University of Virginia Library

CHAPTER XIII.

CAPT. KER FOR PROSECUTION.

Captain Richard S. Ker's searching and incisive questions when he
took part in the cross-examination of witnesses, created a favorable
impression of him as an astute lawyer. There was a general desire
to hear him speak, and there was a large crowd present on Wednesday
morning, when he arose to address the jury.

He said, in part: "In endeavoring, gentlemen of the jury, to be of
assistance to you in arriving at a true and just determination of the
issue between the Commonwealth and this prisoner at the bar, I shall
seek to consume as little of your time as possible, at the same time
directing your attention to such points in the evidence in this case and
the law applicable to it, as I feel may be of assistance to you in the
discharge of your duty.

"The full and able and convincing argument of my associate who has
preceded me has lessened the burden of my duty very materially. Notwithstanding
that, gentlemen, of the jury, I feel it my duty, as far as
in me lies, to assist you, not by any charm of rhetoric, not by any
spell of oratory, were it in my power to charm you thus, but by reason
of the fact that you are endeavoring to direct your attention to evidence
in this case, for by that evidence and that alone you are to determine
what your verdict shall be.

"You are selected, gentlemen, as the triers of this case, not because
you are learned in the gift of law or gifted in any special metaphysical
powers to discriminate between `hypotheses and reasonable doubts,' but
because you are men of experience in the affairs of humankind; because
you belong to the great body politic of this Commonwealth; because
you, as citizens, are endowed with that same reason, that same common
sense, that same human experience which leads you to judge the affairs
and actions of your fellow-men. And in considering this case, gentlemen,
it is not what I may say to you of our opinions or our beliefs.
It is not what my learned friends on the other side may say as to
their opinions and beliefs that you are to weigh determining this case,
but what you have heard from the mouths of witnesses. By that, and
that alone, you are to determine to guilt or the innocence of the
prisoner at the bar. By that, and that alone, you are to say whether
you have the abiding conviction or not of his guilt, and by that, and

that alone, you are to put your finger upon and give a reason for any
doubt that may exist in your minds. It is easy, by beautiful theories
and castles in the air, for the eloquent tongues of counsel on the
other side to suggest doubts to the jury. But the doubts you are to
consider, the only doubts you are to consider, are not those suggested
by counsel in argument, are not those things that might been, but
those things that are detailed to you by the witnesses and not by the
counsel.

"The able counsel for the prisoner who already said to you, in considering
this case you are expected to apply to it not any special metaphysical
learning, but simply the common sense and every-day experience
and reason, based upon that common sense and every-day experience,
that will lead you gentlemen to determine in your minds
whether this prisoner is guilty or whether he is innocent. It may be
that after certain trials you, like myself, have heard jurors who sat
in the cases say, `we all believe that man guilty, we are all satisfied
about it, but we didn't think the evidence showed it.'

"Gentlemen of the jury, if a juror after his examination by a court,
goes into the jury box with a mind free and clear of all feeling as to
whether the accused be guilty or innocent, and he hears only the evidence
as detailed to him by witnesses and legitimate argument of
counsel and the instructions of court, and then he feels and is satisfied
that the accused is guilty, that is all the law requires."

"The law does not ask and demand of you any infallibility. It doesn't
require of you that you should be transported, because you happen
to be trying a case, to some high plane away above your fellow-mortals
and that you exercise the acumen not common to everyday
man.

Captain Ker declared that it is idle for any jury to say that it believes
a prisoner guilty but that the evidence did not prove it.

"I ask you if the evidence in this case does not satisfy you beyond any
doubt that the prisoner here is responsible for the foul murder of
Fannie McCue," said the lawyer.

"Let us see what this evidence does show. It is true that the
accused occupied a prominent place in this community, that his family
was one of social prominence, and that it could not afford to drag the
skeleton out of the closet and exhibit it on the streets and in public
places. Pride and business considerations would have prevented this.
I challenge your every-day common sense to say if it is not the `little
straws,' in cases like this, which show the way the wind blows. It
would not be proper to convict the accused upon the evidence of a single
witness, but it is impossible that all of the witnesses could have been
mistaken when they testified to the strained relations between the

accused and his wife. Was not that boy right, when, looking upon
his dead mother, he said, `this is the most peaceful look I have seen
on her face for years.' The evidence shows that for years this man had
been caring less and less for the tender, true and loving woman who
was his wife, and that he had become less and less concerned about the
marriage relations. Leading such a life a man becomes more and more
indifferent. It is not a sudden wrenching apart of the ties which bind
their hearts together. It is gradual, it takes some time for either the
man or the woman to reach the point when he or she is ready to declare
that his or her life is a `hell on earth.' This was the case in this
unhappy home."

"I take issue with the counsel on the other side when they say that
there must be a motive for every crime before it can be punished. It
is not necessary—it is not law and not common sense—to prove a
motive before you can punish a man known to be guilty.

"Let us see if the statement of the accused that his life was a `hell
on earth' was meant to refer to his early struggles. It was during the
last few years that his life had been filled with misery. Unless you
think that John S. White, his friend and fellow-practicioner, was manufacturing
evidence, you are bound to believe that the accused referred
to his wife as `that woman' and then added that she was the most
jealous creature he had ever known.' I do not pretend to say that
at times the tender clinging love of the wife did not bring to the
memory of the husband a recollection of his marriage vows and awake
in his breast feelings of tenderness; I do not pretend to say that
there was always wrangling and dissension. The love of the woman
was bound to awake at times, but the returns are clearly proven to have
been strained and unhappy. It is a little significant that the only people
who passed Mrs. McCue as she went to church that fateful night noticed
her sadness.

