Wisconsin State Journal from Madison, Wisconsin • 2

shall feel the hand of violence. impossible. Guilt is a product of a slow and tho matter of tho btnrd. He alone of all the witnesses testifies ilmt Reynolds held the gnilniate Journal. TRIAL, OF JOHN BAPTISTE DU PAY, For I lie Murder of AYILLIAM S.

REYNOLDS. threats were repeated. Du Bay know them only as Californians They knew Du Bay as an ancient settler, on that land. They knew John Du Bay had said he would protect that property against them and all, to the last extremity. You must take all these facts together.

Every man differs from his fellows. Oae is cool and deliberate, one hot and passionate. Each has his peculiar organization. Sometimes the cool man is the niot dangerous. Tak At an uly period in the life of Du Bay, we liud him an Indian trader, practicing the arts of this class of men.

We titul him dealing out that fire-water which has proved the curse, tho destruction, of a once proud race. And the habits then acquired have clung to him even up to the present time. I speak of this only to show how liitle those know of hiin who Lave testified to his character. Their evidence has but little reference to the last ten years of his life. They have only met with him casually and occasionally, and at places and under circumstances as would show the best side of the picture.

Such that any one, however depraved, would nattural-ly have acted with tho strictest propriety. We find that up to August last, he has committed no great crimes, and was not, indeed, of a very quarrelsome disposition. Look for a moment, at the relative position of Du Bay and Reynolds. Du Bay was protected by OtTICML PAPER OF THE CUT. MADISON.

Knturtluy 1'. veiling-, Dec. 5, 1857. 191 ADVANCE. DAILY STATE JOURNAL $.00 TRI-WEEKLY 3.00 WEEKLY 1.50 Official t'oatlngii.

We give below, the official footings on the several candidates for State officers in every county in tin Slate, except La Pointe, from the returns received at the Capitol; Randal) 44,697 Cross 44,185 Bdmrz-'s 44,373 Campbell'; 44.434 Thomas 43,769 Jones 45,429 44,099 Habich 44,298 Jackson 44,302 Bouck 44,764 McMynn 44,405 Draper 44,757 McGregor 43,981 Squires 44,814 Macgraw 44,403 McGarry 43,795 The speaker said he would now i to the facts of the case, after these prelir nary remarks, lie should c-nfine himsell' the fucN. He was not an irnaginatipo 0 He had sometimes tried to write poetry I he had no more imagination than an nac-mnker. The homicide was admitted That Wm. S. Reynolds came to Lis death tT the hand ot John 15.

jJutjay was adrnkui Here has been a homicide. Whatnfitj frequently happened that one man killed a other without guilt, by accident, or rJ'" suance of law. For instance hia fciend Tl Hood, now paying him the listening so attentively, might Mezetl.atclui (the piece of board Reynolds used) andstnk him with it; ho might draw a pistol' from his pocket and shoot him down, llorewoull be an awful homicide. The first Hnpreio of community might be very mm him. But under the law he would le gnij.

less. The speaker then read from 4th Blather 156, and from page C82 Revised Statutes. From the authorities he hoped tbe jurv saw the distinction in different kinds ofhnm icide. Premeditated design, with maljCA aforethought was necessary to constitute manslaughter. Here the speaker dwelt at some length upon the distinction between murder and manslaughter.

It was not ouite sufficient to draw the law between felociom homicide, and justifiable homicide, between those acts which are not felonious and criminal and those which are. Here the speaker read from 4th Jilackstone upon this distinction Our stat ute recognizes tho jtitstitia-bleness of taking life not only to save lif but a'so to protect property. If he thinks from reasonable grounds ttiat his life ia in imminent danger of personal injury. ThU is the law line. How do the facts range? Was DuBay acting under a deliberate intent to take life? Were all his previous actions only to furnish a pretext? Even though he may have had a grudge made threats been actuated a lew days before by malice, but not at the moment he shot carrying out a previous design, ho was not guilty of murder.

How are tho facts suppose you lay the threats aside? Suppose they never had seen each other. Supposing he had cut down the house, had gone to this own door step, these men had come up and nsed insulting Ian-guage, that he went into the house, took his gun and went out and shot without further provocation, this would not have been murder, but manslaughter. Regarding the title, it is sufficient that we have proven that he was in possession, and had been for a long time. The law does not require title deeds, to show 1 have a right to protect my home and family. All these things he threw out as unnecessary.

If he had committed this act, aside from threats, it would not have been murder. Do these threata make this case murder Witness may not clearly have recollected the language of the threats. Jury may not ck-arly understand the witness. They would, iu jury room, disagree npon that. (Read from Greenleaf.) Du Bay had threatened to put button holes, Du Bay himself, perhaps, did not clearly express his own meaning.

lie might have meant literal button holes, or he might have meant bullet holes, as the prosecution claimed. We have no right to say Hagan did not speak the truth his memory does not Beem to serve him as to any part of the conversation except to the threat. We may have some grounds from the testimony itself, and from what we have heard out-ide, that there was a combination to convict the prisoner. All the evidence is all hearsay, although they heard Du Bay himself make the threats, and is subject to the rules of hearsay evidence. Jurors cannot be induced to discriminating and giving due weight to tho evidence.

Ho easily could any of these witnesses have fabricated his story. Yon are, therefore, bound to accept their stories. Tho honestest man mny have the weakest mmtirjr- Anolhtrr rofwm ionmj ttf caution. In this very case we have a striking illustration of the truth of thee principles. If the life of Du Bay were dependent upon the frail recollection of "one or two witnesses.

