THE COUNSEL.
The Counsel for the men are Messrs Archibald Stirling, Jr., J. Edward Stirling, E. J. Waring, Joseph S. Davis, James D. Cotter and Robert B. Graham.
THE JURY.
For the trial of George S. Key on the first count, the following jury were selected. Messrs. Oliver P. Merryman, John B. Herold, John Van Tromp, Robert Augustus Denny, James S. Beaver, Dr. J. William S. Jordon, Rollins E. Barnes, James H. Stone, Joseph Renshaw, Jr., William McLean, August Deichman and John Meushaw.
The Guano deposits on the Island of Navassa are owned and controlled principally by Baltimoreans, who are combined into stock companies. The Navassa Phosphate Company, with offices in the Chamber of Commerce Building, Baltimore, are the principal owners, and it is on their property that the trouble occurred.
Key was convicted of murder in the first degree on December 2d, 1889, after a trial of twelve days and by a jury that deliberated upon his guilt or innocence for two days and two nights. He was indicted for the killing of James Mahon, one of the five white officers on the Island of Navassa, September 14th.
THE COURT'S INSTRUCTION TO THE JURY IN REGARD TO
KEY, FOR THE MURDER OF MAHON.
"Gentlemen of the Jury: We feel it our duty to give you in a form somewhat less technical than the prayers submitted by counsel, some instruction as to the law applicable to the evidence in this case, so that after you find the facts proved by the evidence
[*]GEORGE SINGLETON KEY.
(which is your exclusive province) you may be able to apply the law to them by your verdict. George Singleton Key, one of the prisoners at the bar, stands indicted for the murder of James Mahon, at Navassa Island, on the 14th of September, 1889. Murder, under the Jaw of the United States, is the felonious, wilful killing of a human being, with malice aforethought. Malice has been defined to be that condition of a man when he is totally devoid of social feeling, and fatally bent on mischief, and includes not alone hatred and ill will, but every bad and unjustifiable motive, and the law presumes that every homicide is with malice which has resulted from general malignity and reckless disregard of the lives of others. Malice may be expressed or implied; that is to say, it may be evidenced by the express declarations of the party charged, or acts showing premeditation
EDWARD SMITH alias "Devil"
or previous preparation. Such is express malice. Or it may be inferred from the fact accompanying the homicide or the character of the weapon with which the fatal act was committed. This is implied malice. There cannot be two kinds of malice. The only difference between implied and express malice is in the means of proof. Malice is implied in every intentional homicide, and where a party is found to have committed an intentional homicide it is for him to show the absence of malice. "If you find the jurisdictional facts set out in the indictment, and under the first count find that George S. Key, on the 14th of September, 1889, at Navassa Island, the place described in that indictment, and by the means described in the indictment, did feloniously, wilfully, and of his malice aforethought, kill James Mahon, you must find him guilty in the first count. If you find that though Key was guilty of the homicide of Mahon, it was without malice aforethought, the unpremeditated result of a sudden paroxysm of passion upon sufficient provocation, but that the killing was yet unlawful, you may find him guilty of
JAMES TASCAR.
manslaughter, and not guilty of murder. But, the jury are instructed, that no words or actual assault will excuse a homicide, unless the person committing it had reason to fear immediate great personal danger, or extreme bodily harm. Unless you shall believe that the witnesses for the United States in their testimony have greatly perverted the facts attending the killing of Mahon, we do not anticipate that you will have any great difficulty with regard to the charge contained in the first part of the first count. The second part of the first count also charges that the seventeen other persons therein named, and who are here arraigned in court, were present with George S. Key at the alleged murder, aiding, abetting and assisting him to commit it. These parties are charged not with being what are technically in the law accessories, but with being aiders and abettors who were present—sometimes called principals in the second degree. And although in this second part of the count those seventeen defendants are charged as being present aiding and abetting, the murder is charged in the first part as having been committed by Key. The whole charge is in law, one count against them all, Key included, as joint offenders in the same crime, and if you find that any or all of them were present, and wilfully, feloniously and with malice aforethought, aided, abetted or assisted in killing Mahon, then those who were so present are guilty of murder, and may be convicted of murder under the first count.
"By being present is not meant an actual bodily presence—so near that the party might have actually taken a hand in the killing of Mahon—but is meant also any who were in the neighborhood of the place where the crime was committed, performing some part in an unlawful undertaking expected to result in great bodily harm or death to Mahon, such as preventing his escape, keeping watch to prevent escape or to prevent others from interfering to protect him, disabling, killing or wounding or terrorizing those who might interfere to protect him, or doing some such act in furtherance of a common design to put Mahon to death or to do him great bodily harm. Persons near enough to perform such acts, and in that manner to aid, abet and assist, are said to be constructively present.
