Weekly Messenger, Volume 1, Number 92, Vevay, Switzerland County, 15 June 1833 — Page 1

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ileporied for the N. Y. Courier &- fc.nqr Trial of the Rev. Epliriam I. Avery. SUPREME JUDICIAL COURT OHheStiteof Rhode Inland and Providence Plantations before tb? hon. chief justice Samuel E )dv, and j'ldes Jon Durfee and Charles Bravtjx. ! F'RST DAY Shortly after the juis and counsel fcud taken their seats, the prisoner was brought in: be bowed to each and sat at the counsel table with perfect self possession, which was not however, charaeleri sed by any unbecoming confidence of demeanor, but appeared rather the result of great mental firmness. In poHt of health, he seems to have suffered severely since his arraignment in Mrch last; his facets greatly attenuated, a id its complexion might altmst be described as cadave rou. The counsel for thp stale in this pro-

eo'vi'iou, are G-n. . Albert C Green, attorney general; hou. D. 1. Psarce, of Newport, an J lVillhin R Staples, esq. of Providence. Those retained for ihf prisoner, are Richard K. Randolph, esq. of Newport; th hon. Jeretniah Ma-on of Boston; J. Turner.

esq. Henry Y. Crvston esq. both of

Newport; and Blake, esq. of

Bristol. Attorney-general: If it please the

court, 1 move that, the trial of the prisoner proceed; or, if this be impracticable now, that a time be assigned for it. Chief Justice: As far as we are con

cerned there is no objection; and if

there is none on the part of the prisoner, the clerk can proceed immediately to call the jury. Mr. Randolph, (for the prisoner,) I feel somewhat embarrassed at the difficulty which I anticipate will be

found in the formation of a jury for

the trial of this case, and therefore

would submit to the court, whether, in this particular instance, it would not

be proper to foim a panel at large, and fram parts of the county distant from each other, to obviate, if possible the iUnulty which may arise. ! Chief Justice I: may be expedient to enlarge the present panel, but we can give no order a to forming it from particular towns or places, for this ,01111 be left to the discretion of the sheriff. A venire was accordingly issued for the addition of forty-eight jurors to the present panal of fifteen; and of this aggregate the prisoner will be entitcd to twenty peremptory challenges. MAY 7 SECOND DAY.

Th'e Judges having taken their seats

at a o clock, the attorney general m-

-rd that the prisoner be brought ii.ta

court. He was brought in, and took his seat as before at the table near his counsel. lie appeared feverjjh and somewhat less composed than yesterday. H '- was drcsed in a dark frock coat, black vest and pantaloons, and an ovr coat of-nearly the. same color as the under one; he wore spectacles of a purple blue. Clerk of Court Ephraim K. A very, hold up your hatd. He held it up for a short time, nnd then placed it in the breast of his coat, living his left upon the back of a chair. Trie, fearful indictment was then read. The 1st count charged him with having, at Tiverton, fn the county of Newport, fastened a cord round the neck of S -1 rah Maria Cornell, and therewith choaked and strangled her; the 2d, that he therewith strangled her, and

hung her to a stake; and the 3d, that he struck and beat her upon the lower

part of the belly, in and opon the left

side, and upon the back ; inflicting mor

tal strokes and bruises; and that he

I laced the cord aforesaid round her

neck, and therewith did violently con

stringe, compress and squeeze her neck

until she died. As on his first arraignment, he pre

served unruffled composure, unless indeed his actively and incessantly chewing some small substance, apparently

while paper, may be considered an involuntary mechanical indication of a

strongly condensed mental agony which

his firmness would not allow to be less equivocally expressed. His deep blue eyes intensiy fixed on the clerk of the

court during the whole time the in diclment was being tead, seemd to gather a yet more vivid intensity when ever a detail particularly horrible caught his ear. Yet his appearance to a superficial observer, is calculated to ext ite vespect, and in his manner there is nothing which the most prejudiced could charge with impropriety. Ckrfe (jhe court.- How say you, piisoner, guilty! or not guilty? Prisoner Not guilty, sir! (firmly,

JMTm-"-,"-TriTrT iriri

THIRD DAY MAY 8.

The court did not fit until 3, P. M. to allow time for the rtl of jurors.

1 ne remainder 01 tne a ay was occu

which il is said no positive proof can be obtained But some of the tiWt strongly established cases of murder,

are those in which no positive proof

pied as the day preceding, but with.could be adduced. When a murder

the gratifying result that 6ix more iu

rors had been sworn: thus making the required number. The court considering the hour at which this desideratum was obtained too late to open the cause with convenience, adjourned until the morning. Tnc following are the names of the

jury; they are all residents of New-

port, f xcepting two: Eieazer Trevetf, foreman; Joseph Martin, Charles Law ton. George Tilley, Horatio Taylor, Noah Baker. James Easton, William Read, Gideon Pckam, Milton Hall, Euwin Wilbor, John Sherman. The whole number of jurors challenged on this trial by the court and the prisoner was 108; by the prisoner alone, nine.

