Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-26

| irrelevant, the court would not for this
merely set aside verdict, however strenu-
GUS the objection. But we take it to be q
sound principle that, If illegal matter OBJ
| iected to, however harmless and irrelevant
of itself, when considered in connection
with other illegal testimony, unobjected
to, is calculated seriously to affect the in
terest of the party; then both should be
considered by the court in estimating the
probable influence of the first upon the
minds of the jury.
The defendant in this case was a citi-
zen, not soldier. The theory of the
prosecution is that the defendant was con-
nected with the party of Confederate
soldiers, who arrested the plaintiff. 1t
seems, however, from the proof before
us, that though the defendant was, about
the time of the arrest, seen with the squad
of soldiers, yet he was not present at the
arrest-it is not shown that he counseled
or procured it-nor did he accompany the
squad, with their prisoner, to Speedwell
Campground. He is undoubtedly, guilty
of many rash and imprudent speeches,
and seemed ambitious to be thought q
man of consequence among his neighbors
yet the testimony, SO far as it is before
us, is very unsatisfactory in leading our
minds to the conclusion of his guilt. In
deed, the witness, Norvill Hill, expressly
states, that the plaintiff was arrested by
squad of Confederates and that they
arrested him, the witness, at the same
time-and that it was after the arrest,
that he first saw Heatherly; while 1t is
stated by George Irwin, one of the plain
tiff's, witnesses, that Heatherly said, after
the prisoners were started to. Speed
well Csmpground, that he told his
son-in-law not to take them
off and that he was opposed to their
being carried off. In the language of the
witness, ''Heatherly seemed as though he
faulted his son-in-lsw, for sending them
off," 1t is true that we find much illegal
and irrelevant testimony in this record
but very little of it was objected to by
the defendant. The defendant was sew
eral times proven to be rebel, without
objection. To counteract its effect, he
asked the privilege of proving that he
was q Union man and not rebel-this
privilege the court refused him. But the
court upon better reflection, withdrew
from the jury, all evidence touching the
politics of the defendant. Its withdrawal
was, perhaps, of no avail /; it had done its
mischief-and this character of irrelevant
and improper proof, much more of which
appears in the record-may have been the
inspiration of this extraordinary verdict.
Other matters, perhaps, more foreign than
this to the issue, were submitted to the
jury.
We can conceive of no rule of law more
important to be observed in jury trials,
than that the evidence should be circum-
scribed and confined to the issue to be
tried. 1t means something more than q
mere economy of time. It means that
public justice cannot be administered in
its integrity and purity, il the minds of q
jury are to be decoyed from the issue
they are trying, and confused and con-
founded by mass of irrelevant matter,
which cannot tend to elucidate the issue.
When once brought before jury it has
generally performed its office. In the
mass of relevant and irrelevant matter,
it is humanity impossible, with many
jurors, to eliminate the pertinent from
the impairment, the material from the i'm
material, the legal from the Illegal, and to
divest themselves of those natural and hui
man passions and prejudices, which such
testimony is often specially intended to
generate. The question, whether defend
ant was of the Federal or the Confederate
party, in our late war, was in no sense
legitimate in this case, in the state
of the proof as here disclosed. We
have held that, after party is identified
with transaction occurring in those
times, such proof might be admissible, to
indicate the animus and explain the con-
duct of the parties, in a certain class of
cases, as in 8 case of alleged duress, when
the action of the party, relying on that
defense, would, perhaps, be influenced by
the political status of his adversary. But
in this case, as 1t is here presented, the
defendant had not been connected by
proper legal proof, with the allege tres
pass, at the time the evidence was ad-
mitted against him, and in the unhappy
feuds which have survived the civil war
we csh conceive of no more fatal virus,
wherewith to poison and pollute the foun-
tains of public justice, than the proof
that the plaintiff or defendant belonged to
the Union or the Southern party, as the
character of the case, or the complexion
of the jury might happen to prompt the
| introduction of such testimony. But
while, for the reasons already stated, we
connot reverse the judgment for this
cause, we may be permitted to reprobate
the indiscrimiuate use of such testimony
in future, and TO indulge the hope that
the time is rapidly passing away, when
the rights of the Federal or the Confed-
crate ltigant are to be weighed by the
complexion of his politics, in Court of
| Justice.
1t seems that the soldiers had carried
their prisoners te the house of the defend
| ant, where they tarried for the night. A
witness is permitted to prove, without
objection, that while the party were start
ing to camp next morning, with their
prisoners, the family of defendant seemed
| to rejoice and betrayed their qualification
in laughter. And it is afterwards proven,
under defendants objection, that sort
| of trial of the prisoners was had at
Speedwell camp ground, and that the
Sergeant obtained some proof from the
| defendants house and s'wrote it down"
l suppose, said the witness, it was used
at the trial. Now, the defendant was not
| present at the trial, nor is his name con-
| nected in any way with the act of obtain
| ing proof against the prisoners, at his
| house or from member OF his family.
| 1t is not even stated that the proof was
| injurious, or intended to be injurious to
| the prisoners; and, indeed, it could not
have been very injurious, as the prisoners
seem to have been released at once, after
the trial. This testimony was illegal and
| improper. 1t tends to prejudice the de-
| fendant in the minds of the jury. 1t
detailed transaction, with which he had
nothing to do, and which, so far as the
| proof shows, occurred in his absence. 1t
was intended to impute to the family of
defendant, an unfriendly disposition to-
ward the plaintiff, and, by implication,
to connect the defendant with it. When
considered in connection with other CIR
cumstances in the case, it was, doubtless,
fatal to the defendant. The demonstra-
tons of defendants family, however
hostile, could in no way inculpate him in
the commission of the alleged trespass,
unless he is shown to have given them
countenance by his presence or other
wise. Nor, indeed, even then would
the proof be legitimate, unless the de-
PENDANT had already been connected with
the commission of the trespass. His as
ISOLATION with the plaintiffs captors, in
the arrest of the witness, Nelson, had
not done it. Autry VS.. Coffman, Cold.
$40. His bravado and gascOnade, in
dulged in, doubtless, to conciliate his
military visitors, from whom it seems he
had been concealing himself to avoid
CONSUMPTION, had not connected him with
the trespass upon the plaintiff. Indeed,
there is no such proof as the law requires
by which the defendant is shown to have
participated in the act of arresting the
plaintiff, and while, in the state of the
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