The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-04-06
THE REPUBLIC.

IL - IL l. " IL IL "
THE GARDINER CASE.
RIMINAL COURT FOR THE DISTRICT OF
COLUMBIA.
(REPoRrED ron THE RxPuBLIc.1
TWENTIETH DAY-Monday, Apr;l 4.
Aagustss E. 4. Keyss, ssoor,s
Mr.. FENDALL. Look at that paper and see whe.
ther 1t IL copy Of notice served upon the de.
Mr.. BRADLEY. The prosecution offers this paper
to the jury. We have asked the District Attorney
II he has the reply to it, and he ays he has We ap
ply to him to know whether il will be produced or
not We do not get any answer thatit will. We wish
the whole matter to come out, and not merely q
part of it. This is a question purely collateral
and we understood the court to rule the other day
that If collateral evidence offered could not
pursue it. Is isiss taasa X. 9sge aes
The Couar. The court merely stated what wae
the rule OF law: that witness might be asked a
collateral question for the purpose of assisting his
memory, but that the inquiry on the part Of the
Men, Be Ss as
nected with this paper are to be given in evidence
we make no objection. On the contrary, we rather
court the investigation. and desire that the paper
with all the circumstances appertaining to it,
Mr.. FEnpALL. The court have allowed evidence
to be given showing the conduct of the defendant
in relation to this matter the other side; and on
tuat ground OHcF tnat paper, anO tolnK We nave
right to offer it as part of the conduct Of the de
fenAant. Our right is not at all dependent what
may follow the Offering of that paper, whether we
offer the answer or not $40 fffa ip9 sd ' .fst
MIR. CARLISLE. Your honor will perceive that
that paper relates to point stated by the United
States In the opening address of the counsel for
the Prosecution and referred 10 by the counsel for
| the Defence II was said by the counsel for the
great hberality to the defendant; and your honor
will recollect the reply which made to that:
that under our advice the defendant refused to 60
out with the commission appointed by the Senate,
commission. We objected that The Senate com
mission was to 70 out under the charge of the
counsel for the prosecution, and that two ofthe
missioners had openly expressed their opinion that
mission 10 be brought back the very witnesses
who were to establish his guilt, and in their COM
pany the defendant was to travel. p ~
II 10 unnecessary for me to refer further to this
subject. l merely advert to it thus far to recall
to the mind Of your honor what was said in the
opening, and to add that we earnestly desire that
the whole conduct of the Government and the &C.
cused in regard to this matter may GO before the
jury. All we ask is that we may have an under
standing that if this inquiry is to be gone into
the part of the prosecution, we may on our side
have an opportunity ofintroducing such evidence
and facts orally as will show the matter in its
the counsel on the other side to give to under
stand that they consent to it. We apprehend that,
except upon the ground of consent, the facts
stated in the opening address on our part cannot
be got in evidence. If this paper goes in evidence
alone, it does manifest injustice to the defendant
but if it oes, with all that preceded and accompa
MED and followed it, It will rebound to his ad-
vantage.
US know what we may put in in reply. They pro
coed upon the ground that it is competent for them
tn prove that paper, and therefore they put US up
on our guard that we are only to follow them to
fh~kA s~h knv, -..LA
to follow it. The ground on which they offer it is,
Now. i seems to me that th;s n, ne- would be-
clearly inadmissible on that ground What does
the paper purport to be? Pending criminal
prosecution the attorney of the United States calls
upon the defendant to do some act to establish his
innocence, and the fact of his refusal to comply
with his Wishes that refusal is to be given to the
jury as evidence of his guilt! That Is the whole
Of it, sir; and was ever such monstrous PROPOSE
ton heard of? Why, sir, my friend seeks to in
pose he indicts man for horse stealing, and then
writes him polite note requesting him to meet
him somewhere. and prove that he did not steal the
horse. Well, sir, if he chooses to take notice of
such a note, s that fact to be given in evidence
in regard to the prisoners conduct? Not at all.
His conduct in the matter of the alleged offence is
one thing, and his conduct in refusing or accept
ing the Invitation from the District Attorney ia
another. Upon this grOtnd, we apprehend that
this paper may not be strictly evidence and if it il
| to be allowed to go on without objection, it may
injure the defendants cause. repeat. that we do
not make any objection if It is understood that we
have a right to go intothe whole matter. If your
honor has discretion in the matter-as I suppose
you would have-then we waive all objection, and
not only consent that this inquiry should go on,
but we invite particular attention to it, always
supposng that the whole facts may go to the jury
The CouRT. 1t is proposed BY the United States
to read to the jury notice which they served up
on the defendant. That is the naked proposition,
without reference to the answer. I am decidedly
| Of opinion that it is not evidence. The United
States might go to any defendant and furnish evil
dence against him by their own acts This act ia
the act of the District Attorney and not the act of
| the defendant at all; and no man is to be preju-
diced by what the District Attorney chooses to do,
unless that ia followed by some act of the defend
| ant himself.
Mr.. BRADLEY. We now offer to waive all objec-
ton and let all the papers come in.
The CouRr. That is matter for the consent OF
both parties
Mr.. FENDALL. The counsel for the defence offer
duct Of the defendant and in regard to his mines.
The CouRr. That is a different case. You pub
lish handful calling upon everybody to give in :
formation who knows any thing. That handful
| the answers which were sent in reply to it.. The
court therefore decided that the answer of Mr..
Abbot is evidence.
Mr.. FEsDALL. And the court now says that
this paper is not evidence?
The Cousr. II lie not, as you offer it.
Mr.. RANDALL Then offer 1t With the answer.
Mr.. BRADLEY. Why do not the United States
say at once that they will 20 into the whole matter,
from the beginning to the end?
Mr.. FHHDALL. "Suficient for the day il the
evil thereof" i now offer the paper and the an
swer to it..
Mr.. Bradley. Let " zee the answer
The Couar. The paper and the answer are ad-
missible.
Mr.. BaADLsr. All We want is the ruling of the
court.
Mr.. FEHDALL, Ito the witness.) Look At that
paper, and say whether you served the original.
Of which this u copy, upon the defendant, when
II was, and what be said!
Las. did serve . copy upon him 1t his house.
cannot recoilect the date without reference to .
memorandum. but know it was between nine
and ten O'Clock in the evening. ] told him thaA
bad communication from M. FendAll. and gave
Il to him. told him also that bad copy Of the
paper. He tod me that be had made comm :
nfcation to the President OF the United States Of
the same kind, making similar proposition.
Mr.. BaApLsY. Did you make any memoran-
dom Of that answer?
AAs. did not.
Mr.. MAI. Shall read the paper!
Mr.. BaADlsy. Certainly.
Mr.. MAY read the letter a. follows:
OvTIcs OF o. 8. ATTORNEY. D. c..
WAsnlEefoH, October 3. 1852.
Sin: The President 10 about 70 despatch an agent
to Mexico for the purpose Of asceFtaining, by in.
spection and investigation, the true character Of
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