New-York tribune., 1874-12-11

CiIy Of brooklyn on the 10Th day October lSs ana a
the I'm day of OsioSer 1865; bat deponent Is not
absolutely certain taat tne aooye are tnu ~, thsv were
"at al and s-a yeTt neSr tno two Nor this depo
nent positive that The places w ,na
"a ahnye s.ote n being possible that the intercourse
sS nove as occurring 10Th of Ortober 1868 may
bave been at he 1sso 81 the e SoSse Of the defendant
Ana this deponeut iurthcr says taat the confessions
80 ss cfendant With the said wife of this deponent
between tbs said OF October, 1885, and the Spring
Q, s oI ban sa as sV abSe sntd tSat this deponeS
does expect 10 be- able the trial OF THIS action 70
prove by eyewitness any such intercourse, OF "
prove definite place when or where sucn her
occurred except by the confessions aha
compainsnt Within the control OF knowledge OF the de
ponen which he expects TO be abe 10 oner upoh ,o
said trial. and TINS depOnent Is unable 10 FURNISH a
other or further statement OF the particular times OF
places at which he exprcs or 10 tooS MACE
between aud The wife Of the panln 'hA
This deponeut respectfully says that any order for
particulars as PRAYED by this motion. wnch snan pre-
clude this deponent iron man aonf SS and other
testimony tending to prove the adultery naeu IA .no
sms and mace OF It's COMMISSION deprive this
deponent of material testimony ana as ne Is auVseu vy
hs counse and believes would inurously and uniusty
restrict bs legal right and ne therefore respectfully
prays aud insists ia this Court shall give any
or particulars, may be inserted theren 10
the following fec namely: ,,.,
But th, order construed or spphed 90 prohibit ne
pntf Of this scon from introducing evidence o con-
on detsr4os whiags and documents which NAV oe so
been nsd aad Which do oi particular act time
Of sdsle Dot proving By sub syeee the n
ss1 s,sa been eoaad as on any Ssss osy any
siguel and swort 8, a.
Tie Couri-WoDt you read that last paragraph again
that quail dcaton In the orderf
Mr.. Morris read The paragraph called for.
Mr. shearman-U your Honor please, before coming
into court had drawn up order which snail pro-
pose and which intended TO submit In the course OF
my argument and may well submit the particular
ffar ia ana
particulars. h ave inserted this clause :
Bat this order construed preeludng the
plaintiff giving evidence OF any alleged confession
on tie part oI tue defendant or any such CRIMINAL
wrongful Improper ncIs. Ia which alleged confession
particular time Or place shal be alleged to have peen
Referred to.
To that. your Honor we. OF have objection
because we offer rg6t and far aud in accordance
WITH the decision o Court of Appeals and the order
which we ourselves have drafted. We must obJect 10
the word By the gentlemen on the other
side because 1t impossible that specific evidence OF
any acts should be ht should not point to the
particular OCCASION aud thero an inconsistency ln t9
be % Introduce general evidence OF acts which
shall refer auy specific acts-taking out tne
ytrtiage in his order ln every other respect tnat
order have drated 1t covers the entire Ground
proposed by the plant
be modified 10 make that perfectly clear, ana 10
avoid that apparent inconsistency understand tneir
order proposes evidence acts which, however,
do tend prove any particular act OF adultery,
Mr.. Morris-Wnat we propose Is perfectly mannest.
Wnen We go 10 trial upon tins case we want all the
lepiIImaie yldeucr TO We all Its legitimate force We
do NOT want aer W. have introduced evidence, to
have the order iu such shape that the Court will say
that the jury DOtwht uding they nnu tnat tne auui
IL was sc commtted upon particular day There is a
manifest injustice IN that IL does not require any ar
Mr. shearman-Your Honor think we shall be willing
Mt Eyarts-That is another matter what the jury
have really does not appear to be very
much difference.
TIE Court-lt seems the difference can be recon
cied
Nr shearman-It 1t cau your Honor, in this way, by IN
eertng after the word "acts" where IL first occurs,
Nhero this proposed order says. He shall not be
sricted from Introducing evidence OF confessions acts
Inserting there, other than acts OF adultery; then II
VIII be consistent with the latter part OF the clause.
With that modlhcaon, We have no objection TO take IL
The Court-Judge Morris. they enable you to prove al
which tend tO prove the main fact In the case
that you can prove any clrcupstantial evidence.
A CASE IN ILLUSTRATION.
Mr.. Evarte-Thc point, your Honor please should
be iutellgible counsel alike aud to the Court 1t
seems to me. We have insisted except TO this
extent upon bill Of particulars-that should know
what acts Of adultery with reasonable precision OF
pace and circumstance for instance, IL might be on
Journey, during absence OF week or fortnight, or
what not. 1 do not refer to any circumstance
of this particular case, but in the expe-
rience OF courts that would be precise enough;
If 1t was in the Queens case. during
a voyage from one part of the Mediterranean to the
other We have mad any, hope, unprofessional
views about tnis matter. Now we want to have the
facts concentrated when all legal evidence is 10
and that legal evidence, admit may be In part
made up of statemen.s-if they are admissible in evil
dencesDd conduct. 20 20 speak, tDat point ana em-
phasze the evidence that bears upon these particular
Mr. Morris-oh yes; that is Just the rock upon which
MIR Eyarts-But when my learned friend says that
Tie Jury are liberty find other acts Of adultery
than these wy he introduces US into larger range or
,nGury whicA must left the trial. it to me-
Mr.. Morrs-lhis Is the point see the difficulty and
Semed and we 60 restricted to prov
ing the adul cry that particular day. and the jury
"a Hth m nj ma
or not finding against the defendant. We are deprived OF
the legitimate advantage of our evidence For instance
we NAV hy such general acts by letters and by docu
1nents be able TO clearly establish the intercourse be
tween these par,'es we may leave IT, iree from
imna eral, wholly immateral as 10 the act yet II the
jury further sal say taat be ore tney can rem
aparticular day hat. sIbmit would be unfair, and
real issue could not be aud determined In this
tjon Now. what We want Is this. We have o0viated
the obecons tnat they heretofore made with
erence TO surprise We have given them frank state
inent affidavit as 10 tne evidence that we propose
TO offer uOn that DJnt. that there be no appre-
benson of surprise Now, what want is this TO 20
10 trial where issue n such form ana shape that
the Jury wuen We introduced our evidence, may
saw that the defendant is guilty Of adultery. although
they are unable to say mat II occurred upon any
particular day if It occurred within the time
alleged the complaint. Now that Is the issue; but
IL the jury required to further aud find tnat 1t
was committed on the particular day, THIS may be
the result: the jury may DC entirely unanl,
nous that the defendant l. guilty OF adultery, and
they may be as UNANIMOUS tat they cannot nno u upon
any particular day, aud render verdict III his favor.
wish u Jrial where any sucn result
as that is possible that ask is 10 have this issue
met fairly, where tle ence-:ue legitimate evidence
may have its legitimate force aud ITS legitimate weight.
We do TO iEt0 the lid OF this cause-it Is
not tight thai should into the trial OF this cause
--shacked That ID waat we want; that Is our view.
PROOF OF SPECIFIC ACTS AND DATES REQUIRED.
MI EyArts-Your Honor sees at that there is no
such proposition OF the in tie trial OF this particular
issue OF adueryI do not mean in this particular case,
but this particular issue Of adultery in any
other ia upon for the results follow
In judgment OF the COdr There is such thing
unanimous opinion OF the jury that adultery has been
committed without any opinion OF the jury that 1t has