M.-ndavniorrin. I
or the iroun-I
J..(! if. K .i,.- n
1 elinmrv -iio 1 went
. .o. at stand Flat
he! the t
t :. :.evri were at work ; s-ked Charley
en a';iv i;-n pi op tne monn-
i.. .11 V.--I. I lav : he sa.d he liada
: rr.eu
j,, -1!' have gone r.; bat they were so
)..i'v t...-v doln't see then : 1 asked him
if be bad heard of the cur ler: t.ld Lim
Li-cit it; he said it was hard; tb was
K :' Hand lo'ci..-k in the mom
i; .-; ;.c:s-down f ii'th.-r ai'.l Charley
. .: ,i I to b'm : i ljltt I lip toward the
:.- wl..-n I started lop-.; ImVl
r- anyone fr-mi "here 1
n-.i.-w ! knew !!." very well aud they
v.-.i' 1 si..;, and hn.k down ; 1 was travel
ing. ,1 fjol.
Cha. M-Cracken Live in Ligonier;
r...i,.-.!ii-. r 27lli "f February ; a mork
i;.g lor I 1. arli Vaneer; remeinlsf wher
Hamilton was arrested ; he lived
, t where I was workinf; Charlie
s.ilL...: Vaneer tol l i.if that they bad
v-.il a omiple of fc.iow going up tlie
mountain walking fast; I asked them
v ho ihry mere and they said they did
i:-..t know; I remember hauhmx timber
out from whr-re they were working on
tlie 27th of February, it was near about
f,i,r uVI.x t when 1 left with the last
i. st load of timtxrr; the place where I
haded (I tin:her wan about 7 yards
jr .mlho pike; they weie there when I
t.-ft: liuil')D with nie aud Char
lie was up further, about three or four
sard.- , tby cut some after I left, alxive
im-re ; 1 was w herelimber was cut ; there
was some cut above there before that
ii. iv : the nearest that ? cut was about
.V.i yards from the pike as near as I can
t-ll.
t ps-exriiiiination. H.i'iied the tim
l r out on the pike ; the laxt trip I made
wa s'k.iH foiirjo'ciiiek : do liot remember
v. hen 1 made the ti ip Istfore that, hut
think it was about four o'clock ; don't
r-iimiuiier haw many tri I Iimde that
.!.. : ai.i now working for Watson and
1 ..-ler Menoher at I.i',"iii-r; they are
l.ro'if.iTH.
'iiaoe Yarnes r,r.f;o'od. Know Xoah
M.irker : may have told him that on the
lifti-riRi-.n of the iiiuHt I had nn
enip.eof men pug p 'he mountain
hut ot:U not t-ii ho ti.ey were, but do
not rme:u!er having any eonventation
'. ith 1 i i in .
t'r.-ixauiination !f I told him that
1 roni.l not recign.r-tlie men it waa
.au- I oi I not deem it r' nor I'-
, ...... ...
the men it wa
lit I" do
...;:h Marks. Live
Ligonier;
kuo Charlie Varn.fr; had a coliver.ia
t.uii with hi:u after the murder of I'm-ir-.ji
r in ii.y ston-; he told me that he
i.ai s.i'-nto in.'n go up he mountain
l hut night, but could not U-ll w ho they
. r-; Vaneer said nothing to uie.
Cr'sw-cxHiiiinatiun. It as iefore the
Ni.vly laiya aere arr.te.1.
.1. M. Hamilton. Live in Ligoneer ;
1 i,..h in Vaneer; he t dd me that he
smd his tatlier were Rawing s cut Ui the
in .iintiiu on the day ol the murder and
tu tm men p.-.ss hut they w ere too far
ai.y Su tell ho they wore.
'rort- exauiiiiatioii. He told me this
in the burlier shop, on aturday previous
to the :im-M of the Nu-ely Isiys.
W. M. M. liain, Jr., n the l'7tli of
J".-hruary met l-ei Jielven and VA.
Wra, k :i on this sole of I.igonier ; I
them with ararriaare; saw Mi"raik
. n hVr ards on tiie Utli of Man h; he
t.. d nit that he and l'a-ener met a man
.. i the iiKrfiutain : that he wa little
'.e.ivi. r than mi self with sandy hair and
Im i.v v moiwuctie and fair complexion ;
l h.il neither he nor IJeener knew him ;
r ial he bad as'-,l l'.,i ner if he kne
-.lie nun and that he said that he did
lint : lie iieard him say on the day of the
hear ng that he did not know the man ;
that he wasalsiut my site with light or
sandy moita iie and hair and lightconi
!cvion ; heard hiui Kay this ill Mr.
'.1,'lnith's oilice.
CrosKcxauiined -
Am no nd-ition of
d-fe.laiits: went down to see IhCrack
en iu Iim-Jth of Man h; did not ouVr
him a drink .f whirkev to come down
i.M.I testify about pjssinga man on the
t.oiuiitain ; simply ollen-d him a drink
nJ he n-fu-sil i! ; Anthony Nicely wert
ilh me ; was subnenaeil aa w itness at
toe hear ing by the Niivly's, but was not
a'ied ; ciiiild not tell whether all the
witneys.-s were at Collrolh'a (illice.
tosirir.' Nii-elc, re-caiied- Heard him
Mr. ColiVothV otliee on the day
..t the hearing that lh man lie met on
l!ie isoiiiitain was about t lie size of
Mrllvain. with a heavy uiousla. he, light
. ir sandy iu -oior, light hair and fair
vi'.HpleMon.
( 'iMH-cxamiiied lie did not say I saw
a man but never saw Lim before, and
v hen ahked to give a dcM-ription of him
en that he could not answer until he went
to ue jail and saw the piisoners; do not
know that he went to the jail and came
l.a.k and said that hecould Is? of no use;
do not think he said anything when he
eaine back.
Wui. N. Na-e'y Tcstilied to the same
convernation as guen above by tieo.
'a-i-!y. and said, I live in I.igonier; on
tny ivturn fixiin the hearing made an ex
amination of the ground at Sand Fiat;
Nhvly and 1 went down the hill and
the other iat iea w itii us utond njion
the road: we till them to go along the
o:n! , w hen they were in ths middle of
i he roa l could soeabout 1 of their bodies ;
when they were ut toe IsitUim 'of the
:-.in4 I'iat could only we their heads and
ji.irt cf their shoulders ; roa'J not reeog
uie any one ; was standing at the first
stump U-low he r.s l:,aui pretty well
:.rmaiu'.cd with the roads around Ligo
iiier vi.il' y : wim.ws was shown a map
atml askei to niiit ont the various roads
find locutions on the map
C.Mt-cxa mined Am acouisin of the
t woiieu'iidants; am not thicker w ith them
than 1 think 1 should lie; I go more
wiih stranrs.
Noah Mart Have lived in Liginier
Valley all hit life1; witness was shown
the map referred iu above and said he
onsiileiid it a correit representation.
William Kiukle Live ill the Ligonier
A'alh'y alwut -111 yaids from the hkmier
va't euunty 'line ; I w itness was show n tlie
tunp reVired to aliove and pointed out
i he roads o l locations to the jurr ; on
I'ri.lay after tlx? murder I was at Jenner
tV lloa.'.s: left tlu-re and went to the
toll gate ; that is near tlie place that Col.
Hamilton lives; he was arrested that
day; stayed all night at the toll pate and
left for LaiigtdiiiHtown Saturday morning,
stopped at tlie Sand Flats on tny way
liome : my wife was w ith lue; I stood her
hi the iiikc and went down to where
r lie limlier was cut ; I went down to see
an.1 ti-fy my own mind as to whether
any one could lie recognized passing up
the pike; 1 could we the top of her head
ih Kline places and other places could
not see her at all ; 1 could not racognise
.r walkingalor.g the road; she stood in
the middle of the pike; ! know where the
hand Flat is; it is alsmt ii yards long.
