The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-11-20

Law Procedure act, wherein it is declared that "a
party producing witness shall not be ALLOW ed to
impeach his credit by general evidence of bad
character, but ne may, in case the witness SHALL in
hostile as contradistnguished from being merely
unfavorable, contradict him by other evidence, or
by leave Of the Judge prove that he has made an
mony but his attention must first be called to the
circumstances under which he made the supposed
statement, 30 as TO designate time and place. aud he
must also be asked If he made It, Taylor on Ev.
1912, attn Ed. 64, Sec. 1882. Stearns VS.. BS p f.
In the United States the authorities produced on
the argument by counsel prove that at least there
are as many decisions one way as the other, while
Greenleaf in his work upon evidence, vol I, sec.
444 declares the weight of authority to be in favor
OF the admission OF the evidence.
In this condition of things, determined to adhere
to the weight OF authority in my own State, espe
ciay as reason AMI the due administration of JUS
tice sustained and sanctioned the principles acted
upon by the courts.
400, our Supreme Court examined the subject, and
in the learned opinions Of Judges Read and Thomp-
son we have clear exposition Of the law and review
of the authorities.
BY careful examination of the decisions cited in
these two opinions 1t will, we think, clearly appear
that the weight OF authority Is in favor in Pennsy
vania Of the admission of this evidence; and in
the cases in which with us different opinions are
apparently announced it will be discovered that they
do not conflict with the point decided in this
| But it may be contended that Stearns vs.. Mer-
chants Bank is itself an authority against the very
opinion now stated by the Court This may be true
if the syllabus Of the case is alone to be depended
upon but as this is not the case we will briefly state
| what was, in fact, decided.
In this case, the defendants first took out COM
mission to take the deposition OF two witnesses;
| then the plaintiffs took out commission, in which
the defendants ioined the same witnesses were eX
amined, dispositions again taken and these showed
| that the witnesses were totally mistaken in their
| former dispositions.
In this state of the testimony the defendants en-
tered another rule for commission; nothing was
done under it, but an attorney for the defendants
without notice to plaintin, went to Cleveland had
an pdrte private conversation with the witness,
and then the gentleman is offered to prove the con-
yersaton OF the Witness to impeach and destroy his
former testimony.
| The Court say (and this is the only point decided
in the case) :-"This is very striking proposition,
evncing entire disregard OF the rights OF the OPP
posite party and sacrifice of the witness without
his having the slightest opportunity to tell the real
truth under oath It is substituting private CON m
versation with counsel for an open examination by
tribunal or by its duly appointed nan oSer In
to to the %l'''I profession as beOg eminently
Just , and atlGo and vet yet in this very very
curing opinion discussing the whole subject, and
| proving beyond doubt, we think, what the law of
| Agnew concurred in this opinon-the other judges
| simply decided the case before them. We see
of my rung, but much to strengthen it, and there
fore upon authority In Pennsylvania we see no error
in the admission of this testimony: ,.. ,,
adopt different rule from that acted upon at the
Mclaughlin was not only an important witness,
| but the Commonwealth, having examined him be-
I'm sm S e heg to
do so serious injury would have befallen the COM
The witness is called and proves not only to be a
hostile one but we think artfully so he not only did
damage, but did it in the most elicient style
monwealth if she could not prove the true state OF
the case not as evidence Of facts but to show hat
she is not to be bound by the present statements OF
To hold any doctrine which would thus paralyze
the arm of criminal Justice would be monstrous, and
we will not do so unless commanded by a legisa-
| tive enactment, or by direct decision OF our Su-
| N my n q
been done to the prisoners, for not only told the
jury that the statement of Mayor Fox not proof
charge said expressly and pointediy, to them, d0f
the testimony Of Neill Mclaughlin will dispose at
once. If the jury believe his statement delivered on
the wtness-sand, you will at once arrive at the
clusion that the prisoners are not the men who did
| this deed. The Commonwealth have, however,
offered in evidence the statements which this wit
ness made before the Mayor; these statements are
were only admitted to show that the Commonwealth
| should not be bound by the evidence OF Mclaughlin,
and to this extent his credioty would OF course be
| shaken, If you believe he made these statements to
The last important reason assigned for the motion
for rule for new trial, is that the verdict was
Ceived on Sunday.
1t is an undoubted fact that in very early times the
entire year was by Christians considered one con-
tnued term for the trial of causes, and the purpose
was to distinguish Christian magistrates from hea-
| thens and as these last were extremely anxious 10
celebrate days and seasons the Christian the
other extreme, and held courts upon all days
alike even upon Sunday. Lord Madsfield, in Swami
vs. Broome, 5 Burr, 1895, gives another reason why
the ancient Christians always kept their courts open
on all days alike; 1t was because by keeping the
courts always or en- Christian suitOrs were noobged
to resort to heather courts.
A canon was adopted In 5l7 providlng:-"Quod
nulus episcopus vel infra positus die dominica
causas udicare pr9sumat" This was followed by
other canons fortified, says Lord Mansfield, by
Thedosus in an imperial constitution, decreed by
the Emperors Carolns and Ludoyicus, adopted by
the Saxon Kings, and finally confirmed by William
the Conqueror and Henry the Second and thus be-
came part OF the common law of England and as
such part OF the common law of Pennsylvania. See
LORD Coke in Inst 354, declares that at COM
mon law there be dies jtTidtcf ana dies non Uridci
and that the Sabbath day is not judicial day.
The construction put upon the ancient canon of
517 never included ministerial acts, and therefore
the statute of 20 Charles II, T. was passed. which
prohibited the serving or executing OF any "wrt
precept, warrant order, judgment, or decree, ex-
cept in treason felony and breach OF the peace, -
and our act of 1905 simply re-enacts the English
statute.
In Mackalleys case, Co., where 1t resolved
"That judicial act ought to be done on that day
but ministerial acts may be lawfully executed on
Sunday"
in the ancient days were held open on Sunday, and
it is abundanty clear that for the purpose of per-
forming ministerial acts such as receiving a ver-
dict, the power has never been doubted. Hede-
koper vs. Cotton, Watts, o.; kepner vs.. Keefer, 6
| Id 231 Fox VS.. Mensch, W. ana s., 444.
we also refer to an able opinion filed by Lewis,
| J afterwards Chief Justice in homicide case tried
in Lancaster county (Earls case(, and reported in
Lewis Criminal Law, p. .32l; ana also TO the very
able learned, and exhaustive concurring opinion OF
| Mr. Justice Read, in Sparhawk vs. Union Passenger
r.. II. Co.. 7. y. smith, pp 4Ss-49;
| In Eaton's case we took the verdict upon Sunday.
| Having thus disposed OF the important reasons as
signed for rule for new trial, we can readily dis
| pose OF the remainder.
| We see no error in the admission OF the evidence
specified In the eighth and ninth reasons the court
did not suspend the trial to procure the attendance
OF Mayor Fox though the District Attorney re-