The Commissioner inquires whether not interfering may not be indirectly aiding and abetting.
Mr. Lunt. I am not ready to take that ground at present.
The Commissioner. He is undoubtedly liable, as a magistrate, and subject to a fine of $300.
Mr. Lunt reviews the evidence of what took place in the entry, argues that Mr. Homer could not have seen the whole disturbance, says that as a professional man, he can't say it is proved beyond a reasonable doubt, that Mr. Davis uttered the words "take him out, boys," and does not think they would satisfy a jury, taken by themselves. But there was reasonable cause for binding him over. Mr. Prescott shakes my confidence in my preconceived opinions upon the subject, as to whether Davis went out or not. I did not think before that Davis went out. Mr. Prescott cannot be mistaken. Mr. Prescott's testimony is not met by the negative testimony of Mr. Riley, for it was impossible that Mr. Riley could have constantly watched the left hand or easterly door, while talking with others or disputing with Mr. Wright. If he did go out then, he had an opportunity to concert a signal with the colored men without.
Mr. Lunt argued to show the intenseness of Mr. Davis's interest and zeal in opposition to the law, that it was avowed by him under oath upon the stand; that showed his predisposition and excited state of mind upon the subject, and the greater liability of his being betrayed into an act of overt resistance to the law, if an opportunity occurred. This excited state of mind continued in the court room, as was proved by his addressing the officers in the abusive and sanguinary terms used by him. Up to the moment of leaving the court room, and when expostulated with by the officer, for saying he and others ought to have their throats cut, he admitted that he had said so, and that he said so again. Clark and Hutchins heard the cry—"Take him out boys;" and Byrnes, whose eye was fixed on Mr. Davis, was certain that they came from him.
The words were uttered. He was in that peculiar state of mind, which rendered such words the natural expression of his feelings, and they were in perfect accordance with the general purpose of resistance to the law publicly promulgated by his associates and co-laborers, who had been formed into an organized body in this city. He did not content himself with going out when Hutchins opened the door for him. He braced his back against the door-post, and pushed against the door to open it wider. Then came the cry—"Take him out, boys!" And Byrnes had sworn it came from Mr. Davis. Connected with Mr. Davis's leaving the room was another significant fact. Almost at the moment that he, quitting that part of the room where the fugitive was, started to go out, the fugitive rose, put on his coat, and appearing to be excited, walked forward, just as the first cry was raised.
Mr. Davis lingers on the stair-case, and goes to his office, not knowing or caring, he would have us suppose, what had been the issue. Upon this evidence, it seems to me a clear case for holding the party over for further examination and trial.
Wednesday, Feb. 26. Upon the opening of the Court the Commissioner delivered his decision.
He commenced by stating the offence under the statute with which the defendant is charged, and stated that he should confine himself principally to the question whether the defendant was aiding or abetting the person who had been arrested, and that the legal decisions upon the construction of the statute were merely for the purposes of this examination. The Commissioner then reviewed the evidence as to the expressions of the defendant in the court room, and stated that it had been proved that the defendant said the officers of the Court ought to have their throats cut. No notice was taken in the opinion of the evidence of Geo. W. Minns, Esq. The following extracts are made from the opinion of the Commissioner.