Page:Life of John Boyle O'Reilly.djvu/78

44 was a mutiny actually intended; second, that he (the prisoner) had a knowledge of that intention, and third, that he possessed that knowledge in January, 1866, and did not communicate it to his commanding officer. The prosecutor was hound to prove each and every one of those allegations, by evidence on which the court might safely act. After referring to his services he asked the court to bear in mind his good reputation, while considering the evidence against him, as it must have observed that, from the character of some of the proofs upon which the prosecutor relied, in conversations with no third person present, and no date fixed, it was impossible to displace such testimony by direct evidence.

The defense then pointed out various discrepancies between various witnesses and the contradiction between the evidence of Privates Denny and Smith, where Denny had clearly committed perjury. But even if these men's evidence were true, it would not bring home to him one fact to bear out the charge.

None of these witnesses can say that in his presence one word was ever said respecting the designs or the plans of the Fenians, and it only amounted to this, that one day, in a casual conversation, he said to Smith that some persons they had met were Americans and Fenian agents. In the whole evidence, which, in the cases of Foley and Meara was that of informers, there was much to which the addition or omission of a word would give a very different color to what it had got. What was the amount of credit to be given to those men, when it was remembered that they both took the Fenian oath, the one, as he said, through curiosity, the other with the deliberate design of informing?

Meara's oath, on his own admission, had not been believed by a civil court of justice; and would this court believe it and convict a man of crime upon such testimony? He (the prisoner) asked the court to reject this testimony and rely upon that of his commanding officer, Col. Baker, who had deposed to his good character as a soldier. In conclusion, the prisoner appealed to the Deputy Judge Advocate, to direct the court that unless he had personal knowledge of an intended mutiny in January, he was entitled to an acquittal. Guilt was never to be assumed, it should be proved; for suspicion, no matter how accumulated, could never amount to the mental conviction on which alone the court should act.

The defense having concluded, prisoner called Capt. Barthorp, Tenth Hussars, who was a member of the court. In reply to questions put, said:

He was captain of the prisoner's troop, and had known him for three years. His character was good.

, Crown Solicitor, was sworn and examined by