The formal ion of this jury, perhaps unprecedented for its dilliculty in this

state and in many otheis, was dislin gmshed in its progress by some remark

able peculiarities. 0:. is. tftat of ihe

whole number of jurors challenged,

and with an emphatic motion of the! but one intimated that he had formed

bead.)

Clerk How will you be tried?

an opinion favorable to the accused.

Lxctpt those few disqualified by con-

Prisoner By God and my coun ry! iscientious scruples against returning a

wnn rather a uevotional intonation.) verdict which could ensure the punish

Clerk God s nd yon a good deliv- ment of death, nearly the whole num

erance. her calied confessed to have a bias a-

He was then directed in the usual gainst him. Another singular fact is,

lorm to challenge the Jurors as they! that he peremtorily challenged no in

should come t be sworn. ror who had not explicitly declared

Attorney general The course hilh- himself strictly neutral; and many of erto adopted 1 it ttiis court, on each ca-jthe jurors whom he rejected, expressed pital trial has been to put each juiorjtheir neutrality much less equivocally

on hi roire dire. The first juror called than several of those to whom he made was Abraham Baker to whom the at- no objection. The rule or motive of

torney general put the three questions Ichoice between these neutral jurors, following, as he did to each of ihe oth-jby which, under the direction of his ers: Are you rela ed cither to the .counsel, he was guided, appeared to

prisoner or 10 me acceaseat (naming; be the subject of much speculative o-

them respectively.; 2d. Have you any

conscientious scruples to finding a man guilty of a crime which the law pun-

isqes with death? 3d. Have you formed or expressed any opinion of the guilt or innocence of the prisoner? The application of these questions gave rise to discussions between the opposing counsel, which were renewed througnout the day, and appeared intetminable. The hon. Jeremiah Mason and Mr. Randolph, counsel for the prisoner, contended by arguments and authorities that the last question should

distinctly elicit whether the opinion

which lire juror had formed or e'xpres

sed was aguinst the prisoner, instead

of the general answer that he had foimed or expressed an opinion. Tliey said that unless they knew whether

that opinion were against ihe prisoner they could not know when to challenge a juror. The court Etated that tne rule of practice established In this state was, that when a juror had formed an opinion either for against a prisoner, he was equally disqualified lor the impartial exercise of his solemn duty, and was therelore to be ' challenged for the cause.1' The attorney gencial

defended this principal wiih great

clearness; but the hon. J. Mason, having cited from the Massachusetts Reports the use of the separate mterrog atory "have you formed any bias a

gainst the prisoner?,"' the co'urt derm ed it an authority, and expressed their

inclination to adopt, in the pr sent pe-

pinion.

FOURTH DAY KAY 9.

The Judges ioofc their seal, 9 o'cVU. and the prisoner having been brought in, the hon. Dutee J.-jtiroe, opened

the cause lor the prosecution. I May it please the court, gentlemen of the jury; the indictment which you have heard read, state the crime with which the prisoner before you is charged; and the time, place and manner of its commission. In each count it is set forth substantively, but so various

ly as to embrace all I lie pi obable modes of its perpetration; and if we prove

(him guilty of the crime as described

in cither; we shall do all that the law

of our slate require to hold him forth

the ju.-tobject of the punishment which

Ihey un: ose Ihe counts summaiilv

recapitulated. That pur.ishment is death, accoidii g to our statues. It may here necess.ny to inquire what legally constitutes the crime. In the 4th ol Btackslone, p. 95. f ur essential attrinules are described lsl. It must be commuted by a person of sound mind 12 1. It mast he unlawful; i. e. without warrant or sanction 3d. It must be committed under the king's p-jnee, (or the peace of the state.) and 4lh, the

Killing must he committed with malice

nfore-ttiought; which last is a necessa

ry criterion to distinguish it from other homicide. There are many cases in which malice is not proved where the

law implies it; bul in the rase before

er has resolved upon his deed, he does

not call out his neighbors to witness it;

his intention lurks in the dark chain bers of his heart, until it conducts him to the secluded scene of its action.

