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WILLIAM WEMMS AND SEVEN OTHERS. 503

with regard to the assault made upon the party of soldiers at
the custom-house, and if you thereupon believe they were
before and at the time of their firing attacked by sueh num-
erg, and in such a violent manner ss many of the witnesses
have positively sworn, you will be able to assign a cause for
their firing so near together as they did without supposing &
previous agreement so to do. But it is said, that if their firing
as they did does not prove & previous agreement to do it, yet
it is good evidence of an actual abetment to fire, as one by
firing encourages the othera to do the like. As neither of the
goldiers fired more than onee, it is evident that he who fired
last eould not thereby in fact abet or encourage the firing of
any of those who fired before him, and so it cannot be evidence
of such abetment. And if he who fired first and killed can
justify it, because it was lawfal for him so to do, surely that
same lawful act cannot be evidence of an unlawful abetment.
And though he who first fired and killed may not be able to
justify the doing it, yet if it appeara he had such a cause for
the Killing as will reduce it to manslaughter, it would be
strange indeed if that same act should be evidence of his abet-
ting another who killed without provocation, so as to make
him who fired firet guilty of murder. The same may be said
as to all the intermediate firings; and as the evidence stands,
I do not think it necessary to say how it would be in case the
first person fired with little or no provocation. If, therefore,
this party of soldiers when at the custom-house were a lawful
assembly and continued so until they fired, and their firing
was not an actual unlawful abetment of each other to fire, nor
evidence of it, they cannot be said in consideration of law to
have killed those five persona or either of them, but it, must
rest on the evidence of the actual killing; and if so, neither
of the prigoners can be found guilty thereof, unless it appears
not only that he was of the party, but that he in particular did
in fact kill one or more of the persons slain. That the five
persons were killed by the party of soldiers or some of them,
seems. clear upon the evidence, and indeed is not disputed.
Some witnesses have been produced to prove that Mont-

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