State v. Downham

1 Houston 45

• Court: Superior Court of Delaware
• Decided: April 5, 1858
• Status: Published

Opinion

At a Court of Oyer and Terminer, held at this term, Joseph Downham was tried on a bill of indictment found against him at a preceding term of the Court, for the murder of a negro man named Cæsar Lewis in the forest of Murderkill hundred, on the 27th day of October, in the year 1852. He had emigrated from the State and settled in the State of Indiana, not long after the alleged murder, the secret of which had remained unknown to all except two or three persons until very recently, and on the finding of the bill of indictment against him, he had been arrested and surrendered in that and brought to this State on the requisition of the Governor. The indictment was under the statute then in force against the crime of murder, and which was before it had been modified and divided into two degrees in this State.

The first witness called was James Andrews, who testified that a man by the name of John Scott and himself were at work for the prisoner, mauling rails in the Owl's Nest Woods back of his house one morning between seven and nine o'clock, six years ago next October, and during the fall term of the Court here, when he passed right on by them with a gun in his hand into the woods in an easterly direction and disappeared from their view as he proceeded on into the woods. He came back between eleven and twelve o'clock with the gun still in his hand, and going towards his house, and as he passed by them he said to them, "a man has a right to shoot a squirrel in the woods wherever he can find it, aint he?" But he heard no report of a gun while he was gone, and saw him no more after that until about dark that day. He ate dinner at his house about noon, but did not see him then, as he had gone to Dover, so he was informed by some one at the house. It was after supper and he was sitting in his house, and they sat together there and talked some time. After awhile the prisoner said to him that he wanted him to take a walk with him, but he told him he could not, for his wife was sick and he must go home, but the prisoner said he must go, and he became alarmed and assented to his demand. After he sat a while longer he stepped into an adjoining room and brought out two guns and said to Pompey Tribbet and to him, "come, I want you to go," and handed him one of the guns to carry as he came out of the house, and he carried it all the way in his hand just as he ordered him, for he was scared from the start by his manner. The prisoner went ahead and they close to him and next Mary Lizzie, the house-keeper, who carried a lantern with her, but not lighted. They went back of the place where they had been at work that morning into the Owl's Nest Woods and stopped within fifteen or twenty yards of the road leading from Whitehall to Berrytown, and within twenty-five yards of Cæsar Lewis' home. They all stopped there. They then went in an easterly direction into the Owl's Nest Woods, the woman still carrying the lantern, not very far, when the prisoner said to him, "hand me that gun," and reached out his hand and took it from him, and then pointing his finger ahead said to him and Pompey to go there and see what that woman can find. They refused to go. He said go on; but they still refused to go, and after he found they would not go, he went ahead himself a short distance and then stopped and said "there is the body of Cæsar Lewis. I want you to take it up and bury it." Pompey said, "I can't until I see who it is before I do." The prisoner said "light the lantern Mary Lizzie, and let him see for himself." She lit it, and Pompey said yes, it is Cæsar Lewis, at the same time looking him right in the face. His body was lying on its back. The prisoner then said take it up and follow him, and they then took hold of it and found it so heavy they could not carry it. He saw his face, but he did not know Cæsar. He and Pompey then got two poles and laid his body across them and carried it, Pompey ahead and he behind, in a southerly direction about one hundred and fifty yards into the swamp, and until they gave out, when the prisoner said he guessed that would do, and that was far enough. The spade was then given to Pompey and he was told by the prisoner to dig a hole, which he did until he got tired, and then he took hold but soon got tired, when Pompey said don't dig any more, the hole is deep enough. The prisoner sat a few yards off with the gun between his knees, and said put him in the hole and cover him up. He had all his clothes on except his hat. Pompey then covered him up. It was then about ten o'clock. The prisoner then said there is one enemy laid low, and the first one who tells of this may expect to go the same road. He then turned round and started home and they all went back to his house.