"In determining whether or not these defendants, or any of them, have been proven to have been either actually or constructively present, and whether they have been proven to have aided or abetted or assisted, you are to find from the testimony where they were when Mahon was killed, and what they were doing at that time and immediately preceding that time, and what was their design and intention, as indicated by their acts and words in the occurrence which preceded the killing of Mahon. If from the evidence you find that the white officers were driven from the superintendent's house, and were attacked and disarmed and some of them killed and wounded, with the purpose and design that Mahon, or Mahon together with others, should be overpowered and wounded or killed, and that the persons charged took part in carrying out that purpose, and at the time of the actual killing were so situated that they could be of assistance in carrying out that purpose, and did so assist, then these are facts from which you may find that any of the defendants who so assisted, with knowledge of such common design, are guilty as charged in the first count.
"By the second count Key is charged with the murder of Mahon, and the other seventeen defendants are charged with being accessories—that is to say, persons who, without being either actually or constructively present, did, before the alleged murder, feloniously, wilfully, knowingly and maliciously aid, abet, cause, procure, command and counsel Key to do the murder.
"In order to find any conviction under this count you must first determine whether, under the instructions hereinbefore given to you, with regard to the crime of murder and of malice aforethought, Key is guilty of the murder of Mahon, and whether the jurisdictional facts alleged in the count have been proved. For if Key is not guilty of murder, none of the other defendants can be found guilty of being accessories under this second count. If you find Key guilty of murder as charged, then you are to consider the evidence affecting those of the seventeen other defendants not found by you to have been either actually or constructively present assisting in the murder.
"If you find from the evidence that any of the seventeen defendants charged on the second count as accessories who were not present assisting, did, before the killing, maliciously counsel, incite and abet Key to murder Mahon, then you may find them guilty under the second count. In determining whether the defendants, or any of them, have been proven guilty under this count, you may consider the nature and purpose of any enterprise in which you may find any of the defendants engaged on the day of the murder, or before that day, and what was said and done by those engaged in it, to the knowledge of the defendants in respect to taking the life of Mahon. And if you find that any of them took part in a combination or riot, or tumult, in which the killing of Mahon was incited or instigated, or that any of them took part in an attack upon the officers of such a desperate character that in the ordinary course of things it must incite some of those engaged in it to murder, and that it did
HENRY JONES.
incite Key to murder Mahon, then these are facts from which, if you find the other facts charged in the second count, you may find such of the defendants guilty under the second count.
"Under the law of the United States any defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged. The crime of manslaughter is always necessarily included in the charge of murder, and you are instructed that under the first count of this indictment as to any of the defendants whom you find were either actually or constructively present assisting in the intentional killing of Mahon, but as to whom the evidence does not convince you beyond a reasonable doubt that they acted with malice aforethought, then as to such defendants you may find a verdict of not guilty of murder, but guilty of manslaughter. But under the second count, you must bear in mind that if you find Key not guilty of murder, but guilty of manslaughter, you cannot find any of the other defendants guilty at all under the. second count, because accessories who are not either actually or
CÆSAR FISHER.
constructively present cannot be found guilty of aiding and abetting a manslaughter. The guilt or innocence of any party charged here is not to be determined by mere preponderance of testimony, but the jury must be satisfied of the truth of every fact necessary to constitute the crime of which they find him or them guilty beyond a reasonable doubt."
Fifty additional jurors were drawn for the United States District Court from which to select a jury for the trial of the Navassa rioters. Their names are as follows: T. D. Tormey, Charles Hope, John E. Swift, Joseph F. Snyder, Jacob Mitnick, John H. Smith, Wm. M. Sindall, J. William S. Jordon, Nathan Dorsey, colored, E. Mills, Jr., Abraham G. Mott, H. E. Challis, R. Lertz, R. E. Barnes, John R. Monroe, Robert Rennert, Jr., Michael Shannon, Charles J. R. Thorpe, Wm. Henry Shirley, John H. Anderson, Brice H. Hobbs, Wm. S. Chew, Henry W. Marston, Benjamin T. Simms, Wm. T. Murphy, Edward Kimberly, Wm. H. Welsh, J. H. Stone, Charles C. Eichler, Albert Felber, Frank Sullivan, Joseph Renshaw, Jr., Gabriel D. Clark, Richard Powell, Dr. F. G. Connolly, William P. Reilly, William H. McLean, Angust Deichman, E. A. S. Blogg, Gabriel H. Chabot, Marcus Hartman, Samuel D. Buck, John W. Wakeland, J. Henry Sirech, Joseph Robb, W. L. Richards, George H. Brightman, Justis Snyder, John Mushaw and James W. Thompson.
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↑ The biography of Key will appear in full in the second edition of this pamphlet, along with the biographies of Edward Smith, James Tascar, Henry Jones and Cæsar Fisher.