most unq lestionable evidence of the guilt of the accused, before you would add to the sum of hu- man misery, by giving him over to infamy and death. Yes. the lot of this woman is the lot of all! Where now are many of thosft whom you have loved? Gone, through the agonies of death, to the repose of the grave. Like the visions of enchantment, they have passed away ; like the clouds of the air, they have gone by you, and will be seen no more. Pardon this digression. I will return to the point Which I was considering, and will endeavor to show you that the symp- toms which have been mentioned, can afford nothing like satis- factory proof that the deceased was poisoned. A prominent symptom, which attended the case of the deceas- ed, was severe pain in the stomach. It is undoubtedly true, that this niight be the effect of arsenic ; and it is equally certain, that it might spring from many other causes. It would be found in violent cases of bilious and hysteric cholic, in cholera morbus, and other diseases. But it appears that the deceased was al- ways afflicted with severe pain in the stomach, when she was assailed by that disease, which she and the family usually de- nominated bilious cholic; and 1 think that this single fact must be amply sufficient to shew you that no reliance can be placed upon this symptom, as proving the agency of arsenic. And what evidence of the action of this poistm is afforded by the symptom of puking? This is laid down by medical writers as ordinarily attending severe cases of cholic. and a diversity of other complaints. It may arise, says Dr. Noyes, from fear, anxiety, pain, and a great variety of causes. And your own ob- . eervation must satisfy you of the truth of this remark. I do not deny that vomiting would almost certainly be produced by arsenic taken into the stomach. Dr. Noyes tells you that violent and continued puking is produced by this poison; and Dr. Cooper's publication informs you that the action of mineral poisons induces incessant vomiting. But far different was the case of the deceased. She vomited but rarely ; and, if I have understood the witnesses, not more than live or six instances were seen during the whole of her sickness. Mrs. Barnard went to the house on Sunday evening, and remained with the de- ceased until alter breakfast on Monday morning, and does not recollect more than one instance during that time. When you consider that this symptom did not appear with the frequency 67 and violence always to be expected where arsenic is the cause; and that it is common to a variety of diseases, surely you wiH not allow it any weight on a trial where life depends upon your verdict. It is said that thirst and restlessness were manifested by the deceased. And who has not often witnessed these symptoms it| others ? Gentlemen, I strongly suspect that there are very few, if any of you, who have not, in the course of your lives, experi- enced these distressing sensations. They are the inseparable attendants of fevers, and various diseases. You will recollect that Betsey Leonard says, that the deceased could not be satis- fied with warm drinks, and that she appeared to have a fever. And medical authors mention thirst, as a symptom of bilious cholic. iVIrs. Barnard says, that when she went to the house on Tues- day morning, the deceased appeared to be just dying; that she was blind, deaf, speechless, and deranged. How the witness discovered that a person, who was blind, deaf, and speechless, was also deranged, I will not stop to inquire. But I will re- mind you that this was the day on which the deceased actually died, andl will appeal to you whether it could be any thing ex- traordinary, if all those symptoms appeared at a time so near the dissolution of the patimt. 1 cannot find that either blind- ness, deafness, or loss of speech, is considered as a characteris- tic effect of arsenic; and Dr. Noyes tells you, that they are not symptoms of that poison. But Dr. Male expressly declares, and the declaration is sanctioned by the authority of Dr. Cooper, that delirium, or loss of reason, is seldom a consequence of the action of arsenic, and that the unfortunate person is conscious until a few moments before the termination of his existence. Mrs. Barnard says, that before the death of the deceased, she discovered dark red spots on her hands and shoulders; and Bet- sey Leonard says she saw, on Tuesday afternoon, bluish spots on her face and arms, and that her hands were very blue. It does not appear that these witnesses were surprised at what they saw. And well they might not be. They knew that the patient vvas at the point of death, and it is to be presumed that their former observations had taught them that similar appear- ances are sometimes noticed before dissolution. But certainly these spots or appeurances are entitled to no consequence on this trial, for they are not mentioned by medical writers among the symptoms of diseases occasioned by arsenic. Gentlemen, as I have already remarked to you, Dr. Cook did not see the patient until about two hours before her death. He considered her then dying, and thought it unavailing to admin- ister any medicine. The coldness ot the extremities, the cold sweat, the prostration of muscular strength, the ghastly counte- nance, ancj the livid appearance of the fingers, which he men- tions, are such as you and all of us see in almost every instance of death which we witness. They are the harbingers of death: but they are not the peculiar effects of any particular disease. This witness says that the tongue was somewhat swollen. I do not deny that this may be an effect of arsenic. It is certain, however, that it is seen in many cases where no kind of poison 68 has any agency. And where this appearance is produced by ar» senic, you may expect to find the face and the extremities of the body swollen; but these symptoms did not appear in the case of the deceased. Before 1 leave the testimony of this witness. I think it my du- ty to take some special notice of a part of his statement, to which I have not yet alluded. He has told you that when he first saw the deceased, hs thought there was something extraordinary in her appearance, and toucluded that M'Kay had given her poi- son, by mistake. He says he asked him. (to use his own lan- guage,) what the devil he had given his wife; and that after some hesitation he replied that he had given her pills, the chief ingredient of which the witness understood to bo the extract of butternut. The great discovery, which the doctor made, is still a secret, and probably will for ever remain so; for he lias not named a single symptom, or appearance, peculiar to any case of poison, or which may not be seen in many ordinary cases of dying per- sons. But I think I discover something quite extraordinary in the statement, which he now makes. Being asked whether he testified on the former trial any thing about his suspicion, which he now mentions, he says he does not recollect that he did ; and you may be assured that he did not—for had be done it, the counsel for the people would have taken good care to show you the fact. It seems, then, that on the first trial, this matter was of so little consequence in the doctor's mind, that it was wholly forgotten, or was thought not worth mentioning. Being further asked, to whom he ever communicated his sus- picion before this day, after taking some time to recollect, he can name only Dr. Luther, and admits that he never mentioned it to any of the physicians who are now attending this trial. It is certainly somewhat singular, that he should have divulged this matter only to Dr. Luther, who does not live near the wit- ness, "and who happens now to be absent; and that he never should have conversed on the subject with any of the physicians who live in his own town, and are his neighbors, who assisted him in dissecting and examining the body, and making the ex- periments, and who are now present! We have now, gentlemen, considered the symptoms, which form one ground upon which the physicians, who have been called by the prosecutor, have hazarded an opinion that the de- ceased came to her death by arsenic. Have they reflected, that many of the acknowledged symptoms of that poison were wholly absent in this case? Has it occurred to theifi, that there was no swelling of the abdomen, nor of the face, nor of the extremities, no convulsions, no hiccups, no cathartic effects, except what was produced by the butternut physic, no faintings ? One would think that the absence of these symptoms, and the reflection that there was not one present, which has not been found in other diseases, would have filled their minds with hesitation and doubt. But still more feeble and unsatisfactory is the evidence drawn from the appearances after death. Dr. Patchen informs you that the deceased had been dead 69 eight days when the body vvas examined by the physicians. And you will recollect that she died in the month of August. I have read to you the opinion of the celebrated Dr. Hunter, that it is impossible to investigate the cause of death in such a.state of general putrefaction, as must take place in so long a time, es- pecially in that hot season of the year ; and Dr. Noyes is clear- ly of the same opinion. You have heard the declaration of Dr. Dense, as published by Dr. Cooper, that unless all the different viscera are examined, it is doubtful how far surgical evidence is admissible. And the same writer says we should be careful not to give an opinion that a person has been poisoned, without being able to produce irrefragable proof of the fact. There is no pretence that in this case, there was any attempt critically to examine any thing more than the stomach. There they expect- ed to find the fatal poison, and there they discovered appearan- ces, which satisfied them they need not proceed any further. Dr. Patchen tells you that the stomach appeared to be of a dark color, owing as he supposes, to the time the deceased had been dead. He says, that on opening it, all the coats in the upper part, excepting the innermost one, remained entire, but that in the lower part, all the coats excepting the outer one, were found to be wholly destroyed, and gone; and that the outer coat was perforated, and had holes in it in many places. Dr. Faulkner tells you it had twenty or thirty holes, and looked like net work. These appearances the examining physicians took to be the ef- fects of arsenic Never was an opinion founded in grosser er- ror. It undoubtedly originated in the wild notion that arsenic acts as a caustic on animal matter. They took it for granted that poison had eaten up all the inner coats of the stomach, and had begun to devour the outer one. Now, we have shewn you by the highest written authority, and by the testimony of Dr. Noyes, which 1 consider equally high, that this destruction of the stomach could not have been effected by arsenic. And I trust you arc satisfied that the appearances, which these physi- cians saw, were nothing more than the effects of the natural process of dissolution, which, in this case, must have been very rapid, owing to the season of the year, the short duration of the sickness, and the length of time after death. It is a fact well known to those who are accustomed to dissections, and is estab- lished by what I have read to you, and by the testimony of Dr. Noyes, that the stomachs of those who die of short illness exhibit, immediately after death, evidence of mortification and putrefac- tion. The gastric juice, which is given us for the digestion of our food, becomes a powerful solvent after death, and commen- ces the destruction of the stomach. Phis juice would necessari- ly be accumulated in the lower part of the stomach, where other offensive matter would be collected, which gives you a sufficient reason why the work of dissolution should commence in that part. But why should I dwell on this part of the case ? Even Dr. Patchen admits that very little reliance can be placed on these appearances after death ; and 1 trust you are convinced that you ought to allow them no influence in determining your ver- dict. 70 Gentlemen, we have now seen and examined the several grounds upon which these physicians have pronounced a most confident opinion that the deceased was poisoned by arsenic. It has always been remarked that the learned and scientific, in their search after truth, proceed with jealousy and great cau- tion, and are unwilling to rest satisfied with any thing short of demonstration ; while the unlearned and inexperienced hurry to conclusions, and are satisfied with slight and inconclusive evi- dence. 