The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-05-10

duction of the papers, that they were in the pos
session of the prosecution before the commence
ment of the trial of this that the evidence il
not brought out by the defence that they are the
statements or declarations of an accomplice (ac-
cording to their grounds which statements and
declarations evidence in chief.
Now we come to the application Of the rule OF
| ''common sense" "Oh!" they say, eeit is mon
strous! Not let 60 when We have got all this
evidence in our pockets Let the defendant make
| out his case, and not permit as to come to the
crowning point, the elimination of the ARCH We
have built an arch, and got it completed, all but
the keystone; and we not TO be allowed TO put
in that What! shut out from the view of the iurv
that evidence, which is strong that no man
who reads 1t doubt that the witness was an nc-
complete! 1t speaks out in every part, and says
| 81 and my brother, WE have done this; and you,
| Mr. Verastegui, look to il; you have been united
/ with ue; you have assisted Va TO accomplish this
fraud; you stand as pillar TO support the ediice,
| and, if you fall, down comes the whole "a brio:
and that fall will be so great, and so deep. that tho
| hand of redemption shall never reach ill"
This is the which the United States suppose
| they have made out; and they say that common
sense" teaches that euch evidence should moi be
excluded from the consideration Of the jury!
| ssThat man is to go free is n1onstrOus when
| have such overwhelming proof behind!' Well,
gentlemen, all we have to say is, that you should
have brought out your proof at the proper time.
But, may it please the court, common sense"
| teaches something else; it teaches toat go
soon courts begin to depart in great cases under
pressure from an quarter, not what, even
from the highest functionary in the land to the
| poorest and least influential citizen-l say when
our courts under any pressure begin in great cases
| to depart from long established rules, the small
cases will be in very great danger of being drawn
within the precedent thus established. Common
sense teaches that, may il please your honor.
When we see power usurped in great cases-and
| it is as much usurpation of power for q Judge
upon the bench to depart from established rules as
! 1t ls for government or any portion of govern
ment TO exceed its powers-then common sense'
tea hes that there is dan myers that these rules
we'd N NIL
of our lives, and liberty, and property; and that,
| when they are at the disposal of the within and ca
| price of any man, We are no longer safe. That,
sir, is a common sense view OF the case, in my
| opinion.
| Now, | submit whether i state the rule too
strongly when | say, if be shown that the pros
ecutiou is in possession of evidence which would
be evidence in chief, they cannot withhold that
evidence until the defendant has closed his case,
and then turn upon with il? / do not speak in
this manner because feel any great excitement
or sympathy, prejudice passion, in this par
| ticular case speak because feel and know that
80 soon as the established rules in Of Justice
are departed from, just so soon is civil edhce
| rendered unsafe. | care not what pressure exists
| out of doors; care not what the American peop's
or all the world may think of the rejection of evil
dence in a particular case, which may or may not
have been exaggerated IN order 70 produce public
opinion. look to something higher and boiler
look TO the plain dictates OF duty, and TO that in
which the general safety and welfare rest.
What. then, is the rule in regard TO rebutting
proof No proof can be admitted rebutting
| proof which IL cumulative. First, proof can be
admitted which is not responsive new case set
| up by the defendant, and which would not be ad-
| INVISIBLE in chief That is sacred, great fun
damental rule, and start with it. Let us see then
whatit is. In order to what ia its application
We must see what is the cend ton of the case. /
will present TO your honor resume of the case es
! understand it. The case set up by the prosecu-
tlon s false swearing, with regard TO the memorisl
| in which he sets up his title to certain mines in
Mexico, of which he was deprived by the Mexican
! government, and which involved heavy e1pendi-
lures; nd he claims indemnity for his expendi-
lures and the Ioss of his mines ! cali the attention
of your honor to the fact that The memorial does
] not embrace the abstract of title from Rio Verde.
