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

502 X. AMERICAN STATE TRIALS.

all that party will by law be chargeable with each mortal
stroke given by either of them, as though they all had in fact
given it.

It is said, that while they were at the custom-house, before
they fired, some of them attempted with their bayonets to stab
every one they could come at, without any reason at all for so
doing. Such conduct to be sure can neither be justified nor ex-
cused. But as the time was so very short, and some of the wit-
nesses declare the people were crowding upon the soldiers and
that they were moving their guns backwards and forwards,
erying, ‘‘stand off,” ‘‘stand off,’ without moving from their
station, you will consider whether this may not be what other
witnesses call an attempt to stab the people. But, be that as
it may, if the party was a lawful assembly before, thia not
being the act of the whole would not make it unlawful. The
counsel for the crown insist, that the firing upon the people
was an unlawful act, in disturbance of the peace, and as the
party fired so near together, it must be supposed they pre-
viously agreed to do it; that agreement made them an unlaw-
ful assembly, if they were not so before, and being so when
they fired, all are chargeable with the killing by any one or
more of them. However just this reasoning may be, where
there is no apparent cause for their firing, yet it will not hold
good where there is. If each of the party had been at the same
instant so assaulted as that it would have justified his killing
the assailant in defense of his own life, and thereupon each of
them had at the same instant fired upon and killed the person
that assaulted him, surely it would not have been evidence of
a previous agreement to fire, or prove them to be an unlawful
assembly ; nor would it have been evidence of such agreement,
if the attack was not such as would justify the firing and kill-
ing, though it was such an assault as would alleviate the
offense and reduce it to manslaughter, since there would be as
apparent 6 cause of the firing in ane case as in the other, and
though not so good a cause, yet such an one as the law in con-
descension to human frailty greatly regards. Yon will there-
fore carefully consider what the several witnesses have sworn