Avoid convicting if some considerable doubt is left on your minds as the possibility of falsehood. Did Du Bay really have mal-, ice when he threatened to put button-holes tlirough Reynolds Were the circumstances, made over a social glass, such as to show a depraved mind Did any of Da Bay's conduct evince malice? Not at all. -Du Bay had expressed his willingness that they should build npon his premises, to sell or rent on reasonable terms. Had Du Bay expressed his real mind, he would have told that he raent to rosist aggression to the death. It this be true, lie had no malice.

Does tho law presume all homicide to bo malicious? The speaker anticipated the Vine of argument in the prosecution. It is difficult to get at legal prosnmptions. A man is presumed to do just what he does do. If ft man kills another it is presumed to be wrong If I took this stick and struck one of yon, it would be presumed that I was malicious. AT hy have we proved Du Bay's chnractei? Simply upon this point of the presumption of malice.

And I should not review this, his counsel had already done this in a most ablo manner. The question of malice must be drawn from all them; Another proof of malice he anticipated was, the tuking out of his gun, unless to fol- low up a long fixed determination. lie could not answer this except as Dn Bay had answered him. He sat down to cool his excitement, after cutting down the house. He thought the premises were his, and hfrnd a right to cut down the house.

He Had set down in his own door, and it was there he fought for his threshold that he might not be obliged to fight for his hearthstone. While sitting there, he saw a largo number of men at the mill. Reynolds in the lead. Du Bay had heard that they had threatened his life. He knew prisoner would not lie to counsel to save his own life.

He expected they would also rush into the house, killjiiw, his wife and child (Dixon). His statement are not evidence. But it would be competent for me to suppose a hypothetical cace. That Du Bay expected this danger. He did not know but he was laboring under a delusion.

If he had btayed lu his house, it would have been asked why he did not go out He apprehended danger, and it was in his estimation the safer way for him to go out. There was nothing unlawful in taking his gun and going out, Thishomicide then can hardly be murder. Is it manslaughter? We, however, know no compromise. He took lifo believing ho was defending himself, and we claim full acquittal. He is either guilty or not.

There is no compromise. This is not manslaughter. Did Du Bay kill him unnecessarily in resisting a felony He took the ground that it was not unnecessary. Was there danger, and probability that it would be executed. If Du Bay killed him when he believed there was a desifja upon himself, and a.

danger of that desiga being exeouted. We must judge of danger from his advice, his temperament, All those who came to attack him wera parti-cepes criminis, and he had a right to presume them his common enemies. Here were one and more who went to execute a felonious design nron Du Bay. If ebher R. or had killed Du Ray, both would, hftvo heen guilty of murder, lie was justified in regard to all of them in the light of participants.

He had reasonable grounds to apprehend that those men had some design to do him some great personal injury. Threats and all, indicate a design to do this or even to kill. Wliat was the state of his mind when he went into tho house? W'e must judge from what was said outside from what he said, How do I know what they will take my heart out with." fie had re.ison to sunnose thev were arm ed. The case turns we think upon what Dn- gradual increase. Jt begins with small of fences, and travels down the broad, dark road that leads to death.

We now come to the character of the ag gressions which led this man to venture upon tho highest prerogative God baa vouch safed to man the taking ot human lifo. McNeil retired from personal controversy, as he swears himself, with the understanding with Du Bay, that the difficulty should be settled by the courts. Then he sold to the Reynolds' sold a law suit. It looked as though McNeil was cowardly, and greed to settle by law. The Californians had a different way of settling such matters.

They would try California tricks. They well know that they hud no rights that courts would recognize. Why did the miller insist on building his house v. hero he did. There were abundant of other sites.

But it was evident they intended forcibly to dispossess Du Bay by violence. In vain Du Bay warned them I am a man of my word," I will make a button hole through you," keep away from my premises," I don't care how bad you make it. He gave Reynolds fair warning, and peaceable man as Du Bay was known to be, Lockwood told Reynolds that under such provocation Du Bay would shoot him. At first, Du Bay merely threatened to burn down the house if it was built the mildest thing a man can threaten. Why, gentlemen, if a man should come on your premises or mine, and begin putting up a balloon frame, we would not merely threaten to burn it, but we would send the trespasser to his God as quick as human agencies could do it.

The couufcel then described the persecu tion Du Bay suffered his being bound over to keep the peace after the threat of arson his excitement which drove him to his cups how excitement and intoxication nigh drove him mad and in this slate ho started home in his buggy after being up all the night previous, and this balloon frame was the nrst thing that met Lis view as Le ap proached his house. Why if anything would awake the direst thoughts of murder in a man's breast, this would do it. hen he reached hia house, he seized his axe. rushed upon the house and cut each sepa rate timber and let the frame fall. This was done in the full sight of the crowd at the mill.

It was the highest challenge he could give them. John Du Bay was a man of his word." Ho had executed his threat to destroy the home. And when he saw Reynolds coming with Gouldthrite, the nigger, Powderly and others following, what was his natural conclusion? Could it be other than that they were coming to lynch him? Was it not reasonable that he should fear violence. Gouldthrite's evidence ought not to bo received. If Reynolds did intend violence.

