ay you
to remember, Gentlemen, that this is a case in which the prisoner would,
more than any other, be rationally able to account for himself on the
night of the murder, if he could do so. He was in the conspiracy, he
knew the murder was then to be committed, and if he himself was to have
no hand in its actual execution, he would of course, as a matter of
safety and precaution, be somewhere else, and be able to prove
afterwards that he had been somewhere else. Having this motive to prove
himself elsewhere, and the power to do it if he were elsewhere, his
failing in such proof must necessarily leave a very strong inference
against him.

But, Gentlemen, let us now consider what is the evidence produced on the
part of the government to prove that John Francis Knapp, the prisoner at
the bar, was in Brown Street on the night of the murder. This is a point
of vital importance in this cause. Unless this be made out, beyond
reasonable doubt, the law of _presence_ does not apply to the case. The
government undertake to prove that he was present aiding in the murder,
by proving that he was in Brown Street for this purpose. Now, what are
the undoubted facts? They are, that two persons were seen in that
street, several times during that evening, under suspicious
circumstances; under such circumstances as induced those who saw them to
watch their movements. Of this there can be no doubt. Mirick saw a man
standing at the post opposite his store from fifteen minutes before nine
until twenty minutes after, dressed in a full frock-coat, glazed cap,
and so forth, in size and general appearance answering to the prisoner
at the bar. This person was waiting there; and whenever any one
approached him, he moved to and from the corner, as though he would
avoid being suspected or recognized. Afterwards, two persons were seen
by Webster, walking in Howard Street, with a slow, deliberate movement
that attracted his attention. This was about half-past nine. One of
these he took to be the prisoner at the bar, the other he did not know.

About half-past ten a person is seen sitting on the rope-walk steps,
wrapped in a cloak. He drops his head when passed, to avoid being known.
Shortly after, two persons are seen to meet in this street, without
ceremony or salutation, and in a hurried manner to converse for a short
time; then to separate, and run off with great speed. Now, on this same
night a gentleman is slain, murdered in his bed, his house bein