"It
is just as certainly established that Henry Miller was killed
while in the perpetration of a robbery, or of an attempt to
perpetrate a robbery, as it is established that he was killed
at all." (9)
"Of
course, if you believe that Nye and Everitt never talked of
this robbery or attempt to commit a robbery in advance, and
that Everitt left Nye that night presumably to buy a cigar
and that Nye walked down towards the station and was
overtaken by Everitt sometime afterwards (at Chestnut Street)
and given some money by Everitt and told that he had robbed a
man and that he, Nye, should keep quiet, and that Nye knew
nothing of the killing and had no part in it or in the
robbery, then of course Nye could not be convicted of the
crime of murder." (10)
"How does his story agree with that of the witnesses who
found the shells in the Donnel lot as told by Everitt? How
does this story agree with that of the little boy from Glen
Mills who said that he met Nye on Monday or Tuesday before
the murder, on the corner of Spruce and Market streets in
Shamokin, when Nye said 'I am going to rob a party in
Sunbury and if you hear of a murder there you will know who
done it,' or words to that effect? How does it tally with
the evidence of the two girls who said that he had a roll of
bills on the day after the commission of the crime and that
when they saw him in the lockup in the Borough of Shamokin
and asked if he had committed the crime he stated that
'He had not but that there were five others, and he knew
who did it, but that he would not squeal if he had to stretch
the rope'? How does it compare with the testimony of the
merchant from whom he made a purchase on Monday morning
amounting to $3.75 paying for the same in nickles? He having
handed him an envelope supposed to contain $5.00 in nickels,
but when counted by the merchant, found to contain only
$4.90. How does it compare with the testimony of the boarding
mistress who testified that he had asked her to wait for his
board for a week or so and then his paying her the board on
Sunday morning after returning from Sunbury? How does it
compare with his own testimony that the money was hidden in
his room on Sunday morning where he and Everitt slept
together and that he had divided the money after Everitt
departed the next morning, and he upon meeting Everitt on the
street gave him his share of the bills telling him that he
should come over and get his share of the other moneys"?
(11)
"Now,
if you believe the testimony and are satisfied that this
defendant had no connection with the robbery or murder, but
honestly went to Chestnut street as testified to by him, then
he ought not to be convicted of the murder of Harry Miller.
In determining, however, whether he was guilty of
participating in the robbing and killing of Harry Miller, you
must consider all the evidence in the case, his purpose of
going into the pool room, if he did go in, as testified to by
Everitt, his subsequent conduct when he met Everitt at
Chestnut street, if he did meet him there, his receiving two
loaded shells from Everitt as testified to by Everitt, if he
did receive them, he having thrown his away according to
Everitt's testimony; his failure to make an outcry and
have an arrest made for the shooting of Miller immediately
upon his finding out that Miller had been shot and murdered,
and if you believe Everitt, his going back into the pool room
in company with Everitt, shortly after the shooting and
participating in the robbing of Miller while he lay on the
floor in a helpless and dying condition, as testified to by
Everitt; his running out with Everitt to the river front and
then to the Reading station where they both took the train to
Shamokin, his sleeping with Everitt that night in his own
room at Shamokin, the hiding of the booty or money in his own
room; his possession of it the next morning after Everitt had
left; his division of the money and his handing to Everitt on
the street on Sunday morning what Nye considered his share of
the bills; his telling Everitt to come around and get his
share of the nickles, &c., his attempt to escape from the
officer after his arrest; his keeping the secret of the
robbery and murder within his own breast until after his
arrest and not then until placed on the witness stand in his
own behalf; his conversation with the little boy from Glen
Mills, 'that he was going to rob someone in Sunbury and
if he heard of a murder that he would know who done it';
his conversation with the two girls from Shamokin in the
lockup when he said that he did not do it but that there were
five others, and that he would not squeal if he had to
stretch the rope; his exhibition of money in the candy
kitchen and the display of nickles there; his numerous
purchases made on Monday and the payment of a bill of $3.75
in nickles, having handed the merchant an envelope supposed
to contain $5.00 in nickles but was two nickles short; his
request from his boarding mistress to wait for his board and
his payment of the same to her the very Sunday morning; his
explanation of his revolver and its condition when found on
him; and all the evidence in the case, all these facts, we
say to you, you must take into consideration in determining
whether Nye's testimony is true that he took no part in
robbing and murdering Miller and was absolutely ignorant of
the same at the time it was done." (12)
"Starting
with the legal presumption of innocence in favor of the
prisoner until the proof fairly establishes his guilt, the
first question to be decided is whether he is guilty of
murder; second whether he is guilty of murder in the first or
second degree according to the definition we have previously
explained to you, and third, whether if not guilty of murder,
whether he is guilty of voluntary manslaughter, which is
defined to be the unlawful killing of another without
malice." (13)
"An
appeal to you by defendant's counsel to spare this
defendant's life on the ground that the jury in the
Everitt case allowed the real murderer to escape the death
penalty, is an appeal which counsel should not have made to
you. It is an attempt, on his part, to steer you away from
the evidence in the case and to influence you by matters
wholly outside of the case and which should have no weight in
influencing your judgment.
"We
want to emphasize this point, and we instruct you that it is
the law that you must decide this case on the evidence before
you. And if you allow your deliberate judgment to be shaken
by the fact as alleged by defendant's counsel, that the
real murderer has escaped just punishment by the alleged
mistake of a jury in another case, you will be violating your
oaths as jurymen. You have been sworn to try this case on the
evidence produced before you in this case, not upon the
verdict in another trial, whether you believe that verdict
just or not. You must do your duty under your oaths, whether
other jurymen did theirs or not. That is no concern of
yours." (14)
