The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-05-11
FoRrY sxrH DAY-FnrDAY, MAY 8.

On the opening OF the comt, the Judge made The fol
lowing decision on the question OF the admlssibiiy IN
evidence OF the papers published in previous report:
The COURT Several letters, dated 2h December 1914
and from slh May 1851. to Slh September, 1852. having
been submitted John Charles Gardiner witness for
the defendant in this cause, by whom they puport 10
have been written, and he having said that he neither
admitted nor denied them 10 be his writing with, per-
haps, the exception OF No o. Colonel Lorenzo Thomas
was called by The United States who testified that each
Of the said letters and writings marked L. t. and mum
bered from TO IS, inclusive; and the one OF ls44
marked A. J. f., No 81 were, az he believed. il the
writing OF the said Charles Gardiner; whereupon
the United States offer the said letters and writings in
evidence To this proposition the counsel OF the defend
ant object
The objection, i, is con,ended is well founded ST.
For that the evidence offered consists Of the decia-
ations OF stranger 2l Ii offered 10 dlscredit the wit
ha. the proper foundation has not been laid BY the
United Sta.es-hat there is no denial OF any one OF
these papers heDg OF the handwriting OF the witness
3d. That if they considered the acts OF accompce
they cannot be received, because done in urheance
OF the oect but all, except the letter OF
lS4l subsequent 10 lis attainment 4h. That they
collateral And 9Th. That they not rebul,ing evil
denCe. #.. Flat ~
The United States insist upon the competency of the
evidence offered lst To contradict The witness Cd. As
the acts o accompce 81 AS the acts OF the agent
OF the defendant. ar a t.rYr
There is an indictment against the witness for the same
offence in relation to the same transaction pending in this
court
The question presented has been very much labored
but 1t lies within nutshe and will be considered
the ground that the defendant and the witness acted
geher in the preparation to support the claim OF the for
mer before The commission and in procuring ts allow
ance Whether the claim he just unjust, it belongs to
the jury TO decide. Assuming that they did together,
how stands the law
1t is admitted by the United States that statement, Of
an alleged partner in crime, being narration O past
transactions, cannot be received against his fellow, but
only such declarations accompany the transaction du
ring the conspracy and this could mol be denies for the
unbroken current OF decisions leave for
vertng this wellestabiished doctrine. But il is argued
hat the supposed conspiracy between the defendant and
the witness had for its object the OF the money OBJ
tanned tor the claim that that desire strong now as
i was when The original plan was laid, and keeps the
conspiracy alive to this moments and second that the
object OF the witness get his brother out of the
scIape Suppose this 10 be so, do moi how il can
be connected with original conspiracy The purpose
OF that answered--aa award was made--he money
paid the defendant, 10 his attorney fact;he
defendant had gone TO Europe, and the witness in
Mexico presume, from The date OF of the letters
offered Al this stage OF the business there nothing
to conspre about IL subsequent conspiracy took
place in relation the defence u the accused it must
have been concoced in the summer or fall of 1851 for
the defendant 10 England when the INDICTMENT now
trying found the 18th OF July, lS3 according to
the evidence heretofore adduted This indictment is for
false swearing IN November lS49, II was then com
pele, or the crime was not committed. How the OF
an accomRce two years after the offence charged to
have been pcpealed, and months alter success was
accomplished be lawfully used as substantive evidence
against the defendant, do not perceive. The point
not very unlike this, including even the brother
hood, The United States X. II. White, was decided in
1896 by the circuit conri OF this District The Indictment
was Tor burning The old Treasury building The United
States " offered IN evidence against the defendant
Richard H. White, the admissions OF Henry H. White
who stands charged with The odence separate
Indictment, evidence having beeu obered tending to
prove that both in the city OF Washington the day
preceding the burning OF the Treasury building; that
both went away together in he evening and that the
defendant had told Henry 10 say nothing burning the
Treasury. The court lThruson oonhd refused TO permit
the declarations OF Henry II White made after the sup
posed Accomplishment OF the common purpose, to be
given in evidence against Richard the Defendant in this
trial, they having been indicted separately, and not
chars Ell with conspiracy" (Crasch's G. c. k ,42J)
OF opinion that The letters cannot be received in
evidence as the acts or admissions oil confederate,
as 10 Affect The defendant directly.
q This would seem TO dispose OF the next question:
mentioned by only one OF the counsel for the United
States, and not pressed by him strenuousy, but men
toned he said, only in the should not con.
sder The witness aceompllce looking the wit.
ness as agent oil the defendant Pfesumpons and i'm
pcaons OF authority ageut 10 general applicable
TO civil cases (2i Siarkle on Evidence 3t) To be
guilty agent 10 be an aecessay before the fact
or accomplice. To be an innocent agent is TO be
generally mefe conduit pipe TO convey intelligence. let
tes, or papers; 10 communicate messages, without
knowing what they intended 10 effect A man may
make blmselt crlmlnaly liable by the employment OF
such agency The law goes beyond what - stated
10 the United States Gooding for not only may the
agent be innocent, but in some cases II s necessary he
should be to enable you to odct his employer prin
cipa In those " the agent have guilty knowl-
edge, the principal is only accessory Here The whole
arg unen has gone the assumption, very much urged
that the witness guilty agent; and, such, the
court has already said that As on declarations made
not IN furheance OF the purposs for which he and the
defendant supposed to have combined but long after
the claim out OF which this prosecution has grown was
allowed and paid, cannot Affect the defendant directly.
9 They o1ered lastly, TO contradict the witness
The objection in this view of the offer is that the
proper ground has been laid for contrsdlcnng the
witness. Has IL
The rule requires, when you intend TO contradict a
witness by evidence that he has made declarations
state emens inconsistent with his testimony, that you
must lay foundation for it, by asking him as to the
time place, and person involved the supposed contra
dicion II nc admit that he has made such Statements
the inquiry, far the evidence IS concerned an
end II lie deny the imputed Inconsistency, then it may
be shown by the party desiring weaken his testimony
If he neither admit nor deny, says he does not
her, YOU cannot contradict him. has been decided in
Eng land and by the circuit court OF this Dsinei in the
cases OF Cslders Aexsnders and Efaverss wills; and
by this court in compliance with those decisions, but
against my individual judgment, IN Campers case. To
ths extent the law mast be regarded settled in this
District IL ia coniended by the United States, that the
rule and these decisions do not apply contradiction
by letters or wrtinge. Phillips RUSSELL and Greenleaf,
in prescribing the rule, conhne II 10 perbal statements.
The iodses of England, The trial OF Queen Caroline
be ore the House OF Lords, gave u as their opinion not
mai The rule applied letters but that you could not
ask the witness If he wrote a letter with such con-
ten,s or contents 10 the like elect and that the
proer course was 10 put the letter into the hands OF the
witness and ask him II be wrote that letter III he admit
IT, lhe letter may be read at proper me u competent
evidence II he deny IL principle though the judges
were not asked for their opinion IN thus parieulM, The
band Writing may undoubtedly be proved ahnne " he
should not admit that he did dad not wne he letter,
the Judges said a cross examination OF the witness
would not be allowed to the contents oil the eter pc
cause the paper itself is to be produced How can Il be
introduced the indecisve answer OF the witness - con-
clusivet II can only be made evidence BY testimony
Tending TO prove s genuneness absolute or positive