Gouldthrite was particevs criminis. If Reynolds had split open Du Bay's head, then, Gouldthrite would also have been a murderer. liy his own evidence. he represented himself as the chief aggressor in using abusive language. Should the statement of such a witness be preferred to that ot another, laboring under no such excitement, who was merely a brother-in law of the defendant The other witnesses of the affray called by the prosecution were employees ot McNeil, Californians they all belonged to the same tribe.

Their representations of the use Reynolds made of the piece of board, were utterly inconsistent. Did Reynolds pull off that board to carry under his arm, and ward oft Da Bay's gnu with Why he pulled it off before Du Bay got his gun. Under all the circumstances of Reynolds coming, the story of these witnesses was ltcredible. Now I will take Peter Jes sey's Btory. You have heard it.

It was a plain, consistant tale. After an adjournment ot all night, with these able counsel to question him, he was examined backwards and made no variation. It showed that that tragio scene, with all its blood aud terrors. Wwni it j.it.n4 intA vl.vjj wUn time can never eltace it. Ilo lias had every opportunity to manufacture a story of what Du Bay said, when he came into the house, out, on the contrary, mat portion ot his testimony iff rather against than lor Du Bay, Gentlemen, if there ever was a hero, that boy was a hero when lie 6aid "John, John, be careful what you do," It suspended the combat.

The witnesses for the prosecution say that the combat was renewed on Rev nolds saying, "I will build the house again and see if you will chop it down again." This would not have arrested Du Bay and led him to the fatal act But the boy says, Du Bay turned when Reynolds said God a it, and was advancing on him with the stick elevated, and it was. then he shot, this is tar more reasonable. The wav Du Bay acted after. the affair does not weigh in my mind, other than to show that Du Bay thought himself justified in doing what he did and bis pointing the gun at Gouldthrite and others, and his subsequent looking for caps aud powder only 6hows that he uoueu attacK ironi the remainder or the tribe of Californians. Mr.

dwelt on the fact that Du Bay had been advised by his lawyer, that he might protect his property, even to the taking of the life of trespassers, and urged how much weight "such ad vice, from a lawyer, has on the mind of an ignorant man like Du Tbp speaker urged the Indian descent of the prisoner, and the effect of the associations which the graves on that bill might nave on ins mina in causing him to cling to it? Du Bay had some of the feeling of the rd man. ITe- had seen hw race and his kindred vanish before the encroaching white man he himself was reduced to the possesion of a few narrow acres and these were about to be wrested from him. with all the facts before yon, and in the light of the law you must weigh this evidence, and you must judge the oris- oner at the bar by that glorious maxiui of the common law, that 'it is better ninetv nine gnllty men should escape than that one innocent f-hould suffer." The common law is a magnificent tree. Under its branches, the Anglo-Saxon race have reposed for centuries. By that law, the prisoner is, entitled to the benefits pi every doubt.

Weigh well the evidence, and make your verdict with the consoiousness that you are responsible ior me results ana consequences. PL0S1N9 ARQUMBNT OK THE pEfBNSB, Bf MR. STRONO. i. Mr.

Strong. Gentlemen. Death is wli said to be the King of terror, coma iu what shape it may. Why is it so? Why is it mat wnen we near or rne death of a fellow-beieg we stop, and pause, aud reflect upon our own life and future destiny It is be-pause death js that great change that awaits us all, that cute us oft' from the activity of life, and sends us before the majesty of Heaven, i Under the laws of our land, whenever mere is a noimcide there follows a judicial investigation. The speaker then described briefly the mode of proceeding incases of homicide, by the Coroner's Jury, aud the Grand Jury on indictment Both these steps are calculated to operate unfavorably to the accused upon the public mind.

This was necessarily so. These proceedings were necessarily one-sided Tjio aecqsed had no opportunity to present the mitigating circumstances. 4.11 the opjnions produced in this inanner if worthy to bo called opinion must be banished from the mind of the traverse jury. The difficulty of doing this was urged by the at some length. The case should bo tried by the evidence heard within these walls, and by nofbing else.

His client bore no animosity against the deceased Reynolds. He is as ready, as the most sympathising heart here, to drop tho tear of sympathy over that grave. He only struck him down in tho defense of his own person and property. It is the law of God'a economy that those who resort to violence ooaru in a smiting aur.mie. Five witnesses deny that he did at any time.

Thero were uiree witnesses sent lor by the detence anu brought forty miles substantiate the boy's testimony; npon tluit point the opposing counsel asked hem no questions. And when we asked witn regard to that matter, they objected to the questions. They would have been glad to rfcive the testimony of these men had it cninvidud with Jessey's ac count. If Reynolds the stick as Jussee says he did, it must hae covered his heart and would have been full nfsliot. Are there any shot holes in the stick inxluced i The shot were scattered nround for four inches about the hole in Reynolds tody.

Could the board then Irnve been held in tho position described by Jossey. TLitone circumstance stamps the testimony of JL-s-ee as false. His story had been well learnel lie had been well drilled, but of one thing lie had not thought. Ho ad forgotten that if the stick had been hold as ho described, there would have been shot iu it as thero was in Reynolds body. Know the testimony of Dr.

Miller to be true I mystlf saw the shot marks on the body when it was lying in the cold embrace tf death. I myself saw shot wounds extending for two inches all around the opening. The State witnesses have no interest in making misrepresentations and false statements. That they believed what they testified to was true, was clear, from the frequent menuon of disconnected facts, showing of themselves that there could have been no preconcerted story. It seems to me that John B.