On cross-examination he further stated that he did not tell Thomas Jester that he laid in the woods himself waiting for Cæsar Lewis, but told him that he was left in the woods to wait for him about three-quarters of a mile from his house, but that he did not watch for him. He told him he was left to watch for him and lay down by the fence and fell asleep — that was the day before. What he told Tester was that when the sheriff came down there he and the prisoner went along the road and told him to stay there and watch for Cæsar, and he thought he must obey the sheriff's orders, and after awhile he leaned the gun against a bush and lay down and fell asleep and slept till daylight awoke him. The prisoner said Cæsar had shot at him a night or two before and tried to kill him. He said he was afraid to risk his life so long as such a man run at large. He said he had been to Dover and Cæsar watched for him by a large cherry tree, and shot at him in his carriage as he passed, and the shot struck both his hat and the top of his carriage, and it was for that the sheriff was seeking to find him and arrest him. There were shot in both his hat and the carriage-top. They were shot in the night, for he saw them about sunrise the next morning, the morning the prisoner went by them when they were out mauling rails, in the Owl's Nest Woods.

Pompey Tribbet was then called and sworn as a witness, and when asked by the Attorney General if the prisoner had ever told him anything, and if so, what about the killing of Cæsar Lewis? The practice had long been settled to admit such testimony. The demands of public justice required the enabling statute to be passed, and it has always received a liberal interpretation in furtherance of that object; and when a crime has been committed in the absence of any witness, and a voluntary confession has afterwards been made of it, the necessity for the admission of it in the due administration of public justice, is quite as great as proof of the factum of the offence itself when it can be had. Besides, if no white person was present when the homicide was committed, we consider the words of the statute broad enough without any forced construction in view of the object of it, to admit the testimony under the terms of it.

The witness then proceeded and stated that four or five years ago last fall, while the Court was in session here, he rode with the prisoner in his carriage from his house to Dover, and that it was after one o'clock in the afternoon when they started, and sometime after they had got on the road leading by White Hall, the prisoner said to him that he had something to tell him — that he had shot the hawk certain. He then asked him what kind of a hawk? He said Cæsar Lewis. He then asked him where? He said partly opposite the house where he lived, and then said he had been sitting for some time in the bushes on the other side of the road waiting for him to come along, and after awhile he saw him coming up the road, and when he got up to near where he was, he rose up in the bushes with his gun in his hands, raised it to his shoulder and levelled it at him in his face, when Cæsar threw up both of his arms and cried out what's the matter? Mr. Downham what's the matter? He said he replied "a good deal's the matter, you love to shoot at white people's heads!" and fired hitting him between and just above his eyes, and he fell dead in the road, and that he then went out into the road and drug him into the bushes and there left him. He said he could not drag him far because he was so heavy. The next day and after Cæsar's body had been buried, he showed him where he was standing in the road when he shot him. It was on the road from White Hall to Berrytown, nearly in front of Cæsar's house, and he then said he was sorry after he fired the gun, and if he had had time to reflect, he would not have fired it. He then saw blood in the road where he said he shot him, and some in the bushes where his body had been lying. Sand had been swept over that in the road. As they were going back to his house from Dover that afternoon he told him he wanted him to go and help bury him, but he told him he did not want to do it. He asked him why, and he told him he did not want to have anything to do with it. He then said to him it could not hurt him in any way to do that; and he said he had told Mary Lizzie to tell Mr. Andrews to remain there till he got home, for he wanted to see him. He knew Cæsar Lewis well, and it was his dead body certain they saw and buried that night in the swamp. On cross-examination he further stated that two days before he shot him he rode down to his house with his gun in his carriage, and when he saw it he asked what was the matter. At first he said nothing, but afterwards told him that Cæsar Lewis had shot at him in his carriage on the road, and blew his hat out of the carriage, and when he got out of it he saw him run off with his gun behind the carriage into the bushes, that he saw it was Cæsar Lewis, and then cried to him as he ran off that that crack should cost him his life.

The preceding witness, Andrews, was then recalled by the prosecution, and stated that when the prisoner first asked him to take a walk with him that night, his manner was about as usual, but when he said to him he could not go, his manner changed instantly, and the way in which he then said "you must go," both startled and cowed him, and he then stood in fear of him. When the prisoner was afterwards speaking to him of the shooting of Cæsar Lewis, he told him he had been waiting some time in the bushes along the road side not far from his house for him to come along, and when he came along and got near enough, he rose up with his gun to his shoulder and levelled it at Cæsar's head and face, who threw up his arms and cried "Mr. Downham, what have I done!" to which he said "you have done enough!" and shot him between the eyes. He saw his dead body the night they buried him. It was shot between the eyes and in the forehead just above them, and he saw that night a few shot sticking around the hole which the main load of the gun had made in his forehead. The skull here shown him was taken from the hole where he was buried, and the hole now in the forehead of it is where the wound was the night he was buried. He had on but one boot when he was buried, and but one boot was found in the hole when it was opened by the order of the coroner and the inquest was held over it. There was further evidence produced establishing the identity of the remains disinterred with the dead body of Cæsar Lewis beyond all question.

