The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-02-19

spscting him is substantially ths same Is upon the for
mer trial IL appears that his placed upon the
committee but there evidence that be ever acted
assented to his being used but on the
that written invitation was sent to him BY the commit
tee to attend the ball with Alderman Morgan aud several
Others Is Al invited guest that he attended that
capacity The whole question, therefore, respects
have to the referred TO- are to be b.,
eved or not The principal winners who years to this
saS that the ,on OF the plaintiff He
tiis place Of business, and asked il any one had been
there 70 make arrHngsnsnts for supper at ball That
his father asked what ball Levy replied the Webb and
Morgan ball His father then handed Levy the contrast
tia. had been signed BY the defendant Dufyea and Levy
nice supper, for We going to have very fne bail
His father replied You always say you are going to
grss. difculty in getting my money from the commit
tee" That Levy then said Never mind rhat,n ana
after the plaintiff his name upon the committee
.ais there is any def cheney in regard the money
will you paid" The witnesses say that ths conyer
ration occurred between the llth and 18th Of March, in
the forenoon He did not pretend that 1t occurred
the nth for the contract was made with Durysa that
day, and the witness was present He he knew Il
fathers place He must therefore be regarded as FIX.
ing on the 18th and under,ood him to say thstit
have been the 18th. Nov, 1t is proved by the
witness Crietala, that Levy was engaged upon the
18th from nine in the morning until Elk in the after
noon, at pawnbrokers sale that he had in the
keeping account the articles sold and in delivering
them afterwards; and the testimony of this witness is
cOIroDOrateQ advertisement
for that day. in the Sun newspaper Young Downing
supported in his account Of the conversation by the
witness Mccormack who swore to the conversation
nearly word for word, and by the testimony of the
colored man, Cupper, who swears he Levy ct tho
plaintiff place the llth 12h and that he him
afterwards he going into the fall. Before pro-
ceedipg any further 1t Is necessary thst should
advert to two most unusual circumstances that has
occurred the course Of this trial After careful in
vesgaton OF the circumstances felt duty TO bold
the witness Cristaler to ball for attempting improperly
to influence jurer; and the witness McCormacf has
into and testified that all he previously
respecting the conversation between Levy and the
plaintiff, wholly false, and that he hai bsen ndused
to to IL at the instance and scion of the
psiptiG In respect to the frat Of these
gentlemen you not to conuund the misconduct OF
LEWIS witness with Levys case There is nothing to
show that he had anything to do wish it, and ais Is
not to be prsjudced unless 1t appears that ths act
Of the witness was dens by his procuremsnt or
with his concurrence, and SO in respect to the
astounding statement made by Mccormack II this
statement is true the witness has been guilty Of perjucy
and the plaintiff of the equal if not higher crime OF
formation Of perjury Still cit here for the admins
ration ofustce aud the rights Of the plaintiff they
stand upon this issue are to be distinctly adudcaed
fairly meeted out Ii the evidence in this fully
establishes the liability OF the deenda uts, tbs plaintiff Is
entitled to verdict even if guilty Of the crime imputed
TO him. The duty Of investigating that and Of punhng
him If he has committed the crime belong, to another
tribunal The circumstance however is to have it, due
weight when determining The question Of the credbiity
Of youpg Downing aud in that light slens shall view It,
The first point to be noticed Is the singular agreement
between the two statements there is minute exact
ness in the account given by each witness OF cenyer
ration. II is matter Of familiar judicial perence that
two witnesses when debating the conversation will
differ to the precse form of s though asresipg rub
stantisy the substance oft Here In the whole order
Of the conversation In the whole current OF the dialogue
the two witnesses employ precisely the same words,
sentences and phrases, with little, II any, vasia
ticn When 1t is borne in mind that the conversation
took place nesry two it indicates either that
both witnesses endowed with very remarkable memo
res beg.s the suspicion that there under
standing between them before they testified Young
Downing, when testiiyins showed an unu,ua degrss
lees. Mccormack on the contrary, you will RENE mber,
when subjected to somewhat lengthy cross examina
ton by the Court, involved hmscf in maze of contra
dicions Having subsequently ackno wedged that all
that he had previously to false will bs for
you to dsGernine whether he moved this extra
ordinary declaration by the pangs OF guilty conscience
or whether by rome other motive Is 1t possible that
he may have been induced to faly his previous state
ments at the instance Of the other party with the
view OF ipjurng the party for whom he had been ori-
gnaly Called There is nothing in tho evidence dis
closing such motive. and the witness must be sunk
very low in the scale Of moral degradation who, for
cuniary gain or even for malicious motive, would
.nus unnssitatinsy proclaim his own shame VINO
publish his ewn crminsty On the other hand, there
!. nothing Improbable in suoh an act, as ilu'sra-
ting th- powerful inf aence Of ths human conscience
Mary deferred by sense OF shame would shrink from
pubic exposure Others acting under q sense OF re.
gous accountability which this declared to be his
motive woud fEd relief in throwing of the unnatural
ost aId by Fe.apg to arrest while there yet time
tbs jury be Instrument towards efecting It
ia or to say gentle men, whether his last Statement
~ss The result. OF cont-ion: and fit wast that sats
nsnt wee true casts shase q douo. aud suspicion
which ben taken In conuscson with the facts
sworn to by crstssr would seriously shake their test
ncny Young Downing snd the elder Downing, more.
over. conra3icted by DuTyea and by the witness
JtI.ey IN material mat in respect to the alteration
~, nasmuch it scarcely admits Of the charitable
sSppositicn Of q mistake, but leaves the alterns-
tive of determining that either Downing and
bis son, or Duryee and Jarvey, have sworn to an
Oniuth (The Judge here went into long examination
cf;he testimony Of the witness Cuppe who that he
raw Levy at Downngs place. showing tho utter worth
e,sness that testimony which is omitted The Judge
resumsd-You will scrutinise this testimony closely,
genssmsn and these in your opinion are
your verdict The public interest," ct present. peculiarly
demands that the watchfu should be exercised
1t is matter daily experience since the relax alton in
this State Of the rules Of evidence that the tendency
my experience have witnessed more attempts Of
this kind during the last two than during the nine
years that have sst upon the bench At very early
period In the history the common law parties to Suits
and all having any interest the subject matter of
troversy excluded from being Witnesses The
rule the TEMPTATION that such persons under
commit perjury and adopted at time when the
For three hundred years this has been strictly
followed Within the last few years. In this State and
in Great Britain however it has been almost entirely
adverse party and other parties whatever their interest
ere competent In Great Britain, within the last eight
witnesses their own cases It forms no part Of my
duty to express an opinion upon the wisdom or policy
OF the charge Like everything ese, it must b left to
the test Of experience found to be Injurious to the
adm Diftraton Of Justice 1t will In time correct itself
is to be that Its practical working,
so far hes been greatly attended with the mischief that
the original restriction designed to prevent The
trial Of civil cauees IL beginning to less the
character Of soemn investigation for the purposes of
justice than contest for victory and the giving Of
testimony more matter Of business than the serious
and solemn declaration Of the truth Il behooves all,
therefore connected With the administration justice
to act in spirit Of constant watchfulness; and in
respect to those who find restraint the score Of
religious accountability, in the elevating influence
CT truthful nature that they should find 1t at least
in tie prompt and vigorous application 0. human
punishnents. There Is another subject, gentlemen,
upon this branch of the to which confess most
unwlingy refer Much has been said IN the Of
this cause ard particularly la the summing o; soun
sell In respect to the religious belief Of Of the defend