New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1872-03-07
MAYOR HALLS TRIAL.
A DAY OF ARGUMENT.
r,x,, AVN FILL ADMISSION or THE WARRANT
-. Observation-Disclosures nAIYlS DECISION.


Hall yesterday the entire day being devoted to the sum
ming nm I'm detail OF tho objections TO tho admission o
the warrant as secondary evidence. Mr. Bulrli Ior
nearly three hours abOred to convince the Court tha us
admission improper and unjust TO tho ucionu'n"
Numerous citations were made the vouminous de-
csons OF Courts throughout the country ana Dr. buoA
ley followed with additional references ana eAplah'
lions Judge DAILY however. finally admitted the war
rant I'm a decision which IS given below IN inll lho
point the argument was in regard 10 the genuine
Of the Mayors signature. anu the records Vi III"
Courts the subject Of forgerie5 having oeeh S'r'o'
faithfully, immense number OF authorities were Huo
mitted to Judge Daily.
Upon the opening OF the Court, WIN. Copeland re-
surned the stand and SIR Peckha renewed his oner 10
put the warrant in evidence Mr. Bnrr nj once rose
and began his argument against sIch action He ODD
iectcd the Introduction OF this document because
secondary evidence OF this character Is not admissible
In criminal He begged the Judge to examine TINS
objection in the light of criminal law, and lay aside any
views which he might have formed in his experience In
civil court in regard to the admissaby of this descrp
ton OF evidence in civil There was no analogy
between the admssablity OF this class ofeVidehce III
civil and in criminal He understOO1ull well That
there we're always in criminal well as in civil cases
certain items OF evidence which required a. coll
| lateral evidence, or evidence to prove eXtrinslc
| forms which had been written forms. and That
I'm all such undoubtedly evidence OF the contents
Of these could be proved In the same manner
/ evidence
civil eases. But where paper the contents or when
are sought to be proved by secondary evidence formed
an ingredient, so TO speak, necessary part or inc
ofirnsc, part OF the corpus detc'I no case couu DO
| found In which secondary evidence had ever Deeh
allowed, unless It be case where the paper was ue
stroyed by the accused or was In his possession anu ne
refused TO produce it proper notice. or where 1t was
| last traced 10 his possession. and the presumption
was that It was destroyed by act or coDnyance
on hs part. He called attention to the Indictment
for the purpose Of showing by illustration that the party
| by whom IL drawn recognized the existence
OF that rule The Indictment the Judge would perceive
originally drawn a. blank for an hdlctmthIhEinss
th officer in whose charge these papers were, and on
the LAST page Of the indictment there was an altgaOh
that these papers were lost while they were IN me ce,
custody and possession OF said ohcor-not the
in this action. He referred to this matter as an uS
ton of the rule for which he contgnued rs
OF its existence BY the officer who drew the lniclev
that evidence OF this description cOuin Ohy " oietuu
where the documents themselves nave neen III s9 o ,
custody and possession Of the party against whom te
charge made and the secondary evidence ousu' " 10
Judge DAILY said that did not understand the rule
thus but believed that the loss beng once estaphshu
eH f IN ali cases he would ike Mr. Bnrl
his argument the point in full Judge pay sem I9r
book from which he read the law as laid down 10y MT
Burril with the important addition "or otlerT Ms, de,
| said was what he understood TO be the law ,
Mr. Clinton said the rules 'ot evidence In civil ana
Mr. Barf resumed: Their application ia entirely DIFF
ferrut This objection is very serious one 70 me ue-
PENDANT, should not be treated as technical by tho
more in certain contingencies from the loss OF hs very
documents Of which secondary evidence j. onrGd nan
tn defendant. shall ask nothing more III me disposition
OF any questions affecting him In regard To his conuct IN
these transactions than that the papers themselves nc
brought TO light Tho danger to hun Is that under me
necessities OF the case, evidence OF an lemte, @
cure and untruswOrthy character may be Onrred ana
the Court may e Il bound, in administering The law to
