The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-05-11

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: THE GARDINER CASE.
tRIbIlNAL COURT FOR THE DISTRICT OF
COLUMBIA. 1890.
[REPoRrED FOR THE REPUBLIcl
hE9g 1885 aEa Gt5.s---- asti4]3 ,ef}abrfl-stf
FORTY-FIFTH DAY -, I.sysday, May S.
| IN CONTINUATION.
! MIR. BRADLEy fdrther said: A-ssso'ie.-
| Before Lproceed to the next branch Of the case
stop to notice one OF the grounds which theJ
say, SIC, O0O-part of this award. But theyfergoi
to state that this sum given to him to pay Ger.
tain creditors Of George, the defendant, who were
the United stassI, Don Manuel Verastegui, when y
| ne had the reputation Of being an honest man.
assqne, then, that upon abe grounds now taker
~ the United States, this evidence is not now ad
mlssibte as evidence in the cause.
H.oBat we deny that Charles Gardiner was ia
any manner interested in this case, as partner OF
agent. asas EaE 4aiiss2 SD 'asa . ssF.lsa
Much stress has been laid on the fact of bis hA h.
ing been in Mexico in the spring of 1851. Mr.. B.
then projected to state that the object of that visit
was to denouhce the Tin mines in that State-a fact
we'll known to the United States and an Enterprise
| 10 which Verastegai was to have been concerned
/ DE then prYceeded to examine the letters them.
selves. First, he assumed, that unless the agency
or confedefacy could be proved aliu,,de that the
Government could not resort to the letters 10 sun
fPiy their proof and maintained tina the conspiracy
or agency and it's scope must be proved hy other
means before the contents of the letters couId he
admitted. He relied on the cages cited by the Gov
eminent to show that there Is distinction betw
the legal sufcency of proof and the weight of the
evidence He stated the progressive order to be-
ts, the admissbiliy of the evidence 3D. its legal
sufhciency-and these were questions for the
court and Sd, lite weight or credit-and this was
exclusively for the jury; and he referred particu
lary to the case of Cole Hebb cited by MIR. May;
and Parks us. Koss, in the Supreme Court He
further argued that all testimony in writing goes
to the jury only by the consent of the court. The
court must ]adge Of its admissibility and, when
called on, OF its legal suficency and must be sat
ished by proof that il is legally admissible at the
time it it is offered before it can be read nd he
proceeded. by illustrations and analogies to show
that these letters could not be evidence to the jury
that very much of the gufnent on the other side
was appropriate only in the letters were ad-
mitted by the court; yet it was proper to take
some notice Of the contents Of the letters in reply
since they had all been read to the court. = :;
The counsel for the United States had laid FL ea
slress on some particular passages in these letters
which deserved some notice. As to the letter il
which reference was made 10 Guadalcazar and
lLaguiniias.the Government knew perfectly vel
that the mines of Dr., Mears were said to be in
Guadaicazar and that letter referred a. we'll to the
case Of Mears as to that of Dr. Gardiner; and wher
the letter spoke of both places, it'referred smpy
straet of title in Rio Verde. hut he eaid neithe.
the memorial, nor the proof, nor any documents
4 in the case, referred to a announcement at Rio
Verde. The only paper flied by Dr. Gardiner was
brief abstract of title obtained from the prefec-
ture. That the commissioners who had been ex
amined testified distinctly that they did not un
deratand that paper tobe the title, but mere mem
orandum abstract showing that there was title
somewhere. 1t was therefore absurd 80 to construe
this letter. If they supposed the author to know wha
he was about; and they gave him credit for grea
ability.
That the letters, beginning with the 18th Sep
tember, show an honest claim, and complain of ar
infamous accusation against it; that Verastegu
knew all The facts, and after having honestly as
sisted in the frat instance, became alarmed les
his government was to lose the money; and, acted
upon by his fears was drifting round to those wht
had assailedit. That there were two or three pa
pers which were wholly inconsistent with all the
others, and could not have been written by Charles
| Gardiner, unless he had sworn deliberately 10 q
fasehood; but, to all the rest, they such
any man in the honest pursuit of truth might have
written. As to those inconsistent letters evidence
would hereafter be given; and, if the facts resulted
as he had been given to understand they would be
proved, this would be exhibited as one of the dark
| est mysteries and blackest spots ia this most mys
ferrous case. That Charles Gardiner was wei
known to hume rous and highly respected citizens
/ and had lived among for four years, and wa
known to many officers of the army long befor
without reproach and the charge in which he wa
| thus involved was incredible. fas3G . 1o So
Ill. He further commended that the evidence wa
not admissible TO contradict the witness
He argued that the rule in regard to ora proc
applied with equal force to cases of handwriting;
and cited Green, p: 1852, 10 show that he could BE-
| where he had sadmitted it, He referred to the
/ Queens case, and the text books of Mr. Phillips
and Mr.. Starkie, in support Of the rule. In the
one case, his memory is refreshed by having time,
place, and circumstance called TO his recollection
In the other. his memory ia to be refreshed by his
handwriting, OF which he is supposed to have an
| image in his mind, and by the contents Of the
writing He argued that voice, writing, and sgns,
are all but the means of communicating ideas;
and the rule which applied to the voice governed
equally the signs OF the mute and the pictures OF
| the writer. There no difference, and to adopt
different rule would be but evasion of the we'll
established precedents. 1a a eti
Applying this rule, he said the witness had
neither admitted nor denied the writing; had said
| it looked much like his: but, on looking at the
contents he could not recollect ever having writ
| ten the papers. Aud well he might, if he knew
any one in that country in any way connected
with the production of these papers. Mr.. A. j
Halsey, Tor instance, who had been stated to have
produced the Moreiia letters, and are in this cor
responsiveness; who had been the writing master OF
the witness; and who, in September, 1851. had
given to the witness deposition wholly at war
with his present alleged conduct, and in support
Of the detsndant's claim, deposition made before
| Mr.. Black, the consul Of the United States in
Mexico, which deposition was now in court, but
by the rules Of law, if not OF common sense the
defendant could not use; or, II certain Vincent
VerasteGui, clerk and nephew of Manuel, had
had any thing to do with. and who're original
letters the witness had in his possession closely
resembling his own writing az easily to be mis-
taken for IT,. aa.sa sasg4
! Besides, there is no evidence 90 slight and in
conclusive as opinions to Handwriting, of which
MIR. bee, In his treatise pro sumpons says they
are at best in civil worth but little, in crimi.
nal cases nothing, and but 0dminicuIa OF ties.
tmony. The witness the counsel had pile
of papers before him. he knew, by the example of
the Morelia letters, how easy it was to prepare
writing, and he ;eived them from the ha nds of
! the counsel with an eye sharpened by suspicion, ,
and mind prepared to doubt their genuineness.
Now, Colonel Thomas had declared he believes
them to be genuine, and that is evidence to 20 to
the jury, with such other may be offered; "a nd
the jury to decide that question if they ever
shall go there But the question here is as to their
admssibihty 10 contradict the witness
Again, it rests on opinion, not knowledge:
when man hears another say a thing he knows
what he has heard, and be isready to swear posi.
lively TO the fact, When he another's writino
be has an opinion admsniculum Of proof only. he
is not prepared to swear positively as 10 bis
knowledge Here, then, he urged, is a stronger
reason against the admissibihty of such proof - /!
Mr.. BRADLEY then restated his propositions:
b. J. Tine EVIDENCE 10 not rebuttinR if the witness
was confederate or agents haG Tg3salGt7u5 S 81
2, The co4federacy or agency must be fret
proved olitnde, and the proof cannot be eked out
g. They are not admissible to contradict The wit.