New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-05-11

mony and It Is dated Dec 49, 1870. which will fix the
date of the interview between himself of course, and
Mr. Beecher.
Judge Nclson-we have that taken down
Mr. shcarman-Better put the note in evidence.
Mr. Fullerton-It is suggested that put the note in
| evidence Ireading:
M Dear Mr.. BELL Will you stop in at l2f (old S2),
| on your way overt Important. Truly yours H. w.B
December 10, 1870
MR.. EVARTS'S ARGUMENT CONTINUED.
Mr. Evarts-The learned Court, Judge Bronson, pro-
ceeds after considering some Of the authorities which
have been referred to by my friend, Gen. Pryor:
But this most Sof h Sass n S Which
first formally oyerrled has been but recently PuDlised
The TO h sr af9 Is wns an ag in the
robbery Butler, j. said: 1t was now settled that what
witness said not upon OATH would not be admitted 70
Luttere aet Reyhel and the passage cited from Haw;
Kin n Tas NOT co now Of anu Mpon solemn Argument
since the decision in The King agt Parker md no a
ing this kind OF confrnatory evidence, except under
such special circumstances az have already been
opinion that witness cannot confirm by proof that he
has given the account before even although 1t mas
order to mpcach his veracify for his declaration
Of the fact Is not evidence"
Then after considering further tho English cases-but
there IL no tendency In this to reinsiae witness
when he has been conradicted-Mr. Phillips is quoted;
general that representation without oath can scarcey
be considered confirmation OF statement upon
oath. II is the oath that confirms and the bare assertion
that requires confirmation. The probability IL nat IN
almost every the witness who swears TO certain facts
at trial been heard TO relate the same facts before
trial and II much in support OF his character that
he has given the same account as y would DE- 10 ms rs
credit that should have made one different Inc
inputaion on his vcrsct results from the iot OF MS
having contradcted himself and this Is not In the least
eontroyerted or explained by evidence in question
II witness has made statement hundred tnes one
way and a hundred times in another way directly con
fha nplv info
titute Of oil title to credit
Then 10 Judge proceeds:
Some Of the American Courts have admitted this Kind
OF evidence. collection Of the cases, accompanied ~
very judcious remarks will be- found IN the learned
decisions based English authorities which
no longer respected in Westminster Hall ana nave
my decided convict on that this kind OF conllrmatory
evidence of dangerous tendency and ought not TO DC
received EXCEPT under such special circumstances
have already been noticed We have not IN TINS statc
departed from that ancient snd saie anark IL, sS
speak under the solemn sanction OF an oath and am I'M
willing peril the lives the fame or the property OF in
dividlas by adopting The contrary doctrine.
In "a Wendell the same learned Court by Cowen, D.,
says:
The reception OF Bartlcs statements THAT is one OF
mony was erroneous. We have recently. in Robb agt
ackley 30 OF seq rcconsidered the dlcum to the con-
trary in The People agt Vane IL wendell ~ ana agree
that consistent statements cannot In general be received
in reply to contradictions Of witness Jo,t,or are
they nadmissble In answer 10 direct ana POSITIVE coll
tradictOn by other witnesses.
Now your Honor will that all that has ever been
pretended for the rule that when witness has been
mpeached or conradcted by showing statements out Of
court contrary what he has said in court that then
there was notion that you might bring him up by show
ing that he told the story out of court that he told
in Rut az the Court say in "a Wendell the doctrine is
discarded, and torori, as we reject all hearsay evil
dence in support witness where the contradiction
IA not between his various statements OF the same
story but contradiction Of other witnesses who tell
the opposite story. Your Honor sees at once that
this Is the perncous and dangerous form OF hearsay
evidence for hearsay evidence that Is created by the
witness in advance of his examination ia reprOduc
top by hcarsay OF his statement which never could
Ina Testimony per Sc II he not witness, and yet
they are brought be evidence by the fact that he be-
comes witness, and thus in the cause. and under OATH
coroborates himself by hearsay evidence that he himself
had created he the stand Nothing could
be more dreadful than that. Now, where will you find
any disposition In our courts 10 recognize "ha' ID caed
special circumstancesr
In Smith agt. Sckney II Barbour. where Welles, j.
gives the opinion Of the General Term:
The action was brought by the respondent against
labor Tor building some kind Of dam The defendant
answered the complaint and the plaintiff replied The
action was referred to three referees, who heard tho
and made report that there due from the de
PENDANT to the plaintiff the OF $72 q. From that
Judgment the defendant appealed.
Now comes the posture OF the witness:
upon the trial before the referees the plaintiffs prln
cipal witness to prove his claim his brother John
s saMed for the defendsnf in the saw Of the latter
I3 600 OF lumber; that the witness worked with
the plaintiff in saving lumber at SIS per month, and that
he had no interest in the saving but that the saving
was worth 80 ceus per thousand Other evidence tended
fo show that the saving done under agreement as
to the price at three shngs ak pence pcr thousand
at sGh trial 70 was etSa
saving done by the plaintiff and the witness, John
smith, Jointly for the defendant with view Of enabling
the dccnant insist that the action In the OF the
plaintiff alone was misconccvcd and that John smith
shoud have been a party plaintiff The witness John
10 various individuals mentioned to the effect that he and
the plaintiff had taken the job OF saving together and
had perormed the labor jointly under such arrangement
with the plaintiff all which he either denied, or stated
he did not recOllect OF making them
That IA TO say he was asked II he had not said out OF
court that this was Joint interest OF himself and this
brother whereas he testified in court that 1t his
brothers interest, and he was u mere witness.
This was upon q point directly In issue, and upon
which Il was competent contradict the witness. The
accordingly called number OF the individuals
referred OF whom materially c0ntradicted tho
witness and testified that he had made statements the
,mnort OF which was that the saving In question
was done under joint undertaking by the said John
smith and the plaintiff With view Of restoring the
credit OF the witness, which, II claimed thus i'm
pared the plaintiff offered TO prove that he had pre-
yiousy when not under oath, made declarations
stent with his testimony on the trial In respect TO the
point in question. This was objected to by the defend
ants counsel and the objection Oyerrued by the ref
erees and the evidence offered received In this
We think the referees erred.
Then Greenesf Ia quoted:
30 much Of the rule here stated ~ allows general
eridence Of good character for truth In reply 10 evidence
OF contradictory statements OF witness other par
cuar facts offered by way OF mpeaching his veracity
the residue. and which all that applies to the question
| under. consideration. It may be Regarded ~ the
sss 'r lob . Hsssy ta rs & %snae Sy No.
BrOuv0n. j., sAyu: A. general and almost universal