P. R. Kirby testified that he met the prisoner one day some five or six years ago, when he showed him his carriage and his hat where Cæsar Lewis, as he said, had shot at him, and which looked at the time as if they had been shot, and who then said to him that he intended to shoot him on sight. And that was about the time it was said that the prisoner had been shot at.

John Scott was also called and examined as a witness on the part of the prosecution, and stated that he was at work for the prisoner with the witness, Andrews, five years ago last October, the time spoken of by him, and remembered the fact mentioned by him that the prisoner passed by them where they were at work, with a double-barrelled gun on his shoulder, into the woods beyond them between eight and nine o'clock in the morning; and he also recollected of his coming back by about ten o'clock, and his asking as he passed by them the question, a man has a right to shoot a squirrel in the woods wherever lie can find it? But he noticed at the time that he had no squirrel, and he was the more struck with it because he was a good shot, and generally got more game than anybody else in the neighborhood when he went gunning. But he had not been gone more than an hour and a half.

A morning or two before that he had seen where the prisoner's carriage-top had been shot into the night before on the road, as he said, and that same night about ten o'clock he heard a horse and carriage pass by his house and over the bridge towards the prisoner's house, and he thought at the time he knew the carrige by the rattle of it, and said to some of his family there goes Mr. Downham he thought by the sound of his carriage. The horse and carriage were going quite fast, and very soon after they crossed the bridge he heard a gun fired in that direction, and he thinks it must have been near the big cherry tree in Mr. Downham's field. The bridge is about two hundred yards from Mr. Downham's house and about three hundred from his. He saw the carriage the next morning, and it was shot through the side of the top of it about as high as the head of a man of common size when seated in it, and seemed to have been fired into just as the carriage had passed the person who fired into it. The shot went out on the other side of the carriage top higher than they entered it on the opposite side of it.

Edward Reed, the coroner of the county, testified that on the Sunday before the remains were disinterred he took the witness, Andrews, out with him to show him the place where the body had been buried, and when he had done that, he broke a few bushes by it to mark the spot; and on the Tuesday following he took Pompey Tribbett out there to do the same, and when they had reached the broken bushes he at once enquired who had broken them, and asked with some alarm, "but what, if the body has been taken away, and is not to be found here now?" He then told him he had broken them and when, and if the body was not there it should not compromise him. He then said well, it is near the place, and they afterwards found the remains within a few yards of it. The scull was the first part of them unearthed, and in it were found several squirrel shot.

Joseph B. Nickerson testified that five years ago last fall he was acting as a deputy for sheriff Kersey, and during that term of the Court the prisoner called on him to go and arrest Cæsar Lewis, for whom he was bail at that term of the Court. The sheriff could not go and he came for him. He told him he would go, if he would give him five dollars, but as he was his bail for his appearance at that term, he had a right to arrest him and bring him himself, and as he would not give him the five dollars, he did not go. He showed him his hat which had been shot, and which he said had been done by Cæsar Lewis he believed. It was a black silk hat, and it was shot in the back part of it, the shot inclining upward and the lowest shot in it which he measured with his finger, seemed to have entered it about two inches and a half above the rim. Some of the shot passed out towards the top of the hat, and some out through the top of it. He said Cæsar Lewis shot at him and did it the night before that, as he was driving home from Dover.

The counsel for the prisoner then opened their defense, and put in evidence the record of an indictment found as the April Term, 1852, of the Court of General Sessions for the county, against Cæsar Lewis for cutting trees, and respited until the following October Term, with Joseph Downham as his bail for his appearance at that term.

Henry Todd was then sworn and testified that he remembered that the prisoner came to him as Clerk of the Peace at the October Term, 1852, for a bail piece for the purpose of arresting and surrendering Cæsar Lewis, for whom he was bail on the indictment referred to, and who had failed to appear at that term, and he gave him a duly certified copy of the recognizance of bail, and he heard Chief Justice Booth tell him after he had delivered it to him, that it would authorize him as his bail to take him and bring him into Court. He had not been shot at then, but he came back the next day in the afternoon, and he then exhibited his hat, which he saw had been shot through, and stated that it was done by Cæsar Lewis. His recollection was that he got the bail-piece during the forenoon of Tuesday and was back again in the afternoon of the next day.

