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THE COUNTRYMAN.
TtlRXU'OLD, GA., FEBRUARY 28, 1865.
The Trial of Joseph AShfield, Jr.,
(Charged with the Offence of Arson) at
the March Term, 1856, of the Superior
Court of Putnam Co., Ga. : Containing
the Testimony in the Case, and the
Speech of J. A. Turner, in Defence of
the Accused ; Embracing a full Expo
sition of the La v, and Philosophy of
Circumstantial Evidence.—Countryman
Print: Turnwold (near Eatonton) Ga.,
1864.
The State, 1
vs. > Arson.
Joseph Asbfield, Jr. )
SPEECH OF J. A. TURNER.
(continued.)
Now, gentlemen, about these reported
shreds of conversation, such as have been
detailed by old Mrs. Ashfield, and Henry
Walsh, and another, which I have not yet
commented upon—you must receive them
with many grains of allowance. “ With
respect to all verbal admissions, it ruay be
observed, that they ought to be received
with great caution." So says tjreenleaf
in his treatise upon evidence, vol. 1, p.
241, section 200. And the author itali
cizes the words “ received with great cau
tion," as if particular stress should be laid
upon them. He then proceeds to show
why verbal admissions should be received
with grea,he'\ution. He says: “The evi
dence, consisting as it does in the mere
repetition of oral statements, is subject to
much imperfection, and mistake ; the par
ty himself either being misinformed, or
not having clearly expressed his own
meaning, or the witness having misunder
stood him. It frequently happens, also,
that the witness, by unintentionally utter
ing a few of the expressions really used,
gives an effect to the statement completely
at variance with what the party did actu
ally say.” Now, gentlemen, I wish to call
your attention particularly to the fact, that
in all the reported conversations against
my client, the witnesses,who have testified
here, may have, “by unintentionally utter
ing a few expressions, really used, given
an effect to the statements completely at
variance with what the party did actually
say.” It is very difficult, as you well
know, to remember the precise words
used in any conversation. We generally
recollect the matter of the conversation,
and in repeating it, use our own verbiage.
And where a prosecution is endeavoring,
by circumstantial evidence, to convict a
prisoner, bringing in shreds of conversa
tion, to prove the accused guilty, he is en
titled to the precise words of the conver
sation, the whole of that conversation, and
all the circumstances under which it was
uttered. In no one instance, in this case,
have the prosecution given us the whole
of the conversation, or all the circum
stances under which it was uttered. And
I have no idea that even in what has been
.reported, they have given the identical
words of the conversation. No doubt they
have intended to do so, but, through for
getfulness, have failed. Here I am speak
ing to you, now, and one hour from this
time, there is not a man in this court
house, who can repeat the identical words
of any sentence, of any length, in my
speech, unless he have it particularly im
pressed upon his mind, by what I am now
saying. And so in reference to what my
client said to Ilenry Walsh. When the
words were uttered by him, they passed
by the witness as the idle wind, and he
attached not enough importance to them
to burden bis memory with them. After
the burning of Dr. Adams’s house, the
witness then recollects that he heard the
accused say something about fire, comes
here, and, no doubt, makes an honest
statement of what he recollects to have
been Asbfield’s words, but in the language
of Greenleaf, “by unintentionally altering
a few of the expressions really used, gives
an effect to the statement completely at
variance with what the party actually did
say.” And what I say here of Walsh’s
testimony, I say of all the other evidence
delivered here, that comes under the head
of oral admissions. In all these reported
conversations, gentlemen, you must en
deavor to divest yourselves of the circum
stances by which you are at present sur
rounded, and place yourselves amid the
circumstances which surrounded the con
versations. Here a charge has been made
against the accused, and your minds are
naturally on the alert, to see if that charge
is sustained by proof. And unless you
guard your understandings at this point,
you will suffer reported words of the ac
cused to affect you, when, had you been
present, and heard them, you would at
tach no importance to them, whatever.
