Page:The Green Bag (1889–1914), Volume 16.pdf/433

 384

Chalmers, heard MacGuire say not only "You hit me in the back," but also "You are a coward"-—and "I could have you arrested for assault and battery." He testified, however, 'that MacGuire did not hit Chalmers, that he only advanced in a threatening manner. He thought that Chalmers had struck believing that MacGuire was about to strike him. He thought that the two were one to three steps apart and that MacGuire might be said to have sprung forward. When Chalmers hit out he thought that MacGuire's right side was turned somewhat forward and that the latter was hit on the right side of the chest. He had little idea of what happened after this blow—until Poe led MacGuire into the build ing. The third witness, MacGuire's friend, gave decidedly the most accurate account. His recollection as to details was very complete. He was not asked by either counsel what was said. As a matter of fact, he had heard the defendant utter the alleged words of slander. In testifying as to the details of the encounter, he was so clear and accurate that curiously enough some of the jurors in view of the rather confused accounts of the other witnesses, were firmly convinced that he must be lying. One part of his testimony was wrong. He stated that Chalmers hit Mac Guire on the right shoulder, and that Poe took hold of MacGuire from the left side and turned him to the left. When later the actual facts were again acted out before him, he was amazed, stating that he had been more convinced of the truth of that portion of his testimony than of any other, and he says even now, that he has a clear mental picture of the right shoulder being forward and of the turning to the left. The fourth witness, curiously enough, did not hear MacGuire say that Chalmers hit him in the back. He was rather confused as to the details of the encounter, but testified that Chalmers hit MacGuire twice on the left arm, and that MacGuire seemed only

threatening Chalmers. As to Poe, the wit ness did not remember much as to what he did. His most positive testimony was as to the hitting on the left shoulder, thereby testifying correctly to the one thing as to which all the other witnesses had been mis taken. A review of the testimony of the four wit nesses reveals several interesting facts. Three out of the four testified correctly to the use of the words "You hit me in the back," and two of these remembered the ac companying "You are a coward," and "I could have you arrested for assault and bat tery. The words made no impression on one witness. As to the actions, the third wit ness only saw what led up to the blow. Two —the first and second—were entirely mis taken: one "saw MacGuire strike Chalmers; the other "saw" the .former spring forward threateningly. The fourth had a rather in definite impression as to what led up to Chalmers' blow. As to the blow itself, one— who in other respects proved the most ac curate—thought that the blow was on the right arm, one thought that it was on the right side, the third thought that it was somewhat to the left of the middle of the chest, and the fourth alone perceived that the blow was on the left shoulder. The fact that there were seemingly two blows in rapid succession escaped all but this witness. It seems from this that as soon as each witness received a definite impression his efforts to impress this on his mind caused him to fail to observe what followed. A good illustration of this interesting fact, was that all four failed to notice what Poe did, and how he came to lead off MacGuire. It seems also that when the witness re ceived this definite impression, his idea ot the accompanying details was what he thought likely to have happened rather than what he actually saw. These imagined de tails made as vivid a part of his mental pic ture as did the impression which he received