DuBay made his threats so that he knew they would wet to the ears of Rey nolds. It seems to me that he Cut down the house and placed himself so as to intercept Reynolds so as to provoke a quarrel. Where is there any extenuation of the crime, throwing out the testimony of Jessey. Take his frequent threats in connection with the ex pression I will do as I 6ay I will employed by DuBay just previous to shooting Reynolds. He goes into the house, gets his gun and comes out to execute those threats.

Are these threats no key to the singular expression used on the door steps Does not this prove malice aforethought? Admit every thing that lias been adduced in extenuation; suppose Du Bay's right of possession to have been good suppose Mr. Reynolds was a trespasser; had gone and put up a house upon Du Bay's premises. Du Bay had no right to kill him for that. No man has a right to kill another for the simple act of trespass. (Uere tho counsel read the law on this subject.) Wus Du Bay highly excited and partially unconscious ot what he was doing, as has been claimed by tho defense Let us look at his conduct.

After killing Reynolds, he points his gun at three other men standing near, and says, yes and ther will be more of you shot Ho walks into the house, puts away his gun, takes a drink of whiskey, and sits down to eat his supper. So far from being intensely wrought with passion, does he not exhibit the most consummate coolness? (Here the counsel recounted further particulars of the threats to show that Du Bav was for some time trying to work himsolf up to the killing point.) I will not allude to the title. The testimony that has been introduced npon that point has been quite irrelevant. They both, Du Bay and Reynolds claimed a right, they both had paid for the right, and believed they had a good right. Reynolds thought he had a right to build, lie did not believe Du Bay tho man to shoot him in cool blood.

Ho said he was not afraid of the old fellow. Is it to be supposed that he was going to meet a man with a gun, loaded and cocked at that if ho thought ho would shoot Nothing would bo more contrary to reason. Now, after goinj over tho testimony in a general way over the main points believ-M Ji u.t tha tmy testified believe you can luul it in to any that John H. Du Bay did not mnrdcr Reynolds. Tuko away the one circumstance of raising up the board, and what is this but murder? The law, bos been said by opposing counsel, h.

been changed. I would not come down so low as to argue that he should bo found guilty on --that'. account. Whether the punishment is death or imprisonment, it is equally thedutyof the jury to find guilty, if from the evidence they in their hearts believe guilty. The court then took a recess until 7 o'clock this evening.

7 o'clock, P. M. ARGUMENT op HARLOW B. ORTON, ESQ. Mr.

Ortou. Gentlemen of the jury, you have listened for some days, with a gond deal of attention, and I have no doubt with interest, to the evidence iu this case. You hayp taken a deeper interest than other persons in thp Wfjrjd jn it, except the prisoner at the bar. The lawyers, though tiey niav got their feejinge enlisted, when they' have brought forward the evidence and all tho facts, have little responsibility to discharge their duties faithfully. Further than this, thero is.

little clso 'binding upon their consciences. But the jury have to hear and determine the case upon the law and the evidence, with the ipstrnctjons of tho Court as to the law. Tho counsel for the defense, in opening the case, informed you what they expected to do. They told you there might be discrepancies in the testimony conflicting points but you are to judge of the witnesses by their appearance and actions, bt you We think we have proved to you what we promised the counsel for the Stute may feel equally well satisfied with what they have effected. The jury is no to determine by the light of the law and thp facts.

No matter what is the penalty, if you convict John B. DulJay of wilful and deliberate murder, you brand nhis brow the mark of and we shall in the trial of this cause, treat it just as if on your vprdict hung the lifo ot John B. DuBay. We join with the prosecution and lament that Win. S.

Reynolds is nq jflore. He died by the hand of violence he was sent unprepared, and in the twinkling of an eye, before a than that which John B. DuBay is now arraigned before. We have our sympathies with the friends of the deceased, I cannot divest myself of them. I sympathise with the relict brother of the deceased.

He perhaps fuels in his charity for his brother and who should not have charity for a brother that his brother yas right and thai Dt'Bay was wrong. So in this argument, I shall indulge in no crimination the deceased. Bjjt I shall not treat eo tenderly those wtio incited this fatal occurrence, and urged on Reynolds to take the step that ended his life. It is impossible for us to lose sight of the relative characters of the prisoner and the deceased. You can't determine the merits of the case without doing so.

It is essential that you know the pharacter of John B. Du Bay, and its inmost peculiarities. Without this, you cannot judge of the motives and intents which led him to commit this act. There is no standard whereby all men can be judged alike. There is none in a more perfect court abova.

There, as here, they are judged by their fruits by their character. The law hero administered is buta weak and imperfect transcript of that higher law above. So you must not only know Du Bay's character, but that of the deceased whether dangerous or not whether a man whose menaces of violence should be passed idly by, as trilling or whether he was a man who did as he intended to do, and threatened to do, and was able to accomplish it. You must take all the evidence into coa-sideration that the Reynolds and Craig were Californians that they had threatened to show Da Bay California tricks," You must remember that it was in this capacity that John B. Du Bay knew them.

When Du Bay was up before the Justice iu Portage, for threatening to burn the house, these THE TESTIMONY CLOSED. THE SUMMING UP. DANG COl'iVrV t'lltCt II' (OI KT, JUH1E COLLINS I'lIESUHNO. Dec. 4, 2 P.

M. CONTINUATION OF KBUUTT1NQ TESTIMONY FOR T1TK PROSECUTION. Eliza Lowe, called and worn. I am acquainted with Peter Jessey: have known him two or three years; 1 have lived near him all the last summer and have seen him frequently I do not know his reputation as a man of truth and veracity except as I may have heard the neighbors speak of it; I have heard people speak of Lis character during and before tho past summer; have lived with Mrs. Lowe seven years Mr.