Let me illustrate what I mean here: a
man might come up to you, and, in a joc
ular way, accuse either of you of false
hood, and you wouldn’t take offence at it.
And so he might, in a jocular way, do the
same thing behind your back. But sup
pose some Ransey Sniffle sort of a fellow
should come, and report to you, under a
different set of circumstances, that some
body had said you had lied, or words to
that amount: you would fire up at once,
and want to fight, when probably the man
who had been joking about you, was your
friend, and had made to your own face, a
hundred times, the same remark, at which
you were now angry, without giving ypu
a shadow of offence. So you see, gentle
men, you must take into consideration the
circumstances under which any remark is
made, before you determine the exact
meaning to be attached to it. And in ref
erence to these conversations, which may
partake of the nature of verbal admissions,
you must not attach to them the same
amount of importance you would, if the
accused were to get up now, and utter
similar words, under the present circum
stances. You must not do so for two rea
sons—one is because it is almost certain
that, in no instance, have you had report
ed to y ou the identical words of the ac
cused, however much the witnesses may
have desired, and intended to do so, and
however much they may believe they ac
tually have done so. And no doubt “ by
unintentionally altering a few of the ex
pressions really used, they have given an
effect to the statements completely at va
riance with what the party actually did
say.” And even admitting, for the sake
of the argument, that you have gotten the
identical words uttered by the accused,
you must not attach to them the same
importance you would, if he were to get
up, now, and make what might be termed
similar verbal admissions, because they
would be made under very different ciis
cumstances from the fragments of conver
sation which have been reported to youn
Now' he is undergoing a judicial investiga
tion, to determine his guilt, or his inno
cence, and anything he might say, now,
in the way of an acknowledged threat, or
even the shadow of a threat, would have
great weight, on account of the circum
stances by which he is surrounded. Bu&
when he uttered the words reported to
you, if he uttered those identical W'ords at
all (and I have no idea he did, without
reflecting upon the witnesses at all) he did.
it under such circumstances—being taunt
ed by two different persons with the beat
ing he got—as must force you tv the con
clusion that the words spoken by him
were merely the braggadocio threats of a
boy who had been beaten, made to rein
state his injured manhood in the eyes of
those where he well thought it had suf
fered damage. Then, I say, again, gen
tlemen, in determining the importance to
be attached to my client’s words, don’t
wei 6 h them as if he got up here, now, un
der the present circumstances, and uttered
the same, or similar sentences. But trans
port yourselves, in your imaginations, from
the jury-box, to the times, and the places
at which these words were uttered ; and
if, having done so, you can find, in what
are called the threats of my client, any
thing more than the merest innocent milk-
and-cidcrish bragging, then you have
keener optics than I have.
I have thus gone over the evidence of
fered to show you that my client bore
great malic* against the prosecutor. Three
facts are offered you to support this hypo
thesis. The first is that my client presented
Dr/Adams to the grand jury ; the second
is that old Mrs. Ashfield heard Charles
Badger, or Virgil Ashfield, or my client,
or somebody else say, “ there was more
ways to kill a dog than hanging and the
third is, that Henry Walsh beard the ac
cused say, on the day of the October elec
tion, in the town of Eatonton, “ what
strength couldn’t do, fire could,” leaving
you in doubt whether the accused was
complaining of a want of strength to whip
Dr. Adams for beating him, or to whip
Walsh, for throwing the beating up to him.
I would rather think that this remark
proved malice against Henry Walsh, thaij
against Dr. Adams. But at any rate,
these three things form the basis upon
which you are asked to build an amount
of malice, on the part of the accused,
which would be as Pejion piled upon Ossa.
I think you will conclude it is rather a
narrow foundation, upon which to base so
stupendous a superstructure. A tremen
dous fall must be the copsequence; and I
recommend you, gentlemen, not to be in
the way of this mighty air-castle, when it
falls. I think you will agree with me tb*
there is no evidence to induce you to be