, if he
were seen in the same dress. His opinion is formed partly from his own
observation, and partly from the description of others. But this
description turns out to be only in regard to the dress. It is said,
that he is now more confident than on the former trial. If he has varied
in his testimony make such allowance as you may think proper. I do not
perceive any material variance. He thought him the same person, when he
was first brought to court, and as he saw him get out of the chaise.
This is one of the cases in which a witness is permitted to give an
opinion. This witness is as honest as yourselves, neither willing nor
swift; but he says, he believes it was the man. His words are, "This is
my opinion "; and this opinion it is proper for him to give. If partly
founded on what he has _heard_, then this opinion is not to be taken;
but if on what he _saw_, then you can have no better evidence. I lay no
stress on similarity of dress. No man will ever lose his life by my
voice on such evidence. But then it is proper to notice, that no
inferences drawn from any _dissimilarity_ of dress can be given in the
prisoner's favor; because, in fact, the person seen by Mirick was
dressed like the prisoner.

The description of the person seen by Mirick answers to that of the
prisoner at the bar. In regard to the supposed discrepancy of
statements, before and now, there would be no end to such minute
inquiries. It would not be strange if witnesses should vary. I do not
think much of slight shades of variation. If I believe the witness is
honest, that is enough. If he has expressed himself more strongly now
than then, this does not prove him false.

Peter E. Webster saw the prisoner at the bar, as he then thought, and
still thinks, walking in Howard Street at half-past nine o'clock. He
then thought it was Frank Knapp, and has not altered his opinion since.
He knew him well; he had long known him. If he then thought it was he,
this goes far to prove it. He observed him the more, as it was unusual
to see gentlemen walk there at that hour. It was a retired, lonely
street. Now, is there reasonable doubt that Mr. Webster did see him
there that night? How can you have more proof than this? He judged by
his walk, by his general appearance, by his deportment. We all judge in
this manner. If you believe he is right, it goes a great way in this
case. But then this person, it is said, had a cloak on, and that he
could not, therefore, be th