New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1872-03-07

and caro- which are always essential the part OF
tribunal In criminal case involving either OfnDeIy
Chief Jnstice thompson then Associate Judge Of the
Supreme Court Of the United States IN the case OF Inc
in tern,s 80 pTecse and Comprehensive that
relieved Of the necessity ~ adding any ieasonngo my
owD or adding anything further except to employ hs
language and TO state that the case IN which mat
language pronounced, was nor; III NY Jang-
OF The rue. "a the case now bol0re the
Court | VIII simply content myself WIN poIlung ont
mentioned the points Of difference, and continued.
There was but opinion as delVcfcd Dy tIV NouI,,
aud that related to the precise point m'5t ino III
JUDGMENT given, Tint 1t received inc appov3 ~ ' no
members the court and OF all who heard the afgu
ment Having referred 90 the objection when was that
the document itself should have been produce or reort
should have been had - tho Government OF bueno5
Ayres to obtain H. or an authenticated copy OF IT, or that
the master OF the vessel should De pr0duccI uCI ~
pcna and give evidence OF it, Justice thompson uses S
general ldngJago 49,,
1--WE think the exception in this respect not wei found
ed but tho falls within the rule that when INC
uoproluctiOn OF the written instrument Is satisfactorily
accounted for secondary evidence OF us contents may o
shown. TINS general rue Oh o'IdehVg' aPpiC"y
alike 10 criminal well as civil suits, ana there can Dc
reason why 1t should not apply 10 case ike INC
That rule was subsequently extended simply apply
IL this by saying that there ~ nothg IN ~ Whch
would justify M In nferrng that the primary cyuehCe'
the documentary evidence withheld by the prosecu-
on and that they have II in their power to produce IL.
been to the cct that these papers were stolen from the
public records warrintng the conclusion upon the pirI
Of tho Court That they were losJ OF uc9uoycu
sufficiently for tho purpose or ehtiumS 1 G
party 10 give parole evidence Of their contents IN my
Judgment this or the United states akt key DlIc
dispoocs of the whole question: ana relieves me Oh to
necessity Of giving any particular reasons 81 o
was that the rule comprehensive as have suisse
qaently found IL stated In elementary writing II ms
now been sanctioned Dy what cVh'luer tuo ~
OF an adjudgod cIsoby the highest tribunal IN thls
and-and we must accept that authority as hDal.
Mr. Rurrlll excepted to the ruling OF the Court and
the admsslby of the warrant " that 1t did not tend
to prove the existence OF any liability which it was the
duty OF the Commission OF Audit 10 entertain" He said
he glould content himself with stating the objections as
they arose Upon suggestion Of counsel for the prosecu
ton and OF the Court, Mr. Burri gave them ~ f"'oWs
That the warrant docs not tehd 10 prove th't tc ~
PENDANT did no. audit The claim but on the contrary IL
tends provo that he dd audit It, ana That sum Is tue
legal presumption from the face 81 the document; ,
That II II D. offered to prove the existence ol laDHy
which the duty OF the defendant % audit ~ hot
admissible, because the Indictment contain, no h'i1s@
ton in either count Of 1t that the claim nenOhc1 III IL
liability which came within the jurisdiction OF the
defendant under the fourth section OF the act ,.,
These objections Mr. Burrll offered against admitting
the warrant secondary evidence inc last one DelS
also objection against ts llhs,lon ~ primary ~
dcnce He also offered the follow ING objections against
admitting it as primary evidence. .... A.. -.
a. That no evidence mas been offered 10 prove INC eA
stcnce OF the facts which nCccs ,ay precede me war
rant; wit, the prcseniatlQn OF the clam ana 1e JufS
dctiOu upon the action OF the foregoing W. 1uaI le
warrant Is not evidence to prove payment alleged
IN the second count, because the payment Is
%n0 not i amdtBs or Of hcgecas to audit
and FOX the 81 additional reason that there Is no aga
ti0n IN either Of the indictment that the claim
which paid by this warrant was not just anu
honest claim against the County OF New-f0rk Ana IoT
the - further reason tlt the allegation OF pay anu
the false certificate alleged 10 be given are not aeGl
tons OF non-feasancc but charges OF mlcaslnce,
which would not b. admis'D.c unicf the lhuIctihehI
which charges an OMISSION and for the % further reason
pplicabc nov TO both count that the Indictment does
not charge specifically the facts and circumstances con
stutng the specific Ofensc, and showing the particular
neglect OF duty charged against the defendant Ana Tor
the ) further reason that the indictment eSntlnS 10
sufficient allegation which the evidence OK the war
rant is admissible. Finally a. That no evidence IOr the
nrnc ION Whatever is admissible under the indictment
judge Day rcmarAe tina. The argument adyancGd was
in eject motion To qLlSh the Indictment SlI. buIi
REPLIED on L0. sir, and then the court ADJOURNED
TINS uLG.