The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-05-12
-.,r GARDINER CASE.
cp,uuNAL COURT FOR THE DlsTRlCl VI
ehimiT' COLUMBIA.

r,xposrEp FoR THE RrPUBLic.1
roRrY-sEvENTH Saturday. M1s''
E,raminotiop of Mfr. James r. Pd'fr'dge 'e'a"'"
The DIsrRIcr ArroRssv. Hanoin;s ., sn. r,,s;or
a paper.l Ia that the copy OF the oes U.s.
Of the mining title in the alcade' ouoe ~ La
vuinillas to which you referred on yee.etosy!
Ans Yes, sir. it is htsfaisog o,O Nd 10 H.
tive norton Of the mining ute ioonu IN the al
Id. offirs At La gunas, showing the position
e,hs TrJns II was made on the spot and from the
original paper in that once asrseI WIN 'ae
~ yesterday. / never Jaw those mining copies
mil saw them on the stand yesterday.
A. C.sLIsLs and the witness then compared
tbe copv of the mining title brought from Laguin-
iIIss by Messrs. Slocum and Abbot, with the copy
of that portion made by the witness, and they
found 10 be literally the same.
The DISTRICT ATTORNEY. Did you perceive any
variation between the copy of the mining title
which was shown you, and the original in the al,
calde's officer
Ans have strong impression that the words
"Sierra de la Huasteca" were not in the minng
title shown me at Laguni las; but cannot sw ear
positively to the fact.
Mr. CARLIsLs stated that the extract made by the
witness was from the original petition Of DR.. Gar
diner.
Mr.. May. Did you examine the pa with
view of getting the descriptive parts?
Ans Yes, sir; | examined il three several
times.
eufs. understand you TO say that the Huastsca
range Of mountains was not mentioned in tie
original?
Ans. That is my impression; but am not will
ing TO swear that il not mentioned in the orgi-
nal. am not so certain of that as | am Of other
things
suss. Describe the Appearance of that orr pi n al
paper?
Mr.. BRADLEY. Mr.. Partridge has already been
examined on this subject in the examination in
chief. l use the words examination in chief as
contradistipguished from rebuttipg proof.
Mr.. May. The court has decided over and over
agaln that witness may be recalled -
The CoUsr. witness can only be recalled for
the purpose of explanation. The question now is,
whether this is or is not rebutting proof.
hAMAY. | understood the court to say that a
witness might be recalled if any thing had been
omitted in his examination.
The CoUsr. The court said that witness gbt
be recalled at any time before that side of the
question closed. For instance, when your
witnesses were called by the other side, and the
observation made whether they could recall
your witnesses at any time or not, replied that
they could at any time before the prosecution
closed.
RTr MAY. The principle now is one of practice
going to the order of proof; and the counsel the
other eide object the inrod uction of rebuttin
proof, that it is not competent for to examine
the witness on those subjects with reference to
which we bad an opportunity of examining him
during the examination in chief.
The CoURT. That is, unless II apply to that they
have introduced.
Mr.. MAY. 1t being no part of our case to prove
any thing about the mining title, carefully alb
stained from ma king single inquiry with respect
made his first visit to guinillas-which a
month previous TO the arrival of the commission
ers at that slace-he had examined the alcade's
office to see whether there a mining title
there. He piled that ne had and that there was
no mining title there. " there was none found
there was mining title about which to examine
witnesses. The court will explore in vain the
port of the trial 10 find where single witness
asked any thing about the title We rested on
Captain Barry's evidence, his answer having
tied the question. Towards the close of the cross
examination of Captain Barry, Mr.. Bradley in
putting questions TO him, brought to his mind the
consideration of the existence of the mining title
in Laguinillas, and went 10 interrogate him
about il. The copy OF the mining title, however,
was not shown to the witness, nor was be in
formed of its contents. 1t was not shown until al
ter evidence in chief had been closed. In the
progress of their they set up this minin z
title. The only one in reference TO which we had
offered testimony was the one at Rio Verde which
was fled before the Board of Commissioners on
Mexican claims, and on which the claim of DR..
Gardiner allowed. We think successfully
impescbed that title. In the very commencement
we offered to prove that it forgery. Now
the counsel on the other aide set up another min
ing title, which they say was seen in Laguinilias
by witnesses Slocum and Abbot. That title was
offered by them, and not by Us; and when it is
presented by them and relied on, we OF course
have right to recall witness to rebut the ex-
istence of that title, Notwithstanding Mr. Bradley
may have in an informal way examined him
touching bis recollection respecting it.
We do not ask the witness TO give any of his
opinions, but to testify with regard to facts He
gave his opinions the other day bee ause be was
Intercepted with reference to them by the oppo
site counsel. He has precisely identified the
mining title brought here by Abbot and Slocum
by comparing il with the copy which be took of
portion of the original in the acalde's Office at
Lagulnilas; and we now ask him 10 describe the
appearance of that orr ginsl. He has already said
that be was under the i'm preston the Sierra de la
Huasteca range of mountains were not mentioned
in it, We expect 10 show to the jury that this title
was fraud from the beginning to the end We
therefore submit to the court, the copy Of the
mining title made by Abbot and Slocum was pre-
sented by the defence after our evidence ia chief
had been entirely closed, that now ia the proper
time to prove that IT is fabrication. II would
have been anticipating the Sc of the defence for
US to have entered into examination of this
paper before. We forbore, and thought it our duty
to do so, until the counsel the opposite side
according TO the regular rules of proceeding, had
offered that paper. We now mean to call our wit
nesses to testify with regard to the appearance OF
the original We think that is the proper
time. ond that it would have been irregular to dc
SO before.
Mr.. CARLISLE. This is called a question of prac
tce. | agree that, nominally, il is a rule of prac
tce which we interPose in this examination anc
rule which ia not a matter of form, but a matter
of substances. Ii has not been adopted simply fol
facilitating business but for the proper protection
of accused persons 1t has its foundation in tn.
principle that be who Is accused of crime undc
one law is entitled, before being called on to ma ks
his defence to hear every thing which constitutes
the body Of the occusation the part of the Gov
eminent. That is not only fair and reasona bic
but il is essential to prevent frauds in the admin
istra ton of public justice If you depart from tina
rule you put ii in the power of any prosecution
bring ts case out by piecemeal. Unless that rule
he observed, certain portion of the case of the
prosecution may be introduced, and the defendant
may Ike bis defence under the impression that
" is their whole case but, after ne has made il
they may introduce some other matter manufac.
tured because of the defence. | do not speak Of
The present case, but refer to general principles
Your honor said, when called upon to decide ques
tions of evidence and practice, that you bad moth
ing do with the motives of either the prosecution
or the defence, but that you sat here to lay dowr
rules to be used in all cases, and prevent fraud
You therefore assumed the possibility that in som,
sases there might be fraud. If this rule be de
parted from, free scope will be given to fraud.
! submit that there 10 no discretion in the " orlC
to dicoense with the rule if this particular cas-
fall within it's operation. reeolCct the court said
in the Gaze Of McDuffee, that il fixed rul
with it TO reqGire the prosecution 20 show its Who'll
case Mt once, ano before the defence entere.
upon. From that day TO this, do not know of
single instance in which your honor has departe
from it.
IL is said that this testimony relates to matte
which was not involved in the prosecution, bu
which set up Substantially by the defence.
ia only on that principle that they can seek to es
IL "a II