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

lodged In England and IN our country. "lno
Judge decides the law, and the jury the facts"
The consideration of these letters is certainly
a question of fact; and such questions always be-
long to the jury. But here also question oil IN
tenton, the 'quo Gni'no" of these letters, Is to be
Investigated, and this always ia for the jury. The
counsel read from the reports of The Supreme Court
the OF White %. Nichoss and Dinsman rs
Wilkes.
The determination of questions as to the admis-
sibility of proof ia excluvely for the court ana Is
necessarily copfded to the discretion OF the Judge
in each particular case. 1t must be so; and there
could be fixed certain rules oy wnioh "
measure the extent of that discretion. ious us
erection, however, was a legal and not capciTious
one, and certain rules are laid down 10 aio anu
guide its exercise Let me advert TO these -
The learned gentleman then cited the following
authorities 90
s PEERS, Crane rs Morris. SOS; Carter rs, Jack
son; United States rs. Wigsina; Scott rs. Lloyd;
MARYLAND Digest, $50 to 662; Davis % Barney;
Mitchell ~. Dali; Cole %. Hebb; Gill %. John
son's Repe. ~ sIf r.f.....tt. $500 IA
Il thus seems that if an inference could, by the
us ual course of human reasoning, be drawn from
the evidence, tbc court would not prevent its In
PRODUCTION to the consideration Of the jury. And
If the court be doubtful in The exercise OF this ds-
creou it will inclineto throw that doubt in tavor
of the admissib;lity of the evidence-not only on
account Of the fact that no wrong is likely to be
done, but on account Of the principle, which 10
good one in every view of the philosophy ofJuris-
prudence, that the judicial mind tended to extend
raber than to restrict the points Of evidence and
to give the Jury all the facts which may lead them
to emil ghtened gment. IL ia another preiim,
| mary question to whether the admissibiiity OF
this evidence j. qualified controlled by the char
acter of the offered proof 1t is seen that the evil
dence here was altogether in writing. He conceded
| at once The principle that the consideration OF al
legal instruments belonged TO the court, and to the
court alone; but by the term legal instruments was
| meant those which, according to the legal forms
| and phraseolcgies, signlned legal Ideas and no'
inq Iiries of fact. The rule, as be understood u
was, that wherever the writing IN question was to
be construed by itself and Of itself, there the MIND
of the couea went the paper and construed IT,
| and then informed the Jury what II Is. But ~her-
the per Is to be construed by the surround
ing circumstances testified 10 on paro proof by
sxtrinsic facts, there it ia question solely Tor
the jury, and the court must submit the writings
to their consideration. (Bsns OF New Eng nd
The United States Bank, Phillips on Evil
dence, 5l6, 5l7 } .5.--
The whole of these letters must go together. II
would not do to select part of them. His honor
given to understand that the offer OF the let
ters with the proof of the handwriting, went along
with the offer to prove that they were oenVereo
into the hspds of the commissioners OF the Senate
of the United States by the person to whom they
were addressed, and all at the same time. twouid
seem due the traverser that II one OF the letters
thus obtained should be offered in evidence, all
should because they were parts of the entire whole
The facts mentioned in one we're referred TO and
explained in others. They were the writings OF
one man, and about one common object Un-
GOQbtedly,
meaning Of those letters-beiDg thus linked to-
gether py the subject about which they were writ
ten-by the fact of their having been written by
the same person, and addressed TO the same
psrsou-they must be taken together. That was
the rule of the law made account of a ten
derness to the parties implicated by them-that
no letter might be selected which might reflect
ha silly on his motives; because, perhaps, when
construed by one which followed preceded il, il
might have no relation to any subject about which
guilt mi ut be either implied or discovered TThe
learned counsel cited 4th Phillips on Evidence,
notes, page SIT; 2d Tyler; and the decisions OF
udg es of courts in this District
l., |. Now, these letters substantive evidence
xainst George A. Gardiner, because, first, they
are The declarations of an accomplish. Second, If
they not the declarations of accompice,
they are the declarations of an agent.