Cross-examined I would eall the Sand
ilal aliout oO yards long ; it is about 1"0
yanU K'uveeo the two hills; my wife- a
middling siw; he is not present here; I
wtood rs-r right u the flat ; the pike mav
1 41 fret w ide ; there are a good nianv
treencut down there; went to the near
-st that was cut; I suppose it was
iietween oOand 75 steps from the pike;
I stepped right down fmin tite pike ; it
as very (ecp ; H)ld not say bow much
tdcva.iou; between the point where I
rtatid.rp nd !w n.iddi- -f th iU
vhere wa tauwd. -hen UL.
tiinlwr atjd hnuJi : ronld not (n-e any-
thine oj at that end of the tlat : my w-.fe
ia the ., iie j-.laoe all the time; we
were wakiiiK ; ain on pud lern wi:h
Mr. VaiH-er; do not know there is fciiT
had feeiine between us; 1 liaxe none; I
Cirm a i.ttlo.
l-i;rti-: IK ri' know if there have
been my tn- cot rter,I wu tiiere.
Cn exaniin.it ion f'lwn at Iian-
liir
own heani .me one say that aneer
tdi.Mih! hae wm the tin-!; ftwin there
and i thou-ht that I would po up and
if tiif y ronl t W "ii fro'n that j-oii.t.
J. A. Ka r I.ive in Jennertown ;
went along to Jielj. an:h for tra ks the
morning after the lmirper imipler;
rie,t fnm JfnnerUw n in the nMninit ;
the tirht tra. ii! we naw were at the road
that ieads off the 1'ike down to Fried-I-ne'g
mili ; they were the first trarks
that I aaw ; Homebody liail kid down
there to drink ; the tratka wer poin? to
wanU Vinberp-r'a; from there we could
not see aiy until we came out on the top
of the hill ; the tracks then came oat on
to the pike ariin ; then we oainff back
toward Jenner ; hxiking for tracks and to
aee if they had not strut k out in the field
gome pi ; the fin tracks I saw were at
Henry IV kings; they were cominp
df.wn" over the bottom in the direction of
Cmlierp-r's : rilit alwve 1'ickings wiiere
the road make a turn ; I measure 1 tliein
at ditTerent joints; the (mm boot tracks
measure.1 in length 1(V in.-hes and the
leather boot or fhoe was 11 inches long ;
width of the 1U of the foot 3J inches;
toe about :!l inches ; the heel measured
by 2'. inches; the rise of the heel
at the instep tiiree-fourths inch ; t! gum
looU hal len worn considerable; I
could tell that by the trcu-k ; I took par
ticular notii of the tra ks made by tlie
leather boot or sh ; there were two
rows or nails run around the outer edire
of the heel; r''ht in the centre there
were four nails in diamond shajie. (Wit
ness was shown the cum and the leather
boots exhibited in the court and said
the tracks he had measured could cot
have been made by those boots.) The
gum boots had no leather soles; I have
the rule with nie that I uhed in making
the measunnents ; we di-overed mine
track coming don from Vmlierer'g to
wards Jennertown, but cannot say wheth
e. h.t -
Lcoming over the bottom or not ; would
i nirf sav thev were the name tracks; was
er thev were the same tracks that I saw
not say they were
at the Cmbjrger sale; was in the black
smith shop acrusa the road Iroin tlieir
house; found an old pair of gum boots
there. (This as objected to by the
Commonwealth as being too remote.
(Jhjwtion sustained.) Live in Jenner
town and am in the furniture and under
taking business; on the night of the
murder was down at tieorge Coun
tryman's; got home between 10 and 11
o'clock that nUht: went out the next
morning to look for the tracks between
S and y o'c'km k ; went towards Uuiberg
er'a ; weut on to the I'mherger hill ; it is
alut a mile and one-half ; Kufus Ihiuch
and AlU-rt Hay and Mr. Shaulis
w. re in the gang with me ; the evening
ofthel'7th of February was damp and
foggy; could uot tell w hether it froze
mn.h or not; 1 drove in a buggy from
Country mau's; the impression of
the loots or shoes was not frizen
very much the next morning
wben I went out; the soft
condition of the snow early ia the
evening would prevent anything like a
nail track remaing in it; I measured three
track"; liufus lUuch as!shind me; and
the other two were ahead ; I called their
attention to my measurement ; I told Ku
fus and John 11am h of the measurements.
I had made: they were nail murks in the
middle of the heel; they were in the
centre and duimond ahujie ; they were
plainly noticeable on thu leather lxxit
tracks ; clear up the bottom ; went up the
pike as fai as the Harris farm ; I uu-as-nicd
the three tracks : 1 measured the
leather tracks twice and the gum
boot once ; made the meisurinenu in the
Kitt.Mii iu the Friediine or Ticking tield ;
there were at h-ast four men ahead of me
lip tlie lxittom ; have la-en working ill
my shop f rthe last two or thr.ie weeks;
some have la-en up to SnnerM a couple
of times; have not been upa doxen times;
have liecn hunting np evidence in this
case .Ml my own hook ; thought I had as
much right m any one to do so; have
met Iteegel ; met hiiu in Jennertown, met
him at the Smicrst House in Somerset ;
have met C.astiger at Jennertown; met
him once in Stoyestown and met him at
his own house; in working up this case;
was working for the reward when I start
ed out.
lie-direct 1 o.krs!ood that the Com
monwealth had offered fio,0t"0; I
thought I would get it down Una and
keep it to myself; none of the Nicely s
said am thing to me alout it ; nobody of
the defense spoke to uie about it; I
was subKeuaed by Cotfroth.
Cross-examined I think tlie reward
was for the murderers and the money ; I
thought the reward was offered by the
Commonwealth ; did not sjiesk to any
one ahcut it; saw adveitiscmcr.t in the
paper oti'ering reward.
Ei-direct Cannot tell on what day 1
was subpu-iiaed ; it was last week; 1
think it was on Tuesday or Wednesday
of last week; I read the advertisement
in the papers; I think I reaJ it in tlie
Hl.K.M.D.
When Mr. Hay had left the stand
couuacl for the defendants olfcred in
evidence the papers, receipts. Ac, that
were found in pucietbook ; also olTered
stenographer's note of untj umn)- of Mrs.
I'mherger taken at the Knput
hearing before JuJge User. After this
had been done they announced that they
would rest and the Commonwealth be
gan their case
IS KUWTTAI.
Pavid Bran. Lire in I.igonier town
ship, Westmoreland county; am a farm
er ; am acquainted witli I'avid tieeting ;
met him on the day after the Nicely boy
were arrested ; he was working on a aaw
mill on my farm ; he told me he had not
seen Joe Nicely on the L'7th of February
and could not clear these bovs out of
this ease.
Cross-examined I asked him if he
couldn't clear these bov out of
that scrape and b said that he
couldn't, that he had not seen them.
Isaac Serena K now'.Ioh n Koont t li ves
in Westmoreland county : I live in I.igo
aiw township; am a farmer; I aked
John Koont x whether he could clear
them ; he said hat. ver they want they
can got out of we either here or over
there; what I knovcau do the fciorlyg
no good ; (his was probably a coulee of
weeks after the arrest ; hare knos n Asrou
Marks 20 years: seen him in Ligonier (he
day Nicely were arrested: went home
together : it w s ts-fore I knew of the ar
rest; lie as; 3 he couldn't tell w hen he had
een tho Nicely lys K-fore the murder
( ;hat he had la iked with Joe for an
hmr on Thursday after the murder; I
saw Marks on Ilh day of May ; he told
me tiien he wasn't going to swear, and
couldn't swear thit he had aeen Joe on
Wednesday ; this was in the presence of
Jaob Robinson ; I met him again on last
Sablmth a week; I told him 1 beard he
was coming over here to swear that it
was on Wednesday February 27t!i, that
he had seen Joe Nicely and that he had
told me it wag on Thursday and Dot on
Vilfc-!i-; b w il well I'm MM it don't
m..l ( ! ;.- diif. :ne : I -teare neigh
tors nn.l if yon say ll.st you !aow I will
have to po and ttntradii-t yon ; he said
lie wasn't poiug to swear that il wae on
Wedneay.
Hl'NT sti ai. x .o.-K.
fVs-esaTii;ncd--Ve have lad nodif-licuiliei-;
nn law suit ; they did not have
me arre!e-l for stiir.; a g"ise; I did
irt steal a jpose from hii fi:her-in-Uw,
tak it borne and wake my wife up and
fok it.