1 cannot hesitate to say, that I think the opinion ad- vanced by the physicians in this case is a strong confirmation of the truth of this remark. Do not understand me to intimate a doubt of the integrity of these men, or to question their res- pectable standing in community, as physicians, or as gentle- men. But you may understand me as distinctly saying, that I think they were not qualified to make the examination and ex- periments, which they undertook- They admit that they are al- most wholly destitute of a knowledge of chemistry. And it is evident that they have no intimate acquaintance with dissec- tions, and that they know quite as little of the tests necessary to be used, to detect with certainty the presence of arsenic. I aver that without the qualifications to which I have alluded, however accomplished they may be in other parts of their pro- fessions, they are wholly unfit to pronounce an opinion, which can with any degree of safety be relied upon in this case. And I venture to predict, that the time will come, when reading and reflection will convince them of the truth and justice of these re- marks, and will make them regret the opinion which they hafe this day given. You find from what I have read to you, that some of the most learned medical chemists in Europe, after examining the tests which have been relied upon in this case, have condemned them as fallacious and incapable of affording certain evidence of the presence of arsenic ; and have pronounced an unequivocal opin- ou, that nothing ought to be considered satisfactory, short of the exhibition of the arsenic itself, sublimed in its metallic form. I have also slTfcwn you from what I have read, that professors of chemistry in thecolleges of your own countrv fully agree with this opinion. You had the satisfaction to hear Dr. Noyes deliver his own testimony ; and you have had the pleasure of hearing his character from the honorable judge on the ben« h. who has declar- ed him to be a most learned chemist and physician, and a man sustaining one of the most spotless characters, that a human be- ing can possess. Who would not be proud of such a character, from such a man ? This learned witness has attended this trial from its commencement* He has listened to all the relations which have been given of the symptoms of the disease, of the ex- periments made by the physicians, and of the appearances of the body after death, and being asked whether, from all he has heard, he is of the opinion that the jife of the deceased was des- troyed by arsenic, he tells you distinctly that he should not dare to pronounce such an opinion. He assures you that be has not seen any thing in the symptoms, or in the discoveries made by dissection, which can induce such a belief; and he tells you that he should consider it dangerous to rely upon the tests used in 71 this case, even in the most skillful and experienced hands ; and he has no hesitation in saying that he thinks the experiments were uiiskii,'ully and defectively made. Can you, then, say upon your oaths, that it is clearly and un- questionably m-oved that the death of this woman was -caused by arsenic ? No, gentlemen, I cannot believe it possible that you will dare to come to that conclusion. And if the evidence on this point of the case has not forced every reasonable doubt from your minds, the prosecution must fail. 1 trust that when you shall have fully considered the evidence which you have heard, you will be satisfied that the same dis- ease, which had often, for many years past, afflicted the deceas- ed, finally caused her death. 1 do think there are unanswerable' arguments in favor of that opinion. It appears that she bad been frequently attacked by this complaint in a very violent manner, and that her life had been considered in danger. The witnesses tell you that always when it came upon her, so severe were her pains, that she would scream aloud, and otherwise manifest extreme suffering. She had been twice assailed in this ^manner within two mouths before her last sickness, and once not more than three or four weeks before that time. In all pro- bability, thisjlast attack was brought upon her by extreme anx- iety of mind, and the excessive fatigue which she endured in traversing the woods in search of her son. You find that she herself considered this nothing more than a return of her old complaint. When she was lying on the chest in distress, and was asked what ailed her, she replied that she thought she vvas going to have one of her turns of cholic, and sent for the prison- er to give her some medicine ; and it is an important fact, that he did give her the same kind of medicine, which he had been ac- customed to administer to her, when she was afflicted witli what she considered the cholic. All the family believed she had her habitual complaint, and through the whole of her sickness nev- er entaiued a doubt of it. Dr. Luther, who saw her on Tuesday morning,* must have had the same belief, for it appears that the medicines he left for her were such as are proper to be given in a case of cholic. And the prisoner, when he spoke of her sick- ness, uniformly mentioned it as the disease to which she had been accustomed, and gave her caster and butternut pills, as he had always done on former occasions. It may be asked, if she had survived such repeated attacks, why should she fall a victim to this ? Gentlemen, it is a fair f(resumption that the disease came upon her with increased vio- ence and malignity in consequence of herexposure to the damps of the woods, and of her distress of mind, and extreme labor, while looking for her son. Bqt why need 1 assign any spe ;al cause ? Who shall always survive the assaults of disease ? '• The great wheel of destiny iiresistibly rolls on ; what mortal might shall grasp the spoke ?" The day shall come to us all, when there shall be no physician, no balm in Gflead, to save us. That fated day bad come to her. The sun of life vv as rapidly descend* ing. O, who could arrest its progress, who could stay its course, that it should sinK nut beneath the horizon ! Take care. 72 gpcntlenien, that you charge not to the account of my client, that which has been done by a just and overruling Providence. Let me now go to the other great and interesting question in this case. Granting that the deceased was actually poisoned by arsenic,'what evidence is there that that poison was adminis- tered by the prisoner ? I enter upon the examination of this part of the case with perfect confidence that nothing will be found, that can fix even the slightest degree of guilt upon my client. In most of the cases, which have come to my knowledge, where convictions have taken place on accusations like this, the prosecutor has been able to shew that the accused had the poi- son in his possession, at or near the time, when it was supposed • to have b;vn administered. But no attempt has been made on this trial f> prove that the prisoner had any arsenic in his pos- session, at any time within twelve months before the last sick- ness of his wife. And it is extremely doubtful from the evidence whether he ever had any, or even knew what it was. Dr. Clark tells you that ho has a strong impression that he has sold the prisoner arsenic two or three times. He thinks he remembers that the prisoner oiwc mentioned a cancer, and that he said he w anted the arsenic to cure that disease. He knows that the prisoner once bought corrosive sublimate at his store, but thinks it vvas a considerable time before the prisoner bought the other medicines, which the witness is now inclined to believe were arsenic. On being cross examined this witness very candidly acknowl- edges, that he cannot distinctly recollect that he ever sold the prisoner any arsenic ; he says it might have been corrosive sub- limate. He tells you that the medicine, of which he speaks, must have been bought in eighteen hundred and seventeen, or eighteen. Now, gentlemen, the account rendered by Clark and Brock- way against the prisoner, charges him with corrosive sublimate delivered in March, eighteen hundred and seventeen, vvhi< h is the time the prisoner had Mr. Doty's horse in keeping, and was endeavoring to cure him of a pole-evil. I do not doubt that the prisoner went to the store of Clark and Brockvvay after medi- cine. For it appears that he told one of the witnesses, when speaking of the medicine which he had used to cure a horse of a pole-evil, that he went there once or twice himself, and also sent his son. And you will recollect that Orange M'Kay says he went twice by his father's orders, and got corrosive sublimate, and saw him put it on the sore on Doty's horse. And Mr. Doty himself testifies that at the time the prisoner was attending to his horse, he told the witness that he used nothing but corrosive sublimate. This vvas long before the last sickness of his wife, and,when he could have had no motive to tell any thing but the plain truth. How strong, then, is the presumption, that the impressions of Dr. Clark are erroneous, and that the articles, which he sold to the prisoner, were in fact not arsenic, but corrosive subli- mate ! I will now pass to the testimony of Dr. Brockvvay. He says that he once saw the prisoner at his store, in eighteen hundred 73 and seventeen, or eighteen ; and is quite confident that he in- quired for both-corrosive sublimate and arsenic. HEe admits that he cannot recollect that he then sold arsenic to the prison- er ; and thinks be did not purchase any. I feel no disposition to question, in the slightest degree, the moral integrity of this witness. But I must doubt the accuracy of his recollections. The shortest date, which he has named for the time when he saw the prisoner at bis store, is three years asjo, and according to his testimony it may be four years. What man, who has not more than human memory, can now with safety sw'ear, that he recollects the identical words used in a conversation, which took place three or four year ago, es- pecially when he had no interest in the subject matter of that conversation ? If it be said that his attention was drawn to the word arsenic, on account of its being wanted to cure a cancer, surely that affords no reason Why he should, with equal certain- ty, recollect that corrosive sublimate was also mentioned. Yon will bear in mind, gentlemen, that this witness was an apothe- cary, and must have been constantly hearing inquiries made tor all descriptions of medicine. How strange is it, then, that he should recollect particularly the uninteresting inquiries made so long ago by the prisoner. It is not the least extraordinary cir- cumstance attending the testimony of this witness, that when he testified on the former trial of this case, he did not mention a word of any inquiries made by the prisoner for either arsenic or corrosive sublimate ; and I must say I have heard no suffi- cient explanation of this apparently strange omission. Let me now bring to your recollection the testimony of Mr. Gansevoort. He states that in October, eighteen hundred and nineteen, at the time the indictment was found, which you are now trying, he was walking near the gaol door, when the pris- oner, to whom he was then an entire stranger, accosted him. antl wished to know whether he knew Dr. Clark, adding that lie understood that the doctor was (going to swear that he, the prisoner; had bought arsenic of him more than three times, and that if he did so swear, he would perjure himself, for he did not get it more than three times—he got it once himself, and sent his son twice for it. On reflection, this witness says he cannot he confident that the prisoner said he sent his son twice for arsenic ; he might have said that he went twice for it himself. This witness further says, that the prisoner, during this con- versation, said something about a pole-evil on a horse, but he cannot distinctly recollect what was said oh that subj»rt. On being asked whether he could positively swear that the prisoner did not speak of corrosive sublimate, instead of arsenic, he says he thinks it was arsenic, but cannot be confident. Gentlemen, I rejoiced to see this witness start back from the position, which he first took. I rejoiced to see him, on heine; particularly questioned, growing less and less confident that i; was arsenic, w Inch the prisoner mentioned. For there isjho strongest reason for believing that most of his testimony is founded in gross mistake ; that he misunderstood, or does not now correctly recollect^ what the prisoner said. Can you for one 10 74 moment doubt, that when the prisoner mentioned to Mr. Gan- sevoort the pole-evil on a horse, he was speaking of the Doty horse ? and how forcible is the presumption, that when he meiv> tioned the medicines, which he said he got only three times at Dr Clark's he was talking of he corrosive sublimate, which it is clearly proved he did get to cure that horse ! Augustus Partridge has been called as a w itness for the people. He was in the room with the prisoner at the time Gansevoort says he had the con- versation with M'Kay, and, most unluckily for the prosecution, he declares to you that he never heard the prisoner tell any per- son that he got arsenic at Dr. Clark's, but that on the contrary, he always said that he did get corrosive sublimate there, and that he did not know arsenic. And sheriff Willson, who vvas also called by the prosecutor, and who has been the keeper of the gaol, during the whole of the prisoner's confinement, tills you that the prisoner has constantly said that he did not know arsenic. You will recollect the situation of the prisoner at the time Mr. Gansevoort had the conversation with him. He was then con- fined in a dungeon, upon the very charge which you arc now