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story is preposterous. Again, is it not a little difficult to see how the spot got upon the lower part of the bosom of the shirt when he had on over it a colored shirt, a vest, a jumper or knit jacket, and a blue frock? And the shirt was hid where? Why, in the ash-heap back of his own 235 house. There can be no question the shirt was not his nor secreted by him.

There is one other evidence of the identity of the prisoner relied upon by the government, and that relates to the pencil it seems a young man found two days after the murder, 240 on Friday, in the entry of the house where the murder had been committed. The pencil was a common wooden pencil. The jury of inquest had been there the day before, besides the many other visitors, and none saw this pencil. Levi Mason is called. He says he saw Wagner in March 245 last have such a pencil. Says he had it in his hand fooling with it. That he was some six or seven feet from him. This is all he knows about it and yet he swears this is the identical pencil he saw him have. Gentlemen, you saw him on the stand, heard his testimony - I cannot think any 250 one of you believed anything he said. The idea of identifying a lead pencil he saw only for a moment, then six or seven feet distant from him, with nothing to call his attention to it, shows the witness to be either demented or foolish.

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The inquiry will naturally suggest itself to you why some of the many who were there on Thursday did not see this pencil if he left it there the night before. Is it not much more reasonable that some of the jury or some of the others who were there dropped this piece of pencil and then In- 260 glebretzen, when there the next day, picked it up? If the prisoner left it there Wednesday night, it was passed over by all the visitors there on Thursday, and on Friday until the afternoon of the day, undiscovered by anyone.

Again, gentlemen, what do they want us to believe the 265 prisoner had this pencil out for? Do they mean to argue

that he had it out to make a memorandum of the fact he had committed the murder, so as not to forget it, or to pencil down the amount of money he found? How was he going to make much use of this article in the dead of night 270 anyway?

Second Excerpt

from the Speech for the Defense

Looking first at the evidences of identification at Smutty Nose Island, what do we find? Under the direction of the Court, we have in the case the declarations of three persons. Mrs. Hontvet says that the first she heard was from Karen, 275 who cries out, “John has scared me, John has scared me." That was Karen's declaration. That was Karen's identification. Now, gentlemen, I do not mean to argue from the testimony in this case that it proved that John Hontvet was there. I do not state this evidence for that purpose; 280 but the evidence does show that whoever he was, he did not appear to Karen to resemble Wagner. She had known Wagner for a long time and intimately. Much longer and more intimately than Anethe, who had but a comparatively short acquaintance with him. Karen had been an inmate 285 of the house with him many months and had frequently and recently seen him in Portsmouth. The man, whoever he was, did not appear to be Wagner. That she looked to discover as far as was possible under such circumstances may well be supposed if she had not declared who she thought 290 it was. The fact that she did declare who in her opinion it was shows that she looked long enough to form an opinion and that the examination did not suggest to her mind the prisoner. This it may be said was a mere casual glance and not to be relied upon; but, gentlemen, you will rec-295 ollect that after this occurred, when the parties came into collision and personal combat of face to face takes place, she still says it is John. That "John is killing me, John is killing me," and after Mrs. Hontvet gets her into her room and holds the door against her assailant, and while she tells 300

her to get out of the window and flee away, she does not in any manner change her opinion.

Now here are two facts of great importance in this case. One is that the person did not resemble Wagner in the judgment of one well acquainted with him, and the repetition 305 made by her of this fact adds to its force. She had the means of knowing better than any one there. Mrs. Hontvet says that when she looked into the room, he was standing by an uncurtained window in a moonlight night, and it did not even occur to her that it was Wagner.