III he could show that the writer of them
either accomplish or an agent, the contents
must go in. and as substantive evidence. An
complete, as be understood it, was man associated
in guilt with another. We were allowed to prove
that he accomplice, not only by direct
proof, but by crcumstanta or collateral evidence.
Every means within the whole scope and region of
the law of evidence was at their command to prove
that he was an accomplice. Lord Mansfield, in a
case before referred to, decided that you mi ght
prove a man to be an accomplish by collateral evil
donce. 1.-THE learned counsel cited Isl Starkie,
page 324; The King against Parsons, lst Black
stones Reports; and the Queens case last edition
of Roscoe, ALB
All the cases read by bis colleague showed that
circums "a ntial evidence competent to prove a
conspiracy as well any other fact. And they
further showed that very slight evidence pro.
per to 60 to the consideration of the Jury such
inquiry. THE counsel here read and common ted
on these csses.l Not one Of those cases presented
the same number of facts from "a ich the con-
sprscy could be fairly inferred as the case at ba
The conspiracy hes in the mind or intention of
the parties TO IL, in the common unlawful purp
But, as this intention il not and cannot be seen, it
must be inferred from the acts md conduct of those
engaged in it. Undoubtedly the traverser and the
witness must be connected in the common pur-
pose-there must be privity established between
and the connection afterwards or rice versa THE
counsel referred TO Roscoe, Starkie, and several
other cnsesl This is, then, the well-settled law
the subject of conspiracy, and The measure Of evil
dence sufficient 10 establish il.
Do the facts of this case bring within these
principles9
We find the following points of evidence already
offered in this case:
l. He is the brother of the traverser This fact
Of itself would prove nothing If guilty connexion;
but coupled with other facts of spiracy serves
to strengthe the infers eS from the known nat
ural lies which draw so closely the confidence and
intercourse of that relation.
2 They dwelt together in the city of Mexico,
and at Michoacan, and were associated in their
small mining scheme near Morelia.
B. They dwclt together in Washington, at the
same house, while the claim was being prepared,
and when il before the Board OF Commission
ers The witness aided and assisted his brother
about it, He spoke to MIR. johnson and stated be
was interested in the claim Of his brother. and
offered him $40, 900 or 8 80 900 if he, johnson,
would get MIR. Evans to take up and quic ky de-
eide t.
e. He was witness to support that claim, aud
gave his deposition in its favor.
s. He received S 10 600 a part Of the award in
that case, from his brother.
b. tie returned 10 Mexico TO obtain proofs to sup
port the claim and this He obtained them
We see him presenting a petition to the judge
Chaves, (Which he has ADMITTEDLY in which he
says he is acting Tor his brother.
Z. lie returns, and gocs again to Mexico with
the same object and returns with new proofs W hict
DE delivers to the counsel OF bis brother and Which
| they use on this tral-the mining title, SC, &c
| Was this disinterested service? Who paid the
heavy expenses ofIn F.H.t
s. We ind him corresponding with Verastegui.
the author OF the Red Book of Accounts and whose
false certificates accredited the claim. All thes,
| letters are addressed to him. .f RI
9 Refer to the internal evidence of these letters
| showing most exact knowledge of all the paper
| hied by bis brother to support the claim compare
| the dates, names and facts throughout, and yor
see an equal knowledge of the whole affair in III
most intricate and special points. Read the "de
| position of Pando,' (another accomplce) drawn
| by the band OF John Charles Gardiner, and yo'
see the whole case OF the brother as presented 4
| the board.
| 1.-THE counsel here examined the letters, ant
compared their contents with the original paper
! filed by the brother of the writer before tn
! board. ...T -.... -ii
| TO- Such knowledge could only have been oh
| tanned from a most careful exaDpn ton Of, ant
possessing memoranda copies of them.
IL. And, finally, We see the traverser using an'