Wm. V.-IIvatne Live in I.igonier
township; am a firmer ; am a brother-in-law
of Jiwph Nicely; know Asron Marks ;
be told me did n it see J.ie Ni.tly
Wednesday l'7th February, day of l":n-ls-rger
mnnler, but was in Thurs.lay he
saw hiin : this was on "th Mar.-h after
arrest; said he couldn't swear it was on
the 27th because he knew it was on the
2Sth.
CrcxM'xamined I conlda't l niistaV
en in what he said ; he used the words
Wednesday and Thur lay both ; I am 72
past; I don't remember everything that
occurs hut don't think I am mistaken
about this.
Noah Shaulis Kdow Aaron Marks;
had a conversation with hiui in Ligonier
after the arrest of the Nicelys; I said
people say you saw the Nicely boys or
one of them on the evening of 27th Feb
ruary ; he said no I did't B.-C. them and
can't help them; he said ho didn't see
Joe the day of the I'mherger murder.
Benjamin IV-eds, Ej., Live in Ligo
nier township, Westmoreland county ;
am a farmer; was Justice of the Peace
but am not now; know Aaron Marks;
he told me two orthrejdays after he
arrest cf the Nicelys that he couldn't tell
when he had seen them last; know John
Koontx; orni farm near Joe Nicely's;
John KoonU told nie he saw Joe Nice
ly coming up through a field in iut bot
tom about 2 o'clock Wednesday.
Jacob Iloberta Know Aaron Marks ;
he came to my place after the arrest of
the Niivleyg to find out what day Joe
had bought corn from me ; told nie thea
that he was not going to swear that he
saw Joe Nicely on Wednesday, February
27th.
Joseph Ieeds. Live iu Ligonier town
ship ; am acquainted w ith John KoonU ;
on evening of arrest of the Nicelys had a
conversation with hiiu ; he said he did
not know w here the Nicelys were on the
27th:aaw him next morning ; he then
told ine he didn't know w here either of
the Nicely boys were on.the 27th of Feb
ruary. Cross-examined I asked him if he
ha.l heard anything of Nicely Imys ; said
he did not ; that they could be cleared
easy ; his boy. West Ftrry and Niaely'g
boy bad seen hiiu that night, but that he
did not see him that afternoon.
I. B. Matthews. Am acquainted fiih
Giltiert irsa; had a conversation with
him after the arrest of the Nicelys ; said
he was at Joe Nicely' home till a little
after 12 o'clock that day. and could clear
him that far and no farther ; have lived
in the I.igonier valley 47 years ; am ac
quainted with every road in iU
Map shown to witness and he ex
plains to jury about roads in neighlior
hood of L'gonier and w here the Nicelys
live
Hampton Smith Know (iilhert Uyf,
talked w itii him after the arret ; he said
he had been at J.Jo Nicely' the day of
the murder with a load of loal, In the
neighborhood of 12 o'cl.s k, and could
clear him up that far but no farther.
T. J. Laughery Know ii!lert Iioss;
had a conversation with hiin after the
nrn-stofthe Nicelys; he said he had left
Joe' boil-' before 1 o'clock on the
27th of February.
Adjourned to 7:00 p. n.
KVEMXil SF.SMOS".
Philip Walker Know John Taylor;
Know his character fjr truth an J veracity
it not g' ml.
('roa-eiaruiiiatioii K'.'erj'hody jys so in
t!i lu'tgliborliood.
Charles Vaneer, Itx-ailed Know Oilbert
Ross; had conversation with him after the
arrest ; lie told nie he left Joe's between 12
and I o'clock on February 27. Witness de
scribed a road from Nicely ' to top ol the
mountain not sir' n on the map exhibited
by lie ilefense. I pointed out the log on the
mountain that i 4 siwing to Spiire
ltaiuli and Mr. I'litililHJ yotcrjry; my
son wa along.
Iwis Vaneer Win along with mjr faiher
yenterday and tointed out the butt of the
log that we sawed on February 27lh.
The defense objected to admitting testi
mony in regard to the survey of ground at
Sand I'iat. The Court reserved decision un
til this niurnln.
1'cter Albright Was hi Somorspt last
week; know lwis Paine; haloid nie that
he was called to prove that lie had seen
I ia e Nicely on the 27th of February, but
that in fact he had not seen him.
t'lcituil McMillan Son of the SherifT:
know Joseph and IlaTe Nicely ; have fre
quently been sunt ixruii! by them. The
s.iunsel otfered to prove by this witness that
Pave Xiclt-y was eating things to ke him
lick, the definite objected and t!i court
ruled that the evidence was not adniiwihle.
Joseph W. Ambrose Was along when
rUuch got the bat ; the hat wa hanging
against the partition ; I exanihwd it; there
was a hole out of it ; lucre was no w ire rim
in il at thai time acnw the hole ; u along
to old Mr. Niivly's when we got the money ;
be said "you must not Miluk hard of me
lxcanse I lied about the money," or words
to that effect.
Cross-examination Was at the door on
the outside when I examined the hat ; a boy
was holding a handkerchief inaije at the
time.
Albert Hoffman Followed the tracks;
there were no marks made in the middle of
the hod by nails : the tracks were made in
snoar,
Cross examineij Saw no marks in the
middle of lite heel t ah.
John W. KoonU Irollowed the tracks;
there was no mark made on the tracks by
nails in the middle of the heel ; there were
nails on the side of the heel.
t 'russ-examined Went down on my k aces
to look at the track ; I stooped down to ex
amine th tracks; there was no marks of
nails in the gum boots.
Elmer 8nyder-l.lv In Jenner township;
drove over to the hearing from t'mberger s
to 'S.iiir Raurb's In a carrla.se with Wm.
Thomas, Flla Steam and Nannie Homer ;
Thomas and 'I sat on the front seat ;
Thomas asked F.ila Steam what kind of
lookini; men they were ; site said one was
tall and the other was short ; one bad on a
cap and the other a bat ; said they bad on
overcoa's something like the one thai be
wore ; be had on a sort of a rough, grayish
coat ; she did n.t see his forehead or nxuis
tach . did not say anything about the color
orhUtaoe. '
Cross-examined Was living aboni two
miles west of Jennertown ; went We on
She lrtth of March ; came hack on Monday
last ; they sent for me to come.
Ad;oirued fo 8.3" a. m , Thursday.
Frwra l .tf Iiailr iluiui
The sixth day of the trial of J.Hrpb and
Ivid a'icely for the munW of Herman
Fiiiberer closed with one swcch from each
siilf yet Ut be made.
tJeneral CoflVoth will sum up Cr the de
fense this morning and will be followed by.
Hon. John Cessna on part of tlie Cuiuruon
wealib. It is more than probable thai alf
of li morning's session will be rosumed
by counsel in tuoimiugup aud that Ju.Ire
llaer will deliver his charge and give th
case to tlie jury this afternoon.
Tlie day was a trying one on the prison
ers and when, at the close of court at 9.13
i last cvMiiny tle-y wep tf.ken jek to .r;?un
j by jheritr AlcMiUen, th.j- Hiked liaasml
' arixii.nis and nervous. Th intense interest
isk.-n by the general puWic in the ca has
not atuited. but lias rather increased each
tlay as th eis.1 draws near.
Mr. Ko.er ojiened the case this aftrmrxin
on jiart of the prosecution in a speech of an
boar and f..rty minute in length. Jl!a ar
guments were clear, ioreible, convincing and
i.jrica!. We g; ve below a very brief synop
sis 4 what he said.
lie was f.Olowrd by Mr. KixhiIx, who, iu
the two hours and thirty-seven minutes that
)iefid.r, ma.le st,-o:iq and el'neiit jdra
ftr :le lives of his clients.
We ri;ret that w are unai.le to give both
sst-iio in full.
KOBNJ3U SiMslOIC.
Henry Uiu. b, recalled
(The court ruled that testimony in regard
to tlie surey of land ai Sand Flat could be
gietn by iheComuvmwejlih) in l ie a r.irvey
of tlie land at the hemlock, shown me
by I he Vaneers day before y ester. lay ; the
aaeasurement was made by myself and X.
li. t'ritciitiel.I: the two Vaneers were along ;
it was seven and three tenth rod from the
butt ut the log to the center of road, at point
No. 2, on t le draft, the eastern line ia 7)
rods and western line ten and f.mr-tenlh
rods ; tlie length of the Hat ia about !K) to
I'M yards ; the elevation of the pike is 30 feet.