trying : the body of his wile had been taken from the grave ; the physicians had pronounced her poisoned by arsenic ; the court of general sessions of the peace had convened ; and the grand jury were then investigating this most interesting case. And yet you are now called upon to believe, tiiat under such critical and awful circumstances, the prisoner even sought an opportu- nity to declare to Mr. Gansevoort that he had gotten arsenic three times at Dr Clark's—the fatal dvug, with which, as he well knew, he was accused of poisoning his wife ! And this con- fession made, after he had declared to Dr. Rich, at the time the body was raised for examination, that he never had any arsen- ic, and did not know what it was ; and after he had repeatedly made the same declarations to Mr. Gregory, who was his keep- er, and to many others in the hearing of Gregory, at the time the physicians were at Dansville examining the contents of the stomach. Never until the prosecutor will shew me that human nature is treading but k ward, will I believe the story of this wit- ness. I will not doubt his integrity, but 1 will doubt his memo- ry, and 1 will lament that he laid the scene of his testimony at the prison door of an unfortunate and miserable man. Mr. Sutliff, a brother of the deceased, has testified that when the prisoner was endeavoring to cure the Doty horse, he told the witness that he had formerly made use of arsenic, to cure pole-evils on horses, but that he had found a better way to man- age that disease. According to the statement of this witness,, this conversation must have taken place more than four years ago. How extreme- ly dangerous would it be to rely upon the recollection of a wit- ness respecting a conversation which happened at so distant a period, especially when he can assign no particular reason for its making so lasting an impression on his mind. You will, however, readily perceive, that if full credence be given to the story of Mr. Sutliff, it will greatly discredit the testimony of Mr. Gansevoort; for it is clear that the medicine which the 75 prisoner said he got at Dr. Clark's and which Mr. gansevoort understood to be arsenic, was obtained for the purpose of heal- ing the Doty horse ; and yet Sutliff says that at the very time the accused was administering medicine to that horse, he told the witness that he bad formerly used arsenic to cure pole-evils, and gave him distinctly to understand that he had abandoned that medicine, having discovered a better one. There is only one witness more, who has testified on this point of the case ; and it cannot be denied that he has told his story with most disgusting levity. You will easily perceive that I allude to Andrew Wickham. Being asked what he knew respecting this accusation, in the harry and flutter of a school boy anxious for his turn to repeat his lesson, he began—I saw the prisoner at the gaol—he told me he never had any arsenic, excepting some he got at Dr. Clark's, at Dansville, to cure a horse—no, (said the witnes) I mistake, he did not mention Dr. Clark—he only said he got it to cure a pole-evil. Gentlemen, what tempted the witness to say that the prisoner told him he got the arsenic at Dr. Clark's, an assertion, which he '•as obliged the next moment to retract ? What, but an eagerness to testify to something important, no matter what ! This is the man, who told you that the prisoner was dancing at the gaol door, leaving you to conclude, that regardless of the death of his wife, and of the awful accusation resting upon him, and in contempt of all moral decency, he was amusing himself by dancing at the prison door. And yet, on close examination, it appeared that this unfortunate man, chilled with the damps of his dungeon, was merely using bodily exertions, to make him* self warm. Such is the evidence, which has been offered to shew the pris- oner's knowledge and possession of arsenic. I appeal to you, gentlemen, whether I was not fully jusiified in asserting, that there was not a shadow of proof that he .'.ad a iy in his posses- sion, at any time within twelve months before the last sickness of his wife ; and that it was extremely doubtful from the evi- dence, whether he ever had any, or even knew what it was. Here let me ask, what evidence is there, that the prisoner ad- ministered to the deceased any medicines, or drugs on Sunday, before she was violently sick ? And what medicines, or drugs, were given by him to her during her sickness ? These are im- portant inquiries ; and I will venture to say, that if the testimo- ny on these points be analyzed and carefully considered, it will be found that there is scarcely sufficient to cast a shade of suspi- cion upon my client. It will be seen that there is no proof of bis giving her any thing more than castor, the extract of butter- nut, peppermint, laudanum, and bilious pills. And it cannot be matter of surprise, that he should administer those medicines, and should be even officious in giving them ; for it is proved that he had long professed to be something of a physician him- self ; that he had been in the habit of keeping in his house cas- tor, and the extract of butternut, and by giving those very med- icines to his wife, when she was attacked by cholic ; and it ap- pears that peppermint and bilious pills, among other medicines. 76 were left by Dr. Luther in the charge of the prisoner, to be given to the deceased ; and that laudanum was procured at Mr, Miller's after the sickness of the deceased commenced, and wag kept for her use. Gentlemen, 1 do contend, that it may he assumed as a safe po- sition, and one beyond all reasonable doubt, that if poison was not administered to this woman before she was seen by the fam- ily, lying on the chest, in great pain and distress, she never was poisoned, but died a natural death. For it is clearly manifest, tliat the same disease by which she was first attacked, accom- panied by the same symptoms, with only such variations, as the progress of the disease would necessarily produce, pursued her to the grave. Allow me, then, to state to you a plain history of this part of the case, as it has already been detailed to you by the witnes- ses. On Sunday forenoon, the day on which her fatal sickness commenced, the deceased, fearing that her son had perished in the woods, went with Daniel M'Kay to search for him. At the same time, the prisoner went with Cascy.M'Kay, in another di- rection, to look for the same boy. The prisoner, learning that «ir jury, but that you must here decide the case for yourselves. With these preliminary observations, I shall proceed to the consideration of the case, in the order which naturally presents itself, and shall first en- quire whether the deceased came to her death by'poison ; for if we are unable to satisfy your minds upon this point, it will be your duty to acquit the prisoner. And upon this part of the subject, before I proceed to the discussion of this point, I must bet; leave to make one further observation. It has been suppos- ed by the prisoner's counsel, that we are to oppose the knowl- edge and wisdom of a learned professor of chemistry, by the opinion of some five or six country physicians. 1 will endeavor to save the learned professor the mortification from which his learned friend appears so anxious to shield him, and in the view I shall take of the subject, will go no farther than I think I can be supported by such authority as will not be questioned. If I find it necessary to controvert his theory or reasoning at all, and oppose the opinion of a teamed man, it shall only be by the opinions of learned men. But it is not my intention to derogate in any mu'-.Vier from the professor's testimony ; although I will not premise always to be satisfied with the justice and correct- ness of his conclusions. In every other particular, and perhaps in all, 1 shall, in the course of my remarks, assume every thing- said by him to be literally true. In determining the question whether this woman died by poi- son, it will be necessary in the first place to examine the symp- toms attending her sickness, and compare them with the opin- ions of men of medical science—of men whose study and business it has been to understand the subject, and afterwards to exam- ine the nature and result of the tests and experiments made by the physicians, upon the contents of the stomach and compare them is the same way. Let us first see then the opinion of Dr. Noyes upon this subject. He tells us, that the usual symptoms attending poison by arsenic, we'violent puking, pain in the stom- ach and bowels, thirst, impossibiiity of retaining any thing upon the stomach, deafness, blindness, indistinctness of articidation. There are other symptoms sometimes attending such cases, but these are such as most usually and naturally follow from such a cause. I will also beg leave to read a few extracts upon this subject from authors of approved merit [The counsel here cited and read from Thacher's Mwdern Prac- tice, 484. Cooper's Med. Jurisprudence, 149*. 2 Medical Mu- seum, 347—and a case of poison by arsenic from 9 vol. New- England Journal, p. 240.] 92 I could read from other authorities, but no further reference will be necessary. Now let us see whether these symptoms did not attend this case. There has been no symptom mentioned which was not witnessed in the deceased, except the swelling of the face and extremities, and you will recollect that Dv. Noyes tells us that these do not always appear. Pain in the stomach and bowels, thirst, blindness,'deafness, indistinctness of articu lation, &c.—All these are proved to have existed in the case we are now considering. It is said by the counsel for the prisoner that the appearances after death, are not conclusive or satisfac tory, This I will not controvert—all that I contend for is, that in the appearances after death in this case, there is nothing in- consistent with the fact thai her death vvas produced by arsenic, and that arsenic would probably produce these appearances, but 1 concede that these effects, not being peculiar to such a cause, arc not at all conclusive and are not to be relied upon. Dr, Noyes teilsyou that although arsenic is corrosive, yet ho thinks it doubtful whether it would have produced these appearances on the stomach, although it might have done so. We find, then, the symptoms and appearances correspond with the rule laid down by medical writers, and with the opinion also of Dr. Noyes, upon which the counsel for the prisoner seem so much to rely. I will not urge to you, however, that it would be at all safe to conclude, from these symptoms and appearances, that the de- ceased came to her death by poison ; nor are we compelled to rely in this case, upon ibis testimony alone. We have many corroborating circumstances to be taken into consideration, to- gether with the tests to which I am now going to call your at- tention. I will in the first place give you, from approved au- thors, the opinion of men of science, how far these tests may be relied on with safety. (Air. Collier here cited the following authorities upon the subject of Hume's and Bergman's tests, to detect the presence of arsenic—1 vol. New-England Journal of Mediciue and Surgery, p. 208. 12 Med. Repository, p. 208. 