234 FEDEBAIi EEPORTBB. �his family tliere, where lie bas ever since resided; that soon af ter Moses Elliott made his appearance in that country under the assumed name of Frank Williams, where, at first, he kopt in the mountains and foUowed hunting, but after a time herded sheep witb and for the Elliotts in the mountain ranges, and lived with them in the settlement much of the time, claim- ing to be a cousin of the Elliott boys, and was at the house of Jeremiah on the night of October 20, 1879, when the process in this case was served on the latter ; that he left the neigh- borhood the next day, with the knowledge of Jeremiah, and has not been seen or heard of since. �There is conflicting evidence as to the identity of Moses Elliott and Frank Williams, but that which denies it is from eome of the Elliotts and persons who neyer saw Moses before he was said to bave been drowned. The circumstance most relied upon to disprove the identity is a difference in height and beard. But between 1870 and 1875 or 1879, there was, probably, a marked change in both the height and beard of a youth the age of Moses ; and nothing is more unreliable than the guess of the average person as to the height of another, particularly when that other is absent or out of sight. It is probable that a person's ordinary acquaintances will, partic- ularly in his absence, differ as much as two inches in esti- mating his height. From the evidence I conclude that Frank Williams is very near five feet eleven inches high — not to ex- ceed that. The defendant Jeremiah, in his affidavit of Octo- ber 11, 1872,. says he thinks that Moses was five feet nine inches high "at the time of his insurance," in the fall of 1870. Between then and 1879 or 1875 it is probable that he grew an inch, and the other inch, or part of a one, may be fairly accounted for by the ordinary difference in estimates of height. But there is a circumstance in f avor of the identity of the per- sons, about which there is no doubt, that outweighs ail such Bupposed differences in height and beard. Moses Elliott has lost the two middle fingers of his right hand just below the middle joint, and so has Williams. Those of the former were <3ut off when he was a mere child, by a hatchet in the hands of àis brother, and the appearance of Williams' hand shows ����
Page:Federal Reporter, 1st Series, Volume 5.djvu/246
This page needs to be proofread.