There are few c; ses of guilt the

most clearly proved, in which the mer

possibility of innocence is j. receded, and whenever this possibility is attended by circumstances which create a doubt of a prisoner's guilt, he is enti

tled to its utmost benefit. The case which we lay before you, however, is

one hi which even perjury is precluded; the testimony of one witness will

sustain that of another in a circumstantial chain, link by link; and it wiil

tc in its moral demonstrations, much

stronger than though it rested ot the

teslimony of two persons who saw him commit the df-ed. It is not a case in

which design, conspiracy, and perjury

could unite their thiee fold cord lo

bind thir victim to "the public altar;

hut it Ji one in which the lamp ot pub lie vigilance has traced the 6teps ol

guilt, through its most subtle wanderings, and has detected ir. the very era-j sures which it has thrown behind it to conceal them still more indubitable

clues to its retreat. True it is, this case will rest upon circumstantial evidence; but this kind of evidence is allowed to prevail to the conviction of offenders, because it is in its own nature capable of producing the highest degree of moral certainty in its appli cation. Gentlemen, I need not for a moment impress your minds with a deeper consideration of the importance of thia tri

al than you at present feel. To the

government, and to the character of

the stale in which we live, it is of an

importance which will endure beyond the present day. When I say that it is a trial which has created an excitement unprecedented in the history of our state, and extending with scarce!

less intensity to other stales around us.

its importance manihea beyond case

I immediately went to her and f uiid she was dead. Her hair was over fnce in sOth a manner tfiaf I paitcrJ il awar to' ascertain whether she was dead ci alive. Attorney -general. Ba good enough to say if there was anything particular in Ihe slate of her clothes i.nd if so, what it was. li'iincss Her outside drirss was a cloak, hooked together nearly the who's

length, except at one hook a little be

low the chepl. Sie had. on a calash bonnet, and her shoes were o(I", ly ing together; her feet wer; as tlo-e together as if they had hcen tied, and

iier toes on the ground; her knees bent forward nearly to the ground. Witness descended froth ihe .stand and showed the distance lo be 3 or 9 inches, by placing hsmy, If in n similar position. Herclolhir s aert smootlwft Luck under her knees citu I legs as far as iliey aoiild reach. Hei head was lower lhaii the top of the stake; the distance be, tween the place where the line was fastened round the stake and (he top of it was 6 injlies. The calash on iht; right side wtfs so bent back that her

heek ?-Nime against the stake.

I called two; persons who were hear, in

sight, and they came wilh a third. -

i tiRir names are Richard Durfee, Wm

Allen, and. Benjamin Negus, who got

into the sfack yard and noticed how -he hung; after Loking at her a min-

ule or lo, 1 attempted to take her from the stake by lifting her up with one arm and removing the line from the slake with the other, but finding I could not well do it, Richard D ulee advised me to cut her down, and lentme his knife. I did so, laid her on the ground, and went away immediately after the coroner. I cut Ihe string about half an inch from where it drew together on the stake, sind something; more than 4 inches from the knot on 1. -I- f T 1

uernecK. uer snoes were Ivtnir a-

bout 18 inches from-her, and one of them mud on it; her handkerchief lay about the same distance. Did not observe lhat she had any bag with her, but she had her gloveu on. The roro can? wkh me lo r:iy house and thenro to the stack. The bodv was sbortiv

of ordinary solemnity. The causes of (afterwards removed to mv house in a

nil? vjniit inrm me wen kiiowu; lor iiiiioree wagon: sue was nrsi laid on u

is fi'ougli to say ol this trial that religion has thrown Iier anient arms around it, and lhat anti-religion lias sneered at her infatuation. . The nri

blanket, under which was fiome hay. She was carried slow and the road was smooth she partly lay on her left siiio when taken Irorn the stake, for her

soner is a minister of gospel in one oflh gs were bent so that she could not

the most numerous and rcsperlable re- lav on her back, and ihe vva laid iti

ligious communities in the Union; a (lh;s way on the wagon. The coroner yt....nri....ti... -l.i'.U I . . it,, in rrr t:ii...-l . , J . : ,

denomination which has Us 10,000 !i

?J censed preachers, its 500.000 church

hud summoned a

jury, and when slai

was removed to my house, they pro.

members, and Us 3,000,000 hearers; ajceeded to lher duty. I left them and

denomination which has advanced in went after her trunk to Mrs. Hatha-

comparison to others not less rapidly

lhan our country itscll has outstrided Ihe nations of the World. What wonder, then, that these millions should breathe anxiously lo know whether a minister s ho stood high among them be guilty of the crime of murder? Sectarian jealousy, too, may have mingled its less laudable curiosity, and anti religion have risen lor its privilege to

scorn. And the excitement may not have been lessened by ihe circum stance lhat the victim of this foul and revolting murder was a poor factory

girl one of the 7000 in this state alone, whose unceasing industry, draws wealth and all the benefits of their ma-

nufacture from its 130 mills, for the general advantage of its citizens. And

culiar case, the practice of that siaie.jcan class il with these. In oidiuarv l.. ... I I i I . ! . .. r rr. . J

