Harper's New Monthly Magazine, No. XXIV, May 1852, Vol. IV

Sometimes, when the offense is not very serious, they release the prisoner on bail, as it is called, during the time that intervenes between his examination and his trial. That is, they give him up to his friends, on condition that his friends agree that he shall certainly appear at the time of trial – covenanting that if he does not appear they will pay a large sum of money. The money that is to be forfeited, if he fails to appear, varies in different cases, and is fixed by the judge in each particular case. This money is called the bail. If the prisoner has a bad character, and his friends generally believe that he is guilty, he can not get bail, for his friends are afraid that if they give bail for him, and so let him have his liberty, he will run away before the time comes for his trial, and then they will lose the money. When, for this or any other reason, a prisoner can not get bail, he has to go to prison, and stay there till his trial comes on. On the other hand, if the prisoner has a good character, and if his friends have confidence in him, they give bail, and thus he is left at liberty until his trial comes on.

At the examination of a prisoner, which takes place usually very soon after he is first arrested, he is allowed to say any thing that he pleases to say, in explanation of the suspicious circumstances under which he was taken. He is, however, not required to say any thing unless he chooses. The reason of this is, that no one is required to furnish any proof against himself, when he is charged with crime. If he can say any thing which will operate in his favor, he is allowed to do it, and what he says is written down, and is produced on his trial, to be used for or against him according to the circumstances of the case.

When the officer came in, in the morning, to arrest Antonio, he told him he was to go at eleven o'clock the next morning before the magistrate to be examined. Antonio asked the officer whether he could be allowed, in the mean time, to write a letter to his friends in Franconia.

"Yes," said the officer, "only I must see what you write."

So they brought Antonio a sheet of paper, and a pen and ink. He sat down to a table and wrote as follows:

"Hiburgh, July 10.

"To Mrs. Henry;

"There was a fire here last night which burnt up an old corn-barn, and I have been taken up for it, by the officers. They think that I set the corn-barn on fire, but I did not do it. I suppose, though, that I shall have to be tried, and I expect that I must go to prison until the trial comes on, unless Mr. Keep could come down here and make some arrangement for me. You may depend that I did not set the corn-barn on fire.

"Yours with much respect,"A. Bianchinette."

The officer read this letter when it was finished, and then asked Antonio whether it should be put into the post-office. Antonio inquired how much it would cost to send a boy with it on purpose. The officer told him what he thought it would cost, and then Antonio took out the money that he had in his pocket to see if he had enough. He found that he had more than enough, and so the officer sent a special messenger with the letter.

"And now," said the officer, "you must go with me to my house. I am going to keep you there until the examination to-morrow."

So Antonio took his cap and went down stairs with the officer. He found quite a number of men and boys at the door, waiting to see him come. These people followed him along through the street, as he walked toward the officer's house, some running before, to look him in the face, and some running behind, and calling him incendiary and other hard names. Antonio took no notice of them, but walked quietly along, talking with the officer.

When he got opposite to the lane, he looked down toward the place where the corn-barn had stood. He found that it had been burnt to the ground. The ruins were still smoking, and several men and boys were standing around the place – some looking idly on, and some poking up the smouldering fires.

There was something in Antonio's frank and honest air, and in the intelligence and good sense which he manifested in his conversation, which interested the officer in his favor. He told his wife when he got home that Antonio was the most honest looking rogue that he ever had the custody of. It shows, however, he added, how little we can trust to appearances. I once had a man in my keeping, who looked as innocent and simple-minded as Dorinda there, but he turned out to be one of the most cunning counterfeiters in the state.

Dorinda was the officer's little girl.

There was a room in the officer's house, which was made very strong, and used for the temporary keeping of prisoners. They put Antonio into this room and locked him in.

The officer, however, told him when he went away, that he would bring him some breakfast pretty soon; and this he did in about half an hour. Antonio ate his breakfast with an excellent appetite.

After breakfast he moved his chair up to a small window, which had been made in one side of the room. The window had a sash on the inside, and great iron bars without. Antonio opened the sash and looked out through the iron bars. He saw a pleasant green yard, and a little girl playing there upon the grass.

"What is your name?" said Antonio.

The little girl started at hearing this voice, ran back a little way, and then stood looking at Antonio with her hands behind her.

"Bring me that piece of paper," said Antonio, "that lies there on the grass, and I will make you a picture."

The girl stood still a moment as if much astonished, and then advancing timidly, she picked up the paper and brought it to Antonio's window, which was very near the ground, and held it up. Antonio reached his arm out between the bars of the grating and took the paper in.

Although the window was not high, it seemed to be with some difficulty that Antonio could reach the paper as Dorinda held it up. But this was partly because Dorinda was afraid, and did not dare to come too near.