DuRay has lived there about a year und a half lie did not live there before that time Mr. Mc-Carty baa lived in the house DuBay lived in and the "Princess," daughter ot tho Indian chief, Oshkosh, has alt-o lived there I don't know when she left there I think it was about three years ago Mr. DuBay has had his older children, two girls and one boy, during tho last winter; one of the girls was 21 years of age; tho ages of the others I do not know they staid there until March, at which time lie took them to his home in the Pinery. Cross-examined by Mr. Strong.

I have beard Mr. Mason, Mr. Babcock, and James Lowe, (the colored boy) say his character for truth and veracity was not good. Mathew Dunn sworn. Reside 'now at Madison, at the U.

S. Hotel have been there 3 weeks prior to that traveled with Lan-grishe Atwater I resided at Portage City from the fall of 1854 till last spring was employed at the Veeder House knew Peter Jessey, there, most of the time he was for some months in a saloon neur by. Question by Mr. Dixon. What was his character for truth and veracity, good or bad? Mr.

Orton. We object to that. The Court Permitted the Question. "Witness. I never heard anything good of aim ins general character was bad where he stopped they called him a little lying thief.

Cross-examination. Have heard Mr. and Mrs. Chandler speak of him in that way heard a good many speak so of him dont remember their names particularly Chandler's folks called him a lying thief. William Weir sworn.

Live in the town of Pacific, half a mile east of Ft. Winnebago have lived there since '41 Du Bay was round the Fort for two or three years after I came; I think be did not live there for five or six years, say from '47 to '53 I was a soldier four years at the Fort; had charge of the Military Reservation lrom '47 till it was sold in '53 Du Bay's claim was included in that reservation; I rented the Fort building; from '47 to '52 one Mr. Downie lived in the house near the agency house. No one was living on the premises in the winter of '48 one Joseph Rerger lived in a house on the premises for a time; Nelson McNeil was in occupancy of the property for about a year before the sale of the reservation, and built a flouring mill, barns, stables and workshops upon it; he was there until something over a year ago I have been acquainted with Dn Ray's neral character since '41 never beard anything bad against him, John Weir sworn. Have known John Dn Bay since '49, and been familiar with his premises since that time last year was the liist I knew of his being there since '411; nobody wa3 in possession in '49 but Capt Lowe, who lived in the agency house.

Lewis, of Columbia stcorn. Reside at Portage City am Sheriff; arrested Du Bay after the death of Reynolds. Mr. Dixon. When you arrested him, what was his condition, drunk or sober? The Court.

That is not material. Mr. Dixon. The other side have shown, or attempted to show, that he was drunk two or three day before the murder; wo now propose to show that he was sober, and knew very well Jwhat he wan about soon after. The Court.

It ia not material I shall have to charge the jnry that it makes no difference whether he was drunk or sober. Mr. Dixon. Very well, then. That is all.

JohnDe La Sonde re-called. Knew Peter Jessey well never heardany thing against him: Cross-examination. I live four or five miles from Portage came to Portage most every week, John CReagen recalled. The stick exhibited was the one Reynolds had in his hand. 0f FJ Wagner sworn.

Have known something of Peter Jesey for four or five years never heard anything about his character. Cross-examined. Have seen Jessey about the streets have not seen hi in more than once or twice within a year till I saw him here. Mr: McNeil recalled and examined by Mr. Strong.

Had known Peter Jessey four or five years; never had heard anything till to-lay against his character for truth or veracity; he has worked for me some. By Mr. Dixon. My relations with Peter Jessey are such that 1 should not have been likely to have heard particularly concerning bis character, Mr. Dixon.

j-You did not move in society where you would be likely to become very familiar with Jessey 's character? Witness. I did not. Mr; Strong, soto voce. You never exchanged cards. (Laughter.) SUMMING CP OS TIIB PART OF TUB PRO3E0U- TIOJT, BT MR.

HARDEN. Gentlemen of the jury. This is a case of no ordinary importance to the State. One of ita' own best citizens has been stricken down in the vigor of manhood. Tho State is required of necessity to take care of its citizens, and to protect them in tho enjoyment of -life and property.

It is a case of vast importance to tho accused. It involves his right to his liberty. Hence it is that we have come here to investigate tho facts and circumstances; to "present them to you, with all the collaterals which have a bearing upon the welfare of the State or the rights' of the accused. It is your duty, gentlemen of the jury alter hearing all the facts elicited from witnesses, to say upon your oaths, whether John B. Duliay is guilty or not guilty, of the charge here preferred against him.

There ha- been introduced to your notice, gentlemen, evidence re-gardicg the character of the accused. The testimony upon this point has extended far back int the past. Gentlemen have testified upon the stand to his oliuraoter, whose acquaintance with him extends back to a time long before we were men, before many of ns had drawn the breath of lite, and we doubt not they have told us the truth. You are aware, gentlemen, that when I opened this case, my statements were brief, I 6tated nothing but what I believed could be fully proved. 1 did not then, I do not now wish to make any false statement the ends of justice demand it not ot mo.

To aid jus tice in discovering the guilty is all I have to do. And when a man is proved guilty, it is the duty of every good citizen to see that justice meets with 'no obstruction. The counsel for the defense have asked you, gentlemen, to go back into the past. They have spoken to you in very eloquent terms of imaginary bones of imaginary ancestry. Let all this have its due influence.

