Evening star. [volume] (Washington, D.C.) 1854-1972, 1867-07-26
THE EVENING STAR.
Argument on Ruling Out Evidence.

Judge Fisher. The jurors and prisoners were
brought In at ten O'Clock, and the court was
opened few minutes thereafter.
Judge Fisher delivered the following opin-
ION on the questions argued yesterday as to
the admissability of certain evidence:
Before we took q recess yesterday, witnesses
were examined by the counsel for the prose
cution to prove, in reply to the testimony Of
tered by the defense, that the telegraph line
between Washington and Elmira, New York,
was in good working order. and that commu ;
nications were passed to and fro betwee these
two points on the 18th, 18th, litA, and 18th OF
April, 1865, and witnesses were also examined
who testified as TO the running OF the trains
between Washington and New York on the
18th and 10th OF April, 1865. After the evil
dence had been given by the Witnesses, the
counsel LOT the defense moved that it be
stricken out, upon the ground that it was not
responsive TO the testimony offered by the de.
Tense 10 establish an alibi on the part Of the
prisoner In support of their motion, the
counsel for the prisoner contend that the rule
by which evidence offered In reply Is to be
admitted or rejected, is that no evidence which
might have been addressed originally in sup
port or confirmation of the charge laid in the
indictment can be received by the Court as
evidence IL reply, and that the only evidence
which can be given in reply Is that which
goes to cut down the ease on the part of the
defense, without being in any way confirma-
tory of the case on the part of the prosecu-
ton. In support OF that proposition the King
and Payne, ago, and the case of the King
sgainst Simpson, I'd Darlington and PAYNE,
AIS, and the case of the United States agai lat
Hanway; Sd Wallace, page '39, and the case
of the United States against Gardiner, Sd
Crawford's Opinion. page 81. were relied upon
THESE are all ntSi pr,uS cases; the first is the
case OF the King against Simpson, decided by
Baron Garron, on the trial OF an indictment
for larceny, when the case for the crown had
settled solely on the fact of recent possession
OF the stolen articles by the prisoner. who. by
way Of defense, called q witness who proved
that he had bought the property from third
person. In reply to this testimony for the
Cefense the counsel for the crown called said
did not buy the property of him. but that he
saw the prisoner steal 1t. Baron Garron held
that this last evidence was only admissible so
lar as II went to destroy the case set up on the
part OF the prisoner; that is to say, that the
witness for the crown could only be allowed
10 testify that the prisoner did not buy the
property OF him, and could not be allowed to
TESTIFY maj he saw the prisoner steal It, because
the latter evidence would be a confirmation Of
the original case. and that it was only allow
able to give in reply evidence which goes to
cut down the defense, without being a con-
frmation Of the original case The case Of the
KING against Hiditch and others was decided
by justice Taunton upon the authority of the
case OF the King against Stimpson. As said
before, these are mere nisi prius decisions and
able and learned as Baron Garron and Jusuc
Taunton may have been, l undertake to saw
hey are utterly without reason TO support
them. They are both snmmarily disposed OF
oy Mr.. Phillips in his Treatise on Evidence
page 4lO,) in which. speaking of Baron Gar
rem decision. he says:-"The stealing OF the
goods by the prisoner would be strong evidence
that he did not buy them So tt may be
Temarkeo OF the case decided by Justice Taun :
ION, that the evidence offered in reply to the
evidence OF an Gltbi set up bv the prisoners in
that case, although 1t showed q confirmation
OF the original case, was certainly proof that
the prisoners Were not where the abb ATTEMPT.
ed to place them.
i think ID at moments reflection will show
that both these decisions, hurriedly made as
they were, without argument or consideration,
are inconsistent with sound reason, common
sense, and good policy. Certainly no person
who has ever attempted the duties of prose-
cutting attorney can fail TO appreciate the I'M
RESPONSIVENESS OF these decisions. 1t is Ut
tsrly impossible for the prosecution before the
trial to know the Whereabouts of the accused
Tor days or weeks before the commission of the
act charged against him, or 10 antici pate the
various contrivances which may be resorte1
10 Dy way OF defence and IL is unjust, as well
as unwise In policy, to require that the prose-
cution should meet all these defensive contri-
vances, and have witnesses in attendance, at
pose OF proving the Whereabouts of tae pri -
oner for days together, in order to make ont his
original case, CT else be deprived of his evil
Gence in reply.
