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A Husband’s Revenge
Verdicts of History: II -- Is it all right to shoot your wife’s lover? Do you have to catch him flagrante delicto? What if your victim is district attorney? And if you are a member of Congress? Now come with us to Washington, D.C., in 1859. Is it all right to shoot your wife’s lover? Do you have to catch him flagrante delicto? What if your victim is district attorney? And if you are a member of Congress? Now come with us to Washington, D.C., in 1859.
April 1967 | Volume 18, Issue 3
Now, though his gentlemanly soul no doubt recoiled from it, Carlisle resolved to use his last weapon. In court was the proprietor of a Baltimore hotel with its register under his arm. He was prepared to show that on a date not too long before the day of the murder, Sickles had visited that hotel with a lady who signed herself as Mrs. Sickles, though her handwriting clearly proved she was not.
But chunky Robert Ould, though he lacked fire, was a solid, well-trained lawyer; he knew that such evidence could not be introduced by the prosecution with the same reckless effrontery displayed by the defense. If Messrs. Graham, Brady, and Stanton objected to it as irrelevant and the judge sustained them, they would immediately move for a mistrial on the grounds that the jury’s mind had been fatally prejudiced against the prisoner.
Thus Ould did the only thing a sensible prosecutor could do in such a situation. He submitted the incriminating ledger to the attorneys for the defense, before airing it publicly. Inevitably they objected, and the matter was referred to Judge Crawford for decision. Sotto voce, both sides argued before His Honor for several minutes. Then, wizened cheeks twitching, Crawford proceeded to declare: “For very obvious reasons the court will do no more than merely state his opinion on this point, and that opinion is that the evidence is not admissible.”
There was nothing left now but the summation. In a long, passionate speech for the defense, Stanton covered much of the ground Graham had discussed in his opening oration. But his sarcasm was more biting, his denunciation of Key more intense. Again and again the courtroom burst into applause as he scored another sulphurous point against the adulterer whose deeds surpassed “all that has ever been written of cold, villainous, remorseless lust.” Beside this Old Testament fury, the District Attorney seemed pale indeed, citing the New Testament example of Christ, who forgave the adulteress. Didn’t the same argument, he pleaded, apply to Philip Barton Key? Then Ould touched, at the very last moment, on a theme that he might well have used effectively earlier: If Philip Barton Key were alive, he, and he alone, might be able to produce evidence that might show that he was more seduced than seducer; that he had yielded to “temptations repeated and continued until those higher moral bulwarks that should have supported his character gave way beneath repeated shocks.”
James T. Brady tartly recalled a passage of previous testimony that had quoted Key himself to the effect that Mrs. Sickles was a mere child, and that he stood in parental relation to her.
Ould let the topic drop without another word.
The Judge’s instructions to the jury caused the defense only mild alarm. He followed the traditional legal rule of thumb which held that the husband who killed an adulterer a day or even a half day after his act, rather than flagrante delicto, committed murder. But Crawford agreed with the main defense contention: “If the jury have any doubt as to the case, either in reference to the homicide or the question of sanity, Mr. Sickles should be acquitted.”
Judge Crawford finished his instructions to the jury early on the twentieth and last day of the trial. Brady now rose for the defense and suggested that the case be submitted to the jury without additional summing up on either side. Robert Ould half rose from his seat and wearily concurred.
Friends crowded around the prisoner in his pen, assuring him it would all be over in five minutes. But the clock crept past the half-hour mark, and then the hour, with no sign of a forgiving jury. At the defense table, James Brady’s face was by now pale and solemn. In the jury room, the wrangling was feverish. Only seven were for acquittal at the first vote; three were in doubt; two were firmly opposed. But the majority first convinced the doubters, and then went to work on the opposition. Both were intensely religious men, who obviously agreed with Ould’s closing arguments. Finally one, a stern Presbyterian, yielded. The last suddenly broke away from the group, knelt in a corner, and prayed silently for guidance. Then he returned and said: “I have my answer. Let the prisoner go free.”
When Foreman Arnold announced the verdict, the courtroom went berserk. Brady burst into tears. Edwin Stanton did a highly uncharacteristic jig and called for three cheers. Other friends rushed up to kiss and embrace Sickles. Outside in the streets an enormous crowd hurrahed wildly and tried to unhorse Sickles’ carriage so they could pull him through the capital like a conquering hero.
Jury verdicts do not constitute precedents, in the American legal system, and no lawyer has ever urged a judge to remind a jury of Dan Sickles’ acquittal. Strictly speaking the jury ruled against the proper interpretation of the law, and the law remained unchanged. Nevertheless, in years to come journalists frequently referred to the case as justifying the “unwritten law.” Actually, as we have seen, Sickles’ lawyers were too shrewd to rest their argument on a single plea, and utilized every possible argument from temporary insanity to justifiable homicide to save their client. The case did illustrate the wisdom of an adage at least as old as the jury system and as new as the latest murder trial in yesterday’s headlines: when you’re on trial for your life, hire the very best legal talent you can afford.