New-York tribune., 1873-05-08
LrDGE BRADYS OPINION.

IL may be doubtful whether / can add
strength by anything may write to the elaborate opR
ion OF Justice Fancher, but cannot permit decaoa
IN this case to be made without placing upon the ren
something more than mere concurrence IN the resli
at which be has arrived IL may be said IN lmlno that
human institutions are not perfect either IN their or
ganzaton rules for government administration, and
that courts justice not exceptions 10 tAs axiom
Ia the proceedings of courts there have been ana VII
be- doubtless defects departures from the strict rules
by which they TO be controlled and which are some
Tunes Of substance and therefore formidable aud some
times trivial aud ncOnsequeutiaL For the latter,
almost universal rule. new trials not granted aud
for reason az once satisfactory and Just that tney DO
not affect the unsuccessful party njurouy. isdouht
less better in some cases 70 adhere principles and rules
which the result Of Of dcliDeratOn and eAbh
once but many of the earlier forms OF procedure have
been abandoned, changes made and reforms Introduces
which develop spirit reDeling against mere Iotm, 20
tecbnicaes the observance OF winch stand in thr EV
OF aud the allies OF justice In accordance via
this element aud q consequence OF Its yIed0muaac,
we have the doctrine nrmly established that ilr eys
or incompetent evidence will not be regarded as IN
cient 10 disturb judgment when II - apparent Ho1
the whole that IL could have worked no pr1JNhe
The exceptions taken herein 10 tue adInl sion O efae
partaEe OF hi, character aud hence tie cOncI.Oa 4
Justice Fancher That branch OF this case That lly
not nor are any OF them, sufficient TO Require ''
trial herein.
EXCEPTIONS To TIE TESTIMONY.
I propose. before commenting upon the e1cepuon
taken To the charge consider some 90 them. Tue nn
exception 90 evidence on the trial 70 which aIieuo'
was called that taken 20 what the deceased said Hs8
asked the presence OF the panth N error Oy the or
Ger having the latter Gin custody, "Nhetber he rec
nlzed that man e or, Was thaJ tue man VA, 'uo L
This incident took place immediately after the sl0Jul
aud was a part OF the geSG according 20 some o. Wy
authorities u was more property dcubtiess, t'..gs
10 show the conduct ana dcmeahor oi Tue il'lttts,
error when accused OF the Ohense, and admissDe, ~
tpurpose. State a2t Nash 10 iowasE Common. -
agt. McPike 3Cushing, Isl hlrie AZ. S,',S. I-s'
253 Arch. C. l.. and III. q Am. Ed, Note p t'' S'S
agt. Banning. Il ~ " y; Peope ast- slch q "a,
" 1l3) The practice is common, SAID the OOui ~ "a
agt. Nash supra OF showing what an accused -" "
did or what manifestation OF feeling or passion u
hiDited when arrested, or when charged WIN tue 80
and Justice Parker said. in the People agt 1leth'
Parker. Cr II, that II was vel settled that the ma
gut facet coaSendtE ridctHr, was applicable 10 w.
Conversation when there n statement maze ~
party's presence which was not denied Dy hm' 80
be said ia addition that the evidence estaDlslee ~
shooting by the prisoner. bat that he admitted % On .
examination in chief stating 10 Wlth such CRY bg
of Justification the facts warranie4 u "a
view OF his defense. The objection % ="
sidered for these reasons was NOT Nea 80 a.
Tie next exception is 10 the admission ot The m.ole
the Grand Jury proving that on the day oeiofe tAt ma
icide that body had voted bill Of mdctment s-SlI
toe prisoner for the o1ense OF blacklaiAng lLc sS
of This Indictment was introduced by the paiulA..
error his examination IN chief. ana on .nis,iup .i,i
Examination he was asked he did not undersIa1in
be an Indictment against hlm and Mansfield. Tor Or
mailing, and his answer was. undetstood u - tbs
conspiracy 10 blAokmau. He was reeAamlned oI ~
subject by ms counsel and then upon tle - us
minutes were put in evidence. Inc plalhiu IN o.,eaI
only commenced this line OF inquiry but costNSs -
n by the examination OF other Mitutsros esouS
behaF and thus Dy his own act placed the luly 49,,
in ssion OF the iact that there was peuuu- IA
rho Grand Jury proceeding for his lnaiclmgh.,,tlr
tirther an apprenension his part mat Ms ut
10 another State would hasten the indictneh' oa,
iecI him 10 the dsgrlcc OF being brOlght .a~A
re1usition In order 10 be well assured on tna. @ J
ne sught information from lawyer ana N~sn Va boar
thereupon, and he Stated that AZ inc ue ~ ~ sssr
icie he ala not know although ne endeaFo Ia
ta,n whether IL was not that an lndle. 80 uis
been found Ii IL impossible to perceive nor s ~ GcrsaI
Y,ss Of fhe dnding OF the indictment Dy ~" ort9 ,
Inrv eould under such circumstances, ~ s Z
dice him especially when u Is ~ al, - 4
mind that they we're introduced ana i aailu en asdh
ta the rime when the indictment was Yoted wv,
vas subseoueutly conceded In open court %
,,r tbs prosecutOn that no indictment was ~ nf
aIsh nn,i aftar the homicide IL mght baVe ,suys
nortanI for the prosecution as bearing on 30 oe ss.5
aahich aotuated hun IN view OF the d,pih I've h-es
knowedge a. show, and the evidence W Woni rfnesL
connetent that he did, IN fact know OF the th1 a, sge
bnt n wa, abandUued by tho concessions tu,,snce
ssscd Tbe exceptions 10 the exclusion VI 80 nlsnf
tnSss1s oIber than those communicated 70 ~ W. - froa
IN error and OF hts travelling IN coIeiec & S threas
annrehension ~ injury from the deceaseu' "S uered
~ fr.ilroad hiu 10 the state Prison, as" ara "
nv tne deceased. aud kindred e~Nu0I, ~ I,,r,ntfed pd 4
.yailable The plaintiff IA error vas i,inry fr0D
only tn sfate MS appruhensOns OF person., b1s
Inc deceased at various stages OF hs ,nn on ne
also, mat threats Of hostile ~ sb@1t OF ku
nart of ina latter an intention 70 III ais, bsep
- - hal heen communicated 10 HIM. ne naV W,ruHg
ii.d ~ ,ss.rS th,t hs had Information VI an up0a
',,,t hein,, an lis guard against othcr po % 0arld
bV me deoesod, aud tntt hc he" ,,r tbsts
"a ie ,refui bat that he had MS ai"l grosledge 81
sdsrah, lime lie also deriat" use .-crpsd - 70
, .,s ,.,'r nI Inc deceased ~hieh ne I,,ll,e say
.no SSs' Ss,c c c.n.,ts. uuscrdpuous, aud Fi'H''