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

80 X. AMERICAN STATE TRIALS.

should to a moral certainty exclude every hypothesis but the
one proposed to be proved.’’ (1 Starkie 5-11, 512.) Lastly,
‘Circumstantial evidence ought in no case te be relied on,
where direet and positive testimony is within the power of the
proseeution.’? (1 Starkie 5-13.)

Jurors, help me to try the circumstantial evidence in thia
eause by the tests of the law thus laid down. You perceive
without any labor of thought that evidence which satiafactor-
ily and certainly proves that one of three persons, A, B and
C, did a murder, is inconclusive evidence, upon which A, B
and © must all be acquitted. The chances are two to one
that you will select the wrong man. It is equally plain that
evidence is ‘‘ineonelusive’ which makes it certain that one
of two men, A and B, committed the crime. In this case the
chances are equal that you will select the wrong one. Now,
the law most wisely forbids that any person shall be hung
by chance. Probabilities are out of place here; they have no
standing in court, on a trial for crime. Nothing but certainty
will satisfy the law, or the conscience of a just juror. It chilis
the blood to think of the condemnation of a fellow-creature
upon a guess, however shrewd. ‘In a case of life and death,’”
said a supreme judge of Pennsylvania, ‘‘I dare not be in-
genious.” There must be certainty, nothing but certainty.
‘We are not debating triangles, and of course I do not mean
the certainty of the exact sciences, I do not mean mathemat-
ical certainty; but I mean moral certainty, the certainty
which excludes possibilities and probabilities, the certainty
which declares that if it be probably certain that a man is
not guilty you must, for that very reason, acquit him. That
is the law which you have sworn to administer; and that ought
to be law on the most elevated principle of justice, for other-
wise it is as demonstrable as any proposition in mathematica,
that you must hang the innocent; you can’t avoid the error,
you must shed blood which you have no right to apill. If
under our law the innocent shall suffer, it must be the result,
not of the syatem, but of human fallibility.

‘Whe killed Gordont I ask you under the cireumstantial
evidence the State has brought. Who killed Gordon? Do