Mr. Ingersoll. I don't insist; but those are the exact words I remember. And don't you remember that he went into a kind of homily on neighborhood gossip, that hardly anybody escaped? I believe a good many of this jury have escaped and a good many in this audience have escaped. You can pick out a great many men that a dozen accusations of stealing hogs and sheep and heifers have not lit on.
Then, there is another thing about Sconce that I don't like, gentlemen. Sconce, in giving the history of the affair in Arkansas, was asked if he didn't say, "Did I say that Davis' name was on it when I signed it?" and right there he skulked and stated under oath that when he said that he alluded to the photograph. Could he by any possibility have alluded to the photograph when he said: "Did I say that Davis's name was on it when I signed it?" Did he ever sign the photograph? No; he never signed the photograph. Davis never signed the photograph, and if he ever said those words he said them with reference to the original will, and he knows it. And yet, in your presence, under oath, he pretended that when he made that remark he alluded to the photograph. I wish somebody would reply to that and tell us whether, as a matter of fact, he alluded to the photograph.
Now, Mr. Sconce, as you know, has the most peculiar memory in the world. He remembers things that had nothing whatever to do with the subject, photographed in all details, everywhere; and yet, gentlemen, your knowledge of human nature is sufficient to tell you that that kind of memory is not the possession of any human being.
Thousands of people imagine that detail in memory is evidence of truth. I don't think it; if there is something in the details that is striking, then there is; but naturalness, and, above all, probability, is the test of truth. Probability is the torch that every juryman should hold, and by the light of that torch he should march to his verdict. Probability! Now, let us take that for a text. Probability is the test of truth. Let us follow the natural, let us follow the reasonable.
At the time they say this will was made, Andrew J. Davis had removed from Iowa years before; had settled, I believe, in Gallatin county. His interests in Iowa were nothing compared with his interests in this Territory at that time. From the time he left Iowa he began to make money; I mean money of some account. He began to amass wealth. He was, I think, a sagacious man.
Judge Dixon says that he was a man of great business sagacity. I am thankful for that admission. In a little while he became worth several hundreds of thousands of dollars. Afterwards he acquired millions. Now, during all that time, from the 20th of July, 1866, up to the day of his death, he never inquired after the James Davis will. It is a little curious he never wrote a letter to James Davis and said, "Where is the will, have you got it?" Not once. They have not shown a letter of that kind, not a word. Threw it in the waste-basket of forgetfulness and turned his face to Montana. Years rolled by, he never wrote about it, never inquired after it.
They have brought no witnesses to show that A. J. Davis ever spoke of the will; not a word. Gentlemen, let us be controlled by the natural, by the reasonable, by the probable.
In 1868 one of the executors died—Job Davis. I think Colonel Sanders said that if a man of Judge Davis's intelligence, knowing what a difficult thing a will is to write, should have allowed Mr. Knight, a Kentucky lawyer, to draw his will, who had not had much practice, why, he is astonished at that, and in the next breath tells you that Andrew J. Davis employed a twenty-two year old boy who could not spell "give" to draw up his will in 1866. Isn't it wonderful what strange things people can swallow and then find fault with others! Now, remember:
In 1868 Job Davis died; then there was only one executor to that will. A. J. Davis went on piling up his money, thousands on thousands. Greed grew with age, as it generally does. Gold is spurned by the young and loved by the old. There is something magnificent after all about the extravagance of youth, and there is something pitiful about the greed of old age. But he kept getting money, more and more, and in '85 he had sold the Lexington mine. He was then a millionaire. In '85, I think. They say he sold that mine in '81, maybe he was then a millionaire. There was the will of '66 down in Salt Creek township, used as a model for other wills, for the purpose of teaching the neighbors spelling and elocution, to say nothing of punctuation. They got up little will soirees down there—will parties—and all the neighbors came in and Mrs. Downey read it aloud and wept when she thought it was the writing of her brother Job. That accounts for the tear drops, I suppose; the round spots on the will. 1885; Andrew J. Davis worth millions. Then what happened? Then James Davis, the other executor, died. Then there was a will floating around down in Salt Creek township, sometimes in a trunk, sometimes in a box, other times in an old envelope, other times in a wrapper, and when I think of the shadowy adventures of that document it makes me lonesome. James is dead, poor Job nothing but dust; a will down there with no executors at all; and A. J. Davis did not know in whose possession it was, and never wrote to find out. Let us be governed by the natural, gentlemen, by the probable. Never found out, never inquired, and after James Davis died he lived four years more. I think James Davis died on the 5th of December, 1885, then he lived a little more than three years after he knew that both executors were dead and did not know whether the will existed or not. Judge Dixon tells us perhaps if he had made a will before he died it would have been different from this. I think perhaps it would. What makes him think that it would have been different? If that will existed in Salt Creek township he knew it, and he knew it in 1885, 6, 7, 8, 9, and when death touched with his icy finger his heart he knew it then, and if he made that will in '66, it was his will when he died unless it had been revoked. He knew what he was doing.
I tell you there was no will down in Salt Creek township at all; there wasn't any here. There have been a good many since. Now, where is the evidence that he ever thought of this will, that he ever spoke of it?