Il sets up right to and title in and possession of
the mines. What that right and title were, by
what authen tic document it evidenced, where
the title was lodged or recorded, of these
/ things appear in the memorial agree that after
wards abstract of the title from Rio Verde was
filed. That is not in the memorial. 1t was part of
! the case which the Government was bound to chow
and prove was fraud. They were to negative all
these substantial parts of that memorial. They
undertook to do it by proving, first as the essential
part of their case, altbi; secondly, search for
the mines, and that no mines existed; and thirdly,
the forgery OF certain documents or papers which
have been filed evidence of the claim.
Another fact material to be considered is this ID
is pressed in the case that the commission on the
part of the United States, and representing the
United States in this matter, were advertised of
and shown a deed which the defendant sets up o (
record in Laguinillas, and that they were adver-
sed at the same time oithe existence OF the mines
and offer made TO show them where they
were. This offer the commission declined. will
axe the RESUME thus far. The Government under
tax to show that the claim was fraudulent, and
therefore that the oath fase-not that the title
in Rio Verde false, for that was merely Incl
dental, and nothing more The defendant was
the spot, in little village In the municipality
| where the mines lie, with his agents, and within
| q stones throw of the house where the commits
soners were, and also within stones throw of the
Office where this deed was recorded and there
an offer made to these commissioners to show them
the mines mentioned in that deed.
Now, at that very time the United States we're
| in possession OF all the proof upon which they
relied to show that this witness wac accomplish
of the defendant. Can any lawyer-I do not
speak of the ''conmon-sense" out OF doors-but
can any lawyer doubt that that evidence of the
acts and declarations of the accouplce or agent
| care not which-werc the acts end declarations
OF the defendant, and such, were primary and
ind pendent proof, admissible, and which ought to
have been admitted in order TO meet the title deed
| in Lagunllas? Your honor will perceive that ID
is not matter to which these papers apply, but
old matter. The defendant says that be has
mine there and title to it, and before this trial
| the prosecution advertised of the title and of
the existence of the mine. | say, again, cir, can
| any lawyer doubt that this ia evidence in chief!
| Surprising, them that they have made out the
which they have supposed. Inaintain-an if il is
necessary can refer the gentlemen TO authorities.
but understand that it is conceded-that if this
was evidence In chief, and Ia not admissible
responsive to new matter set up by the defendant
In avoidance of the charge, that IL is not admss-
| bic as rebutting .-lYide the King Stimson, 2
/ Darlington ana Paine, p. fl5, and KNAPP vs.-,
4ibid, 590l But, cir, we do not want to go there.
The rule has been laid down with the utmost
| strictness by the criminal court in the case of
| Alexanders Wise and others, and in numerous
cases already cited, and upon the fullest argument,
| precisely as | understand TO be the rule now that
cumulative proof is not admissible rebuttiug
| evidence, and that no evidence can be admitted ae
| rebutting proof whch would have been evidence
| in chief, and might have been introduced such.
| make that, SIR the hinge of the whole question.
| l deny, however, that the witness was in any
ma nner interested with the defendant in the eense
| which affects him witness; ! deny that there
has been proof of any conspiracy or confederacy;
but, before | go into that, will state the general
proposition that unless he is confederate agent
there can be pretence that these letters ed-
missible as evidence mean az independent proof
| to 60 to the jury. They the unsworn declara-
| tions of third party; and the rule in regard TO
that, suppose, is as distinct as any rule haves
Now let US what lie the evidence on which
| they rest the charge of his being an accomplice;
but, first, as to the question of agency: ! admit OF
course, that both in civil and criminal cases the
principal lie bound by the acts Of his agents within
the scope of his authority, and by his declarations
having reference 10 the exercise of that authority
| but they must first proye-and they have left out
| that-the scope of his authority. They have for
gotten, In the argument which has been made, that
IN order to let in the acts declarations Of an
agent they must prove his authority and it's scope,
and that these acts or declarations within the