Let us lake the case decided by Baron Gar.
ron as an example. The prosecution then hay
Ing found the property in the recent posses
sion OF the prisoner, had right by the rules of
law, 10 presume that he had stolen it, and had
the right there 10 rest his case, and In the abb
sence OF defensive preof TO demand q vardic t
OF conviction As theft Is an offence almost
always committed with the greatest se-
crecy. he might have summoned the entire vi
cinage without being able 10 find a witnes
who saw the act of larceny, and to say that
when the prisoner had undertaken to show
that he had bough the properly Of a third per.
son, that that third person could not testify
that he saw the prisoner steal the property is
arefnement of charitable construction wholly
IL Inconsistent with good sense and sound policy
The decision of Justice Taunton is even
more unreasonable. Then the prisoners were
Indicted for robbery committed in q parti Gu
lar locality. They attempted an abb ut such
distance from the place where the robbery
vas aileged 10 have been committed as TO
make 1t impossIb bile for them to bave been pre-
s~nt there. Justice Taunton decides that the
prosecution could not prove them TO have
peen near the place OF the robbery, because
that would tend TO prove thar they committed
tnesrobbery. by proving that they We're near
enough 10 have done IT, thus driving the pros.
ecutou TO admit the ali i and aban ton the ca Sc
or disproy1 the particular alibi offered in ue-
T. nee, by showing them to have been at a place
sHII further away from the scene of the rob
berry than the attempted alib. and thus making
lor the prisoners even q better defence than
they made for themselves. In tsIs case it
was 10 part OF he original case for the crown
10 show where the prisoners were at any other
tu' ihan that at which the act OF robbery was
HeiHI.Itted The crown was not obliged and
J. would have been improper that it should
have attempted TO go into the history of the
prisoners one hour before the commission OF
he act.
The case in I'd Wallace, Jr, is altogether
different. There the Government cut IL. case
an TWO by proving the act committed by Hanney,
which they alleged to be treason, and with.
holding the evidence of pre-. concert on his part
N proving their original ease; and offered this
evidence OF pre-concert only by way OF reply
TO me DEFENDANTS evidence, and Judges Greer
ana Kane rightly decided that the proof was
inadmissable. The true rule on this subject
nav be inferred from the brief but sensible
opinion OF Judge klse, who says The two
elements OF the crime are the act and the pre-.
concert
alt is for the prosecution to make out both
anc by making evidence OF pre-. concert they
fail In their original case. The evidence which
Is now offered is merely to prove that pre- con.
cert: II was an indispensable element OF the
original case. II seems 10 me- therefore, tn at
II cannot be introd need as rebutting evidenc e -
In the case cited from Judge era Words
Opinions, ali that was decided there was that
testimony introduced in reply should conform
strictly TO the defense, ana meet what IL had
advanced, and he cites with favor the rule
laid down by Philips, that the evidence in re.
ply must bear directly or indirectly upon the
subject matter OF the defense, and onght moi n
consist Of new matter uneonnected with the
defense, and not tending to control or disputa
~. In my opinion, any evden ce NAV be given
IN reply which tends TO disprove the matter
set up in defense, and which il was not necss
sary to have proved in N aking cut the orlglpa
case
In the case which we are now trying IL WA
not necessary to prove that the prisoner At the
bar was ever in New York city or elsewhere
'han in Washington; il was not necessary TO
prove that he came here from Elmira on the
iath and iita. IL was fficient for the original
case 10 prove that be was here participating in
,Ns deed OF murder. and unnecessary to trace