The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-07-27
Decision of Judge Fisher on
objections Made.
n.IlFGCE On DR.. HlSsELL'S CHARACTER.
SIrrebaiiing Testimony on the Same
Subject.
Argunaent Of Counsel 90 Strike
Out Testimony.

WAsRiNsZoV July %, 1867.
4be .rrri Of John H. surrau was resumed thr morn
ing in the Criminal Court, Judge Fisher presiding
Judge Fisher delivered opinien the uesons ar
sued yesterday relative TO The admissbiy of certain
testimony, as follows
Before we took a yesterday w1efses were exa
sased by the counsel for tho prosecution TO prove in
reply 10 the testimony offered by the Defence that the
telegraph line between Washington and Emira, N ",
good working orosT, and that communications
we're passed and fro between these two points the
I2tb l3ln I4h and l5th Of April, 1855, and witnesses
were also examined who testified 10 the running Of
the trains between Wash ngton and New York the
10th and 10th OF April, 1868 After the evidence had
been gwen by the witnesses tie
moved thai II be stricken out ground that
responsive to the testimony offered by The defence
10 establish an abb on the part OF the prisoner.
In support Of their motion the counsel for the prisO
contend that the rule by which evidence offered
reply TO be admitted rejected is that evidence
which might have been acGoced originally support
confirmation OF the charge laid ID the Indictment be
received by the evidence reply, and that the
only evidence which can be gwen IN reply is that which
goes TO down The part Of the defence
wnhout being in any way eonlrmaory Of the case on
aha, proposition, Tho King aeainst Hiiditeh and
others, fifth Carrlnglon and Paine 800 and the case
Zane, AS, and The Of The uned States against
GaIdiner third Crawords opinion, page g. relied
These all pgSus The the
of The King against Simpson, decided by Baron
tazzOn the trial OF indictment for larceny when
III. for the crown had settled solely the fact OF
recent possession OF the stolen articles by prisoner
who by way OF defence, called witness who prov ed
HAT be had bought the property from third person
a. reply 10 this testimony for the defence the counsel
for The crown called said third person 10 prove
net only that the witness did not buy the
properly Of him, bat that he saw he prisoner
sasai H. Baron Gazzon held that this evidence was
only admissible far II went TO destroy the ca set
up the of the prisoner that to say that the
%
that the prisoner did not buy the property him. and
allowed testify that he saw the prisoner
steal it: because the latter evidence would be con-
hrmston OF the original case and that IL only al
Gown The defence without being confirmation OF the
original case
Inc case Of The King against Hildch aud others was
decided by Justice Taunton the authority the case
al The King against simpson. A. before these are
ne'e nisi prius decisions, and abe and learned
SAXON and Justice Taunton have been, undertake
" say they are entirely without support them
They are both snmmary disposed Of by Mr. Philips
OF Baron Gazzons decision, says;'ihe stealing Of
,he goods by the prisoner would be strong evidence
case decided by Justice Taunton that the evidence
offered reply TO the evidence albi set up 10y the
prisoner IN that case although Il showed confirmation
Of the original case certainly proof prison.
