The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-05-11
'ers sa1d to have been written by John c. Card
ner: Inc court this morning, gave the following

Any CooAT several lett1e, dated 18th Deem
Der, IL and from. 9th May, 1851, to sth Ser.
TENDER, 1852. having been submitted to John
Charfes6ardiner,a witness for the defendant iu
.nl: cause. ~ whom they purport to have been
written, and he having said that he neither aid :
| united nor denied them to be his writiap. with
perhaps the exception of No 6, Colonel Lorenzo
| Thomas vas called by the United States. who
testified that each Of the said letters and writings
| marked l.. T., and numbered from l to Is, inciu.
I sive; and the ppe of 1914, marked A. J. H., No
3l were, as he believed, in the handwriting OF the
said J. Charles Gardiner; whereupon the United
States offer the said letters and writings in eyi.
dencc. To this proposition the counsel of the de-
4 PENDANT object. b dis So
The objection, it 10 commended, is well founded:
ist For that the evidence offered contests of the
mere declarations of a stranger Cd If offered to
dlscredlt the witness, that the proper foundation
has not been laid by the United States-that there
s NO denial fany one OF these papers being of the
handwriting ofthe witness. Sd. That if they are
considered the acts of an accomplish, they cannot
be received because not done in furtherance of the
common object, but are ALL except the letter Of
1874, subsequent TO its attainment. 4th. That they
are collateral. And 9Th. That they ar. not rebuff
ting evidence q s3ato5olroa b4a
The United States insist upon the com petency of
the evidence offered: 1st TO contradict the winess
3D. AS the acts of an accomplish. Sd. As the acts
| of the agent Of the defendant.
| There 10 an indictment against the witness for
the same offence in relation to the same transac-
| ton pending in this court al as4E et
The question presented has been very much la
bored but it hes within NUTSHELL and will be
considered on the ground that the defendant and
the witness acted together in the preparation to
support the claim Of the former before the commis
sion, and in procuring its allowance Whether
the claim be jnst unjust, it belongs to the jury
to decide. Assuming that they did act together.
how stands the lawf
1t ia admitted by the United States that state
ment of an alleged partner in crime, being a mar
ration OF past fansactions, cannot be received
against his fellow but only such decla rations
accompany the transaction during the consPiracys
| and this could not be denied. for the unbroken
current OF decisions leave no room for controvert.
ing this well established doctrine. But it ia argued
that the supposed conspiracy between the defen-
dant and the witness had for lis object the of
the money obtained for the claim; that that desire
is as strong now as it was when the original plan
was laid, and keeps the conspiracy alive TO this
moment; and, second, that the object of the wit
ness is to get his brother out of the scrape Sup
pose this to be 80, do not how it be con-
nected with an original conspiracy. The purpose
| of that was answered-an award made-the
money was paid to the defendant, or TO his attor-
ney in fsct-tbe defendant had gone to Europe,
! and the witness was in Mexico, i presume from
the date of one OF the letters offered AT this stage
/ of the business there was nothing to conspre
\ about. II subsequent conspiracy took place in
| relation to the defence Of the accused, il must
| have been concocted in the summer or fail
of 1851, for the defendant was in Engiand
when the indictment now trying was found
the seventeenth of July, 1851, according to
| the evidence heretofore adduced. The indict
tnent is for faIse swearing in November, ls49. Il
was then complete, the crime was not commit
| ted. How the acts of accomplish, two years
after the offence is charged to have been perpe-
| trated, and months after its success accom-
| plished, can be lawfully used as substantive evil
| dence against the defendant, do not perceive.
The same point in not very unlike this, in.