Antonio took a pencil out of his pocket, and putting the paper down upon the window sill, he began to draw. Dorinda stood still upon the ground outside, watching him. Antonio made a picture of a very grave and matronly-looking cat, lying upon a stone step and watching two kittens that were playing upon the grass before her. There was a bare-headed boy near, who seemed to be putting a mitten upon his hand. Underneath Antonio wrote the words —

"This is the picture of a cat,Looking at some kittens;Also a boy without a hat,Putting on his mittens."

When the work was finished, Antonio threw the paper out the window, and Dorinda who had been all the time looking on with a very serious expression of countenance, took it up, and began to look at the drawing. She could not read, so she only looked at the picture. After examining it for some minutes, without, however, at all relaxing the extreme gravity of her countenance, she ran off to show the paper to her mother.

Presently she came back again. By this time Antonio had made another drawing. It was the representation of his own window, as it would appear on the outside, with iron bars forming a grating, and himself looking through between them. Underneath he wrote,

"Pity the poor prisoner, and bring him some books to read."

Dorinda took this picture too, when Antonio threw it out to her, and ran in with it to her mother. Presently she came out with two books in her hand. She came under the window and held them up timidly to Antonio, and Antonio took them in.

By the help of these books and some other indulgences that the officer allowed him, Antonio got through the day very comfortably and well.

The next morning, at eleven o'clock, the officer came to take his prisoner to the justice, for examination. The officer led Antonio along the street till he came to a lawyer's office. There were several men and boys about the door. These persons eyed Antonio very closely when he went in. On entering the office, Antonio was brought up in front of a table which stood in the middle of the room. A young man was sitting at the table with paper, and pen, and ink before him. He was the clerk. The justice himself sat in an arm-chair near the window.

The men and boys from the outside came in immediately after Antonio, and stood in the office, near the door, to hear the examination.

When all was ready, the justice commenced by saying to Antonio,

"What is your name?" young man.

"Antonio Bianchinette," said Antonio.

"Where do you live?" asked the justice.

"In Franconia," said Antonio.

"You are aware, I suppose," said the justice, "that you are charged with having set fire to the building which was burned night before last, and you are brought here for a preliminary examination. You can do just as you please about giving any explanation of the circumstances of the case, or answering any questions that I put to you. If you make any statements or answer any questions, what you say will be put down, and will be used either for, or against you, as the case may be, on your trial."

Antonio said in reply, that he did not wish to make any statements, or to answer any questions in relation to the fire.

"There is one thing, however," he added, "that I wish to say, and that is, that there is something buried in the ground, under the place where the building stood, that ought to be dug up, and if you will take me to the place I will show you where to dig."

"What is it that is buried there?" said the justice.

"I would rather not answer that question," said Antonio.

The justice paused a moment to consider what to do. He had heard of the robbery that had been committed on Saturday night, for Mr. Kerber, on going into his office on Monday morning, had found the back door unhasped, and his desk broken open, and the news of the robbery had spread all over the village. People wondered whether there could be any connection between the robbery and the fire, though nothing had been said to Antonio about it.

After thinking a moment about Antonio's proposal, the justice concluded to accede to it. The officer accordingly sent a man to get a spade and directed him to come with it to the ruins of the corn-barn. Another man went to tell Mr. Kerber that the boy who had been taken up for setting the barn on fire, had said that there was something buried there, and that perhaps it might prove to be his money-box. So Mr. Kerber determined to go and see.

In a short time quite a large party were assembled around the ruins. Antonio directed them where to dig. The men pulled away the blackened timbers and brands which were lying over the spot, and began to dig into the ground. In a few minutes they struck something hard with the spade, and setting the spade down beneath it so as to pry it out, they found that it was indeed Mr. Kerber's box.

The men gathered eagerly around to examine the box. Mr. Kerber shook it and found that the money was safe inside. He took out his key, but he could not get it into the key-hole, for the key-hole had got filled with earth. He turned the box down upon its side and knocked it upon something hard, and so got the earth out, and then he found that the key would go in. He unlocked the box, and to his great joy found that all was safe.

Antonio would not make any explanation, except that he did not suppose that any thing else was buried there, and that consequently it would do no good to dig any more. He said, moreover, that he expected some of his friends would come from Franconia before night to see about his case, and so the justice gave him up to the care of the officer again, until his friends should come. The officer accordingly took his prisoner away again, and Mr. Kerber carried his money-box home.

Mr. Keep arrived that day about noon. He immediately had an interview with Antonio. After some little general conversation, Antonio said that he would rather not make any explanations of the circumstances under which he was arrested at present, even to Mr. Keep, unless Mr. Keep requested it.

"I tell you truly, sir," said he, "that I am entirely innocent: but I can not state what I know, without breaking a poor girl's heart who once saved my life, and I can not do it."