ers were no, where the abb attempted TO place them
sh,pk that q moments reflection Will show that both
these decisions hurr eddy made as they wiihou,
argument OF consideration INCONSISTENT with sound
reason, common sense and good policy Certainly no
peIson who has attempted tine duties Of a prose-
cotpg attorney can fail 10 appreciate the unreasonable
OF these decisions. IL utterly impossible
prosecution before the trial know the whereabouts "
the accused for days weeks before the commission
sbe crime charged upon him. anticipate the various
couivances which may be resorted by OF defence
and 10 unjust well unwise in policy require
thai the prosecution should ali these defensive
coDrivances and have witnesses attendance at great
expense for that purpose for the purpose OF proving
the whereabouts of the prisoner for days together,
order make his gnal case OF else be deprived
of evidence in reply Let US take the decided by
Baron Gazzon as an example. The prosecution, then,
having found the properly in the recent possession OF
Of o
HAT be had stolen H. and had The right there his
verdict OF conviction. As theft is offence amoe,
always committed with the 1reaicsL secresy he
night have summoned the entire yieinase without
being able 10 ind witness who the act of larceny
snd 10 say that when the prisoner had undertaken to
chow that he had bought the property Of third party,
tai that THIRD person could not testify that he the
prisoner steal the property, refinement OF cLara-
bic construction wholly inconsistent with good sense
more unreasonable; when the prisoners in
s.ced for robbery committed particular locality they
attempted an alib at such distance from The place
the robbery alleged have been committed
10 make II possible for them 10 have present
there. Justice Taunton decided that the pr secution
could not prove them have been the place
robbery because that would tend TO prove that they
committed the robbery by proving that they were near
enough 10 have done IT, thus driving the prosecution
admit the abi and abandon the or disprove the
particular abb offered in defence by showing them to
have been a. place stll farther away from the
OF the robbery than the attempted albi and thus making
foT the prisoner even better defence than they made
Tor themselves In this Il part OF the oris
na FOR the 20 show where the prisoners
at other time than that which the OF robbery
WAS committed. The crown was not obliged and II
would have been improper that should have attempted
20 so into the history o; the prisoners
hour before the commission OF tue act. The
care in "a Wallace Jr, altogether different
There the government the case in two by proving
she act committed by Honey, which they imagined 20
be treason, and Withholding the evidence OF prsconce
On his part IN proving their original case sud offered
evidence Of preconcert only by way reply the de-
fsndaHis evidence. and Judges Grier and Kane rightly
decided that the proof was nadmissibe. The rule on
this subject may be inferred from the brief but sensible
a. Nd ho trSo nj Df
tie crime 81 the act and The preconcer IL " for
tie prosecution 10 prove both aud by making evidence
az preconcert only they fa Ia their original The
evidence which Il offered is merely prove that
pTsconcert was an indispensable element Of the original
II seems TO therefore, that u cannot be
tertaned as rebutiing evidence In the cited from
Judge Cfa~iords opinion all tha, decided there was
s4riciiy 20 the defence, aud meet what i had
sdvanced and he cites with favor the rule down oy
1biilps that the evidence reply mus; bear indirectly
upon the subject matter OF the defence and ought not
60 consist OF matter unconnectsd with the defence
tending 10 control or dispute IT, In my opiniol
evidence may be gwen ia reply which teuds TO O.
prUve the mstter set upn defence which not
case In the case which nc are nov trying ~ was not
necessary 90 prove that the prisoner al the bar
=. Ssw ao 10y y, sew ~, un ~ ~
the 18th and 14th. II sufficient for the
original case to prove that he was here participating IN
fhc deed of murder, aud unnecessary 70 trace HE
history further either In the past future.
When u is attempted 70 show that he was At Eimira
other place in the State OF New YORK.
such time would have made u Impossible for him
20 b. present here ii the time " the murder,
would certainly dictate 10 Of ordinary in.ei
seuee aud reflection that 10 prove himself abe
.um.ug IN this direction 81 such time would place
hIn bsTe the night Of the murder Is directly respon-
We "a the matter ct up in the defensive shall there
te noi strike out the evidence siyen 10 the rpnnn g
Of the trains between here and New yors as delFere,
yesterday unless tae counsel FOR the prosecution eha
Lave tailed IA some way 10 connect the prisoner with
one Of those trains lie Testimony respscios the tes
graphic Communication between Elmira and Nsshing-
fon whereby u was possible for the corsl rators
rnunicae Yah the prisoner stands upon the same
tne and VIII be stricken oet u the rrosecn, sha Si
90 connect the prisoner vita the conspiracy by that in
strnmentahty.
NJ. Bradley noted an exception 70 the arInIon and
fshne Of the ,ouft.
Franklin Frazer sworn aud examined Ivy ~ Pierre.
ropf-Reslde IN Montrose, Pa, aud sa,erney AT
sav have been prosecuting attorney there Mer,rose
my native place have had but little personal ssoaan
snce With Dr. Bssei. but know he reputation shout
Iosso.e for truth and veraciy from 1886 snl ies2:
thss reputation was bad aud Bsseh Was no, considered
gor'hy II belief