William Harrington was next sworn and testified that he was a Justice of the Peace, residing in that section of the county during the year 1852, and that during the fall term of the Court here in that year Cæsar Lewis came to his house one night and wanted a State warrant against Joseph Downham and also a State warrant against one Thomas Cook, and his complaint was that they had laid violent hands on him and attempted to tie him. He was aware of the nature of the case, and at once told him he could not issue them, because he ought to have gone to Court, as he was bound by his recognizance to do, and that he had advised Mr. Downham to do as he had done, as he was his bail and surety for his appearance at Court. He was very much dissatisfied and then said if he could not protect him, he would have to defend himself, and it must be life for life, and that he would not be taken to Dover alive. He said they had been trying to tie him to carry him to Dover to be tried, and that he had just got away from them. It was the night of the first or the second day of Court, and it was about one o'clock when he came to his house, and remained about an hour. He saw the prisoner the next or the second day after that, and he seemed to be alarmed, but did not remember whether he informed him of the threats he had made or not.

Thomas Winter also testified that Cæsar Lewis told him on the Saturday evening before the meeting of Court that he would not go to Court. He told him he ought to, for his surety by entering his bail, had kept him out of jail. He said he would suffer death, and that he would shoot him dead before he would go; and in a few days afterwards he heard that they had their fuss.

Thomas Cook testified that the same night the prisoner was shot at, he went with him early in the evening to Cæsar Lewis' house to persuade him to go to Court the next day if they could, and if not, to arrest him and take him there if they could, but as soon as they entered his house his wife opened the back door and told him to run, which he immediately did, but they pursued him, and as he fell down over a stump, they overtook him and got hold of him, but his wife came out with a stick, when the prisoner went to take it from her, and Cæsar broke away from him and escaped from them. He went there with the prisoner in his carriage, hitching the horse some distance from the house. He had no gun in the carriage with "him. He then rode back in the carriage with him as far as Mr. Bell's, where he got out, and the prisoner drove on towards his home. After they had separated and before the prisoner had had time to reach home, he heard a gun fired. It was about three-quarters of a mile from the White Hall road to Cæsar's house, and he had run down the road in the direction of that road.

The counsel for the prisoner, in conclusion, called a large number of the most respectable citizens who had been well acquainted with him for many years, all of whom represented his reputation for peace and good order as having been uniformly unexceptionable.

The case was fully and ably tried on behalf of the State bySpruance, Deputy Attorney, and Fisher, Attorney General, and on behalf of the prisoner by W. Saulsbury andN. B. Smithers. The Court, Gilpin C. J., charged the jury with equal fullness and ability on the law of the case, defining the law of self-defence, and the three several grades of felonious homicide, that is to say, murder with express malice aforethought, murder with malice aforethought implied by law, and manslaughter; and in effect that if they believed and were satisfied beyond a reasonable doubt from the evidence that the prisoner killed the deceased, the negro man, Cæsar Lewis, in the mode and manner alleged and contended for by the State, then conceding all that had been alleged and proved by way of justification, excuse or palliation of that killing on the other side, it could not show and establish a sufficient provocation in law to reduce it to the grade of manslaughter; for however unreasonable and unlawful the conduct of the deceased had been, in refusing to appear at Court according to the tenor of his recognizance, and unfair and unjust, as it undoubtedly was, to his bail in that recognizance, the prisoner at the bar, and however violent might have been his threats to resist the rightful and lawful authority of his bail, the prisoner, to arrest him and take him to Court on a bail-piece which he had taken out of it for that purpose, and whatever attempt he might have made upon the life of the prisoner by shooting at him in his carriage on the road the night before the killing, neither of them, nor all of them combined, could have the effect in law to mitigate and reduce it to the crime of manslaughter, if the act of shooting the deceased was committed by him with a sedate, deliberate mind and formed design, evidenced by arming himself for the purpose, and by lying in wait for him, and after nearly, if not quite twelve hours had elapsed since the circumstance last adverted to, the attempt had been made upon his life by the deceased; because such sedate deliberation, formed design and determination to kill another as that, would furnish in itself the strongest evidence of express malice aforethought, and of the crime of murder in law.

Verdict — "Not Guilty."