1 John Du Bay as he stands before us. Is he of the same race with us lias he been blessed with the advantages of education as you have been? You must take him as he is the half Indian uncultivated and reared aloof from civilization until within a few years. whether from his peculiar tem perament he would be pecuiauy name to uavo his fears excited, and peculiarly attached to a locality where he had long dwelt. Bring such a man in collision with the hharp Yan kee of to-day. Consider how he thought himself a rich man under the old territorial government of Michigan.

Consider bow he has seen his Indian friends and relatives driven o't. and himself confined to this nar row limit of ground, from which he was at last attempted to be Consider the peculiar teraprament resulting from the union of the French and Indian races, and then, in the light of all these circumstances, judge John Du Bay. Tho sneaker then cited authorities on which be nurnosed to relv. He read from Wharton's American Criminal Law, in rela tion to justifiable homicide in defenseof pro perty, citing a case where A aovanceu upon with a pistol struck A on the head witii lnb. and killed him.

It subsequent ly appeared that the pistol contained no ball, and was used to frighten B. was held to be innocent of murder. So the counsel held in this case, Du Bay honestly believing himself in imminent danger from Reynold's stick the same doctrine would apply, ana ho be held zuiltless. He next read from Russell on Crimes, and from Roscoe's Criminal. Evidence, in sunnort of this Trinciple.

After this law, gentlemen must not say there is no such thing as justifiable homicide. A man may commit a mere trespass in entering your enclosure, but if he assaults you, and attempts violently to dispossess you, you may expel his lifeless body. Under our statute there is no difference between excusable and iustifiable homicide. Read from 1st Carrington Paine, 407. In the case there reported, it was held that a man, fearing his lite, was justiued in shoot inr down his tresoasser.

Now apply this doctrine. The question is not whether vou or I would have feared, in like circumstances, but, did Du Bay fear? If he did he was justifiable, even under the oiu, arbitrary, iron rule of the common law. Referred to a case iu point in 5th Yergcr, Du Bay feared not only Reynolds, but that mob that stood on the banks oi me canai, already streaming np, ready to attack him, The nuestion is. did he fear The speaker next read from Wheeler's Criminal Cases, 2d 408, a case where a man, assaulted in the street by another with a brick bat, stabbed him with a dngger. It was held to be justifiable homicide.

Cited another case in the same volume, 471. Cited note in Addison's (Pa.) Reports, 257, that drunkenness might palliate a homicide.i This has to be judged of by the jury under the peculiar circumstances. Du Bay's previous excitement from liquor and other causes, must be taken into account. In the defense of a man's house, he may expel a trespasser dead or alive. The mere building does not constitute all that is included in the idea of house and home.

It means the surrounding messuage, garden, yard, the play grounds for infancy all that constitutes it a home. Du Ihiy's possession was the possession of a life-time of more than a life-time a pos-sion extending back, as we have shown, tO 1T80. This la not muttor I.e. traatiul lightly. It is not to be fritted away by a joke, when the evidence is produced of its extent and duration.

Away back 1GG7, two French Missionarios, Marquette and Jol-iet, penetrated those regions where, till then, no white man's foot -had trod. They came down the Fox river in their travels, and parsed over the spot where this homicide occurred. Ever since, that spot, where the Missionaries planted a cross, in commemoration of the miracle by which two rivers, flowing to quarters so remote from each other, were separated by so narrow an isthmus, has been prominent in. the lustory ot the country. There was first planted in this State the signs of trade and Christianity.

Then was begun the title which descends in an unbroken'Jine, down to John Du Bay, the, half Frenchman and half Indian. Such a possession is not a trifling matter, to be broken up by "California tricks." Under Jay's Treaty, it is a perfect title. Road from American State papers, 'Vol. 4, 710 in regard to Angnstin rig non's title to land adjoining that lipid by Du Cited 'Jay's treaty of 1749. Cited loth Howard, 805, con-truing tho' Treaty, that the usual evidence of title in Michigan Territory, prior to 1796, was mere possession.

We have depended upon this possession, jn urging tho right of our defendant to defend Lis property fven tfj the taking of, life. We have further ehown that the' fctate3 ro-? linquished by act of the Legislature, any claim it. had to the land, to Du Bay, still further strengthening his confidence in the character of his title. This was granted ex- pressly injeonsideration of his possession--6ince 1796 What title more complete and unquestionable can be adduced in behalf of any ot the broad acres oi Wisconsin. -Here the counsel dwelt on Weir's testimonythe absurdity of the extension of the restfvatjon fn pr.der"to dispossess -Du Bay.

The fact that through the generosity pf Dij Bay, aii employee ot McNeil Syas allovvcd to build, a shanty on the land, is now'used against Du Bay. That was tho entering wedgo of McNeil's claim. It was a': mere sufferance, a humane, neighborly act ot Du Bay. McKeil tlared pot swearns others swore for him, that he was ever in possuSy sion of this land. You can find no such assertion in his testimony.

If McNeil had any rights the law would protect thauui: But McNeil sold probably to jet rid of trouble. If by the falsa and damnable pretence of McNeil to the possession of this land, Wm. S. Reynolds caine his death, let his blood bo on McNeil's head. Gov.

Doty had sworn that Mr. Kinzie, the Indian agent, an U. S. officer, begged the privilege to build on this land of Poynette, the then ccupant. Tho evidenop of the little girl living with Mrs.

