Mistaken Identity. late date to properly prepare his case for trial, but we used our utmost endeavor to procure the two witnesses to establish his "alibi," but without avail, for we found that the conductor was taking a vacation in Cali fornia and could not be reached in time, and that the Phoenix contractor had gone to Klondike. The United States was all ready and urging a trial. Things looked bad for the prisoner, and we frankly told him so, but as he had been in jail for such a length of time, he was unwilling for us to try for a continuance, but insisted upon a trial, expressing himself as willing to as sume all responsibility of the outcome. The trial was had; Carpenter, the stagedriver, testified in the most positive manner, that the prisoner was one of the men who committed the robbery; that he could not be mistaken; that he had every opportun ity to observe; that he. picked him out of the crowded street of El Paso. The other stage-driver fully corroborated Carpenter. The passenger said, that if the prisoner was not the man, he never saw two men look so much alike. The prosecution was vigorously pushed by an able United States Attorney and his assistant. The testimony left us in desperate straits. We did the only thing possible with the witnesses for the government, — on crossexamination succeeded in getting them too positive (which is a mistake often made by
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witnesses); they even swore they could recognize the color of the eyes by moon light, — a physical impossibility. The fact was established by them that the robber had no noticeable physical defect,— the prisoner was quite hard of hearing, and as we proved had been for several years; also we showed some slight discrepancy be tween the description, as given by them the next day after robbery, and the prisoner. We proved by the Mexican woman that the prisoner was not one of the three men who came to the station house the morning, or rather the night, of the " hold up." But the strange part of her testimony was not developed on the witness stand, for she would have sworn, had she been asked, that the man who was supposed to resemble the prisoner had heavy whiskers. This must have been pure imagination, for the uncon tradicted proof was, that before, at, and after the robbery, none of them had whiskers. The defendant told his story, and fortu nately for the cause of justice the jury be lieved him and he was acquitted. It was afterwards found out from the conductor that the prisoner's story was true. The real " Black Jack" was captured some time later, tried, convicted and exe cuted. If three witnesses, under the conditions recited, can be mistaken, how unsafe is the testimony of identity.