13th ibid, p. 115. Formulae Selectae, p. 156. Cooper's Med. Journal, 157. Thomas's Practice, p. He also read the fol- lowing extract from 7 vol. New-England Journal Med. and Sur. p. 510. ** When suspected matter is found in the stomach or Us vomited contents in the solid form, I believe Mr. Hume's test may be applied with the utmost coiifidence. But where arsenic is dissolved in the liquid contents of the stomach, it may be doubted, whether the same accurate results will ensue." Also Henry's Epitome of Chemistry, p. 363, 364. Where, after mentioning Hume's test, he adds : " To identify the arse- nic with still greater certainty, it may be proper, at the time of making the experiments on a suspected substance, to perform similar ones, as a standard of comparison, on what is actually known to be arsenic." Here then we find all these writers agreeing in the opinion that they are very delicate tests, that they will detect the pre- sence of arsenic, and it seems, would be sufficient to satisfy their minds. These two tests and experiments were tried by the physicians, introduced as witnesses on behalf of the people, and were repeated until there could be no possible mistake. Thejv 93 were tried upon the suspected matter in the»' solid form" found in the stomach, and at the same time upon real arsenic with pre- cisely similar results. Although, there does exist such a variety of shades of color, that it may, as has been objected, be difficult to describe and distinguish them by words, yet the slightest dif- ference might be detected by the eye. When we see then the attending symptoms in this case, the appearances after death, the result of these two different tests, recommended as they are by so many learned and scientific men, and tried, as they were, upon the solid substance found in the stomach—When we see that these experiments were tried at the same time upon real arsenic, and their accuracy thus tested as they vvent along ; when we add to all this the decided and confident opinion of those who saw and made these experiments, does it leave a shad- ow of doubt in your minds that the decease cartie to her death by poison, and that the poison was arsenic X But Dr. Noyes has given us his opinion that these tests arc not conclusive. He says the symptoms are not conclusive—they are not at all pecu- liar to the case of poison by arsenic—that the appearances after death are not satisfactory, although, they would seem to indi- cate the presence of arsenic—which he says would produce these effects—That Hume's, although a very delicate test, does not amount to demonstration ; but he considers its application and the result as a strong circumstance. I will now, gentlemen, take np the testimony of Dr. Noyes, not in detail, but I will give you certain inferences and results, drawn from his testimony, and see whether his opinions instead of being at variance with, and destroying the testimony and opinions of the other physi- cians, does not, in truth, strengthen and confirm them. If we were opposed, in this case, by the opinion of so learned and distinguished a man as Dr. Noyes, it would not, perhaps, be safe to convict the prisoner. It would have produced such a reasonable doubt, that you would no longer hesitate to acquit. But such is not the fact. We have given you, gentlemen, the opinion, the decided aud positive opinion, of the best judges which this part of the country affords. I have shown that they are supported in that opinion, by the most approved and lo&rncd authors—aud we will now see how far they are supported by Dr. Noyes himself. I have already said that he considered I lume's a very delicate test—that the symptoms, although such as are usual, are not peculiar to the case of poison by arsenic—that the appearances after death arc not to be relied upon, although (hey arc strong circumstances. He says further, that although arsenic is corrosive, he thinks arsenic, alone, would not have produced the perforations in the coats of the stomach. He says the experiment to i.~ oduce Scheele's green is not conclusive, because it docs not amount to demonstration, and although he should consider it a strong circumstance, yet he would not be satisfied, «« because the experiment has not been tried upon all substances." I would remark, that Dr. Noyes speaks of this subject like a chymist and philosopher, both when he speaks of demonstration, and when he requires the experiment to be tried upon all other substances. Every thing is to be demonstrated like a problem in Euclid, to satisfy his philosophical mind. But 94 yet he tells 11s, that the experiment of subliming the metal, he should consider as infallible. I submit the question, however, whether the learned professor will not, upon bis principles, find himself, at last, arguing in a circle, and whether new experi- ments would not be required to demonstrate what this substance is tint is thus supposed to be reproduced, and whether, even then, he will not be met with the objection, that his "infal- lible" experiment'" had not been tried upon all substances".' Again—Dr. Noyes objects to the experiment resorted to to pro- duce Sfieele's green, that it might have been discolored by the fluid in the stomach. But when the physicians tell us that they took the substance found in a solid form, or in powder, upon the liver, and that the same experiments were tried upon this sub- stance, with the same result, it Would seem that the reason of his objection to this test, ceases to exist. But, gentlemen, we find that even the learned Dr. Noyes knows of no substance, re- sembling arsenic in appearance, and no substance in the form of a white powder, that, with the same experiments, will pro- duce the same results. Now, then, when we look at the symp- toms in this case, the appearances after dca..'i, and the corres- ponding symptoms and appearances, in cases of poison by arse- nic, given to us by medical writers—when we see the repeated trials both of Bergman's and Hume's tests, so highly recom- mended by the ablest chymists and standard scientific works, and approved as they are by Dr. Noyes—when we see the same experiments tried upon what vvas known to be real arsenic, about which there could be no mistake—when we find that Dr. Noyes, who has devoted so much of his time to the subject, knows of no other substance, or at all events, none resembling the sub- stance which was found in this case, which will produce the same results, except arsenic—is there a reasonable doubt re- maining that the death of the deceased was produced by arsenic? Is it, aiid ought it not to be, perfectly satisfactory and conclu- sive? Have they opposed us by a single writer or a single wit- ness? They have, in my humble estimation, fallen very far short of it. In these remarks, 1 have taken the opinion of Dr. Noyes as to.the usual symptoms and appearances after death. Upon the principal question, whether the deceased vvas poisoned with arsenic, he has forborne to express any opinion : and since he has expressed no different opinion, and nothing is shown on be- half of the prisoner to controvert it, I must think it safest to re- ly upon the opinion of six intelligent physicians, who have spo- ken understandingly and with great confidence upon the subject Bui, gentlemen, it has been objected that we did not use distill- ed water, nor did we try Marcet's improvement of Hume's test. The purity of the water vvas, however, tr;.*d with the nitrate of silver, and Marcet's is no otherwise an improvement of Hume's test, than that it serves to detect a more minute quantity of ar- senic. If I have viewed this subject correctly, i need not detain you longer upon this point. You are not required, in this case, to be convinced beyond all possibility of mistake ; but, as I ob- served to you while on another part of the subject, you are to require such evidence as will not leave a rational doubt existing in your minds. 95 If then you are compelled to conclude that the deceased came to her death by the administering of arsenic, the next inquiry is, whether the poison was administered by tfie prisoner at the bar. Upon this part of the subject, you have been told by the learned counsel, that it will not do to rely upon circumstantial testimony, and they have introduced some authorities to support this opinion. It is not to be supposed that we can, on such oc- casions, always produce witnesses who were present and saw the very act You must be sensible that it would be impossible and preposterous, and that so rigid a rule would subvert all civil government. There would be neither safety nor security for the citizen, and the most abandoned and notorious offenders would scarcely ever be brought to justice, if the public prosecutor was held to such strict proof. But, gentlemen, such is not the rule of law. Positive proof is not indispensable, but such only as would justify the jury in concluding,beyond a reasonable doubt, that the crime has been perpetrated. The counsel who first ad- dressed you has said, that it was necessary to produce a train of circumstances going to establish the same result. Let us ex- amine the prisoner's case by this rule, and see whether there is any escape for him. Nor will it be necessary for me to recapi- tulate the testimony of each witness separately, but I shall con- tent myself with taking one general view of the subject, touching upon the leading facts of the case, as presented on behalf of the people, and inquiring, as we go along, what has been proved or urged in his favor that ought to have any material influence upon our minds. It seems that on Sunday the 7th of August, 1819, about four o'clock in the afternoon, the deceased Vvas taken v suddenly.ill. Bailey testifies that the prisoner told him, when be vvas keeper over him, that he gave her medicine, before she was attacked, as a preventative, lest she should be taken sick—and in this the witness does not stand alone. Dr. Rich testifies to nearly the same thing—that he had given her medicine, which he had pre- pared before she was taken sick. There was nothing unusual in her first attack. She was subject to the cholic, and seemed to suppose it a return of her old complaint. It has been proved, and the prisoner's counsel have labored to establish the point, that the symptoms are very similar to those produced by taking arsenic It is not at all surprising, therefore, that she should suppose, at first, that her's was a case, of the cholic. During- the afternoon of Sunday, she took medicine—and, before 1 pro- ceed further, 1 would observe, that supposing it sufficiently ap- pears that the deceased came to her death by poison, it becomes us to look about her and see who was in a situation, and vw-.at opportunity was afforded them to administer it. It appears that immediately alter she vvas taken, she took medicine from M'Kay. Mr. Matthews has said, that it is in evidence that young M'K#.y' saw the pills administered. The counsel, who lasi addressed jou, tells us that the fact of the prisoner's giving the pills was proud only by Mrs. Barnard. 1 must beg leave to correct the giMtkinen on both these points. Young M'Kay testifies, that tin- rinsings of the cup were given in the evening—that he saw the prisoner preparing Uie pills in the a-'.ernoon for the deceas- 96 ed, and that when the rinsing of the cup were given, the pris- oner spoke of having given her pills or medicine before- Not a single witness who has testified, actually saw the medicine first given by M'Kay administered. It maybe proper here to ob- serve, that the prisoner's counsel have undertaken to prove that no medicine vvas given before she was taken ill, by showing that some of the family were constantly present and in a. situation to know it if it had been done, and no one saw it. But if these pills were administered in the course of the afternoon, as one ot the counsel, at least, has admitted, and none of these witnesses saw it, I think it proves to us that any other medicine might have been administered without their observing it. What this medicine vvas, or what was the composition of these pills, docs not appear, either on behalf of the people or of the prisoner. \Yc find, gentlemen, at all events, that after taking this medicine she continued to grow worse. Mrs. Barnard says she came there about nine o'clock in t|ie evening, and found her in great distress—greater than was common in her attacks of the cholic —she spoke of it as something unusual. That immediately af- ter taking this medicine, whatever it was, violent puking follow- ed—that the deceased complained of great thirst, and that water was given freely by M'Kay. I will, in this part of the case, make a few remarks relative to the testimony of Mrs. Barnard. The counsel have seized upon the observation which she says she made to her sister, when she first saw her, that she was worse than common, as something highly improbable, and from that have taken occasion to say. that she must have fabricated this part of the story. We have been told that she had transferr- ed the hatred of her sister to the prisoner—that she has color- ed her testimony and misrepresented the facts. I submit it to you, gentlemen, whether all the serious imputations they have attempted to cast upon this woman, are not rash, ungenerous and unjust? Is there any fact or circumstance which has been disclosed—any thing in her appearance, or the manner of her testifying, to induce us for a moment to believe that she would misrepresent, or wished to give a false coloring to the facts, or that any part of her story is a fabrication? Gentlemen, what earthly object could she have in misrepresenting the facts ? You have been pressed by the counsel to acquit the prisoner, because it is impossible he should be so hardened and depraved as to commit the crime of which 1-3 is charged: and yet you are call- ed upon to believe that Mrs. Barnard, under the solemnity of an oath, has testified to facts which had no existence, and given a false coloring to others—and for what? Why, for the purpose of taking away the life of the prisoner! The prisoner is to be acquitted, regardless of all the proofs in the case, because the story is incredible that he should be so depraved: but Mrs. Bar- nard, without the slightest ground of suspicion, is, upon the mere suggestion of counsel, to be presumed capable of swearing away the life of a human being, and thus committing the double crime of perjury and murder! I owe it to the witnesses who have been compelled to appear here on behalf of the people, to shield them from improper imputations. But is not Mrs. Bar- nard supported, and evecy part of her story fortified, by the tes- 97 fimony of other witnesses ? You have been told that she has mis- stated the time when she was first called to visit the deceased I impute no improper motives to those witnesses on their side, who have disagreed with Mrs. Barnard as to the time : but you will recollect that she is supported by the younger M'Kay, who testified that he thought it was even earlier than nine o'clock— though he told you he did not know the precise time. This pre- tended misstatement of Mrs. Barnard's has been seized upon and magnified by the opposite counsel, into a matter of conse- quence—though you will recollect that she spoke cautiously as to the time, aud gave it as mere matter of opinion. You have been told also, that she misrepresented the ti-ne when the pris- oner started for Dv. Luther—but in thi, also s!ie is supported by the younger M'Kay, who says that it did not exceed an hour after the time he went for Mrs. Barnard, before he vvent to bed, and that they were then about sending for Dr. Luther, or at any rate, it was then the subject of conversation.