Lowe, only showed that Du Bay wis surrounded by vultures and harpies, who were seeking to strip him of the little he Sepoys about McNeil's mill would bond him forth, homeless and a wanderer, over the fair fields that were once the sole inheritors of his race and his tribe. old men in this country could show so rair a character as thisViat had given Du Bay. I would shrink from such an ordeal and I claim'to possess a character approaching at least the average standard. That characterwas based on the testimony of the old Pioneers, a noblo band, men that would compare favorable with the members of the U. S.

Senate. He has seen the tomahawk gl'fnt on tho soluier bayonet; and down to the fatal occurrence last summer, he has stood up everywhere, and on all occasions, as the peace-maker ot the west. From away back to the time William Brown knew him in Detroit, sa far as the evidence here goes, he has been one of Christ's peace-makers. God nevtr made such a man, who could change Ins whole character in a single day, and imbrue his hands in the blood of innocence, with wicked and intended malice. Can you believe him guilty of deliberate premeditated murder? No man leaps from perfect innocence, quietness and peace, to be a black-hearted murderer, on the instant.

Such a. transition js the law. There ho could find ample redress lor ins grievances. JNot so his victim. It is but recently that he canio into our State.

In a few short months he was sent by this John B. Du Bay, to his last resting place. Du Bay had been spared to enjoy a fair trial loi his olleiice. Reynold has not been spared so long as Du Bay, nor had ho opportunity to nestle for safety beneath tho arm of tho law. Gentlemen of tho Jury, it were well for you, before hearing tho arguments of tho counsel, with nothing but the facts in evi dence betoro you, to ask yourselves tho que tion, what etl'ect has this unaided testimony had upon our minds? Of tho killing there can be no doubt.

It would indeed be folly to deny it. The prisoner stands charged with murder. Murder is defined by the stat ute to bej the killing ot a human being, without tho authority of law, by poison, shooting, stabbing, or any other means, or in any other manner, is either murder, man slaughter, or excusable or justifiable homi- ciue, according to the tacts and circumstan ces of the case." Now let us look at the evidence. Can we from this infer an intent, a deliberate intent on the part of John B. Du Bay, to take the life of Wni.

S. Reynolds Every man is presumed to intend tho natural and necessa ry euect of his acts. Did Du Bay know the effect of this act in employing the deadly weapon Let us look at the position assum ed by the defense. The eloouent counsel who opened the defense, said that they took the broad ground of justifiable homicide. lie has said that all killing was not murder, Every one of ordinary intelligence, well knows that.

Killing becomes criminal nly when there is an intent to kill. The defense took the ground and attempted to prove that tho prisoner was defending Ins premises, his house, his family, and his own life, from the assaults of the deceased. Does the testimony at all sustain that view of the case Does it show that he was actually protecting his life and property? Was there anything done by the deceased to indicate a design on his part to commit an assault upon the house or person of the defendant? True, hard words passed between the parties. But the law does not excuse a man for killing another for that reason. (Hero the counsel read the law upon this point.) On the contrary, is there not much to 6how a state of things the very reverse of this Du Bay went out of his own castle, and took with him a deadly weapon.

In all the evidence, is there anything to prove this act necessary? I can find nothing. I know not how you may be affected. I argue from my own convictions. As there may be some question, and a question will doubtless arise as to whether this is murder or manslaughter, I will read some authorities, drawing the line between murder and manslaughter. (Read.) If Du Bay premeditated death, it was murder.

Is it not evident from his threats, that he did? Did he dnt employ a deadly weapon? It would he hard surely to find a more deadly one. XCeHCl o-Q a.utlority on tU vriotu criminality in killing.) Gentlemen of the Jury, I submit to yon, taking the testimony, stripping it of all which has no relevancy as to the guilt or innocence of Du Bay whether there is any evidence that Du Bay feared that his life was in danger? Does it appear that he did from the acts of Reynolds? Do his own acts show anything of the kind? From the authorities I have just read, we find there must be some reason to expect personal danger from threata. Had Du Bay any otLer reason? None at all. Jessey says that Du Bay put his hand against Reynold's breast and pushed him away, and wrested the gun from his hand without appearing to exert himself much. Doea thjs indicate that Du Bay felt himself in great danger of Lis life? Reynolds did not at any time raise the stick in a striking attitude.

Conceding that the main witness on the part of the defence, the boy Jessey, gave the testimony altogether true, notwithstanding the relation in which he stands to the prisoner, and the deep interest he would naturally take in his welfare, and see whether this testimony is sufficient to prove that Du Bay had any reason to fear for his owd personal safety. The defense have tried to prove pa Bay a coward. They will argue this cowardice constitutes no excuse for crime. They have attempted to show that that he was drunk. This then we need reed not dwell upon, as the Court has already told you that drunkenness cannot extenuate crime.

fict was none the less criminal on that account. Let us examine the circumstances. The act of cutting down the house 1 the threat in the bar-room 1 the threat in conversation upon the side walk I the threat in the presence of btuart and llagan that he would snoot them in cold blood end then laugh at them. That he had been having a talk with them (pointing at Reynolds and Craig's store) and had told them he would shoot thc-m if they came upon his premises. Hagan testifies, that he heard nothing of tho conversation, except the last And I submit that these amply prove the intent.

lie went deliberately and cut down the house. He shook his fists at the men at the mill and waved his hat at t'-tin. Did he then go away into his own house or stop where Reynolds would see him, and afford opportunity for engendering a quarrel and fretting an excuse for the act which he had already designed accomplishing? It is true that high words passed between them. If we are to believe Jessey, Reynolds used hard words, threatened to cut Du Bay's heart out, all the while using tha most shocking profanity. DulJay then goes into the house, gets his gun and undertakes to return by tho front door, but Jessey prevents him, and he goes out at the back door.

