CHAPTER XXIX.

Te Aroha News, Volume II, Issue 60, 26 July 1884, Page 4

CHAPTER XXIX.

THE OPENING OF THE DEFENCE. Excellent! I smell a device. —Twelfth Night. Latk that afternoon the prosecution rested. It had made out a case of great strength and seeming impregnability. Favourably as every one was disposed to regard the prisoner, the evidence against him was such j that to quote a n*an who was pretty free ■with his opinions in the lobby of the courtroom, " Orcutt will have to wake up if he is going to cleai his man in the face of facts like these "' Tho moment, therefore, when this famous lawyer and distinguished advocato rose to open the defence was one of great interest to more than the immediate actors in the ! scene. It was felt that hitherto he had rather idled with his case, and curiosity was awake as to his future course. Indeed, m the minds of many the counsel for the prisoner was on trial as well as his client. lie rose w ith more of self-possession, quiet and reserved strength, than could be hoped ior, and his look toward the Court and then to the jury tended to gain for him thereonfidence which up to this moment he seemed to be losing. Never a handsome man or even an imposing one, he had the advantage of alwaj's rising to the occasion, whether pleading with a jury or arguing with opposing counsel, Hashed with that unmistakable glitter of keen and ready intellect which, once observed in a mnn, marks him o IT from his less gifted fellows and makes him the cynosure of all eyes, however insignificant his height, features, or ordinary expression. To-day he was even cooler, more brilliant, and more confident in his bearing than usual. Feelings, if feelings he possessed — and we who have seen him at his hearth can have no doubt on this subject— had been set aside when he rose to his feet and turned his face upon the expectant crowd before him. To save his client seemed the one predominating impulse of his soul, and, as he drew himself up to speak, Mr Byrd, who Avas watching him with tho utmost eagerness and anticipation, felt that, despite appearances, despite evidence, despite probability itself, this man was going to win his case. '• May it please your Honor and Gentlemen of the Jury," lie began, and those who looked at him could not but notice how the prisoner at his side lifted his head at this address, till it seemed as if the words issued from his lips instead of from those of his counsel, " I stand before you to-day not to argue with my learned opponent in reference to the evidence which he has brought out with so much ingenuity. I have a simpler duty than that to perform. I have to show you how, in spite of this evidence, in face of all this accumulated testimony show ing the prisoner to have been in possession of both motive and opportunities for committing this crime, he is guiltless of it ; that a physical impossibility stands in the way of his being the assailant of the "Widow Clemmens, and that to whomever or whatsoever her death may be due, it neither was nor could have been the result of any blow struck by the prisoner's hand. In other words, we dispute, not the facts which have led the Prosecuting Attornej' of this district, and perhaps others also, to infer guilt on the part of the prisoner," — here Mr Orcutt cast a significant glance at the bench where the witnesses sat, — " but the inference itself. Something besides proof of motive and opportunity must be urged against this man in order to convict him oi guilt. Nor is it sufficient to show he was on the scene of murder some time during the fatal morning when Mrs Clemmens was attacked ; you must prove he was there at the time the deadly blow was struck; for it is not with him as with so many against whom circumstantial evidence of guilt is brought. This man, gentlemen, has an answer tor those who accuse him of crime — an answer, too, before which all the ch'cumstantial evidence in the world cannot stand. Do you want to know what it is ? Give me but a moment's attention and you shall hear." Expectation, which had been rising through thi> exordium, now btood at feverpoint. Byrd and Hickory held their breaths, and even Miss Dare show ed feeling through the icy restraint which had hitherto governed her secret angui&h and suspense. Mr Orcutt went on : " First, however, as I have already .said, the prisoner desires it to be understood that he has no intention of disputing the various facts which have been presented before you at this trial. He does not deny that he was in great need of money at the time of his aunt's death ; that he came to Sibley to entreat her to advance to him certain sums he deemed necessary to the furtherance of his plans ; that he came secretly and in the roundabout way you describe. Neither does he refuse to allow that his errand was also one of love, that he sought and obtained a private interview with the woman he wished to make his wife, in the place and at the time testified to ; that the scraps of conversation which have been sworn to as having passed between them at this interview are true in as far as they go, and that he did place upon the finger of Miss Dare a diamond ring. Also, he admits that she took the ring off immediately upon receiving it, saying .she could not accept it, at least not then, and that she entreated him to take it back, which he declined to do, though he cannot say she did not restore it in the manner she declares, for he remembers nothing of the ling after the moment he put her hand a&ide as she w r as offering it back to him, The prisoner also allows that he slept in the hut and remained in that especial region of the woods until near noon the next day ; but, your Honor and gentlemen of the jury, what the prisoner does not allow and will not admit is that he struck ths blow which eventually robbed Mrs Clemmens of her life, and the proof which I prcpo&e to bring forward in support of this assertion is this : " Mrs Clemmens received the blow which led to her death at some time previously to three minutes past twelve o'clock on Tuesday, September 26th. This the prosecution hah already proved. Now, what I propose to bhow is, that Mrs Clemmens, however or whenever assailed, was still living and unhurt up to ten minutes before twelve on that same day. A witness, whom you must believe, saw her at that time and conversed with her, proving that the blow by which she came to her death must have occurred after that hour, that is, after ' ten minutes before noon. But, your Honor and gentlemen of the jury, the prosecution has already shown that the prisoner stepped on to the train at Monteith Quarry Station at twenty minutes past one of that same day, and has produced witnesses whose testimony positively proves that the road he took there from Mrs Clemmens's house was the same he had traversed in his secret approach to it the day before— viz., the path through the woods ; the only path, I

may hero state, that connects those two points with anything like directness. " But, sirs, what the prosecution has not shown you, and what it "now devolves upon me to show, is that this path which the prisoner is allowed to havo taken is one which no man could travorso without encountering great difficulties and many hindrances to speed. It is not only a narrow path iilled with various encumberances in the way of brambles and rolling stones, but it is so flanked Dy an impenetrable undergrowth in some placeSj and by low, swampy ground in othorß, that no deviation fmm its course is possible, while to keep within it and follow its many turns and windings till it finally cmorges upon the highway that leads to the Quarry Station would require many more minutes than those which elapsed between the time of the murder and the hour the prisoner made his appearance at the Quarry Station. In other words, I propose to introduce before you as witnesses two gentlemen from New York, both of whom are experts in all feats oi pedestrianism, and wl»o, having been ovei the road themselves, are in position to testify that the time necessary for a man to pass by means of this path from Mrs Clemmens's house to tho Quarry Station is, by a definite number of minutes, greater than that al lowed to the prisoner by the evidence laic before you. If, therefore, you accept th< testimony for the prosecution as true, anc believe that tho prisoner took the train fo' Buffalo, which he has been said to do, i follows, as a physical impossibility, for hiu to have been at Mrs Clemmens's cottage, o anywhere elso except on the road to th station, at the moment when the fatal blov was dealt. "Your Honor, this is our answer to th terrible charge which has been mad against the prisoner ; it is simple, but it i effective, and upon it, as upon a rock, w found our defence." And with a bow, Mr Orcutt sat down and, it being late in tho day, the court ad journed.