Mr. Keep was silent a few minutes when Antonio said this. He recollected Rodolphus and Ellen his sister, and recalled to mind the story of Ellen and the snow-shoes, which he had heard at the time. He immediately understood the whole case.

"I am not surprised that you feel as you do," said he, "but when a crime is committed and we are called upon to testify as a witness, we are bound to state what we know, without regard to our private feelings."

"Yes, sir," said Antonio, "but I am not called upon as a witness. I am charged with committing the crime myself, and the justice said that I was at liberty to answer or not, as I chose."

Mr. Keep was silent for a moment. He seemed to be reflecting upon what Rodolphus had said.

"By taking the course that you propose," he added, at length, "you run a great risk of being condemned yourself for the crime."

"Why, no, sir," said Antonio; "I can't be condemned unless they prove that I did it; and as I really did not do it, I don't think that they can prove that I did."

Mr. Keep smiled.

"Well suppose that you do as you propose," said Mr. Keep, "and allow yourself to take the place of the one who is really guilty, what good will it do him? You will only leave him to commit more crimes."

"I hope not, sir," said Antonio "I should try to get him away from here to some new place. I think that he has been led away. He has got into bad company."

"Well," said Mr. Keep, after a short pause, "the plan may succeed, but you run a great risk in taking such a course. I think that there is great danger that you would be condemned and sent to the state prison."

"Well," said Beechnut, "I should not mind that very much. There is no great harm in going to prison, if you are only innocent. I have been shut up here one day already, and I had a good time."

Mr. Keep said finally that the subject required time for consideration, and that in the mean time he would make arrangements for giving bail for Antonio. This he did, and then he and Antonio went together back to Franconia.

III. THE TRIAL

The time arrived for Antonio's trial very soon. At the appointed day he and Mr. Keep went together to the town where the court was to be held.

Mr. Keep delivered Antonio to the officer again, and the officer led him into a little room adjoining the court room and left him there under the custody of a subordinate officer. At length his case was called, and the officer came forward and conducted him into the court room.

When Antonio entered the room he looked around to see how it was arranged. At one end there was a platform, with a curtained window behind it, and a long desk in front. Behind the desk there sat an elderly gentleman whom Antonio supposed was the judge. He sat in a large arm-chair. There was another arm-chair upon the platform, but there was nobody sitting in it. Antonio thought that probably it was for another judge, and that he would come in by-and-by, but he did not come.

In front of the judge's desk and a little lower down, there was another desk, with a great many books and bundles of papers upon it. There was a man seated at this desk with his back to the judge's desk. This man was writing. He was the clerk of the court.

In front of the clerk's desk, and toward the middle of the room was a pretty large table with lawyers sitting around it. The lawyers had green bags with papers in them.

On each side of the room there were two long seats facing toward the middle of the room. These seats were for the juries. Each seat was long enough for six men, making twelve in all on each side. Between the juries' seats and the judge's platform, there was, on each side, a stand for the witnesses. The witnesses' stands were placed in this position, so that all could hear the testimony which the witnesses should give.

On the back side of the room there were several seats for spectators. In front of the spectator's seats there were two chairs. The officer led Antonio to one of these chairs and gave him a seat there. The officer himself took his seat in the other chair. He had a long slender pole in his hand, which was his badge of office.

The first thing to be done was for the clerk to read the accusation. The accusation to be made against a prisoner is always written out in full, and is called an indictment. The indictment against Antonio was handed to the clerk and he read it. It charged Antonio with breaking into and robbing Mr. Kerber's office, and then setting fire to the barn.

After the indictment had been read, the judge, looking to Antonio, asked him whether he was guilty or not guilty.

"Not guilty," said Antonio.

The arrangements were then made for the trial. The jury were appointed, and they took their places in the jury seats which were on the right hand side of the court room. Some jury-men belonging to another jury were sitting in the seats on the left hand, but they had now nothing to do but to listen, like the other spectators.

There is a sort of public lawyer in every county, appointed for the purpose, whose business it is to attend to the trial of any person accused of crime in his county. He is called the county attorney. It is his duty to collect the evidence against the prisoner, and to see that it is properly presented to the court and jury, and to prove that the prisoner is guilty, if he can. The prisoner, on the other hand has another lawyer, whose duty it is to collect all the evidence in his favor, and to try to prove him innocent. The trial is always commenced by adducing first the evidences of the prisoner's guilt.

Accordingly, when the jury were ready, the judge called upon the county attorney to proceed.

He rose, and spoke as follows:

"May it please your Honor."

Here the county attorney bowed to the judge.

"And you, gentlemen of the jury."

Here he bowed to the jury.

