New-York tribune., 1875-05-11
JUDGE NELSON ACKNOWLEDGES PER
PLEXrTY.

Judge Neilson-Mr. Fullerton, we all agree,
Of about the general rule that there is doubt
about II settled with and the writer's and the
cons often speak Of the exception TO the general
rule stated by yourself and also by Mr.. Evarts. Now
OF this evidence could not he offered and would
not be matter to be the reflection
ssperon or whatever 1t may be called made upon Mrs
Mouton in the opening and in that part of Mr. Beechers
evidence to which reference has been made The right
TO claim an exception 10 the general rule to have ev
dence received the ground that IL is to contradict the
wness springs out OF that first. the opening second
the defendants suggestion statement in regard to It,
Well being conceded there is exception 10 the gen
eral rule. Of course there Is great force in what
has been said What troubles me is this suppose the
evidence is received before the jury; 1t is in sense
evidence In the and yet IL Is not evidence TO con-
arm what Mr.. Mouton said 1t is not evidence to prove
fact whatever but 1t is evidence simply to push aside
snd get nd OF this imputaon against her and could ii
PLACED before the jury safely with an instruction TO
hat effect and limited in its influence.
Mr. Fullerton-Well. Sir. that question would have
been very properly put when this rule first had its ORR
g+n 1t could have been determined then But the rule
mas been established Sir without reference to conse
quences that might flow from 1t, just and proper
rule TO he administered in a court of law.
Judge Neilson-Yes, what would he the effect Of the
evidence upon the mind OF the JGryf Anything beyond
getting rid of this imputatoni
Mr Fuuerton-I am not here, Sir TO speculate upon
what effect egtnate evidence will have upon the mind
OF the jury.
Mr Bcschwe discaim any purpose Of arguing for any
other effect than for the restoration Of Mrs Moulton to
her true position a witness.
Judge Neilson-By way of answering what you call an
aspersiou.
Mr. Beach-Yes Sir; don't contend that these out
AIDE declarations OF Mrs Moulton would have any leti
mate effect establish the truth of the allegations made
~ her principal evidence
Mr. Evarts-If your Honor please. this is to me an
entirely novel proposition that without any impeach-
ohnrat ationa a xritu
offered and there not dctum, an argument, or sug-
estion books, in the authorities. but what
re-s wholly upon the question whether when the true
MEASURE of witnesses testimony has been struck down
by direct collateral impeachment you can or cannot
renstate it by these ouofcourt, confrmatory state
,oents Of the witness There never was proposition
that YOU could in the first instance. The PROPOSE
hon was that If contradictory statements out OF
court were given in evidence, then concurring
Et.tements out of court might reinstate.
But 1t never dreamed of that when witness had
moi been subjected TO that form of reduction or impeach
nent such a witness could be corroborated
Mr. Beac-Mr Evarts, cite you to the Of the ac-
-omplice
Mr Eyarts-I have it in my hand will read It. said
would not read it, il had been overruled as ii
las been. Now l viii read it and show you that am
eight
Mr. Beach, guess not tLaughter
MI Evarts-The courts say:
When a witness has and testfes his testimony,
lacked 1t may be supported. II his testimony is shown
Dy other witnesses to DE lalsc or d0uDu otner
That all unde stand. " II witness be introduced
defendant TO show that the plaintiffs witness has
gwen different account OF the transaction about which
testifyinS. another witness may be intro
aston. given the relation which he has testified
proper TO introduce this kind OF testimony III the
arst instance"
This never came in except in rehabilitation of witness
Dy concurrent statements out Of court when he had
struck out by showing counter statements OUT OF
court AMI this case and all the old that permit the
rehabilitation. permit it only a rehabilitation. No
court at any the rule prevailed that you could
give concurrent statements out OF court-nO court
sver dreamed that you could bring II
m ,efore the testimony had reduced by direct OF
collateral Impeachment. Now the rule here laid down in
che IL Of Wendell that in that case where there had
reduction by counter statements out of court that
would ts rehabitation-that rule is exploded. Now,
here ia not word here about exceptions in this case,
and that will show YOU
Judge Neilson-Well where the authorities do recog
an An exception general rule what is that exccp
aoni
Mr. Evar,-There is not authority in this state that
h.s ever admitted any evidence under that exception
Judge Neson-what is the exception Is there an ex-
sptOui
Mr. Evarts-Nobody can tell what is; it is senb'c
TIA seems there is an exception :" bnt 40 far az II is
stated IL comes 10 this land going to discuss itl-
tar stated TO this, that although the
naked fact Of statements being proved or direct
impeachment is enough 10 introduce the rehaou-
ng evidence yet IT, in dition 10 that, there Is also
changed relation, learned friend says that relation
no, ,sed in an explicit restricted 1t Is used
not IA change of disposition. but change OF relation
70 w.t. that having been partner at one time, ana 50
Interested and the party. the witness had
the same story before he was party ana had no
such interest.
Mr. Beach-Now will the counsel permit me to refer
hm 20 an authority and read word two from it, In
the case Sir Of The People agt. Finnegan lreadinSl;
"u ia said the executions 10 the rule. established
this state are when the witness is charged with giving
rromnfine MIN 10 make false or coored statement, in
which is said it may be shown that ne made SINH
lid moi exist. And where there is evidence IN
contradiction tending 10 show that the account Oh @ se
transaction given by the witness Is a % oa te
date, H is said that II may be shown tnat Ihe SAINT a
ooSns was ySn S om % CHANGE Of crcastances could
have been een-reerTng 70 the case Oh hopp any
ibsss ssscentions m @ are tit should be "is" l sup
posel applicable 10 the case under consideration
eoss Of answerine the doubts attempted TO be thrown
kc by the crossexaminaton But IT was not adlssoie
that purpose upon the same roofing as ii IL
been offered support the witness after other wit
had been called 10 contradict ~ Mnat d d
1sd previously said mere heaTsay ana could add
0Othing," DC.
Mr. Eyarts-very well. The nearest my learned friend
yes 20 an argument sthat IL Is said so and So But the
decision is against It, there not that has per-
mtted the introduction of rehabating evidence in TINS
state except when the rule understood TO be that
after contradiction you could then pure and simple IN
oduce without relation special circumstances con-
irmstory evdence-nOt a case. And IN that case the
says Why you have nothing bnt the naked case
d introducing evidence Just If you had been contra
radicted" Now let 10 this question Of imputa
ton The imputation In the opening OF counsel Very
we'll there has been particular question
statement Of Mr. Beecher that Mrs MOulton did not
that statement TO him, and then superhuous