—So that it seems it could not have been later than ten or eleven o'clock. A circumstance has here been mentioned as being extremely favorable to the prisoner—that is his proposing to go for a phy- sician. This has been str"Ugly pressed upon you as a proof of his tenderness and affectic n towards his wife, and with this ad- ditional observation, that Mrs. Barnard objected to it! Why did she not conceal this fact, if she wished to give a false coloring to the testimony ? Nor do 1 view this circumstance as proving any thing for the prisoner; for it seems that it was very unusual for him to call a physician, and that in her ordinary attacks of the cholic he prescribed for her himself. Neither do I urge it as affording any particular presumption unfavorable to him. All thatl claim to have established in this part of the case, thus far, is, that the medicine taken by her, whatever it was, was given her by the prisoner—that the symptoms following the tak- ing of the medicine, though not peculiar to the case of poison by arsenic, were such as are usual in such cases—that she did not improve, but continued to grow worse, and that the prisoner was constantly present. We find that on Monday morning he gave her more medicine. If seems no one witnessed this but Miss Leonard. Mrs. Lucy M'Kay says, that if it was given at all, she thinks it must have been done when she was out of the room. The medicine was in a liquid form; was prepared and given by the prisoner, and under circumstances certainly somewhat sus- picious—and vvas followed by the same symptoms we have ob- served before. You have no reason, gentlemen, to discredit the testimony of Miss Leonard. On the contrary, her appearance, the candid and dispassionate manner in which her story was re- lated, and the intrinsic marks of truth in the story itself, entitle her to perfect credit, and carry couvit tion with them. But let us pass on to consider her case on Monday night and Tuesday, immediately preceding her death. On Monday eve- ning, we find that she grew worse—her pain was extremely vi- olent—she was in perfect agony—could not rest easy in any sit- uation—she complained of thirst, and cold water was given very freely b> the prisoner. But the proof of this latter fact, it is said, rests upon the testimony of Mrs. Barnard, and that she is 13 98 riot supported by the testimony of any other witness. But sho is supported by the testimony of Lucy M'Kay, who could not be actuated by any such motives as the counsel have chosen to im- pute to Mrs. Barnard. What does she say upon this subject ? She recollects that some one remonstrated against giving her so much cold water, and that M'Kay said it would not hurt her. This proves that water was given so freely that it had excited the observation and fears of some one present—although Mrs. M'Kay does not recollect of its being given so frequently—yet that it was given, and more than once, she well remembers. Does not this go to corroborate and confirm all that Mrs. Bar- nard has said upon this part of the subject? Mrs. Barnard testi- fies, that when the prisoner gave the deceased any medicine, she immediately grew worse ; that it was so uniformly followed by such violent pain, she was satisfied no good was produced by his medicine; and that the deceased remonstrated, and asked why he could not let her alone when she was easy—observing, that every thing he gave her hurt her. When Mrs. Barnard advis- ed her not to take any more of his medicine, her answer was, that he would be mad if she refused. You will recollect that he came again when she was eating, aud offered her more medicine. She objected, and he came afterwards the third time and press- ed it upon her, and she took it. You cannot expect us to show expressly that this vvas arsenic, or that arsenic was mixed with it. If such was the fact, it must be perfectly accidental if it could be proved, as no witness would be permitted to see the deadly potion prepared. You have heard a history of the case on Sunday and Monday —let us now see what took place on Tuesday, the day of her death. Mrs. Barnard was sent for early on Tuesday morning. She met M'Kay some distance from his house, who told her his wife was worse, and was just gone; and that Casey had gone to Dansville after a physician. She went into the house, and, from the appearance of the deceased, thought her dying. Lucy M'- Kay testified, that the prisoner came to the bed before her hus- band was up, and requested him to go as quick as possible for Dr. Shull. In this she vvas probably mistaken; for her hus- band testified that he was not called up, but was up aud going out of the door when the request vvas made. When the sun was about half or three quarters of an hour high, and before Casey M'Kay could have reached Dansville, the prisoner himself start- ed for Dr. Shull. With a perfect knowledge of the critical sit- uation of his wife, he permits his son to start on foot, and then without waiting until his return, or the arrival of the physician might reasonably be exjiected, he starts himself on horseback. He leaves home fully persuaded that his wife was a dying wo- man, and that, at all events, her death vvas inevitable, unless medical aid was immediately procured. We find that his jour- ney to Dansville, though a distance of only twelve miles, occu- pied almost the whole day. When he reaches Dansville, he in- quires for Dr. Shull, and then goes to get his horse shod, altho' his horse had shoes on. which it appears, however, wanted setting. He tells the blacksmith, that if he could have him shod in two Jcours it would answer. Now, gentlemen, is there not something 99 mysterious and suspicious in all this? A husband, leaving his wife dying, as he had too much reason to suppose, and starting in such haste for a physician, proceeding so slowly to Dans- ville, and then stopping to get his horse shod, which he is satis- fied to have done in two hours. Does it not require explanation, and has any satisfactory explanation been given ? But let us hear what account he gives the blacksmith of his wife's illness. He tells him that he had left his wife sick with the bilious cholic, and when inquired of what kind of complaint this was, his answer was, that it produced vomiting. Frequent vomiting, he men- tions as the particular characteristic of the complaint. Now it appears that it was not usual, if it had ever happened, that the deceased was affected in that way by the cholic—but in this instance it appears that she had vomited so much, that the im- pression was left upon M'Kay's mind, and it is mentioned as the only peculiarity in the complaint with which she was at- tacked. He tells the witness that she was taken the night be- fore about midnight. Was this a true statement of the case? She had been sick part of Sunday, and all of Monday and Mon- day night. We must look into the minute parts of this case; we must examine the subject with a scrutinizing eye, and after- wards combine the several parts in one general view. The prisoner next calls upon Dr. Cook He asks Dr. Cook whether he will take a ride with him. Dr. Cook inquired whe- ther it was a case that required haste. The prisoner answered, he was not in great haste, but should like to have him go as soon as it was convenient. The doctor got up his horse in fif- teen or twenty minutes, and they started upon a pretty good jog at first, but soon slackened their pace; and Dr. Cook then inquired more particularly as to her case. He tells Dr. Cook that his wife was not very sick, but had a turn of the hysteric cholic, to which she was subject. He observed further, that he was something of a doctor himself, but thought it prudent to call a physician, because, if she should happen to die, people would talk about it. Shortly afterwards he stops by the way, and spends some tenor twenty minutes in gathering roots, not for the purpose of applying them in this case, but for the future use of himself and Dr. Cook. Now then, gentlemen, is there not something very extraordinary in the history of this short journey? He leaves his wife, in the morning, evidently a dying woman—of whom he himself observed to Mrs. Barnard, that she was just gone. He tells contradictory stories about her complaint; states the time of her first attack untruly; stops un- necessarily by the way, and consumes almost the whole day in going to Dansville and returning—and checks the doctor's pace by the remark, that his wife vvas not very sick! Is there not something xery suspicious in the remark he made to Dr. Cook, as to the observations which might be made if he should under- take to prescribe for her himself? But let us observe his con- duct when they reach the house. He goes to the bed side of his dying wife for a single moment, and passes immediately out at the back door, without waiting for the examination of her case by the doctor, or making a single inquiry concerning her. He was folk wed directly by Dr. Cook, who, struck with her ap- 100 pearance, and discovering that she was beyond the reach of medical aid, asked him what he had been giving her. The pri- soner at first avoided an answer, but on being pressed, replied, that he had given her a pill, the particular composition of which the doctor does not recollect, but which he considered perfectly harmless. There is another circumstance to which I will call your atten- tion. The prisoner says, after his return, in the hearing of Betsey Leonard, that he did not expect to have found his wife alive. This goes further to show, that before he started for l)aiisv;!h\ he considered her case hopeless. But let us observe further the conduct of this man, who, you have been told, loved his wife, and was willing to do every thing for her comfort. At the vefy mo nent of h"r dissolution, when the things of this world were fast fading from before her eyes, and she was already sinking into the grave, we see him come into the room, and instead of offering comfort or consolation, or bidding her a final farewell, he asks for his dinner, and with savage indifference sits down to eat it. Is this the tender hus- band, who is to be held up as a model for our imitation ? Arc these the proofs of his conjugal affection which entitle him to the praise of my learned friend ? Gentlemen, would such be your feelings and conduit towards the partner of your bosom, if you should be called to witness the termination of her earthly pil- grimage, and to see her close her eyes in death ? But to proceed. The woman died.* Two or three days after her death, the prisoner observed to Lucy M'Kay, that he hoped now he should live better. If by this he did indeed mean only as the learned counsel »vould wish us to believe—to live, for the future, a reformed life—he ought to have credit, perhaps, for his resolution. But if he? intended to be understood that he should enjoy life the better since his wife was out of the way, it would present a very different aspect. What he in truth intended, or how he is to be understood, is a question for your consideration. Let us now, gentlemen, examine the subsequent facts and cir- cumstances of the case, and see whether we do not find further grounds of suspicion against the prisoner, and further proofs of his guilt. Shortly after her death, suspicions were afloat and entertained in the ueignborho »d, that the deceased had been poisoned, and it was determined to dig her up. After some of the neighbors had assembled for that purpose, he remarked that he thought it probable they would find poison in her, but if they should, he did not put it there. Upon this point we do not rely ■upon the testimony or recollection of a single witness, but the fact is fully established by several—Dr. Cook, Dr. Clark, Dr. Faulkner, and others. To one of the witnesses he observed, that he did not doubt they would find poison, but the query would be who put it there: and when asked whether that vvas any com- fort to hiin. he answered that it was. The counsel have said that Drs. Clark and Faulkner had different impressions as to what M'Kay said on this occasion. But Dr. Faulkner tells you that no one was present at the time he alludes to—that M'Kay had taken him aside to request the privilege of going up to touch the body, and that they were alone; so that Dr. Clark evident. ly refers to a different conversation. 