532 Slide – American State Trials 1918 Volume X Leo Frank Document

500 X. AMERICAN STATE TRIALS.

the contrary appears by the testimony of Colone! Marshall
and others,

It is with you to determine this matter upon the whole of
the evidence given you. In doing it you ought to reconcile the
several testimonies, if by any reasonable construction of the
words it may be done. Where some witnesses swear they saw
such a thing done, and others swear they were present and did
not see it; if the thing said to be done be such as it may rea-
sonably be supposed some might see and others not, by reason
of their want of observation, or particular attention to other
matters there, as both may be true, you ought to suppose them
to be so, rather than presume that any of the witnesses swear
falsely. But if witnesses contradict each other, so that their
testimonies cannot be reconeiled, you must then consider the
number of the witnesses on each side, their ability, integrity,
indifference as to the point in question, and the probability or
improbability arising from the nature of the thing in question,
and, upon the whole, settle the fact as you verily believe it to
be. If you find the sentry was attacked, the next thing to be
considered is, whether the prisoners went to protect him, and
if so, whether it was lawful for them go to do. There is a great
difference between a common affray, and attacking the king’s
forces, I think the law in that regard ought to be more gen-
erally known here than it seems to be. If, upon a sudden
quarrel from some affront given or taken, the neighborhood
Tise and drive the king’s forces out of their quarters, it is a
great misdemeanor, and if death ensues, it may be felony in
the assailants, but it is not treason, because there was ne inten-
tion against the king’s person or government; but attacking
the king’s forees in opposition to his authority, apon a march
or in quarters, is levying war against the king. And resisting
the king’s forces, if sent to keep the peace, may amount to an
overt act of high treason. Though it may be attended with
great inconveniences for private persons, without a peace
officer, to make use of arms for suppressing an ordinary riot,
yet if the riot be such an one as savors of rebellion, it doubtless
may lawfully be done. You have heard what the witnesses