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EDWAED D. WORRELL. 81

you knowt Can you answer met If you answer (as the
prosecution has asserted by indictment and by speech) one
of the two, Braff or Worrell, killed him, the answer shows
that the evidence is inconclusive; upon such answer you can-
not convict either. You perceive the evidence must go an-
other step ‘further to enable you to think of condemnation.
What is that step? The evidence must satisfy you beyond
all reasonable doubt that Gordon wag killed by one of the
two, and that the other knew before the Killing that the deed
was to be done, and was present at the act with the intention
to aid and assist the perpetrator in the execution of that act.
Observe: There must have been knowledge beforehand; that
is, before the act, that it was to be perpetrated. 2d. Presence
at the act. 3d, An agreement to aid in the perpetration of
that act, if aid should be necessary. I meet the law of the
indictment fairly; I do not lessen the breadth of a hair its
legal import; and now I ask you, can you find these facta from
the circumstantial evidence in the cause? Where is the evi-
dence of the previous knowledge? Where is the evidence of
the previous agreement? Look at the test of the sufficiency
of circumstantial evidenee furnished by the fourth rule:
“*It is essential that the cireumstances should to a moral eer-
tainty exclude every hypothesis but the one sought to be
proved.’

The hypothesis sought to be proved, is that Gordon was
killed by either Bruff or Worrell, and that the one who did
not kill him knew beforehand that the other was to kill him,
and agreed to be present to aid and assist in the killing, and
‘was so present. That is the hypothesis sought to be proved;
that is the hypothesis which must be proved, proved by the
State, affirmatively and beyond all reasonable doubt.

May not all that is proved in this cause be true, and yet
thia hypothesis be not truef If so, there is an end of the
eause. The question for you is not whether the hypothesis
is probably true, nor whether it is more probably true than
other hypotheses. It is not whether this hypothesis is the
best explanation of the circumstances, the most reasonable
aolution of them, the most plausible account of the homicide;

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