101 The testimony of William Sharp is still stronger—he says M'Kay observed to him that he would not say they would not find arsenic in her—B> might; possibly, have said poison, but he is pretty confident he said arsenic. This expression, you will bear in mind, was before the body was opened or the exper- iments tried, and before any opinion had been expressed as to the kind of poison which had been given. Why these remarks, unless the prisoner bad reason to suppose her death was produc- ed by poison, and why is arsenic designated as the very poison which would probably be found ? As to my enquiries relative to the prisoner's touching the body, after it was disinterred, the gentleman entirely mistook my object, if he supposed it vvas for the purpose of showing his agitation upon that occasion. My only object in introducing it at all vvas, to identify the body of the deceased, and thus to prevent all cavilling upon that point. His trembling, agitation, &c. are circumstances upon which I place no reliance. But what further ? We have proved to you, gentlemen, that when it became necessary, or in the estimation of the prisoner, expedient, he totally denies ail knowledge of arsenic, and perseveres in the declaration that he never saw it, and knows nothing about it. Let us see whether he tells the truth in this particular. In the first place, we have the testi- mony of Mr. Sutliff, that the prisonci told him he formerly used arsenic to cure the pole-evil, but had since found a better remedy. We have next the testimony of John R. Gansevoort, against whom, 1 regret to say, the opposite counsel have indulged them- selves in remarks of unnecessary and unmerited severity. I must think it illiberal to treat witnesses thus rudely, unless there is just cause for it. They are compelled to appear and testify, and are certainly entitled to protection. In this case, Mr. Gan- sevoort is represented by the counsel, as going to the prison door for the purpose of leading the prisoner into a conversation, and drawing some confession or unfavorable declaration from him, and then volunteering as a witness against him. Is all this justly to be inferred from the proof in this case, or is it only as- sumed by the counsel without any proof whatever ? Those who know Mr. Gansevoort will agree with me in saying, that he is incapable of such an act, or of the motives which the counsel have thought proper to ascribe to him. He has told us a per- fectly candid and inconsistent story where he could have no pos- sible object in misrepresenting the facts, and I doubt not, you will give entire credit to bis testimony. He was walking in the hall, when M'Kay came to the door and spoke to him—and en- quired whether Dr. Clark was in town. He said if Clark swore that he ever purchased arsenic more than three times, he would perjure himself. That he had never bought there but three times—once in person and twice by his son or twice himself, and once Uy his son—Mr Gansevoort does not recollect which. You will recollect, gentlemen, that this was at October term, the term at which the prisoner vvas indicted—when his case vvas the subject of conversation, and therefore, we can very readi- ly presume, that whatever M'Kay said, having any bearing upon the question, would be impressed upon the mind and ioa remeniberecL But we are told that he has volunteered his tes- timony. Mr. Gansevoort has explained to us how it hap- pened that the public have the benefit of his testimony. He mentioned the circumstaiv e to Mr. Cruger, who resides in the same village with him, on their return home. Mr. Cruger afterwards officiated as district attorney, and Mr. Gansevoort is compelled to appear here by virtue of a subpoena, very much against his wishes, and to testify whatever he knows in relation to this case. I remind you of this circumstance merely for the purpose of shielding Mr. Gansevoort from the imputations cast upon him by the counsel for the prisoner. But if confirmation was necessary, we have it in tiie testimony of Doct- Clark who, though he speaks with becoming caution, gives us his decided opinion that the prisoner has purchased arsenic of him more than once. He recollects, upon one occasion, that M'Kay told him he was going to apply it to cure a cancer. Mr. Brock- way, another witness, who algo comes in for his share of the reproof of my learned friend, testifies that the prisoner enquir- ed at the store in Dansville for arsenic. Whether he purchased or no;, the witness is not able to say with certainty, nor is it very material, in the point of view we are now considering it, for it equally proves that he was not as ignorant of arsenic as he professes to be. Why enquire for it, if he knew nothing about it ? Mr. Brockvvay also recollects what M'Kay said about the application of arsenic to cure a cancer. The counsel seem to think it very extraordinary, that a cir- cumstance, so trifling and unimportant in itself, should have made so lasting an impression upon the minds of these tw« witnesses, and he puts the question to you, whether you would probably recollect so trifling an occurrence for such a period of time. Perhaps neither of us would do so, and it may appear very singular to my learned friend, who is a lawyer, that such a circumstance should be recollected by any body. But we must recollect that these gentlemen were physicians, hearing from a quack, as they esteemed him, of the application of arse- nic, to cure a cancer, and would certainly be more likely to recollect it than either of us. Perhaps if some pettyfogger had adv anced some opinion upon a question of law equally novel and grating to the ears of the learned counsel, they would have recollected it at an equally distant period. We have next the testimony of Mr. Wickham that M'Kay told him he had purchased arsenic at Dansville. His testimony has called forth remarks of still greater freedom and severity from the counsel on the other side.' Under all the circumstance es, 1 would not press his testimony upon you, if he stood alone and unsupported—But he does not; nor is there any thing in his story which appears unnatural or unreasonable. After M'Kay's arrest and confinement, it is not at all surprising, either, that any remark or observation which fell from him which had a bearing upon the question of his guilt, should he remembered. But putting his testimony entirely out of-View, and ample proof remains, that in this important particular, as to his total ignorance of arsenic, the prisoner has stated, and pjersists in stating, what is not true in point of facu 1#3 I have thus given you, gentlemen, a view of the facts and cir- cumstances, so far as I have been able to recollect them, which have any material bearing upon the two points to which your at- tention was invited, it has been said, however, that this prison- er could have no motive to commit this act. and the learned counsel, arguing from the purity of their own hearts, would persuade us, that because no good motive can be found, we are bound to conclude that the crime has not been perpetrated. To -virtuous men—to tender and affectionate husbands, it may, in- deed, appear most strange and unnatural. But, gentlemen, we must search for motives in the depravity of the human heart. Sad experience teaches us that sufficient motives may be found there, and that crimes even thus cruel and unnatural, are some- times perpetrated. We have shewn that the prisoner was not restrained by any love or respect for his wife—that they lived unhappily together—that he was perfectly cold and indifferent towards her, and that conjugal affection was a stranger to his bosom. The gentlemen opposed to me have told you it is their serious impression—nay, their; decided opinion, that we have failed in supporting either of the points we have been considering. I will not oppose to this my individual opinion, or attempt to influ- ence your verdict by pressing upon you the result of my own re- flections. I wish you, carefully and seriously to examine the facts and circumstances which have been spread before you, and determine for yourselves. 1 ask you to take a review of this case, aud put the question to your own consciences, wheth- er there does not appear such a train of convincing and con- victing circumstances, all going to establish the prisoner's guilt, as no longer leaves a reasonable doubt upon your minds ? Has not every fact and circumstance, and every part of the prison- er's conduct appeared unfavorable and suspicious ? As the wit- nesses have been called to the stand, have not your hearts res- ponded guilty, at the close of each mournful story. Has not the grave itself yielded up its victim to add its solemn testi- mony against him ! But, gentlemen, an attempt has been made to enlist your feelings on the side of the prisoner. You have been told by the counsel who last addressed you, of the horrors ef that dungeon, to which the laws of his country consigned the prisoner—of the friends and relatives who are hanging to his skirts and looking with trembling anxiety to the result of youi deliberations. Under these circumstances you are called upon, and the appeal is enforced by all the powers of eloquence, to ex- tend mercy to him, as if he had indeed something to fear from your justice. But, gentlemen, it is not your province to dis- pence—and if you had the pardoning power, putting it upon the ground that his guilt is sufficiently manifest, few indeed are the {irisoner's claims to your mercy.—His life is justly forfeited, and le deserves to be cut off as a cumberer of the ground. You are bound to examine and determine his case, regardless of all oth- er considerations, with a single eye to the question of innocence or guilt. 1 am sensible how much more enviable is the situation of liira who comes befoie you the auvocatc for mercy, than of him who 101 comes to ask stern justice at you hands. I am fully sensible al- so, that I do not possess those happy talents for which my learn- ed friends are so justly distinguished, and which enable them always to please, and sometimes to dazzle and mislead a jury ; and even did I possess them, this is not a case where 1 should wish to call them to my aid. I appeal only to your sober judg- ment. I ask you to take a deliberate and serious view of the case, and then, uninfluenced by passion or prejudice, or any mistaken notions of mercy, without regard to the consequences resulting. from your verdict, fearlessly'to pronounce whether the prisoner is guilty or not guilty of the crime of which he stands charged. With these remarks 1 coinmft this case and the prisoner's fate to your hands. JUDGE VAN NESS's CHARGE. Gentlemen of the Jury, I rejoice, that your labours are drawing to a close. The du- ty which you have had to perform, has been painful, but the most important part still remains to be discharged. You have heard the testimony, and the remarks made by the counsel on both sides ; you are now to hear such remarks as I shall make on the subject, and then retire to your room, and determine in your wisdom, whether this man shall live, or die. This last consid- eration has been called to your view very often in the course of the discussion ; because, in every case, where a man's exis- tance is in jeopardy, it should be urged as a caution on every step you take towards the result of your deliberations. But, gentlemen, the great question is, whether, he is or is not guilty ? And in making up your minds on this, it is not the punishment which you inflict, it is that of the law. Suppose for a moment, this man has actually murdered his wife, when she was sick, when he was bound to protect her by exevy means in his power; and then take a view of the situation in which he is placed. He stands here charged with the diabolical crime, of terminating tiie life of Ids own wife ! In such a case as this, is it possible you can say, this man shall be permitted to live among you ? The law of God, and man proclaim, that he who sheds man's blood ; by man shall his blood be shed. It has been suggested by some, that no earthly tribunal has a right to take life : there are some who entertain this belief at the present day ; but there are many who formerly believed it, that have become satisfied from experience, that it is some- times necessary, to lop off a bad member, to preserve the life and liberty of others. In every christian country, the murderer has been punished with death, and here our law has settled that point ; although, you may entertain a different opinion, it is not to screen this man. You are bound to administer justice according to the law, and so am I. If this man is guilty, he not only deserves, but must receive punishment. There is a de- 105 grce of firmness, which a jury is to exercise, which seems not to be required, in ordinary occurrences. There is not any good man on earth, but would rather acquit, than convict; the tenden- cy of all our good feelings is that way, and when we have a case Jike this, every sympathy of the heart is excited, and the mind ' H apt to be led from one degree of pity to another, till it fixes - upon the side of mercy. You are to meet this thing with firm- ness. Your duty must be performed, otherwise you arc to suffer the stings and remorse of a guilty conscience. These are re- marks which I have thought it a duty to make on this occasion. As this is a crime which is not frequent, it is indespensible that it should not be neglected by the jury