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Wagner tells you that at a certain time in the morning, he came into the house of Johnson; where he went in; what rooms he passed through; that he sat down upon the sofa; and in course of time, fell asleep upon that sofa. This he told to gentlemen in Boston immediately upon his arrest, 315 and this, too, he told all the way along; and gentlemen, it is not too much to infer, or at least, suspect, that he may have testified to it at South Berwick; but I say he had told it at that earlier period of time, and all the way thus, and upon the stand now has told the story, how it took place, and who 320 contradicts it? Nobody, but John Hontvet. How does he contradict it and when does he contradict it? He says that he was out and in through that room at various times and did not see him there. That is the declaration in the morning. Later in the day, he comes and undertakes to 325 put a man by the name of Loud upon that lounge all night, and till five o'clock in the morning, and at that time he went off and left him. He is the man, mind you, who has shown himself in the manner he has; the man who conducted himself in the manner he did in the crowd which surrounded 330 that prisoner, and the man who sought, while this prisoner was in the hands of the officers of the law, to take his life; himself the would-be murderer. You have noticed, perhaps, the long cross-examination that was had of Mrs. Johnson. It was for the purpose of reaching the truth, 335 which ultimately did appear from her, that Loud was in

bed upstairs on that morning when she got up, and she never, from that time to this hour, knew that he was on the lounge otherwise than as John Hontvet has stated. They trust to John Hontvet for this story. She, unsuspecting 340 what we were seeking for, tells you that Loud was in bed in the morning when she got up — very early. Loud was not called by the government to prove where he was to prove that he lay on this lounge, and to what period of time. John Hontvet saw somebody there, he says, on that 345 lounge until after five o'clock. If he did, and Loud was in bed upstairs, is that not entirely consistent with the prisoner's story? They cannot now be allowed to say there was no man on the lounge, Loud not being there, because Hontvet says there was a man there — he saw him 350 there.

Now from the earliest moment of time down to the present, after his arrest, he has always told parties, as far as the evidence shows here, that at a certain time in the evening, he fell down near a pump, and lay there some time near 355 this pump. This has not even been regarded as of sufficient importance, by the government, to seek to disprove the statements; but somehow or other, some government order, post haste last night, was sent for the whole force of these Portsmouth police to come in here and prove that 360 they did not see him there near the pump. Now, I cannot, even in this case, help making the remark, that it is a strange kind of effort for the government to make, to prove that a policeman did not see anything; for courts almost take judicial notice of the fact that they do not see anything, 365 except what they want to, and whenever you want one of them, you are not able to find him, and you would not very often expect to find him in the immediate vicinity of a pump either. Now, there is a long string of witnesses brought in here to show that Mr. A. and B. and C. did not see this man 370 lying down there by the pump, and because they did not see him there, they ask you for the responsibility is not

resting on them because they did not see him there, they ask you to convict him of the murder of these two

women.

Third Excerpt

375

from the Speech for the Prosecution Wagner says the two glasses of ale got him drunk and he started and went through Market St. and Court St., and as he was going by a pump, he slipped down upon the ice that cold night, and lay there until two o'clock; that he went to sleep there, rheumatic as he was, and froze his feet. The 380 officers who patrolled that street have been on the stand here. They tell you, that during those hours they saw no man lying at the pump, although it was a bright moonlight night. He asks you to believe this absurd story.

What next? At two o'clock, he got up from his bed on 385 the ice, and started for his bed at Johnson's. He entered the back door, went through the kitchen, down five steps; went through the kitchen past the door of his bedroom upstairs, down five steps into the middle room, and through a door into another room, the back shop, crossed that, and 390 lay down upon a lounge, where he slept till five o'clock.

Now, what was the situation of that house that night? Under what circumstances was he lying there upon that lounge the two or two and a half hours? John C. Hontvet was in that front room, in the front shop, adjoining this 395 room, with a door opening into it, John C. Hontvet and Christensen, both at work there till after six o'clock in the morning. They commenced their work between twelve and one o'clock, and were engaged there all night. Both these witnesses so testify. Loud was there, and Hontvet testi- 400 fied that he, Loud, after helping them from one to two, or thereabout, lay down upon that lounge, and lay there till towards five o'clock and then he went to bed. Mr. Kenniston testified that he went to bed about half past twelve and Loud was there then, and if it had been possible to have 405 Loud here at an earlier day, we should have had him here,

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