Mr. Criic-hlield walked on the pike and I
stood at the ball of the tree at point No. 1;
could soe him as far as the waist when he
was in the center of the wood and down be
low the hips when be came nearer ; as be
w alked along the view was obscured by the
foliage; a; piiuto N". 2, 1 could see bis head
and shoulders t the center of the pike and
down to tlie lower art of his waist when
he came nearer to me at the edge ; could see
him moving along to the point So. 3, where
I could sec him about the same as at Uie
point marked No. 2.
Cross-exaruinatioii. The butt ia on the
north side of the road.
X. B. Critchneld Was along with 'Squire
Rauch and he!si to make the measure
ments; Mr. Reach wslked along the road
while I Mood at the butt of the hemlock
tree. The witness then testified practically
the same a Mr. ltaucb.
(rosa-exaiu'.iied The trees between the
point where J stood on the pike are large ;
did not notice any spruce or hemlock ; saw
some birch and bass; stepped ftie pike:
it was eiUt paces wide; The survey w ar
then ottered iu evidenced
Thoa. Sinclair Was working on the 27th
of February for Mr. Vaneer ; I w as where
they were sawing the tree ; left them there ;
could see any pvrsou passing along the pike
Noah Serena Know Havid Nicety ;
worked w ith him February 2d at Mr. Kim
mel's sawing wood ; was sawing with a cir
cularsaw ; be was handling wood all day,
putting it up on the table ; the wood was be
ing cut lor stove wood,
Cross-examined Some pieces were six or
ehjbt inches through and four to six feet
long ; others were smaller.
John li ui. h Tuere was no wire or steel
riiu on the hat when I got it; it is a little
more worn than w hen I got it on account of
the number of limes it has beeu handled.
CroTS examined T sik the hat ln.nl the
wall myself: I. ircnu brought in the lamp
aud I took the liat'd iau; the lamp was
taken out of the selling room into the kitch
en. Martin O'Connor. Was along with Ranch
and Shaffer when we got the cs
book from Jie Nicely ; was present when
the pas hooks were fcund at Joe Nicely's ; I
found them in the bookcase; we all exam
ined them ; there was no money in any of
t hem ; was at David Nicely s on the day of
thearresi; heard Mrs. Nicely say she could
not account for his whereabouts anywhere
during the week except ou Friday ; and, I
think. pvriiaMi. Monday; had conversation.
Cross-, xarnii.ed Was at Joe Xicely's on
the 'lay of Ihcarrest ;took all Ihe pass books;
there was no money in any of them w hen I
searched ihern.
Riiliia Shatr.-r Was not present when the
hat was got; was present when the pocket
book was gol : was present when Ihe pass
books were got ; Martin O'Connor found
them , we all examined them ; was no moio
ey in any of thiuii ; examined the tracks to
and from I'uiberger's ; examined a dozen or
more triks closely; there were nails
around the outer edges of the heels ; there
were no nail in the center of the heel ; Ibeia
was no diamond shaptd impression iu the
center of the htl.
Cross cianiim J ,eft Ranch and Joe
Nicely down stair when U'Cinnor and I
went up stairs to search ; was ont of the
room and hit them together.
Hammer Caultield Made examination of
the tracks; cannot tell how many; there were
nail tracks on the outer edge of the heel;
there was no diamond sbad nail track in
tlieccincrof the heel ; beard conversation at
lime of Jiavid Sictly's arrest ; Mr. Nicely
said she did not know whrre her husband
was between Monday and Friday.
Cross-examination I asked her where
be was working last week ; she said he
was woiking lor Kimmel en Monday,
but she could not ay where else he
was during the balance of the week until
Fri.lay ; she did nut nay )ie was at home
ever)- night during the week j the conversa
tion was shortly after tlie arrest.
John Thomas Know John Kaylor; know
the community iu which be lives; his gen
eral chaiacter tor truth and veracity is bad.
Cross-examined Have heard several par
ties ray so.
Michael Sipe Know John Kaylor ; know
that hit standing t..r truth and veracity ill
bis neighborhood is not good.
Cru,-s-4 jamiiicd Have heard 4 great many
people ay that bis character for truth and
veracity was not gisnj,
KdwanJ Mowry Know John Kaylor;
know thai his gfisrral character for truth
and veracity is bad
Cross-t (auiiiusj Was mbpienaej yester
day ; I iipwe about 7 o'clock ; heard sev
eral partus say that his reputation for truth
was bad.
Aaron Walker Live in Jenner township;
know John Kaylor; know his general repu
tation in the community lor truth ; I think
it must be bad.
Cross-examined. Heard bis own brother-in-law
say he didn't tell the truth, Joseph
Waller.
S ilomon Judy. Live in Jennertown ;
John Kaylor's character lor truth is pretty
had ; know all his neighbors and the people
(jf (he community.
Cross examinei.lieord Kautz's boys,
Friediine, Peterson, and a good many other
say he las a bad man ; Aar.n Walker sub
ponaed me.
Jiauiel Peterson. I,ire n Jennertofnj
knots- John Kaylor ; know the people of the
community ; bis character for truth among
them is bad.
Ilenjaniiii Kline. Lire in Jenner town
ship, one mile from Jennertown ; John Kay
lor's reputation ia bad, not just for one but
for ali.
Frank Heiple. Live In Jenner township ;
half mile from Jennertown; know John
Kaylor and hi reputation for truth atnoug
the people; it is not good.
Cross-examined He is an undertaker;
they would call him that if they called him
a projs?r name.
Jacob K. Kautx Live in Jennertown ;
John Kaylor' character for truth is bad.
Cross examined I am of the firm of
KanU Ibos. ; have heard Mr. Judy, Mr.
Peterson and Mr. Rauch's family say it was
bad ; tiiis was a year ago.
"w CIST,"
said Mr. Cessna, as witness Kautx kft the
stand.
" What hare you in sur rebuttal." asked
Judge User, addressing the counsel for the
prisoners. After some consultation they
called Harriet Nicely, wife of Joseph Nicely,
as tbeir first witness
I St BEBIIT.IL.
Harriet Jiicely Was at home t.he night
Rauch and Ambrose came to get iny bus
band's hat; I bad laid down on tbe bed;
they rapped at the 4 oor and I told Lorenzo
to go and see w bo was there ; the lamp was
back in the sitting room ; it was a side
lamp: it was the full length of the room to
the kitchen door: I could see out
from where i was fitting; tliey asked tor the
hat; Loreciu get it and gave it to them;
neither Uauch nor Ambrose came iu ; from
wiiere they were they couldn't see where tlie
hat was banging : the lamp wasn't moved ;
it was a large lamp.
Iaircoxo Nicely Remember of John Ranch
and Ambrose eounng to our house tlie night
my father was arrested ; t!ey came in the
kitchen door at the east side of tlie house ;
tbe lamp was in the sitting room iu the
north end of the room; I ojiened the door;
Rauch just stepped in tlie kitchen door; 1
asked mother where tbe hat was, she told
me and I went and got it for them : there
was no iiiit in the kitchen only what shone
through tlie dining rooru d.sir; Ambrose
sliss! on the outside.
Cross-examined There was no lamp only
the one ill the sitting room ; one of the men
bad a lantern; I think ltaucb; Ambrose
stood at tlie edge of the door on the outside.
I'aniei Peterson Lived last May in Jen
nertown ; remember J'je Nicely coming to
see nie in August ; am director of Westmore
land Insurance Company ; Mr. Nicely came
there to see me about a case in Greensburg;
don't know whether there was anybody
with him ; saw him right after dinner.
Cross-examined Don't know whether he
had any other business; there is a mail
from Ligonier ; saw him again at Ligonier
between that aud February.
THE TsMTLMOST ALl 15.
As Daniel Peterson left the stand counsel
for defense said their case was made up and
they would rest. Judge itaer said that in
arguing the case to the jury counsel would
not be limited as to time.
Two officers were called and sworn; ihe
jury was given into their keeping aud
court adjourned till 1:30 p. m.
ArTK-l0OS SESSIOX.
For tbe first time during the two weeks
Judge llaerwas not in bis seat at the hour
apisiinled for opening court this afternoon.