"I am very sorry to have to appear against so young, and, I may add, so innocent-looking a person as the prisoner before you, on a charge of so serious a nature as burglary. But I have no choice. However much we may regret that a person so young should become so depraved as to commit such crimes, our duty to the community requires that we should proceed firmly and decidedly to the exposure and punishment of them. I shall proceed to lay before you the evidence that the prisoner at the bar is guilty of the crime charged against him. It will be the duty of his counsel, on the other hand, to prove his innocence, if he can. I shall be very glad, and I have no doubt that you will be, to find that he can succeed in doing this. I fear, however, that it will be out of his power.

"I shall prove to you, gentlemen of the jury, by the witnesses that I shall bring forward, that the prisoner left his home in a very mysterious manner on the Saturday when the robbery was committed. That he came to Hiburgh, and arrived here about nine o'clock. That he then went to his room, as if to go to bed, and immediately afterward went out in a secret manner. About half-past ten the corn-barn was found to be on fire; and on the people repairing to the spot, found the prisoner there alone. He fled, and was pursued. He was taken, and at length finding that he was detected, and terrified, perhaps, at the consequences of what he had done, he gave information of the place where the money which had been taken was concealed.

"These circumstances all point to the prisoner as the guilty party, or at least as one of the guilty parties concerned in the robbery. As to the fire, we lay no particular stress upon that, for it may have been accidental. We think it probable that it was so. The charge which we make against the prisoner is the robbery, and we are willing to consider the fire as an accident, providentially occurring as a means of bringing the iniquity to light."

The county attorney then began to call in his witnesses. The first witness was James.

James said that Antonio was well known to him; that he came originally from Canada; that he had lived for some time at Mrs. Henry's; and that on the Saturday in question he said that he was going to Hiburgh; but would not give him, James, any explanation of the business that called him there.

The next witness was Antony, the man who had brought Antonio in his wagon the last part of his journey.

Antony testified that he overtook the prisoner on the road, and that he brought him forward in his wagon. The prisoner, he said, seemed very anxious to get into town before nine o'clock; but he was very careful not to say any thing about the business which called him there. There was something very mysterious about him, Antony said, and he thought so at the time.

The next witness was the tavern keeper.

The tavern-keeper testified that Antonio came to his house a little past nine; that he seemed in a hurry to go to his room, that the tavern-keeper showed him the room and left him there; but that on going up a few minutes afterward to ask him what time he would have breakfast, he found that he was not there. That about an hour afterward he saw a light, and running out he found that the corn-barn was on fire. He cried "fire," and with another man ran to the corn-barn, and there saw some one running away. He and the other man pursued the fugitive, and finally caught him, and found that it was the prisoner – the same young man that had come to his house as a traveler an hour before.

The next witness was Mr. Kerber.

Mr. Kerber testified that he left his office safe, with his money in the money-box, in the desk, on Saturday night, about half-past eight. That on the Monday morning following he found that the office had been broken into, the desk opened, and the money-box carried away. That he was present at the prisoner's examination before the justice, and that the prisoner then and there said that there was something buried under where the corn-barn had stood, and that the company all proceeded to the place, and dug into the ground where the prisoner directed them to dig, and that there they found the money-box.

The minutes of Antonio's examination before the justice were also read, in which he declined to give any explanation of the case.

The county attorney then said that his evidence was closed.

The judge then called upon Mr. Keep to bring forward whatever evidence he had to offer in the prisoner's favor. Mr. Keep had only two witnesses, and they could only testify to Antonio's general good character. They were Franconia men, who said that they had known Antonio a long time, that he had always borne an irreproachable character, and that they did not believe him capable of committing such a crime.

After the evidence was thus all in, Mr. Keep made a speech in defense of his client. He admitted, he said, that the case was a very extraordinary one. There was a mystery about it which was not explained. Still he said it was not really proved, either that Antonio stole the money or that he set fire to the barn. Many suppositions might be made to account for the facts, without implicating Antonio as really guilty.

The county attorney then made his speech. It was, of course, against Antonio. He said that the appearances were all against the prisoner, and that if he were really innocent, it would be easy for him to explain the case. His refusal to do this, and his showing where the money was hid, ought to be considered as completing the proofs of guilt, furnished by the other circumstances of the affair.

The judge then told the jury that it was their duty to decide whether it had been proved that Antonio was guilty.

"You have heard all the evidence," said he, "and you must decide. If you are perfectly satisfied that the prisoner is guilty, then you must condemn him. If you are satisfied that he is innocent, then of course you must acquit him. And if you are uncertain whether he is innocent or guilty, then you must acquit him too; for no one is to be condemned, unless it is proved positively that he is guilty."

The jury were then conducted out by an officer of the court, to a small room adjoining, where they were to deliberate on the case. In about fifteen minutes they returned. The judge then called upon the prisoner to rise. Antonio rose and looked toward the judge. The jury were standing in their places, looking toward the judge, too.