whose duty it is to admin- ister justice. In your situation, however, you are bound to ad- minister justice with mercy. The prisoner is accused of wilfully administering poison to bis w ife. Has this charge been substantiated by the witnesses ? The first question, and the most important one iu this case, is, whether the woman came to her death by poison ; no matter whether it was arsenic or corrosive sublimate. In this case, it is alledged to be arsenic. If any poison was found in her, there is no doubt it vvas arsenic. On a subject of this kind, courts and juries must necessarily depend, for their opinions, on the opin- ions of others, who are more competent to judge whether a per- son has been poisoned or not. It is impossible for judges, who ~ have not made it their study, to determine whether this is poi- son or that is poison. It is, therefore, a necessary consequence, that they must call into court such men as have studied the sub- ject, and are prepared to judge. W hen physicians are called into court, if they are men of learning, men of experience, and above a|l, men of integrity and veracity, you are bound to place confidence in their testimony. If such men swear that they found poison in the body of a person deceased, and that the poison pro- duced the death of that person, it must necessarily be satisfactory to a human tribunal ; until something is shewn, to controvert that assertion- It is necessary for the preservation of human society, notwithstanding evidence is fallible, notwithstanding there may be a probability of judging erroneously, that this should not always amount to an acquittal. If, after all you have heard on this subject, you believe the prisoner to be guilty, so that you have not a lingering doubt in your minds, although it is possible you may be under a mistake, it is your duty to con- vict him___There is but one tribunal that never errs. We must proceed by human means, to arrive at as miu h certainty, as hu- man means will admit. In order to which it is necessary to view the subject in its progress, from the commencement of that part, to which the first question belongs. It appears that af- ter this woman had been dead.eight days, for some reasons the body was taken up. ..The stomach of this unfortunate woman %kh examined by the physician:, who have been sworn before vou. It is not my intention, to.express a belief on this sub- ject : for 1 am aware, that lknow but very little more about ii than you do- I stand equally in need of the opinion of oihers, for ! do not pretend to understand it scientifically myself. These pji\ sit tans say, tjiey took the contents of the stomach, and went th»( uiib with certainoxpcci.neuts ui.oti i!--thev went.so far that 14 106 they did not think it worth while to go any further ; because* they *•. ere satisfied, that they found arsenic in the stomach and upon the liver. The substance which they found upon the liver, resembled a white powder, and was very particularly described by them. They took this substance, and submitted it to the same experiments, as they had done the matter which was taken from the stomach, and found the result satisfactorily the same. How this substance came upon the liver we cannot tell, but the fact that it was there, is sworn to, by all the physicians who made the experiments. Dr. Noyes cannot account for the manner in which this sub- stance came upon the liver; still I do not know that we are au- thorised in disbelieving the testimony of the physicians, who swear positively, that it vvas there. They state in addition to this, fiat they had real arsenic with them ; and in order that they might not depend altogether on their eye sight, when they had tried an experiment upon this substance, they proceeded to try the same experiments upon the real arsenic. The one test was by a chemical process to produce a yellow precipitate, or sedi- ment at the bottom of the vessel. In one of the experiments up- on this substance the precipitate was not quite so bright, as that produced from real arsenic ; but generally the result was the same. They then went on to try another experiment, called Burgman's test; by this experiment is produced a green precip- itate, which likew ise falls to the bottom of the vessel and is call- ed Scheele's green, from the name of the physician who first made that test. They say that in this test, the results were in- variably the same, without any distinction, always producing the green precipitate, without any variety in the shade of color, as in the yellow. They then go on to try the same upon real ar- senic, and they tell you that they could discover no difference. From the result of all these experiments, both with Hume's test aud Bergman's, tbey express a confident opinion that there was arsenic in the stomach of this woman, enough to kill half a dozen persons. On being asked further, they say, that when they com- bine other circumstances attending this case, together with the symptoms of* this woman, notwithstanding the absence of certain symptoms, they have no doubt that she dl'd from the effects of the poison. They nay the symptoms may vary according to the quantity of arsenic taken, and that there are other diseases, in which the symptoms might resemble those of arsenic: still, I think there can be no doubt, if the testimony of these physicians and other witnesses be fully credited, that almost every symp- tom, laid down as resulting from the administration of arsenic-,, was experienced by this woman—at all events, the leading and most prominent symptoms were evidently witnessed in this case. But this is less to lie relied on than the tests made by the physi- cians. You have heard what has been read on this subject, and the opinion of the physicians respecting the appearance of tie coats of the stomach, which was taken into the estimate by some of them in forming their general opinion. For my own part 1 do not think it sate, to rely upon appearances so long after death- We know there is a fluid in the stomach, which dissolves or decomposes all the animal food which we eat ; but while a per- son is living, the stomach is capable of resisting the ettects of 107 this fluid, which is called the gastric juice. When life ceases aud the stomach becomes empty, we are told that ic then begins to operate upon the coats of the stomach, as it does upon the an- imal food which we eat. On the whole, I think no correct in- ference can be drawn from these rppearances eight days after death. If there was no other testimony than that to which we have just alluded, it might require a different course of investi- gation ; otherwise punishment would never be inflicted, unless the party openly confess his guilt. Notwithstanding these tests have had the sanction of the wi- sest and best men, still we see new opinions have succeeded each other : old ones have been considered fallacious and the new ones supported in their stead ; and again we see these laid aside and the old ones resorted to. Thus we see the test of the garlic smell, at one time in high esteem, at another time rejected; but here considered highly important. Bergman's test vvas relied on for some time ; till it was found that other substances would produce the same appearances, with the same experiments. Then came on Hume's test, to produce a yellow precipitate, which has been spoken of as a very delicate test, and when pro- perly applied, as one leading to unerring certainty—in this case, however, they are all doubted. It is said by Dr. Noyes, that the only true and satisfactory test is the reproducing this arse- nic in its metaiic state ; by submitting it to an intense heat, in a glass tube, as he has related. With respect to Dr. Noyes, you have seen and heard him—he is a professor of chemistry, and has been selected for his worth and uncommon knowledge, in this department of science. You have heard him express bis opinion on this subject; and he says he is not altogether satis- fied whether it was, or vvas not arsenic, which was found in the stomach. I asked him this question. What should you think of these experiments, had the matter been taken from the stom- ach in a state of considerable purity, and the experiments tried as the physicians have related ; first upon the suspected matter, and then upon real arsenic with a similar result ? He said it would be a strong circumstance, and afford grounds for a pro- bability that the stomach did contain arsenic, and still after all that he bad beard from these phwicians he could not say that it amounted to evidence of the fact in his mind. I have no doubt he judges correctly from what he has read on the sub- ject, aud the experience which he has had, still there may be this consideration : these men were present and saw for themselves. although, they may not be so scientific as this profes-on—had he been there, he might bave seen that which would have lead his mind to a different conclusion. 1 have thus been through with the principal points in this part of the subject, lfyouarenot entirely satisfied that the stom- ach did contain arsenic, it will be your duty to acquit. If by taking the strong testomony of all these physicians, you are ir- resistably led to the conclusion that arsenic was found in the stomach, as they swear vvas the ca.se, and that arsenic. instead of the cholic, terminated the existence of this woman, your dmy wil! next lead you to inquire how it came there. If arsenic wit's in ihe stomach of this woman, it could not have got there with- out hands 5 of course it must have been administered by the pris- 108 o*»er, or some one else; and from the cur urn stances of the case it is difficult to imagine how it came there without the imstru- mcntality of the prisoner at the bar. Suppose a man is seen to go into a room, where your wife is in bed, which fact is proved; and it is likewise proved that no other human being had been in the room*—you hear the report of a pistol, rush into the room, and find your wife a corpse. Could any one doubt, that this man was the murderer ? I do not mean to say, this is as strong a case as that just stated; but unless there can be some explanation given, it will be reasonable to conclude, he is the man who administered the poison, if any was administered. There does appear to be such a combination of circumstances, as would seem very naturally to lead the mind to that conclusion. In order to come to a correct decision, it will be necessary to perstic the chain of events, from the first moment of her illness down to the close of the experiments made by the physicians. It has been suggested, that- he might have'given her some medi- cine, or poison, before she went up stairs; from a remark which he made to a witness respecting his keeping and administering the tincture of castor, on similar occasions. With respect to the confessions of the prisoner at the bar, you are to put upon them such construction as you shall think proper, making reasonable allowance for the circumstances under which he made them. and the frailty of human memory to retain them. I pass by this part of the subject, relating to his administering any thing be- fore she went up stairs. When she came dovvn stairs, he was sent for by her request; she stated that she was seized with the cholic; he came in and gave her some castor, as he had been in the habit of doing for the same disorder. It is deserving of some consideration, that when he was called into the house he prepared some castor, which, according to the evidence, is the first thing he administered to her. This did not se<;m to relieve her, for she continued to grow worso. We have no positive proof that any other medicine was administer- ed, till after Mrs. Barnard came in. She informs us, that he admitted he had given her butternut pills ; and he vvas seen by other witnesses preparing pills from a tin tumbler; but no one saw him administer them. Of what materials these pills were composed, we do not learn. Mrs. Barnard has related the symptoms of this woman at the time she arrived: these symp- toms strongly resemble those resulting from the administration of arsenic. While she was in this situation, he (M'Kay) went to her. bed for the purpose of giving* her more medicine. Mrs Barnard says that iie poured some water into this tin cup, and rinsed it round, observing that he did not know fts there was ■enough for a dose; but after scraping the cup, he concluded there was suffi ient. There were, some objections made by her, (the de- ceased) to taking it; but it appears he gave it to her; and it-will be recollected, that thirst was among the first symptoms of which she complained Whether there vvas arsenic in this cup or not, I do not know. Mrs. Barnard says, she had no sooner taken it, than she began to grow worse, and complained of great distress and burning heat at the stomach, and vomited constantly. This symptom, it does not appear had ever occurred, in her turns of bilious cholie, except at one time. 101* 1 do not think myself, gentlemen, there is much reason for imputing improper motives to Mrs. Barnard. I think in the main facts she has been supported by other witnesses: altho' there may be, slight shades of difference