“I have given such thought as I have been able to the question raised by counsel last evening, and have examined authorities cited by him, and others, bearing upon the question, and have reached the conclusion that his motion must be overruled. It is true that a conviction for murder cannot rest alone upon the extra-judicial admission of the accused. And in the present case I must remind the court and the jury that thus far the identity of the prisoner has not yet been established, as it is not determined whether or not he is the man whom the witness, Nels Nelson, heard make the admission. It is true there must be distinct proof, sufficient to satisfy the jury, beyond a reasonable doubt, that homicide has been committed by some one, before the admission of the accused that he did the act can be considered. But I think that fact can be established by circumstantial evidence, as well as any other fact in the case, and I shall so charge the jury. I will give you an exception. Mr Nathan Goodbody, you may go on with your defense after the hearing of the next witness, which is now in order.”[1]
The decision of the court was both a great surprise and a disappointment to the defendant’s young counsel. Considering the fact that the body of the man supposed to have been murdered had never been found, and that his death had been assumed from his sudden disappearance, and the finding of his personal articles scattered on the river bluff, together with the broken edge of the bluff and the traces of some object having been thrown down the precipice at that point, and the fact that the State was relying upon the testimony of the eavesdropping Swede to prove confession by the prisoner, he still had not been prepared for the testimony of this witness that he had heard the accused say that he had killed his cousin, and that it had been his intention to kill him. He was dismayed, but he had not entirely lost confidence in his legal defense, even now that the judge had ruled against him. There was still the Supreme Court.
He quickly determined that he would shift his attack from the court, where he had been for the time repulsed, and endeavor to convince the jury that the fact that Peter Junior was really dead had not “been proven beyond a reasonable doubt.”
Applying to the court for a short recess to give him time to consult with his client, he used the time so given in going over with the prisoner the situation in which the failure of his legal defense had left them. He had hoped to arrest the trial on the point he had made so as to eliminate entirely the hearing of further testimony,––that of Betty Ballard,––and also to avoid the necessity of having his client sworn, which last was inevitable if Betty’s testimony was taken.
He had never been able to rid himself of the impression 465 left upon his mind when first he heard the story from his client’s lips, that there was in it an element of coincidence––too like dramatic fiction, or that if taken ideally, it was above the average juryman’s head.
He admonished the prisoner that when he should be called upon for his testimony, he must make as little as possible of the fact of their each being scarred on the hip, and scarred on the head, the two cousins dramatically marked alike, and that he must in no way allude to his having seen Betty Ballard in the prison alone.
“That was a horrible mistake. You must cut it out of your testimony unless they force it. Avoid it. And you must make the jury see that your return was a matter of––of––well, conscience––and so forth.”
“I must tell the truth. That is all that I can do,” said the prisoner, wearily. “The judge is looking this way,––shall we––”
Nathan Goodbody rose quickly. “If the court please, we are ready to proceed.”