It was precisely 20 minutes of 2 o'clock, (by
the clock in the court room) when bis Hon
or walked in and took his seat on the bench
and one of the last session for the trial of
celebrated I'mberger murder case was for
mally opened. After ascertaining that there
were no motions for the continuance of any
of the cases on the calendar his Hon
or announced that he was ready to hear
from the defense. Mr. KoonU arose and
read tbe following
' roiXTs:
The points submitted were ruled upon by
Judge Itaer when be charged the jury. We
give them here as they were Refused or Af
firmed by the Court.
Commonwealth ") No. 2.,
vs. r May Term.
Joseph aud David Nicely. J
The Court is respectfully asked to instruct
tbe jury as matter of law as follows :
1. That the defendants are presumed to be
innocent of the crime with which they are
charged, and this presumption must stand
until it is overthrown by evidence on part
of the Commonwealth, which establishes Ihe
guilt of tbe defendant beyond a reasonable
doubt Affirmed.
2. That a reasonable doubt is that of the
case which after tbe entire comparison and
consideration of all the evidence, leaves the
minds of tbe jurors in that condition that
Ihey cannot say they feel an abiding connec
tion to a moral certainty of the truth of Ihe
charge. Affirmed.
3. That the charge in this case is that the
defendants are guilty of murder in the first
degree, the Commonwealth is held to a more
rigid Compliance with the rule that tbe guilt
of the accused must be established beyond a
reasonable doubt, and if the jury, upon a
comparison of all the evidence, believe that
there is reasonable doubt of the guilt of the
defendants, then they are entitled to an ac
quittal. Affirmed.
4. That it is Ihe duty of the Common
wealth in this case to make out every essen
tial leatureof the crime with w hich the de
fendants are cbsrged, and must show by
proof beyond a reasonable doubt, not only
that the crime of murder was committed,
but that the defendants are Ihe parties w ho
committed the crime, and if the jury, upon
all tbe evidence in the case, find that there
is a reasonable doubt of the commission ol
the crime by the defendants, then the ver
dict must be not guilty. Affirmed.
5. That the evidence of Ella Steam, Nan
cy I'mherger and Nannie Horner as to the
identity of the defendants is not of such a
character as would enable the jury to say
that the guilt of Ihe defendants is established
beyond a renonable doubt. Refused.
0. That if tbe jury believe the testimony f
Gilbert Rose, Aarou Marks, John Kuotitz.
David A. Oeeting, A. A. Nicely. Eliza Nice
ly, KHa Menoher, Hetty Nicely, Lorenzo
Nicely and Harriet Kioely, that Joseph Nice
ly was at his home ou Wednesday, the 27th
of February, l.SVI, the day the murder is al
leged to have been committed, from 12
o'clock, noun, until next morning, then
there can be no conviction of Joseph Nicely.
Affirmed-
7. That if the jury believe the testimony
of Sarah Barron, Hetty Nicely, Lewis Payne
and Catharine Nicely, that David Nicely was
at his heme on the 27th of February, 1S8'J,
from 3 o'clock p. ni., until next morning,
then there can be no conviction of David
Nicely. Affirmed.
1. That as the theory of the Common
wealth is that the defendant were seen go
ing together east up the mountain on the
the afternoon of Wednesday, the 27tls of
February, liS'J, the testimony of all the
witnesses showing thai the defendants were
at tbeir homes, so far distant from tlie rcene
of the alleged murder that they .could not
have committed the crime, enures to the
benefit of both defendant in the case. This
is answeifid by the general charge, when
charging on an alibi,
8. That the defense of an ni'M is. when a
person alleges that at the lime when the of
fense with which he is charged was commit
ted, he was enrwcm, and that he could not
in the nature of things have committed the
offense. Affirmed.
JO. That the burden of proof never shifts
in criminal cases, but rest upon the Com
monwealth throughout, so that a conviction
can only be had after the Jury have been
convinced, upon a comparison of all the
testimony, beyond a reasonable doubt of the
guilt of defendants. Affirmed.
1 1. That if the evidence of an alibi, togeth
er with the evidence in the case, raise a
reasonable doubt in the minds of tbe jury
then tbe defendants are entitled to an ac
quittal. Affirmed.
12. If from all tlie evidence tbe jury have
a reasonable doubt as to the guilt of either
of tbe defendants, tbeu under the evidence
in the case, that doubt must inure to tbe
benefit of both defendants. Refused.
(f tlie jury believe that David Nicely
was in such s state qf health, either from
heart disease or other disability, as to inca
pacitate him from walking from his borne to
(he residence of Herman Fmberger, a dis
tance of about fifteen miles, within tbe time
and at the rate of speed, testit)d to by tlie
witnesses in behalf of the Oumtuonwealih,
or if the videuo of hi pliysioal disability
ia such as to raise a reasonable doubt in the
minds of the jury a to hi oonuection with
tbe murder of Herman I'mberger, then
there can be no conviction of David Nicely.
Affirmed.
14. If tbe jury believe that Davis) Nicely
could not by reason of physical disability
have made the journey necessary to commit
the crime, within tbe time and at the rate of
peed testified to by the Commonwealth's wit
nesses, or if the evidence creates a reasonable
doubt in the minds of the jury as to bis
connection with the crime, then, as tbe
theory of the Common wealth is that tbe de
fendants were both present and jointly com
mitted the crime tbe verdict must be
not guilty as to both of tlie defendant. Re
fused. Mr. Koontx submitted a brief of authori
ties and made an argument to tlie Court
sustaining the position be bad taken in bis
point. Hi colleague, Mr. Suppel, made
an argument from their side of tbe case and
Messrs. Kooser and Cessna replied for the
Commonwealth. The Court directed tbe
Stenographer to write out tbe points submit
ted, on his type writer, and be will pass up
on them when he com. to charge tbe jury.
All witnesses in the case were discharged
flora funhcr attendance upon the eeint.
tr troi-LivVr writ,.
Counsel W defense mt.ie an appl'.eaii-.ii
in writing to the court asking that the Dis
trict Attorney be ordered and directed to
make the closing argument in the rase on
tbe fan of the Oommouwealih. bi-n I
Cotfroth addressed the Court ou this q les
tion and pave their reasons for making ibis
somewhat extraordinary application. Dis
trict Attorney Biesecker, said he had been
iu close attendance upon the txwirt lor
the past two weeks and was sick and worn
out. His anearaiKe, as he addressed Cue.
court, showed clearly that it would be a
physical inqiossibUily for him to ronke any
protracted effort or argument. While the
counsel for the pri.ners disclaimed that
such was their desi re or intention, the re
sult of a favorable ruling on their motion
on the part of tbe Coort would have been to
prevent the ' Grand Old Man," Hon. John
Cessna, from arguing the case or g ng to the
jury, as it had been agreed before the morn
ing adjournment that there should only be
two speeches on each side. The Court over
ruled the motion and Mr. Cessna will make
the closing argument.
Following ia the motion made:
Commonwealth 1
vs. ! -o. -. amy em.
Joseph Nicely ! 1. 'er and
and I Terminer.
David Nicely. J Murder.
And now to-wit: June f.tb, li, the evi
dence having been beard and the points of
the counsel having been submitted to the
Court, counsel for the defendants moved the
Court to onler and direct that the closing
argument to the jury on behalf of the Com
monwealth be ruade by the District Attor
ney. Wm. II. Kooxtz,
Corraorii Rcitkl.
The Court rules as follows :
The District Attorney waives his ritrht to
closing, on account of indisposition. Whilst
calling to his assistance private counsel, the
1 list rict Attorney act as a tjiuui judicial otfi
cer, and under the law they act under his
direction. He has an undoubted right un
der tbe law to make the closing argument,
and there is no law preventing his yielding
this right to private counsel : but the private
counsel representing him iu the closing ar
gument must be bound by the same rules as
a yiwiM judicial officer, and as such can press
for conviction as far, but no farther than the
District Attorney. So far as hiadiities in ar
guing are concerned, they must br in con
formity with the law, and his argument
should be a fair illustration of the theory
propounded in the oieui:ig speech in, an
swer to the arguments of the defense and
not something new that the defense msy be
depried from answering. This is the rule
that applies to the District Attorney and must
also apply to private counsel employed in
the case.
Mr. Kooser then went to the jury on
behalf of the Commonwealth.
