Berkeley and Jefferson intelligencer. [volume] (Martinsburg, Va.) 1802-1810, 1805-04-05

the Claim OF INC NClCuCC jf7OI "hSH I'NO
is offered of certain fact, to determine
that such fact is not proper to be gwen
in evidence. f"''~> '>'>s>'>'
Hence it results, and is every days
practice, that when witness is produ-
ced, or writing is offered IN evidence,
the opposite party having right to OBJ
iect to the evidence ii he should think 1t
improper, requires to &c informed what
the witness sto prove, or to see the writ
ing, before the first is examined, or the
second is read to the jury. The court,
has the same right, resulting necessarily
from its powerto decide all questions re-
Iatlve to the admissibiIity of evidence.
This right our courts are in the constant
habit OF exercising not only when OBJ
Iectlons are made by the parties, but
when there being no objeotion, the, court
itself has reason to suspect that the tes-
tImony is improper. In most cases, but
not in all, consent in the opposite party
removes all OH cctIOns to the admissible
tv Of evidence, and courts sometimes in
fer consent from silence but as it is
their duty to take care that no improper
Or illegal evidence gees to the jury, un-
loss the objection to it be removed by
consent OF parties it's, consequently
their duty, in all cases where they see
reason to suspect that the evidence offer
ed is improper, to ascertain whether con-
sent has been 6 ivcH, or whether the
seeming acquitscenCe Of the opposite
party has proceeded from matte Ation.
This is more particularly their duty in
c'Imi'"l cases, where they are bound to
be counsel for The government, as we'll
as for the party accused.
1t being thus the right and duty Of the
court bttUre which trial takes place, to
inform itself Of the nature of the evil
dence offered, so as to- be able to nudge
whether such evidence be proper, it re-
suits necessarlly:that they have a right
to require, that any question intended
to be put to a witness should be reduced
to writing, for that is the form in which
their dehSeration upon it NAV be most
perfect, and their Judgment will be most
likely to be correct. In the case now un.
der consideration, the court did exer-
else this right. When the testimony of
John Tayl or was offered, the court ia
qnired Of the travcrser's counsel, what
that testimony was to prove. The state.
ment OF his testimony given II answer,
induced the court to suspect that it was
irrelevant and inadmissible. They
therefore, that they might have an ops
Portunity for more careful and accurate
consideration, called upon the counsel
to state in writing, the questions intend
ed to be put to the witness.
This is the act done BY. the court, but
concurred in by the respondent, which
has been selected and adduced, as one
of the proofs aptfinstances of" manifest
injustice, Partially, and intemPerance"
on his part. He owes an apology to this
rhonourable cou.t, for having occupied
so much Of its time with the refutation
Of acharge which has no claim to serious
consideration, except what it derives
from the respect due to the hohourable
body by which it was made, and the
high character Of the court where it is
preferred.
The next circumstance stated by the
article now under consideration, as an
instance and proof of manifest inius-
tIce, partlelity and intemperance" in
this respondent, is his refusal to post
pone the trial Of the said James Thomp-
son Calender, although an affidavit
was regularly fled, stating the absence
of material witness on behalf Of the &C.
cused, and although it was manifest tina,
with the utmost diligence the sttend-
ance Of such witness could not have been
procured at that term"
This respondent, in answer to that
part of the charge, admits, that in the
above mentioned trial, the traverser's
counsel did move the court, while this
respondent sat in it alone, for q continu-
ance of the case until the next term net
merely aposlponement of the trial, as
the expressions used in this bart Of the