Reynolds does not approach him in a striking attitude; thero is no provocation DuBay raises his gun but does not lire. Hard words are all this time passing between them, at this point Jessey speaks to them DuBay turns around and walks away just two steps. Reynolds, who is a short distance from him, said something more and raises the stick then DuBay turns and fires. His turning away was a mere feint. DuBay belongs to a race notorious for tricks, and this tritik js played to furnish a pretext for the deed which he immediately perpetrates.

It was not enough that he cut down the house that he had tantalized him by jestures it was not enough that he stood in hia way when he was incensed; but he must get his gun and go out to provoke him. Was Reynolds in situation to offer a demonstration upon the house? No. It was all a trick to furnish an excuse for executing his previous threah. This, gentlemen of the jury, must follow if we accept the whole of the boy Jessey's testimony. Can you believe that DuBay had fear for Lis personalis house or his family, when he had just come out with his gun and ready to send Reynolds to eternity? Taking all these circumstances, can you find it in your hearts to say that thU is anything but wilful murder All this is upon the presumption of the truthfullness of Jessey's testimony.

Is this testimony true Take This shows the election of Randall, Hastings and McG raw, as the vote in the five towns in Jefferson included in the above, is but 298 against Mr. Hastings. Allowing 40 majority for nabicb in La Pointe county, and including those five towns, Mr. Hastings is ahead 63 votes. The DnBaj Trial.

We continue our report to-day. The Court House was crowded to repletion lust evening to hear Hon. Harlow S. Okton's argument. A large number of ladies were present.

It was a powerful and brilliant effort. Our report is but a eynop-opeis of his argument. P. S. At the time of going to press, the arguments had been closed, and the case sub-liiuted to the jury.

Old Bock" la a Tight Place. Forney, in the The Prtss, very unkindly reminds the President of the following pas sago, in his letter to Prof. Silliman, touching the Kansas Constitutional Convention The Convention will soon assemble to perform the solemn duty of framing a Constitution for themselves and their posterity and in the state of incipient rebellion which still exists in Kansas, it is my imperative duty to employ the troop of the United States, should this become necessary, in defending the convention against violence while framing a Constitution, and in protecting the bona fide inhabitants qualified to vote under the provisions of this instrument, in the free exercise of the right of suffrage, when it shall be submitted to them for their approbation or rejection. Passages in "Old Buck's" letters are constantly rising up in judgment against him. Sound Democracy In the Lecompton Coostlto-' tion.

The 'following is the first section in the Slavery clause of the Felon Constitution of Kansas SLAVERY. Section 1. The right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase, is the same and as in violable as the right of the owner of any property whatever. This section of the Kansas Constitution, the people there meet to vote for or not vote at all. It is not submitted to them.

This is what the Argus calls 14 an unex ceptionable constitution." Information for Tax Payers. As tho time for paying taxes has arrived, persons may desire to know what proportion of their taxes may be paid in orders, and what in cash. To pay $100 taxes, it may be paid as follows In City orders $51.75 In County 8.67 In State Script 6.28 In Cash i 33.30 $100.00 Draft at Sight." The following letter was received this morning, by a business firm in this city, in answer to one from them, states that they had drawn upon the writer for $176 50 at sight. It is rich and racy Nov. 24, '57.

Messrs; 'j' Madison Gents: Yours of the 19th duly received. A draft fat sight Ye Gals 1 what delightful and refreshing words. The day confidence long deferred, bath come again at laat.r A draft at sight for $176 50. The milleneum surely approacheth, and the lion and the lamb shall lie down together, and a little child shall lead them" with a tow string. i Acquaint me with that man, whom in your guileless confidence and unsophistocat-ed confidence, you suppose to have the sum of $176 50, which ho is prepared and anxious to pay at sight," and I will show one who is a fit ininato of a lunatic asylum, or else has been or is at the present an incumbent of a subordinate State Department The fact is, that there is so little confidence existing at this time among our business community, that I feel great embarrassment in discriminating to whom I shall pay the whiclr have insensibly accumulated in my treasure box.

Your application only a ds to my embarrassment, as I much doubt the strict integrity of the purpose to whi Ji you inigh donate the said sn should you so receive it "at sight." My duty as the custodian of said amount, together with the scriptural injuction, which has been duly served upon me, relative to those who fail to provide for their families, absolutely at this date, prevents my stating the time when it would be convenient for me to accept the favor proposed in yonrs. 1 I remain, yours truly, i i i i Dbbb County Official. Randall, Scburs, 204 Cross, 111 201 113; Thomas, 198 Jones, 206 Habick, ,203 Bouck, 202 Draper, 200 Squires, 206 McGarry, 119 109' 113 114 115 111 Hastings, Jackson, McGregor, Macgraw, Later from Washing: ton. New York, Dec. 3d.

The Herald's Washington carrespondence says The President will send into the Senate the name of Nathan Clifford, of Maine, formerly U. S. Attorney General, for the vacancy on the Supreme Court bench. I Bay said in his own honse. It he thong'".