SVX.il-SIS OF UK. KiHtsEli's SITE. II
Mr. Kooser began by congratulating
the jurors and himself that tbe labors of
several weeks were drawing to a close ;
yet he mustjask the jury to indulge h'm
and others patiently awhile longer; con
gratulated the defense and tbe common
wealth that they had succeeded in secur
ing twelve jurors of a high degree of in
telligence, of undoubted courage, who
would be able to render a verdict under
the evidence and charge of the Court;
he agreed with the counsel for de
fense in his opening, when he stat
ed it was an important trial perhaps the
most important ever tried in the county ;
that the name of I'mberger was now
known all over the land, because of the
peculiar brutality of the murder, and the
magnitude of the sum of money secured j
by tbe murderers and robliers; that
while their duties were grave and-re
sponsible they would ever recollect their
connection with this historical case. He
then defined murder at common law ;
read the statute regulating the degrees of
murder, conceded the position taken by
the counsel for the defense that the
burden of the proof was on the Common
wealth throughout the trial, and that the
defendants must be acquitted if there
was a reasonable doubt of their guiit;
lefined what was meant bra reasonable
doubt and claimed that the force of the
expression laid on the word mifmnUf
a doubt with a reason behind it. He
then adverted to the testimony ; begun
by picturing the peaceful scenes at the
house on the twenty-seventh of
February; farmer Uinberger, old
and sick, with the accumulations of
a lifetime, some S15.0JJ or J2),03I in his
house; with his wife and grand child
and servant gathered around tin even
ing lamp ; no thought of the assissjin
that lurked about ; he then shifted the
scene to Ligonier, Hamilton Smith a
witness, saw David Nicely w curing a gray
overcoat and cap wending his way Kast-
ward beyond the point at which he
should have turned off to get to his
home ; found him next upon the moun
tain where he i identified by witnesses
Beener and McCracken who first aaw
some other rty cross the road and pass
into the woods ; these witnesses gay it
was Ihivid Nicely ; further onthey pass
ed Charles and Lewis Vaneer who
knew both parties-well and say they were
David and Joseph Nicely. Dave with a
cap and Joe with a brwn hat on; further
on they passed Mrs. Walter on the pike
who recognised them and aaysthey are
the men ; further on they passed John
Friediine who says there was a short man
and a tall man resembling these ; further
on at the hill above Cmbeier'g is found
the remains of a lunch which pointed un
mistakably to the fact that who ever mur
dered Herman I'mberger came a long dis
tance and had brought his lunch with
him. This was corroborated by the track
leading down tho hill Into the house.
He then detailed the scenes at the search
of the house ; the production of the search
warrant, the sudden demand, "Your
money or your life," the sudden firing of
the shots, the flight of Nannie Horner
and Ella Stearn, the faithful wife pull
ing the bell to alarm the neighbor?, the
plunging forward of Herman Umberzer
from the sitting room into the kitchen,
dead at the feet of his wife, and the
flight of the prisoners. He then point
ed out that after their flight a lamp stood
upon the table without a chimney and
the broken fragments of the chimney lay
npon the floor five to ten feet from the
table, indicating that the lamp had been
used to find the pocketbook that had fal
len from the inside of the open vest of
Herman Uniberger before he wa struck
by the fatal bullet. He then pointed out
that at least half an hours time was spent
in this house by these people before they
commenced operations, during which
time there was not a bit of ex
citement, giving Mrs- lTiiibrger,
Ella Stearn and Nannie Horner
every opportunity to carefully scrutinize
the dress, form, features, shape, etc., of
the men. Next took .up their clothing
and called attention to the particularity
with which Ella Stearn identified the
hat, with piece out of the rim, the gray
overcoat, the leather boots and the gum
boots. How Nannie Horner identified
the same articles and in addition locat
ed the brown patch on the gray over
coat. He then pointed ont that after the
arrest the singular fact that whilst Dave
Nicely was the tali man and Joe the
short one, that the gray overcoat with
the brown patch, worn by tbe tall man,
was found at Dave Nicely's and the hat
with the piece out of the rim was found
at Joe Nicely's ; that the tell-tale hand
kerchief with the red spots on wag found
on Dave Nicely; how Ella Stearn and
Nannie Homer testified it was tied and
the further damaging fact that the hand-
,.i
r.i!i? !t
of ! is
out the f.ct
Was s'ioh n
bv a lti':t I
. II- then '.!!" I
ln.it whiist Cuila-rgcr
to hsie been killed
o.n a .'!' ca'ihre revolver.
centre t. re, no rev.
f. und in J' Nice
ri.cr i f it t tre fir was
y'n tms4-s'!oii, yet at
the time of !.': arrest ninecentre !;ru car
tridges wire found in hi" rsmacifioti. Ho
argued thai front t'.e 'posses-ion of the
centre-fire cir'r'. iL;. s r.t Joe Nicely
insist have l.'.i.ia centre-tire revolver that
was concealed -f:r.e here w ith the
money ; he then told how Ljurh, in the
f resen.v of imiiM, had taken the hat
from a nnil at Joe Niivly's house, and the
picro was then out or it ; then told how
the jKHitinn of ti.e defense? isiticO'le I that
the M ketlKj.ik v.ai I'uiberger's, and de
nied Hint there eoithl have been any mo
tive in the world for anybody to commit
the fraud that the defense is now coin
pel led to urve ; showed how Thomas
could not say it was, nr was not the pock
etbook ; how brother-in-law Menoln-r
was able to say it ra not the pocket
book, and that brother-in-law Menoher
could not ask to lie believed by a jury,
because he had separated the book and
the money, and concealed the knowledge
of the money from the officers, and ad
mitted afterwards that he had lied about
it ; he then declared that tlie defense rest
ed upon an aiibi set up by the Nicely
family, and slot cf unreliable witnesses
and unka wn men ; demanded to krow
why none of the responsible citizens had
seen David or Joseph Nicely on the 27th
of February ; w hy only such men as
Aaron Marks, David tieeting, Iwis
Faint and John Koontz, could undertake
to speak fortheui ; told how these men
were contradicted by numerous substan
tial farmers in the valley, to w hoio they
bad told stories at variance with their
testimony on the stand ; how all of
them had stated that it was Thursday,
the 2S!'i they saw the defendants and j
not W eiiuesduy toe 27th, and how $1.",
t O or $20,0"0 in money could be used as
an engine to manipulate tla; character of
witneesss. lie then paid hU respects to
the Nicely family and insisted that the
awful pressure of the death ena!ty to
two of them and the prospect of the con
cealment of f I tm or $20,1 i0 on the
other hand were motives that could he
expected to swear the lot of them. De
manded to know why brother-in-law
Barron was not put upon the stand when
David had testified that he was at Bar
ron's on the 27th. He then argued that
the physician had not said that Dave
Nicely was incapable of the execution of
such a trip ; admitted that while the
doctor might perchance know more about
the inside (if a man than hi:ii.for the
jury, yet there were twelve pairs of eyes
upon the jury us oompetent to see and
measure the outside of a man as Dr. Bru
baker or ar y other doctor, and submit
ted to ihe jury if there was any such de
velopments over the heart of Joe Nicely
as Dr. Brubaker seemed to think. He
then argued that Kimmel, Serena and
others ha.l worked with Dave Nicely and
knew that ho was able t do a serious
and competent day's work , showed how
completely witness Kavlor was blasted
and argued that l'aitit, Marks, Koontz and
tieeting were of a similar pattern aud
their testimony ought to weigh as
nothing U-f..re the jury. He then asked
that for the interests of the ;5.j,(Ko to 40,
CitO inhabitants of this county w hose in
terests they were selected to protect, that,
whilst to give the prisoner the lienetit
of all reasonable doubt, yet if the evi
dence satisfied tliem lievonJ a reasona
ble doubt of the guilt of the defendants
as it oiiL'ht to satisfy any reasonable
mind, that they lie courageous and faith
ful leaving the coiise.pu-r.ces w hen they
belonged.
Mr. Kooser was followed by Mr. Koontz
who spoke until six o'clock, when court
adjourned tj meet ut 7::'.'.) p. ni.
i:yi:;n, s.stos.
Court convened at half-past seven o'
clock. Mr Koontz continued his argu
ment till a .jiiai t. r past nine o'clock, at
which time l.e closed and court adjourn
ed till half-past eiht o'clock Friday
morning.