you there are few circumstances which

But the attorney general, having fell himself authorized by this practice, to

pursue Ihe limner question, u would lhat bias incapacitate you to render an impartial verdict after hearing the testimony the counsel for the prisoner objected; and the discussion which ensued, indicating no tendency to a conclusion before it should become merged.in the business of the Supreme Tri

bunal of the human race, the court look a (wehome) recess for the dinner hour, and staled ihey would rule the question at 3 o'clock, V. M. Only three jurors were sworn this forenoon, out of 43 who were either challenged for ihe cause or perempto lily by the prisoner. At 3 o'clock, the Judges resumed (heir Beats, and the court ruled that they would adhere to the established practise of this state, viz: lhat "if a juror declared he had formed or expressed an opinion of the guilt or innocence of a prisoner upon a capital charge, he should be deemed disqualified."

Upon this principle, the formation of

the jury was re-commenced, and at the adjournment of the court, three more

jurors had been sworn, making half

the number rcouired.

cases the chief difficulty is to ascertain

whether the offence amounts lo mur

der or manslaughter; whether the act) was voluntary or involuntary; excusable, or devoid of a mitigating incident; bul in the present case, if it should appear that the prisoner killed the de: ceased by a wilful act. it cannot be pretended that he did so under the ence of stron'g and sudden passion or in the absence of his rational pow ers. It must, have been a wily deliberate murder, in which every feeling that is cruel and mean, disgusting and relentless must have united in horrible energy. I will now give you nn outline of the leading facts of the case, without en tering minutely into the details of the evidence which we mean to produce, and which, if we do produce, will establish in your minds a clear conviction of the prisoner's guilt. The Itarned counsel here

dingly gave an interesting narrative of!

me principal tacts ol the case as they bear against the prisoner, but as all these appear in our full report of the evidence, and are yet more forcibly arrrnged in the concluding summaries, we omit this part of the opening. I am aware that this is a case in

over the rights and lives of these poor girls the laws holds its protecting shield not less proudly than over those whose vocations are not of this world. ¶ Gentlemen, you stand in a situation scarcely less awful for its responsihilily than that of the prisoner for its con sequences. It is your dignified and solemn duly to stand aloof from all and each of these sources of excitement and bias, whether they would incline your minds to the one side or the other. Hear as though you never heard. To the accuiacy of your judgments and the integrity of your hearts, the sacred cause of justice, and the honor of our state are entrusted: decide according to the testimony and according to the law. ¶ John Durfee, sworn for the prosecution. I reside at Tiverton, and did so

way's; she delivered il lo me, and .1 bandbox, Baying the key of the trur.li was probably in the girl's pocket, a she generally carried it with her. The key was afterwards given - me at my house by a woman named Ruth Cook. It was about iwo hours and a half after I discovered the body that I went to Mrs. Hathaway s's, for I discovered the body at 9 o'clock, and got into mr

house, liom her 6, before 12. 1 went for the trunk because le. women said she might have things there necessary to lay her out, and because I understood she had letters in it which might enable us to find her friends; I opened the bandbox al my houses it was carried thitlier as I received it. I took from it several letters; I believe I can identify them. Lelters produced one of them was written on yellow paper, one on pink, and two on whUe and the witness identified them sever ally as they were handed to him Those which are addressed to her were opened the one written by her arj dressed to the Rev. Mr. Bidwell, waa sealed. Her bandbox contained lolhingof different kinds; at Ihe bottom there was a pencil, and beside it a piece of paper about 4 inches fquar I should identify it by iis shape and general appearance, which isdiity, bui I did not examine it. Paper produced. I believe this is ihe same it was shewn to ine Ihe: next tlay bv sister Susannah Borden, when I read it, There wic no intcivening objects to obstruct the view of ihe hay -stack from

my house, from two windows of which it could be seen. I did not examine

on the 21st December last. My house

is half a mile from the bridge near ║║ the kind of knot which fastened the the boundary Iine of Rhode Island and ║║ string at the neck—the one on the Massachusetts. On the morning of ║║stake was slip-knot taken in a bight as the 31st of December, I took my team ║║any other cord— when cut off four ends to go from home to the river, and pas- ║║hung down from the stake—it was a sing through a lot about 60 rods from ║║small cord considerably Iess than the my house, when I arrived within ten ║║smallest goose-quill, and was so deepyards of the hay stack, I discovered the ║║ly embedded in the neck as to be neatbody of a female hanging on a stake. ║║ ly out of sight—it went round the neck This body was afterwards identified ║║horizontally, and I could not perceive as the body of Sarah Maria Cornell.— ║║ that it was higher on one side than the