The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1871-06-10

AttoTuey nuVlbeu
nsss when ahe went upon the stand that she was |
no, IOohc % snswer any questions which would
Ssys Tn Ts oE s
asEsd for y .s.l ~ h. Il
sixteenth, seventeenth. and 'V eishseenth reasons
refer 70 alleged errors OF the Court in refusing TO
compel the witness, Anne Paynter, to answer GER
tain questions asked her upon cross-examnation. |
AS before stated, the witness did not mention the
name Of her husband upon her examInaton-in-
soner, she said I'VE went to DR.. Reds ofice.r |
Upon her cross examination she was asked who she
answer, upon the ground that 1t would criminate |
her husband and this objection was sustained And
again. upon cross. examination she was ssked:-
these occasions, when you say DR.. Reid (the de- |
fendanp operated on you, who was present?" |
Which question the witness declined to answer for
like reason, and with a similar result.
IL was urged that the witness had told but part
OF the truth, whereas the law requires the whole
truth, ana that by voluntarily going upon the stand
sne waived her privilege and was bound to disclose
Where q witness is sworn to tell the whole truth
1t means to tell 30 much OF the truth as may be COM
petent evidence. He also takes this oath subject to
swer questions which win criminate him.
It is perhaps true that where witness, after
being cautioned that he Is not bound to disclose a
criminal transaction in which he was crtminaliy
concerned, understandlngly valves his privilege,
and goes on, he cannot afterwards claim his priyi-
lege, but must state the whole transaction. In
Sharswoods Sharke on Evidence the law is 80
stated In note to page 206 But there authorities
which hold that the privilege may be claimed at any
time But do not deem 1t necessary to discuss
tborities collected by the counsel for the defendant
upon pages A, 45, 46, of their paper-boek, for
the reason that this rests upon different prln-
cipes So far as the evidence shows the witness,
Anne Paynter, did pot go upon this stand to testify
She had no wish to shield herself, nor did she de-
cline to answer any question upon the ground that
It v ould tend TO criminate herself. The privilege
any time advised by the Court or counsel that she
need not testify to the transaction If crimnated
her. The privilege which she claimed not to
criminate her husband, and this she perhaps cou.d
not waive, as 1t belongs as much to him as to
when one party, though competent, is not bound
to answer q particular question, because it would
answer answer the same question" areeneaf, 4s7. None
of the cases cited by defendant are cases where
husband or wife claimed the privilege not to crim-
nate the other, but all cases where witness has
claimed the privilege not to criminate himself.
But tl!a IL Is not not enough 10 snow upon motoa os
1t must appear that the evidence was such as, II ad
mtted upon the second trial, ought to produce
| different verdict. The Supreme Court have re-
peatedy held that they will not for
which are immaterial and not affecting the result.
could have been different had the questions referred
to been answered II the object Of the prisoner
to contradict the Witness 1t is evident her husband
could not have been called for that purpose for the
reason that he was co-defendant;i If some person
other than her husband present, that fact was
as well known to the prisoner as to the witness and
| the former could have called him or her to the
stand. The learned counsel evidently assumed that
| the only person present was the husband OF the
witness, from their entire neglect by q change or
the form Of the question, to ascertain whether
some person, not the husband was there. Such
| course was open to them had they desired
to a;ttacS, ;S, 6v such person no or s5 persons the
generally committed In the presence Of an unneces
sary number OF spectators, and | can therefore
readily understand the reason why the learned cOun
| sci omitted further to cross-examne the witness
upon this point. All OF the facts connected with
witness were detailed by the latter. 1t could not
have helped the former for the witness to have
stated that her husband was present. or even that
n |
that the prisoner has been injured by this ruling:
The other question which the witness declined to
answer upon crosseXamnation was this-"Dd
you on the Sunday evening after the Thursday even
ing on which you say the child was born have con-
nection with any man 2" This was not cross-ex-
animation If material to the defense, it could not
be brought out in that way Nor does the case come
and Barb. 216, In which the Courtsay, The witness
in this case had voluntarily proclaimed her own
with one Individual for nearly year,
and In aiding, at least, IN procuring
Criminal @ charge up upon the defendant M She thereby pre-
cluded herself from claiming any privilege of not
~ s Of sWa Son m sng 5ny
questioning the law Of that case, 1t is sufficient to
say that the facts are widely different. Here the
witness had not voluntarily proclaimed her own in
fanny at all. The only thing sne said from which
such charge could be inferred was that she was
single woman at the time the offense was commit
ted. The question to which this answer respon-
sive was not legal cross-examination, nor was 1t
material as no such issue was raised by the plead
The nineteenth reason alleges error in not affirm
ing the prisoners first point. The point is not set
out in this reason it substantially that there
was no evidence that the said Anne McKeon was
pregnant and quick with child, as laid In the ffth,
sixth, and seventh counts OF the Indictment.
declined to say TO the jury that there was no
such evidence, in which can see no error.
did not charge the jury precisely as stated In the
tweD teth reason. On the contrary, charged ss
follows:-
''In order to convict under the ffth, sixth, aud
seventh counts the jury must be satisfied from the
evidence that Anne Mckeon was pregnant and
quick with child, and that the illegal acts charged
In the bi or some OF them, resulted In the death OF
further stated to the jury, in explanation OF the
term "quick with child" that qulckening is the in
cldent not the inception, OF vitality.
am unable to see any error In this. lt was Tor
merly held that quickening was the commencement
OF vitality with the f9tus before which 1t could not
be considered as existing. But this view Is no
longer held by our most eminent doctors. DIR. Gray
calls it an "eXploded" doctrine. Med. Juris., 1873.
See also w. & S. Med. Juri., 344-o DR.. Bech in his
excellent work medical Jurisprudence, vol. l, p.
''The motion of the fetus, when feltby the mother,
Is called quckentng. 1t is important to understand
the sense attached to the word formerly and at the
present day. The ancient opinion, and on which,
indeed, the laws OF some countries have been
founded, was that the fetus became animated az
this period that it acquired new mode OF exist
ence. This is altogether abandoned. The f9tus ls
certainly, If we speak physiologically, as much
other time before delivery; and its future progressis
but the development and increase OF those eonstitu
ent principles which 1t then receives" To the same
point is Orna, very high authority See Traite de
Medicine Legae, Paris 1S4s, vol. /, p. 226.
In a leading English case, In an lnVestlgatlon
before jury Of matrops Gnney sad after tax
conceived; with quick child is where the child Is
quickened." r. VS., WycherIy, O. p? goo: ,c Tnls
principle is recognized by Wharton, vol. IL p. 1884,
and is the modern doctrine upon this subject
have no recollection OF the tacts reIerreo 10 IN
the 2lst reason, but presume gave the JuIy some
Information asked for by them when they came
L