New-York tribune., 1875-02-26
THE LAW ON ORAL CONFESSIONS.

THE LAW ON ORAL CONFESSIONS.
The plaintiff in this case relying, therefore, ex-
cusyely the oral confessions mainly on the oral confess
IONS defendant It becomes important gentlemen for
you consider and for the Court TO consider the legal effect
Of this class evidence and that question that desire
to invite your before proceed with further history
of this case-before begin unravel the network that
this plaintiff fertile BRAIN stimulated and aided
by friend, has for four years been weaving
OF unfortunate client We concede gentle
men, with direct evidence circumsanta
evidence oral admissions Of the accused pertinent evil
dence Wherever circumstana evidence relied upon the
circumstances taken together establish the following
First the criminal disposition OF the parties
charged Second like dsp ston on the part OF the para
Third, opportunity 70 commit the act AS 10 the
second gentlemen have shown you that there If no
proof in this that either OF the parties either
the defendant or the plaintiffs WIFE had any
disposition 10 commit the act OF adultery
They given you any evidence Of that at all All her
associations their intercourse apparently innocent as IN
nocent any association possibly be- All OF was carried
on the eye OF the plaintiff with hs concurrence and ap
proya There nothing IT, from the beginning TO the end
suggest yoa the thought OF crmnaty on the part OF
Third the opportunity TO commit the act These three
facts must be reasonably approximate point OF time and the
opportunity characterized by circumstances point
ing guilt words guilt cannot be inferred from the
unity commit adultery unless there also evidence
that the time there were acts OF each party
specifically indicating disposition to commit IT, 1t Is
this class Of evidence gentlemen winch Is usually eeu upon
in courts Of Justice establish the fact OF adultery In fact
this class crcumsana evidence that is the relations OF
the pares the frequency with which they have been to-
geher improper which they have been se the
steahy meetings of the plresa Of this class OF acts tend
ing 10 show sposon commit adulteryis the class Of
evidence usually relied upon and seldom wanting In
any case OF adultery CHARGED good faith This Is almost the
only important record where there Is no proof Of the
facts calculated 70 excite suspicion and pro-
duce conviction of guilt This is made to rest
entirely upon supposed confessions Of the defendant
depends alleged confessions 1t s to
be that there classes the letters Of the de-
fendant the reports gwen by witnesses OF his oral confess
sons The letters in evidence and will speak for them
selves The alleged oral conf sons entirely different
kind Of evidence evidence always tested by the law
with the most careful scrutiny Ny associate Judge Porter
now gentlemen will relieve by reading the rules ofaw
plicable this class Of evidence-Oral confessions
Mr. Poer-our first citation this connection your Honor
Bmrs Reports the case OF Morris Miller The ac
Grim Lord Mansfield Ia delivering the opinion
Of the Court says:
This is a sort Of criminal action
Mr. Beach-what page do you read fromi
Mr. Porter-Page 2Oi9. [Resumngl
"Thsis sort Of criminal action There is Of pun-
ishing the crime common law IL should not depend npOn
The reputation OF maa1e which arises rom the con
for biamy marriage in fact must be proved No
happen by this determination Dnt inconvenience
persons Liable 10 founded upon evidence made by the
persons themselves who should bring the action
The next citation Mr Tracy from the lst Vol Of the
Notes Of Cases in the Ecclesiastical Maritime Courts page
4i2 in the case Dillon Dillon This suit for divorce
DR. Washington IN delivering the opinion, says
This as concerns the wife, is civil but in effect
criminal proceeding II there Is any doubt sht rs Il emitted TO
husband may perhaps prepondeIae but cannot say that
the proof iz free from reasonable doubt
The next citation Is from the 18th New Jersey Equity Re
ports pages 45L As aud 45G This a proceeding for
divorce on ground Of adultery Under the laws Of New
jersey the parties charged admissible as witnesses 70
deny the charge. The alleged paramouF Of the wife was
sor and denied the adultery The adultery supported
by the direct evidence Of lady who profe-ed 10 have de-
ected the parties in the and this supported by ccob
orating evidence opportunity circumstance and
% u voas disposition The Court in delivering hs opinion
say:
"The testimony OF Mrs Berckman the witness for the
nlainf seriously affected by two considerations FIRST
her testimony is IN favor Of the complainant; and
il stands 20 far as these scenes are concerned;
alone and uncorroberatcd, while she IL seriously and
postiyely contradcted with regard to them by two
witnesses, Berckman and Dr. Tisworth These two
witnesses may untruth as 10 what hey say ou they can
not mistaken about it, They certainly 90 know whether he
scenes described were trne OK not %rs % chan 7, I
may be untruhfd and she may also De mstaAen te eva
dence be entitled 10 an equal amount OF credit ana
confidence the dence OF the defense has entirely over
thrown by its potyenes and preponderance, that OF the
complainant II that these witnesses on the part OF e
NOT this aIso true with regard Berckmani Ne have
re by which determine what notice or consideration
himself or herself One might be tempted % do it
consideration another who could mol ne
purchased money might do 10 save his name and repua-
Of dishDnor and Disgrace Another who
gh care but little Of these might do It TO crafty
most malignant Unsuitable feeling OF revenge or Of mpaca
and do but what either OF
these motives ectual IN inducing witness 10 de-
ns from The truth any of the others and judging from
he developments and manifestations 10 be found IN the
evidence in the case hardly feel at liberty say THAI the
defendant and Dr. Ellsworth had stronger Inducements 70
denart from the truin than Mrs BeFckman herself And,
eny this controversy and every tnng connected
what their characters FOR truth and
yrrnty are good hers Nor admit that The mere
chare OF crime destroy the credit and character OF
uson az that entitled TO credit when speaking under
oath such principle might rain the most e1emp ary people
surely II th charge ought not 10 dlscredt the
n.rry and TO permit do Is assume that the charge
l. true which cannot DO, iof that IL the very Thing " Dc
proved"
The next Of the authorities cited by Gen Tracy will be
found in Sand r. and mas relation 10 the force OF
evidence required the part Of plaintiff before such
All accusation the sanction either Of court or OF
iury II Is the case Of Ferguson Ferguson, Sand : C.
r. pace 80 delivering the opinion Of the Court Judge
Mason cites gives the sanction Of the Court to the poPo
on laid down by Judge stowe in the OF Loyeden a.
Iovcden Hagg Consist X, p. l. II lis In the following
words:
" h fundamental rule that Il not necessary to prove
aduiry II 10 otherwise there
h not one hundred which that proof would be at
tan.be IL rarely ndeel that the parties are sur
u the direct fact OF adultery Ia every case almost the
fct the circumstances that lead 10 H. oy
fair inference as a necessary and unless this were
the case and unless held protection Whatever
could be given maIa ngnts What arc ae s4samsIalsS