The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-02-09

Trial Of Commander Mckenzie.
SEVENTH DAY-FEi. 8.

The court assembled at 10 o'clock, all the men,
bers being present. The Journal having been read
and some corrections made, Mr.: Duer read the fol.
lowing
The counsel for the accused respectfully states to the
Court that the following question was yesterday offered
by the Judge Advocate TO the witness Wm H. Wales on
his examination
Q-When Mr.. Spencer told you he intended to make
scute some night when he had the mid watch then go
with associates to the mainmast call Mr. Rogers and
throw him overheard did you tell him it would be likely
the men, and prevent him from going with his
plan, which he told you open the chest and
distribute the arms to the men, and station at the
Matches then proceed in t. the cabin to murder
the commander and the officers in the ward and the
seerage and Slowing the guns round rake the deck
then call the men to select those 10 be thrown
oard considering he had but twenty associates in
OF 30 men and b0ys7
To this question: the Counsel for the accused objected
and in compliance with the expressed wishes OF tn,
Court he now renews his protest against its admission in
form that entitle his objections to be placed the
records OF the Court The Counsel protests against the
admission OF the question the following grounds 1t
question not merely in form but in reality and intent;
briet true but doubtless to be followed by
others of similar tenor Its real design is not consistent
with any purpose for which examination
ao we'd Its object is not to elicit any fact material to the
but to prejudice the defence OF the accused and to
enrap the witness and finally under the precedent of its
admission should the question be received the discretion
OF the Judge Advocate in the cross examination OF wtnes
will be unlimited. The counsel for the accused full
ly aware that agreat latitude is allowed in the
minaton of witnesses and he has disposition to abrdge
the present occasion the exercise OF this privileged
freedom but the freedom of examination has certain
limits subject to certain rules and the Observance of
these rules ndspe sable to privilege that du
y restrained invaluable. from being converted by its
abuse into dangerous license The interests ofruh and
Justice require that on the examination
witnesses should be released from many Of the rules of
evidence but the same interests equally require that
rules should be rgidy enforced. Thss counsel is not
permitted in cross examining witness to assume tina,
facts have been proved of which evidence has been
given to mpute to the witness language and expression
that he had never used. Such questions the law con
dennis insidious and ensnaring and their Oh.
ject is to entrap the witness into the admission Of
,a would awe
Their object is to force upon his testimony construction
he intended should bear But these not the
only restrictions which the law imposes exami
nation There another limitation arising from the very
nature of the subject. There certain purposes for
which examina ton is allowed and with these its
legitimate Objects every question that is put to the wit
must be consistent The only legitimate object of
question on such an examination is either to obtain testi
mony of additional facts to obtain answer that
discredit the witness a question neither seeks inorma
ton from witness nor seeks to dscredt him. it must be
wholly irrelevant, and may be liable to much graver
imputaon counsel has right under pretext of ex
aiming Witness to nsinuate his views of the
Investigation to prejudice, attempt to prejudice, the
mind Court and the public by indirect argument
to which by its form the accused has opportunity
close Of protraced trial. when the impression made may
have become indelibe When such attempts made in
court ofciv Jurisdiction they are universally overruled
and rebuked 1t is with great and sincere regret that
proceed apply these remarks to the question: to which
object But ana compelled to ask IS it the object of the
question either to obtain proof of additional facts dis
credit the witness, and am compelled to answer neither
Does the Judge Advocate prove that the witness
states that he remons with Mr. Spencer on the
surdity of the plan and the improbaby of its execution
such reply will be given because the witness has already
that SO far from demonstrating with Mr. Spencer
he assened to the PLAN and nearly agreed TO share in its
execution An affirmative reply is not expected 1t is
known that il will not be given and consequently the
question put for information. The Judge Advocate
knows that the only reply which will be given is
direct negative And what is the effect of that mega
to discredt the Witness If So no is already past
redemption discredted He has already negativ the
question. He has sworn, in the most positive manner,
that he held such conversation with Mr.. Spencer
the question calls on him to utter He has that he
believed the plan of Mr. Spencer to be serious and its
execution not merely possible but probable With view
the discred of the wnessif the supposed impractical
bty Of the plan Of his story discredit 1.-THE
question is utterly and manestly useless If the object
the question is neither information impeachment of
the witness what Its true character 1t is brief
gument designed to show that the plan of the mutny
related by the witness, was absurd and mpracticate
not communicated by him to Wales. 1t is not
question to the witness The pretext trembles at the
touch. It'll nvidious and most irregular comment
the testimony that witness had before given AS
argument the question is exceedingly harmess-but
precedent it significant and dangerous. Should be
laid that the object Of the question ascertain whether
the witness himself believed that the the
plan possible, let it be Invested of form that
conoeas ITS purpose, and renders trap to the wit.
ness. Strike out the argument Of the verbiage, and
put the question in plain words" whether he be-
ieved the plan could be executed and why he believed
~ If the object Of the question be legitimate this is
its honest form Fnalylf the Court receive the ques
tion in its present FORM the desire plainly expressed by
the Judge Advocate the of this trial Of
being wholly relieved from the rules of evidence will be
fully accomplished There will be limits to his dis.
portion of argument may be presented in question:
why not an entire argument embracing examination OF
the whole case endeavorng to show that Of the per-
sons accused were guilty that their execution
cessary Nothing would be than suggest
form Of aqueson in which the whole argument might
incorporated. That such attempt will be made is not
apprehended-the design would palpable-the
tack upon the patience of the Court too violent but
elaborate argument may be easily divided into series OF
srfu nsinuations uppostions and surmses in the form
OF questionsand thus insdously disguised produce
false and mischevous impression that if exhibited in
such questions have already been ofered--how many
in the possession Of the Judge Advocate in
will not be supposed by single member of the Court
that the accused his counsel desire his conduct should
but he demands also that it be conducted San open
hodoabe and legal manner and in requiring this he feels
that he is acting not merely in defence of his own rights
tune accident, malice, may be placed in situation
similar to his own. (signed) JOHN DUER.
Mr.. DUER stated that he had one word to add,
ten protest. 1t was this, that for the future,
whenever any question was put which he considered
to be Objectionable, he should trouble the Cour,
with any verbal remarks, but simply say "Iobect.'
and II necessary, reduce the objection TO writing.
and then leave it to the good and Judgment at
the Court to decide on its admssiblliy unless the
Court should request him to state his reasons to
them.
The JUDGE ADVOCATE said he wished to ask Mr..
Duer whether when he spoke Of other questions in
course OF preparation, he meant 20 insinuate that
the Judge Advocate was assisted by other Coun.
sci.
Mr.. DUEn did not consider that any such mean
ing could be attached to his expressions. Ifhe had
meant to make such an nsinuaton, he should have
stated it broadly; besides he knew of no reason why
the Judge Advocate should not get other assistance
if he required it.
The JUDGE ADVOCATE said that he was about to
make that remark, and was quite satisfied with the
explanation.
The Court was then cleared to permit of the mem.
bers coming to decision on the question and pro-
test.
When re-admitted, the Judge Advocate stated to
Captain Mckenzie that the Court had decided that
the paper which had been read and the ques-