GLIDING even the brotherhood-the United States
Is. r. II. White-was decided in 1886 by the cir
cult court of this District The indictment was
/ for burning the old Treasury building. The
United States offered in evidence against the de-
/ PENDANT, Richard H. White, the admissions of
Henry HI. White, who stands charged with the
| same offence in separate indictment, evidence
| having been offered tending to prove that both
| were in the city Of Washing ton the day preceding
| the burning of the Treasury building; that both
| went away together in the evening and thatthe
defendant had told Henry to say nothing of burn
/ ing the Treasury. The court (Thruston contra)
/ refused to permit the declarations of Henry Fl.
| White, made after the supposed accomplishment
OF the common purpose, to be given in evidence
against Richard (he defendan) in this trial, they
having been indicted separately, and not charged
with a conspiracy.,' (Cranch's c. c. r.. 42s)
lam ofopinion that the letters cannot be recciv-
ed in evidence the acts admissions of con-
fed crate, so to affect the defendant directly
2. This would seem to dispose of the next ques
i ton, (mentiened by only one of the counsel for
the United States, and not pressed by him strenu-
ously, but mentioned, as he said, only in the
court should not consider the witness accom-
plce,) looking to the witness as agent of the
| defendant. Presumptions and implications of
! authority as agent are in general applicable TO
| civil cases. (2i Starkie on Evidence, 81 To be
| guilty agent isto be an accessory before after
| the fact, or an accomphce. To be an innocent
| agent is to be generally mere conduit pipe to
convey intelligence, letters, or papers; tocommu-
nicate messages, without knowing what they are
| intended to effect. may make himself
! criminally liable by the employment of such an
agency. The law goes beyond THAT ia stated l.
| the United States Gooding, for not only may
| the ag mt be innocent but in some cases it is
cessary be should be 90 to enable you to ndet his
EN- ployer principal In those cases, if the agent
have guilty knowledge, the principal is only an
| accessory. Here the whole argument has gone
| the assumption, very much urged, that the wit
| ness was a guilty agent; and, as such, the court
has already said that his acts declarations made
| not in furtherance of the purpose for which be
and the defendant are supposed to have combined,
but long after the claim out of which this prosecu-
ton has grown was allowed and paid, cannot feet
the defendant directly.
8. They are offered, lastly, 10 contradict the wit
ness. sac $500
The objection in this view of the offer is, chat the
proper ground has not been laid for contradicting
the witness. Hasitf --- 1881
The rule requires, when you intend to contradict
| witness by evidence that he has made declava-
tons or statements inconsistent with his testimony,
that you must lay foundation for it by asking
him as to the time, place, and person involved in
the supposed contradiction, If he admit that he
has made such sta tements, the inquiry 30 far
the evidence is concerned, is at end IF he deny
the imputed inconsistency, then it may be shown
by the party desiring to weaken his testimony II
he neither admit nor deny or Gays he does not re
decided in England, and by the circuit court of
this District, in the case Of Calder's, Aiexander's,
and Travers's wills and by this court in compli-
ancc with those decisions, but against my individ
uaI Judgment, in Campers case. To this extent
the law must be regarded settled in this District
1t is conteuded by the United States that the rule
and these decisions do not apply to contradiction
by letters or writings. Phillips, Russell, and
Greenieaf, in prescribing the rue. eon6ne it to
otYbal statements. The judges of England, on the
trial of Queen Caroline before the House of Lords,
gave it, their opinion, that the rule applied
to letters but that you could not ask the witness II
he wrote a letter with such contents, or con-
tents to the like effect; and that the proper
course to put the letter into the hanos OF me
witness, and ask him il he wrote that letter ~ DE
admit it, the letter may be read at proper ume'
If competent evidence If he deny 1t on principle,
though the judges were not asked Tor their opinion
in this particu lar, the handwriting may undoobt
ed,v be proved aliunds II be should not admit that
he did or did not write the letter. the Judges said
crpas IA rnination Of the witness would not be al
loved ar 10 the contents of the letter. because the
naner itselfis to be produced. How can 1t be ia
troduced if the indicative answer OF the wtsess is
Conclusive? II can only be made evidence by tcs-
tmony tending to prove it's genuineness, not ALSO
iu.a or positive proof but enough TO allow il to go
~ The iury % far as it lawfully may. The acknow-
iedged rule in relation to verbal statements think
an sniudicions one. 1t does not. ia my Judgment,
-. rS~7-..,,;nIv not claA riv eceoaarlv in