"Let us see what happened at that house on the night of the tragedy.
The accused says he was knocked senseless by a little scratch on the
face, by some nameless instrument, introduced by the ingenuity of the
counsel, which produced a concussion of the brain, but no contusion on
the surface. What witness tells you that this could be done? Dr. C. S.
Venable says it can't be done, Dr. H. T. Nelson says it is impossible,
and Dr. J. E. Early says the same thing. Who says it was possible?
Only the counsel for the defense.

Take the statements of the accused. Counsel for the defense say that
varying statements show the truth. This is correct as to different witnesses
testifying about the same matter, but not as to one witness same
matter, but not as to one witness speaking of the same transaction.
That is the only thing he sticks to. He knows that he must not know
what had happened if he is to escape the responsibility.

"Seven different statements, only consistent as to the one point of unconsciousness
have been made by the accussed. You are asked to believe
that a time when people were all astir and when the neighbors were
all up, a burglar went to the house and committed the crime, that he
placed the baseball bat in the corner of the room, that he stood the gun
in place, and that he did the deed when, by waiting a few minutes
longer, the inmates would have been in bed and he could have burglarized
at his will.

"Was it burglary? What strange character of robber was this who
considerately refused to allow his victims to go quietly to sleep
and then burgle at his leisure, but rushed into a lighted room
and attacked the woman and the man. Gentlemen, can you believe
it? A few moments later the man and the woman would have been
asleep and the night prowler would have had the house for his own.
Yet, he did not wait. And then after he had knocked the man senseless
and killed the woman—when the latter was dead and out of the
way and he might have killed the former if he had wished—after he
had done all of this, gentlemen, he quietly left the house disturbing
nothing and the only effect of his visit was the death of this poor
woman! Gentlemen, is it reasonable; do you believe it?

"Was it a man seeking revenge? Would such a man if he sought
the life of the woman attack her in the presence of her husband?
Would he go to the house relying upon weapons he expected to find on
the premises? If he sought the blood of the man himself would he
rush at him unarmed, would he knock him senseless and then when,
with a gun in his hands, he had his enemy at his mercy, leave him
to live while he slew his unoffending wife? Is it reasonable, gentlemen,
do you believe it?

"Was he a burglar scared off before he could gather his booty or a
murderer who had not time to complete his crime? If this had been
true, the weapons would have been flung hastily aside. But were they?
No! The bat that bruised the tender flesh of the woman was standing
carefully placed near the mantel; the gun that had torn her breast,
was even as carefully stood in a corner of the hall. It is reasonable,
gentlemen, do you believe it?

Next he referred to the considerate way in which his associate,
Captain Woods, had handled Willie McCue in yesterday's argument, and
then he added: "It is not in my heart to remove that veil. But I cannot
help feeling that however great the battle William McCue was fighting,
however much his father's people may have wondered at the step
he was taking, I cannot help feeling that in God's own providence
there was some way for that boy, fighting though he was, to have yet
told you the truth and been justified in his own conscience, in the
opinions of his fellow-men, and in the smiling approval of his God.

It may be that the ties of family; it may be that there was his
father's life in his hands, justified that boy in going upon that stand
and swearing to you that the relations of his parents had been pleasant,
when you know from the statements he repeatedly made to
others that that was not the truth. I say these things may have
justified him. I admit it is hard for us to tell, but I cannot help feeling
that in the long run, in the final wind up, truth, wherever it falls,
and whoever it hurts, is the best course for us. Willie McCue is the
only witness of this immediate family who attempts to speak to you
of the relations existing in that family. I say that whatever you may
think of his misfortune, however disposed you are to draw the veil of
charity over his conduct, however much disposed you may be to look
with sorrow and pity upon that poor boy, and regret that he lost the
battle instead of winning, still you cannot fail to believe that the
statements he made to you upon the witness-stand was untrue, and
that the statements he made repeatedly to others in regard to the relations
between his father and mother were correct.

"Were actions of the accused on the night of the murder consistent
with his innocence?" asked the speaker. "No outcry for help; simply
a cool call for a 'phone number? The negro who was afraid to tell
the truth on the stand was also afraid to make an outcry. There they
were, both of them, as dumb and mute as oysters. There was the
brother, also, who goes down one of the principal streets without once
giving the alarm. He must have been at the house from five to ten
minutes before the news began to spread. In all that time these people
give out no alarm, and the neighbors pace the street in front of
their houses in ignorance of the crime. We cannot tell when the public
ever would have heard of it had it not been for the young lady at
the telephone office."

In ending, Captain Ker said: "Gentlemen, the Commonwealth requires
that where any man, be he prince or pauper, does an offense
against her law, he shall receive the punishment of the law, and it
makes no difference to the great body of people, to the ultimate good
of the Commonwealth, whether you are now trying a man who is
able, as my friend says the accused is, to pay out $2,500 or $3,000 in
life insurance, or whether you are passing upon the case of the veriest
pauper or beggar. The law requires that the same even-minded
justice be meted out to one as to the other.

"My friend who has preceded me has held up to you your awful
responsibility. It seemed to me—I don't want to do him an injustice—
that he was attempting to scare you, gentlemen, with ghosts. I don't
think it is necessary for me to tell you twelve men, who have been tested
and found competent to sit on this case, of your responsibility. I am
certain from the earnest, honest, careful, painstaking attention paid

by you to every detail of this case that you realize your responsibility.
I am also certain that as true men of Virginia you cannot be frightened
by the nursery scare that `the goblins will git you if you don't look
out.' The holding up of the fact that this man's ghost may haunt you
in after life is not enough to deter Virginians from doing their duty in
any emergency when they are called upon to perform it.

J. TINSLEY COLEMAN,
Of Counsel for Defense.