in the testimony of these females, still, taking it together, I know of nothing to impeach the credit of her testimony ; it gives me great pleasure to say. that I never in my life have seen a family of children testify with more candor, than those of the prisonnr at the bar. I think ihey have discovered a regard to truth, which appears acircum- stance favorable to ,him; because, it is difficult to imagine that these children could have behaved so well as they have, had not pains been taken in their education. This is probably due to the prisoner at the bar. The symptoms of the deceased during the night of .Sunday, have been described by Mrs. Barnard, who says the deceased was in the greatest possible distress till about two o'clock, when she fell into a doze for a short time. Now with respect to the time that M'Kay started for the doctor, Mrs. Barnard thinks it was about ten o'clock, and from this circum- stance, that it was considered about nine when she went over, and she thinks she had been there about an hour when he start- ed—but does not swear positively. Even suppose it was as late as twelve o'clock, one thing is certain, that he was gone a great while to ride six miles, had hemetwith.no unusual delays, which we do not learn was the fact. This may probably be taken as a ground of inference against the prisoner. It is said by some of the witnesses, that Dr. Luther left some peppermint and cam- phor ; which fact is not to be forgotten. I now come to a part of this case, deserving more attention. If arsenic was in reality found in the stomach, it probably must have been administered in the rinsings of the cup, or after Dr. Luther was gone, when B. Leonard saw him (prisoner) administer the medicine from a spoou. This witness says she was in the room with Mrs. M'Kay, and no other one present; as Mrs. Bar- nard had just stepped out. M'Kay came down stairs, made a halt behind the door tor a short time, and then came to the bed with a spoon nearly full of some kind of liquid; the witness held up the head of the deceased, and the prisoner administered the con tents of tilts spoon, which he said was peppermint. Witness did not see distinctly the colour of this liquid, nor did she smell any thing like peppermint. It would have been almost impossible to have this so near her, without her knowing it. The whole of this transaction vvas conducted under such circumstances, as ap- pear to require a more satisfactory explanation. It appears that when he was up stairs in the presence of his sons, he took down some runnet and shaved ito|f, observing that he was going to give it to his wife. He went down stairs, and that was the last that was seen of the runnet. This runnet was not in the spoon, or Betsey Leonard would have seen it. This young woman likewise says, that immediately after receiving this stuff from the spoon, her symptoms returned upon her with great violence, and continued to be worse after that time. I ought to mention that at another time, in the night, he was seen to have some- thing in his hand which he proposed giving her; but whether he did or did not administer it, the witness cannot tell. I am not at present aware of his having administered any thing more to HO her. You have, however, heard the testimony and the remarks of counsel, which are probably fresh in your memory. On Mon- day she appeared to be easier: whether this was on account of the arsenic, which might have destroyed her sensibility, I can- not tell. She continued to have this restlessness and distressing thirst, down to the moment that Dr. Cook arrived. Even when she vvas past speaking, she expressed by her looks and gestures, an anxiety for something to allay this distressed burning and thirst. On Tuesday morning very early, he (the prisoner) told his son, who was about to start for Dansville, to send Dr. Shull: and long before the doctor could have arrived, and when he saw that his wife was a dying woman, he started off himself. If you are satisfied with respect to this journey, that there was great and unnecessary delay, at Dansville; that he misstated the situ- ation of his wife, and lingered on his return unnecessarily, they will afford strong grounds of inference against the prisoner. You have heard the facts related by the witnesses : if you think his conduct suspicious, and that he acted strangely in conversa- tion with Dr. Cook, as far as it affords inference of his guilt, so far you are to go in imputing the administration of this arsenic to the deceased, if arsenic was the cause of her death. There is something in the conduct of the prisoner through the course of this day, which I will venture to say, will not be easily recon- ciled; but this I leave wholly to your consideration. I now proceed to another era in the course of this transaction, which I think important. Suspicions arose as to the cause of this woman's death; the physicians very properly determined to have the body examined. When the time arrived, the pris- oner was present; and he made use of this expression to a num- ber of witnesses : "They may find poison there ; but if they do, 1 did not put it there." He stated it in such a manner as not to criminate himself; but as it came from the prisoner, it may be considered worthy of some attention/One witnes testifies in this way : " He (prisoner) said he was not without his fears that they might find arsenic there; but if they did, he did not put it there." The witness does not swear positively as to the term arsenic; but is strongly impressed with the belief that he used^the word arsenic. He (prisoner) goes still further, and says, " I have enemies who may have put it there." He further insinuated that Mrs. Barnard might be the person, as she had been in a quarrel with her sister, the deceased. If you cannot give an explanation, consistently, which w ilfgo to prove his innocence, but are satisfied that these expressions proceeded from an alarm- ed conscience ; that they were the artifices of a guilty man, who was willing to screen himself by charging the crime to his ene- mies, or bis wife's sister, and that they were but the effusions of a disturbed and troubled soul, you will consider them as evi- dence of his guilt. I have thus gone through with the essential parts of the testi- mony : you are now to weigh it and determine for yourselves, agreeable to your consciences and judgment. [The jury retired to their room about 10 o'clock at night, and returned very early in the morning with a verdict of not guil- ty : Whereupon the prisoner vvas released from his confinement, having lain in prison about two years.] APPENDIX. TEST T0K ARSEXIC, From professor SUliman's Journal, published, 1821—Editor. It is a question very interesting to medical jurisprudence, wheth- er there is any test for arsenic which can be implicitly relied oh, to such an extent as to justify on that ground alone, the condemnation of an accused person. Some experience in such cases, has produc- ed in us an increasing impression, that nothing short of the actual production of the metaiic arsenic can be safely relied on for the above purpose, although various tests may serve, more or less per- fectly, to guide the enquiries, and to influence the opinion of the prac- tical chemist Dr. T. D. Porter, now a member of the faculty of the University of South Carolina, in his inaugural dissertation, states that he finds, on repeating some of the popular experiments, with onion juice, which were some time since published in the newspapers, that the onion juice with the solution of sulphate of copper, (blue vitriol) but without the carbonate of potash, produces in a weak arsenical solution "a shade like Scheele's green," but if carbonate of potash be added, the effect is completely different. Considering Scheele's green as a test that has been much relied on, for the discovery of arsenic, Dr. Porter formed it in the usual way with sulphate of copper, and sub-carbonate of potash ; in one experiment, a decided precipitate was produced from a stronger, and in another, a scarcely perceptible one from a weaker arsenical solution. Coffee vvas then added to the solution of copper, and of carbonate of potash, but with. out arsenic, and the effect resembled that of the stronger arsenical solution more than this last was resembled by that of the weaker. But the most important facts mentioned by Dr. Porter remain still to be stated. He found that in the production of Scheele's green f by arsenic, sulphate of copper and carb. potash—chromate of potash might.be substituted for arsenic ; and that it produced a precipitate not to be distinguished by the eye from Scheele's green. He as- certained also, that even Hume's celebrated test, nitrate of silver, (as modified in its application by Dr. Marcel) gave with chromate of potash a yellow precipitate, which when placed side by side with one produced by arsenic could not be distinguished by their color and appearance. Dr. Porter's experiments appear then to throw still greater suspicion on the infallibility of tests for arsenic, and are worthy of being repeated. -»•§•*■ [Depositions omitted by mistake in page 41.3 Levi Doty sworn. Question by prisoner's counsel. Did the prisoner cure a horse for you ? No, he did not cure it, but he undertook to do it. I asked him what medicine he used, and he said corrosive-sublimate. Cross examination. Did you see M'Kay when he went after Dr. Cook? I did—be rode up where I was—he said his wife was very sick, and he was going to meet Dr. Shull. Jury. Did you ever hear the prisoner say that he had used any thing but corrosive sublimate in curing; horses ? I never did. Dr. Dook called again. When you went to see Mrs. M'Kay, what was your motive in •bking M'Kay, what the devil he had been giving his wife? My im. previous were at that liiuc^ that he had by mistake given her^ome. lis APPENDIX. > thing which had poisoned her. What did you found that opinion on ? I founded it oh the symptoms, which were related to me. I was told that she was tak n with a violent pain in the stomach, great thirst, &c. &c Do not these symptoms occur in other-diseases? They do frequently, when the stomach is much inflamed. Did you believe, at that time, that Mrs. M'Kay was poisoned ? I did believe at that time that Mr. M'Kay had given her something, through ig- norance, which was of a poisonous nature. Was it your impression at that time, that she vvas really poisoned, or only that she had taken something which had made her very sick? I believed that she was dying from the effects of poison. Have you not said to the contra- ry? I have not. What did you tell Gen. Haight on the subject? I told him that M'Kay pretended to be a kind of horse doctor ; and I thought at that time, he might have given her something which had produced that effect, through ignorance. I mentioned my opin- ion to Dr. Luther. Where is Dr. Luther? He is in Ohio. Did you examine her face or throat, to sec whether they were swollen ? I did not particularly ; but I think they were not much swollen—but her tongue was. Did Dr. Luther live at Dansville? He did not. How did it happen that you mentioned this affair to him first ? He called at my house. Dr. Elisha W. Brockway called and sworn. Stated, that M'Kay came into the store of Clark and Brockway, (in which witness was a partner,) and inquired whether they had any arsenic and corrosive-sublimate. Witness does not recollect whether this was in 1817 or 1818 ; but remembers the fact of his asking for these articles, from the circumstance of his staling that he vvas something of a doctor, and wanted the arsenic to cure a can- cer. Witness did not know that he purchased any arsenic then, but knew that they had it in the store at that time. He inquired for ihe medicine before he told what he wanted it for. (Here a num- ber of words passed between the witness and the counsel for the prisoner, on the subject of his recollecting some facts so clearly, at the same time he could not recollect the time when they occurred.) Witness finally concluded that the prisoner did not purchase any medicine at that time, but inquired for them as articles that he should probably want at some future period. After prisoner bad withdrawn from the store, Mr. Clark said, there is another cance; curing quack. Do you not recollect that you were called on to tes- tify at the former trial of the prisoner at the bar? I do; and was o; dered to step aside, as my testimony was not necessary. Daniel M'Kay called. What did your father say respecting a quart of fo\d water ? Ht said that cold water was good in the cholic ; his mother used to use it. in large quantities, for the same complaint. Did your father ever send you after arsenic ? He never did : I do not know what it is only by hear say. M'Kay, brother to the prisoner, called and sworn. Stated as follows : My mother was for many years subject, to a complaint called the cholic. For some years, towards the last oi the time, she found that cold water was the best remedy she coulci se ort to. When,she was taken with a turn of the cholic, she would take a pail of cold water from the well and drink freely tror;i it, la- ir td thai was the only way tKiit «bp could find/Href.