From Saturday s Pally IIskai.ii.
l'romptiy at S:.".() yesterday morningthe
1'ourt resumed tiie trial of the now fa
mous I'mberger case All witnesses in
the case having been discharged the day
before iu time to start for tlieir homes,
the attendance was less than it has been
at any time siinu the case was called.
The prisoners were in their accustomed
scats immediately in front of the bench
and facing the jury. Their apiearance
did not indicate that they had had a re
freshing night's sleep, and their greeting
to their wives and aged parents w as silent
and sad. Tlieir counsel, Messrs. Coifroth,
Ilnppel and Koontz .all show.tl signs of
being fatigued after more than a week
of ceaseless work and worry.
At I he Common wealth's table sat Messrs.
Biesecker, Kooser and Cessna ; theyoung
er p. en looking tired and exhausted,
khoi ing the great strain they had been
umh r. but "your I'ncle John" was look
ing 1-esh, vigorous and fully prepared
for the great cll'ort he was to make
during the day,
A. II. Coil'roth, Esq., commenced his
argument to the jury at the opening of
the court and consumed theontire morn
ing session ; his argument was forcible,
logical and argumentative and was list
ened to with marked attention by the
jury and the vast auliemv. He spoke
fa-three hours and ,12 minute. John
Cessna. Esq., made the closing argument
for the Commonwealth. He spoke for
two hours and thirty-five minutes and
his speech was the most powerful marsh
aling of facts ever heard in a Somerset
county court. It was a speech belittingthc
high reputation of Mr. Cessna and the
importance of the cause for which he
pleaded. The court room was crowded
with friends and admirers of the justly
celebrated lawyer, all of wham were ea
ger to hear him in one of the greatest ef
forts of his lorii' and busy life. They
were more thau satisfied. It was a grand
speech by a grand old man.
1 ()(. n IfcH s i jUW.t; t.i T1!E jt'UV.
Gtiittrmrii of tiie Jiinj ;
A long and necessarily tedious trial is
near! iik its close, and soon the w hole re
sponsibility of a true verdict w ill rest on
you. Yon have patiently and with com
mendable attention listened to the testi
mony as detailed by the witnesses of both
the Commonwealth and the prisoners at
the bar, and have, I am sure, given due
consideration to the able argument of the
learned counsel on the material facts in
evidence.
The facts you bike from the evidence
as given by the witnesses on the stand.
The arguments of the counsel do hot
make fads; but they are a discussion of
thelevideniv, and of the materiality and
credibility of it as bearing upon the guilt
or innocence of the prisoners, and are
entitled to due consideration ; neverthe
less, the jury car.not surrender its own
judgment fairly formed on all the mate
rial facts and adopt the views of counsel.
The solemnity with which yon were
chosen from tbe body of the qualified
electors of the county and impaneled
as' able, sober, intelligent and judicious
men, may well inppire too with awe, in
luT-Mef,
rie-v of the great re-poredbiiity put upon ! this in I'l tui' r. if a nr i r c
you. M;iU:si:eii t-i satisfy a iry of t:..-
You were 8'Aorn to well and truly try j and the iers.ii i... . ... mo. :!.! it,
and inn- dcii-.er-int-tf make between the j can be a finding of munler of tin
Commonwealth f JViinsy'vacia, ai..t j degree, or inurtler of the second ,1,
the prisoners you have in charge, and a j or manslaitghlir.
true vtrdi.t giV'i ai-o.rding to the law
! and t!.e vi.Vni". V.-.i -ir; not I.. u'l.i.
I'lf tiii'l a Verdict but your duty is to
find a true verdict according to the law
a.l eviderov.
The law, jou receive from the Court,
and as to it the Judge is n.-;Hir.sni!e ami
aline responsible if yea ait upon the
law as he gives it to you.
The evidence is w liolly for yonr con
sideration, and from the material evi
dence iu .be case, as riven by credible
witnesses-, yon are to find the facts, and
you alone are responsible for a true and
faithful finding of the facts. 1 rejieat,
your duty is to find a verdict on the law
and the evidence produced in the cose.
Yon are uot responsible lor the law laid
down, nor for the facts established by
the testimony. If the evidence lead the
jury, in the exercise of a sound judgment,
to a verdict of guilty there it is voy duty
to go without stopping to inquire what
consequences f.Ilow. You, as jurors,
have nothing to do w ith the consequen
ces, and the ' fear of any possible conse
quences should not for a moment mis
lead you to rendering a verdict which
your judgment does not approve. In like-
manner, if the law and the facts leid yon
in the exercise of a sound ju tgment to a
verdict of not guilty, there it will lie
your duty to go, no matter what conse
quences iol low. You should arrive at a
conclusion, as your oath implies, on all
the evidence in the case.
Grave and arduous as your duties
seem, the tak of finding a true verdict
from the evidence under the law as given
yoti, is not a dillicult one, if you w ill !
constantly keep in mind that you must j
arrive at any conclusion you come to,by a j
due and careful consideration of t:ie evi- j
dence in the case under such instructions j
as; to the law as have Dcen given you.irce
and uiiairected by public clamor, private
sympathy or feeling, and in total d isr.i
gard of anything you have heard or lead
ia or out of court before xn w ere sworn
as jurors in this cane, and that you act as
judicious nien without fear, favor or aifeo
tio'n, looking nowhera but to the law and
the evidence. For on these and these
alone can a true verdict be bawd.
To find a verdict otherwise than on the
law and the evidence would ha a verdict
indeed, but your consciences won si not
be easy. Looked upon in a proper light,
the task imposed upon jurors is not so
severe.
The jury heard ?uch witnesses as the
Court deemed competent. Endeavor to
rememlier what they said ; observe the
witpeeses on tlie stami liieir uemeanor
and manner of testifying, and whether
candid or biased. Oliserve whether their
statements are consistent or contradic
tory; whether contradicted in material
matters by others, and whether they
have been assailed ortheircredibility im
peached; and then, looking at the wit
nesses, including the prisoners as wit
nesses, their interest in the issue, their
testimony and maimer on the stand, and
the consistency of it, the jury determines
the amount of credibility that should be
given to each witness.
Tuen, giving due consideration to the
testimony of all credible witnesses for
and against the prisoner, and due regard j
to the discussion of the material evi- j
dence, the jury find what are the facts j
proven, and having found the facts, they j
consider them in connection w ith the
law as laid down by the Court, and
find a verdict in accordance w ith the
law and evidence. If the juror has been
careful to observe the evidence and the
law, the result or conclusion he arrives
ut should not disturb, him. what
ever conclusion reasonable, naturally,
fairly and trily follows from the law
and the proven facts should te the ver
dict, whether that le a verdict of guilty
or not guilty. Peace of conscience
would only lie disMr'ied by finding a
verdict contrary to, or in defiance of, the
law and the evidence. Tiie verdict,
whatever it may be, should be found
npon due and careful consideration of
all the evidence in the light of the law
laid down, and should be entirely free
from the emotions of fear, favor, affec
tion, sympathy, bias, prejudice, hatred,
ill-feeling or revenge, and should be in
total disregard of public sentiment or
feeling.
A human life has been taken.
Herman Onlierger, a former citizen of
thiscounty. is no more, lie was sudden
ly taken otf w ithout warning by esons,'
whoever they were, that did not fear
God, but openly and boldly served the
devil and imbued their hands iu his
blood at the hazard of their souls.
Sad as is everything connected with
that death, we must not let our sym
pathy for the bereaved ones, pity for the
dead or indignation against the felons,
sway us frjin the clear path of duty.
Our duty Is in the line of justice and not
of vengeance. The laws of the land and
the law s of God have been ruthlessly vio
lated. The rights of perso.ial lilierty
and security have been invaded and a
life has been taken.
For taking this life the prisoners at the
bar are on trial, and on this jury de
volves the duty of ascertaining vhnt
the olfense, and are the prisoners the
offenders. Whatever the olfense may be
found to lie, if the prisoners are not the
oilVnders they will lie set free; if thev
are found to be the oli'euders, ihe majes
ty of the law must be maintained and
crime punished.
The indictment charges the prisoners
at the bar with the offense of murder.
Such an indictment, if the offense lie
proved, would sustain a conviction for
munler of the first d- gree, murder of the
second degree or manslaughter, as the
facts and circumstances in the case
might wairaut.
