The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-03-07
MAYOR H ALL.
ANOTHER DAY OF LEGAL CONTROVERSY.
lrotgaasd Argument For and Against tho
Admissibility Of Evidence.
IMPORTANT RULING BY THE COURT

IMPORTANT RULING BY THE COURT
At the opening yesterday of the Court OF General
Sessions, held IN the General Term room Of the Com
mon Pleas, Chief Justice Daily presiding, all the
counsel engaged in the case OF the People against
Mayor Hall were IN prompt attendance. Tne pro-
Ceed1ngs Notwithstanding that the whole session
was consumed in legal arguments, were OF an I'M
p0rtant character, the principal question at issue
being the admsability OF the Garvey warrant for
the payment Of 100000 as evidence. Judge DAILY
gave an important ruling. sustaining the views OF
counsel for the prosecution on this point Subse
quently series Of objections were submitted by
defendants counsel, all OF which Judge Daily said
were not technical but proper legal objections, Of.
fectng very materially the whole case.
OPENING ARGUMENT.
Mr. Burrill in referring to the production Of the
warrant as evidence by the prosecution stated the
objections OF the defence thereto that the introduce
tion Of secondary evidence was not admissible in
criminal cases except where the paper was In the
possession OF the defendant and he refused to pro-
duce II, or where he had destroyed the paper. or
where the paper had been in the care custody or
possession Of the party against whom the charge
was made.
The Court understand the rule to be much
broader than that. and would like to have it Iuy
argued. My impressions are the other way; but
Will not make q decision at present In Greenleaf.
vol ILL.,, sec. LOT, / find the following:-'If
the writing said to be forged is IN
existence and accessible 1t must be
produced at the tral but its absence, II It ne proved
TO be IN the prisoners possession or to have been
destroyed by him, or otherwise destroyed, without
the fault OF the prosecution, Is no legal bar to pro-
ceedings In the trial. though 1t may increase the
anicuty OF proving the crime" That language
seems to me clear; but shall be glad to hear argu-
nent on the question.
Mr. Burril deprecated, at the OUTSET the plea that
this was technical objection the part Of defend.
ant No one would suffer more than he by
the loss Of the original papers In question. Mr..
BurrilI then again stated his former ground
Of objection. II His Honor looked through the
authorities referred to In the elementary books he
would find In each case that one or the three sup
positions he had made were proved. AS an example
ar Burrll nstanced the case OF The People vs.. hol-
brook, 13 Johnson, IN the State OF New York, and
Mason, 464. In the latter there was an indict-
ment Of forgery and the Judge stated that the evi
been fraudulently destroyed by the defendant.
Counsel had consulted many gentlemen IN criminal
practce IN regard TO hS question, and The 1nvaria
bic doctrine laid down was that which he had
ssated as the ground OF ms objection.
Inc COurt-So lar as my own memory goes can
recall NO case except Sucn as you have cited. But
the proposition in the elementary books Is broader
than that. Suppose, in a OF forgery, the Dis
trict Attorneys Office Is burned down, where the
forged instrument Is, and it Is thus destroyed for
tuit0usly, without any instrumentaity on the part
Of the prosecution or OF the accused. That illus.
trates the proposition as laid down in Greenieaf
and the question is whether In that case the prose-
cution could establish the existence OF the docu-
nent, Its destruction and the effect that 1t would
lave oy secondary svdence. That puts the propo
MI Bunill introduced the case OF Witness
The Court-There is broad distinction between
the evidence of witness depended on the manner
IN which 1t was given and many other circum-
Mr. Burrin then argued the question at great
length, referring to a number or cases, In all Of
which tine facts were he stated them. Judge Daily
referred to each case as II was cied ana conceded
the fact that they were as stated.
The COURT think you must remember the
change now made in the law, ana that the defend
ant e now allowed to give testimony in his own
behalf. do not give any opinion about that, but
matter SGa s 70 De axen no con- n;
practice III receiving testimony.
MI. Burrlll-Suppose man is indicted for
TESTIFY as to the fact But suppose he does not go on
bho stand. The law says tnat he shall not be
eS ss 10 g e
case OF counterfeit note, what Can he say? The
SMITHS signature, and that he saw htm sign. Mr..
Smith says Ire never signed It, Where are you thenY
The very fact must be determined by the inspection
OF the document, aud the defendant Is authorized
TO have that question tried by the jury upon other
evidence tnan that OF man who may be inspired
by personal malice or interest.
Mr.. Buckley followed in support Of the objection.
This paper said ne, II It were TO be regarded as o
whole or these papers, they were to be regarded
~ separated IN distinct parts, having never been In
the possession Of the Mayor, and not lost by his
fault and con!essedy in the possession OF another
party their contents could not be proved by parole
recess was then taken.
Counsel, on resuming MS argument, said he con-
ne was n not an ADEPT t IN and
personal convictions and from strong personal
friendship for the defendant. He had made dlligent
possible, case analogous TO this bearing
On the admissbllIty OF secondary evidence
CS na@ ae Saye Jonuson
He called the attention OF the Court to the opinion
given In that case, where a principle exactly the
reverse Of that attempted to be sustained by the
prosecution here was up hill. From motives OF pub
c policy where person Is charged, as in this case
and where tue suppostion IS that the instrument IS
IN the hands Of the defendant, then 1t is presumed
that the defendant himself, from his possession OF
the instrument, Is thereby enabled to relute the
charge and to establish MIS- innocence. It Is from
that presumed that having the opportunity or prov
ing guilt or innocence and ne neglects to DO IL
which enables him to defy the law. and the prose.
cution shall supply parole evidence for the nonpro
duction OF the instrument Counsel then referred
TO the case OF the State OF Massachusetts against
Smell. In that case the supreme Court OF Massachu-
setts admitted parole evldence-not because that
was deprived OF the opportunity Of presenting,
not better evidence, but as punishment on the de-
had entered into corrupt and improper agreement
with his brother TO make away with the lost instru
meDt The text Of that case shows That the note
was secreted by the procurement and with the con-
nivance OF the defendant for his protection. The
defence In this case has the right have conceded
TO 1t that the rule here 70 be followed be made
parallel case with the Massachusetts one And
need say mere, In this crowded court room, that
nobody has ever charged, ana there lives not the
man VINO can De found to charge, directly or In
directly, the Mayor with the disappearance Of these
papers II the defendant could have f0reseen that
ghese papers might nave been stalen and destroyed
ne would have had a triple guard placed over them
30 a. to secure their appearance mere for his justl
ncat0n. There lives not a man at all events no
man has as yet made his appearance that stand
who can speak or VIII undertake speak as 10 the
contents Of the Identical claim which forms the
subject OF the Indictment or who Will furnish to tile
jury evidence as to the elements OF what that claim
was composed, or who Will state the component
part OF the papers when accompanied that claim
whether II was properly audited, as we say, or I'm.
properly audited, as they say. For TINS reason,
and In accordance with the authorities winch he
had quoted, he cOntended that the parole evidence
attempted to be put forward was inadmlsslble.
RULING THE COURT.