onnul evidence the contents Of these documents which
will not be clear and conclusive as tne papers lch
selves No man has suffered more Dy me Ht Oh ba r
with reference the admsSibty of evidence In Grim
nai eases differs from the rule in civil cases in this
remarks 10 the 1858 OF tHb papers
which the subject matter OF ln'e'tigaton-that u
can only be admitted criminal where they are in
his possession, aud he refuses to produce men, or
where they are lost D{ ms cnlhi h e. or or
purpose Of enacing some evidence OF tls crime ana II
you look through the cases p n there
alleged support Of the admissbily of secondary evil
stances TO which have alluded will be found 10 exist
cite the case of Hopooh when GOES TO me tNirems III
favor the prosecution. The Court Will perceive then
the unrcabity of secondary evidence Of this character
and the danger OF allowing t. to be- introduced sub
mit that compared with the right of accused
OF crime no matter Of how trivial character, every
be- laid aside The principle applicable inciVi cases. that
Inconvenience may ju-ufy o6ere'den1' or elaxation
whatever In criminal eases ask the Court 10 be IN
elementary records excepting :" lar Us liat doctrine
cOmmeuds itself your OaDlc consideration entirely
Tudgo DAILY agreed with Mr. Burril ina. no case could
be found where the rule was wider than Mr.. BurriH
stated, but his mpre aion was that II wa. "lHer. tpr
instance II there Indictment for forgery and the
D,trictAtorney Office was accidentally birn"0 down
amt the paper destroyed ne oe''eu secondary PROOF
MT Bur1iIl claimed this was n similar the burn
ing OF an Indictment deposition, or the death OF
witness where laws protection TO the criminal would
| not permit secondary evidence.
Judge Daly could see DO similarity between the loss OF
the testimony Of witness by bis death where the tests
OF AanInaon &c. had not boon applied, and the
paper. which was in itself unaieitble evidence
cd I'm II "eiock it appearing that the argument
would last least till then Only three OF the jurors re
Mr. Clinton handed up Roscoe show that the rule in
civil criminal this question oil secondary
Mr. BurriIl said he had examined all the cited
| there aud each was distinctly in his favor.
Judge DAILY called attention Ia the rule laid down in
the book that where for physical reasons Was
difficult impossible TO produce the writing Itself,
| existence, secondary evidence allowable
Mr.. Burril claimed that In each OF these cases the
thing proved was collateral ana not the very corpus
the elementary books, but every ease cited by them
showed this distinction between instruments merely
| collateral and instruments.
BurTil proceeded TO argue that In case OF forgery
or passing counterfeit money the writing or note must
be- submitted TO jury. It's mere production the
very best evidence OF the parys Innocence II innocent
and the law should not permit be substituted this
| clear evidence the memory and impressions OF those
who might have examined with more or less care ana
under more less prejudice. 1t parallel case TO
| Mr. Buckley followed his associate in an exhaustive
argument, citing large number OF cases He said 1t
was vital importance the defendant that the pre-
else character of the County Liability with It's acc npany
clear and distinct. The indictment seeks TO
provide ground for the admission OF evidence
| OF the contents OF these particular papers.
The proposition counsel was this In brief: That thse
papers never having been In the possession OF the
Mayor alleged TO have been lost by MS fault but on
the contrary the indictment showing that they were in
the possession OF another party other than himself the
contents these particular papers can be proved by
parole He frankly confessed that the books laid
that in general way there Is no Distinction between
the rules ot evidence IN elN.l anu criminal cases
In respect to the admission OF secondary evidence,
and that secondary evidence might he gwen when the
party VINO should give II caino' os''py oplan lh' pr
mary evidence. But tracing PACK inc doctrine they
found the very conversion OF the doctrine. that
such upos bilty must arise from the tortu0IS act or
neglect of the person against whom was to be used