It become necesaary, therefore, to de
tine the several olfense or grades of of
fenses, so yon may not err in the conclu
sion you arrive at, if you find an offense
was committed,
Atoomn-.on law, murder is descrilied to
be where a person of sound memoiy and
discretion unlawfully kills any reasona
ble creature in being and under the
peace of the Commonwealth, with malice
aforethought, expressed or implied.
It is alleged on jiart of the Common
wealth that, Herman I'mberger, late of
thiscounty, was a reasonable creature in
being and in the peace of the Common
wealth, on the 27th day of February
last, and was then killed. If you find
this to be so. tiie next question is, who
killed hiiu? TheConuuonwealth charges)
the offense upon the prisoners at tlie bar.
The burden is upon the Common
wealth to satisfy yon beyond a reason
able doubt, by evidence produced, that
the prisoners killed him ; and must also
by like proof, show that they killed hiin
with malice aforethought, either express
ed or iii-.pli.ed, in order to convict of
the offense
OF JIl'lillKU.
Every killing is not necessarily mur
der but every killing of man by man is
homicide.
Homicide may be felonious, excusable
or justifiable. We have to do in this
case with felonious homicide ; so the in
dictment charge tiie oQense, designating
it in the indictment aa mnrder ; and, on
"! i-innier
it. Man
ng of an-
is t....:
sla'i'.'
of I'olice aforeihn
r is t!.e unlaw f.ii ii
other w ;!i
ed. TI..
M-i' .y expre-s d ( t ,,,::.
must lie an unamvi
homicide to constitute
or nuns;.! j.-Mer. Tne
tween the two grades) is,
c'lir urir.ler
iltsiin, ti..n l.-e-lii.it
an -.iioaw-ri
:trr .'ii....
fill homicide with .;.'? n
prc-ssi or implied, is m i:
an autiiawl'i! homicide w
r ; whereas.
th'X't i.i i: r
vj'irttiu"jiu I.s manslaughter.
Keeping this distinction in mind, von
inquire whether the offense cimLntttsi
was murder or manslaughter. Murder
at common law embraces cisex
where no intent to kill existed ,
where the state or frame of mini,
termed malice, in its legal sense,
prevailed ; and it includes all nnlawft,!
killing nnder circumstances of depravitv
of heart and a desperation of mind re.
gardless. of social duty, but where n..
intention to kill exists.
I have already said the .lis:;n-gui.-hing
criterion of murder is mal
ice f rethought. A particular i.l ,;;
a ypite or, a grudg.) is ,.r.
dinarily understood as malice, bur, u.,,;.
I ice as it appears in the definition of .,nr.
der, is legal term ; it fumpreheniis
oniy ill will, hut evfry case where there
is a wickedness of disposition, hardness
of heart, cruelty, recklessness of cnw..
quences, and a mind regardless of . ia!
duty. ,
I'mier all the evidence and circum
stances surrounding the killing, your
first inquiry should be, was the kit i in
murder ?
The testimony of F.lla stearn, Mrs.
I'niberger.Xarinie Horner and Dr. Walk
er, if believed, shows that 1 "uiU-i-er on
the night of tlie 27th of February la-t.
was killed by two men, who entered Lis
dwelling by night for the purpise of
committing a felony, and that he w:is
both robbed of a large stun of money and
killed by means of a deadly weapon used
Uon his person at a vital part, and his
dead body was identified and death,
from the gun shot wound established,
if the evi leuce is believed,
The Common wealth alleges th kiliii.g
as testified to by the witnesses name I
and the defense do not deny that I'm
berger was Isjih robbed and killed 1 v
some persons. If the jury from all ti e
evidence find tiie homicide was iiotcnu,.
milled in self defense, as to which r..
evidence appears, or not by mUt-lven-'
j ture or upon heat and paseion, uj
i sudden quarrel, or by accident or
; iaae, as 10 wuicn no evidence awicars
but find that life was cruelly, wilful
wickedly and recklessly taken iu total
disregard of social duty and when at
tempting to commit robbery, after de
manding, "your money or you life." they
will 13 warranted in finding that the
homicide was murder.
Th ere is no evidence in the cas; to
bring it within the definition of u.an
siaughter, as we view the evi.lime. If
you could on the evidence find it to is
an unlawful homicide without malice
aforethought, it would be manslaughter.
If you find it to lie murder, was it of the
first, or the second degree ?
The laws of Pennsylvania distinguish
murder in two degrees; murd r of the
first and murder of the second .iign.-:
murder of the first degree is w here a de
liberate intention to kill exists; murder
in the second degree is where no intent
to kill exists. The jury under the stat
ute, if they find a verdict of guilty of
murder, must find and ascertain w hetli. r
it lie murder in the first or in the secon I
degree. The 74th section of the statute
of :11st .March llil, reads:
"All murder which shall Ie j'rro
t rated by means of poison, or by Iving in
wait or by any other kind of willful, de
liberate and premeditated killing, or
which shall be committe 1 in the pene
tration of, or uu attempt to perpetrate
any arson, rape, robbery or burglary,
shall be deemed murder of tlie first de
gree, and all other kinds of murder shall
be deemed murder of the second degree,
and the jury ls-forc which any person
indicted for murder shall be tried, shall,
if they find such person guilty thereof,
ascertain in their verdict w hether it l e
murder in the first or second degree '.
It is not the mere killing of a person
in the perpetration or the attempted per
petration of a robliery or burglary that
constitutes the r dl'ense of inur.it r in the
first degree. Tdie killing while engaged
in perpetrating or attempting to pi rjn
trate a robbery or a burgl.uly in or
der to constitute murder in tiie first de
gree, must be such as at common lan
would have been murder; that is.it
must have been a killing with malice
aforthought.
If.fr oni ail the facts in proof attending
ine ki.i.ng, uie jury can fully, reasonalily
and satisfactorily infer the existence of
the intention tu kill and the malice of
heatt with which it was done, thev will
be warranted in so doing. Jii.lie Ague',
one of our ablest judges, held that: "H.;
w ho uses upon the Isxly of another, at
some vital part, with a manifest inten
tion to use it npon him, a deadly weapon,
as an axe, gun, knife or pistol, must in '.he
absence of qualifying facts, he presumed
to know that his blow was likely to kill,
and knowing this he must be presumed
to intend the death which is proliabie
and ordinary consequence of such an
act He 'w ho uses a deadly weapon
without a sufficient cause of provocation
must be presumed to do it wickedly and
from a bad heart." ,
Therefore, genllenien of the jury, he
who takes tbe life of another with a
deadly weapon and with a manifest de
sign thus to use it uin kim, with si;;' -cier.t
time to delilierate, and while en
gaged in perpetrating or in attempting to
perjietrate a robbery or burglary isgu 1 1 y
of murder in the first degree. All mur
der not of the first degree is necessarily
murder of the second degree. You alone
are the tribunal that must determine
whether the offense is murder of the first
or secon 1 degree or manslaughter, in the
light of the law, on the evidence heard.
Passing from the law Ihe question to
determined is. was Herman I nilierirer, on
the 27ih of February last, killed hy the pris
oners at tbe bar !
That he was killed, and the manner in
which he was killed, was esraMihed by the
testimony of Klla Stearn. Mrs. 1'mlH-rg.r
and Nannie Horner, Ir. Walker and Henry
llauch.
TI.e inquiry you make does not take !! .
form of wli.i killed hiiu, but did the defend
ants kill him ?
Ii.s-s the testimony point out the prisoners
at the bar as the men ?
The evidence is so voluminous I can only
call your attention to the material subslaiue
of it as given by Mu-h witne, leaving you
who are Ihe only judge of il to lind en all
the evidence whether the primers inns
mitted tbe offense. Klla .Warn. Mrs. I'm
berger and Nannie Horner, ihe little girl,
saw two persons euler the house at tiiirld.
sit dowu at Ihe sieve for a while, and alter
some talk begin lo search Ihe house, al tir
ing tliey were doing so hy virtue of a swireh
warrant. They detail at length and particu
larly the manlier of search, the robbery
and tbe homicide. Each one of
these witnesses in turn stating all she saw
and heard.
I l ne i.;i,ii.-iii..!,ir.g criterion