New-York tribune., 1875-05-11

aomitteu anu yet my learned H1en0s tnlnk tnat Tic
law In ts care that testimony shall be Of quality to be
credited and have s true weight proving the thing
spoken about will exclude 1t when direct proof has been
introduced all Of which may be FALSE that the lady has
spoken contradictory mind up to the date OF the sup
posed change OF relation and there no license to intro
duce particle Of this evidence. And yet IT, in wit
who does not that she has testified TO the
contrary but who oontradcts her and Also That
statement she made to she never made it at
all unless under iniuence"-under that, which is mere
rhetoric and not testimony under the opening Of counsel
which is their view Of the character and conduct Of wit
that have been called and to be called there
Is gained authority to introduce hearsay evidence
that the law discars when the contrary evidence
up to the very day and date of the supposed change Of
feeling and opinion makes it important to the
witness that the antecedent concurrent views
should be expressed Now the court in this case
1t Is not proper Introduce this kind Of testimony in
show that he conscious his witness required
support, and without it was unworthy OF belief.
Now this is the law 1t s received only in reply and in
answer TO doubts attempted to be raised by the other
party by impeachng the Witness either by testimony
tthat is direct mpeachmenb or by crOssexamination
(which is couaera or IL may be proper when witness
stands mpeached by the direct testimony given by him
self. as in the present case.
Now, they and say. "The witness says his di
rect examination that he was an accompice his testi
mOny is therefore suspicious 1t comes from tainted
source. and may well be doubted In such case 1t
seems to me the principle applies that witness who Is
impeached may be supported" have not impeached
The best they make out of the is that they get
analogy between . man that by his position OF
an accOmplice is quasi impeached, to put him on
the footing II the party had actually impeached
him. Now, is there anything contradictory 10 my
proposition in thati do not think the reasoning is very
good which the party was in that position, but IT
does profess to get the whole Of rule of law upon
him except by putting him upon the analogy that he is in
nl,a1
These positions believed to be to elementary
principles that few adudcaons are to be found to ss
tain them
And then he goes on and cites the old doctrines Of
Hawkins Hawkinss Treatse-Ilttrell agt. ReynalI on
the intended proposition Hawkins says
What witness hath been heard to say at another time
may be given ia evidence in order either to nvadae or
to confirm the testimony which he gives In court
That Ia exploded In England We say. Now the Court
go ON and say:
No one ever pretended that his declaration not under
% 9at9 was equal 10 DIS es9Emy haer enc G nV war ~ eyer
given. The question s Will the fact of his having often
to rebut the prejudice raised against him by his having
given contrary or different relatiOnf
That s the only shape that in any of our awbooks the
question has presented There has been
a time, Westminster Hall or here, that you introduced
corroboratve evidence of witness attacked and
duced by evidence could have been sustained. Mr..
sarkie admits there may be where such testimony
may be proper, as where 1t rebutted the
idea that it recent fabrication and
when it given before time afforded for cOntv-
ance that s after that testimony had been given But
apprebend the true question in all cases whether such
confrmatory evidence tend TO the sustaining and
supporting of the testimony of the witness who has been
mpeached. Is it can have that tendency 1t is testimony
of which the party may avail himself How much
weight 1t is entitled TO is for the cOnsiedra-
ton OF the Jury under the advice OF the Court The rule
itself was established long before the trials alluded to
~ Iris
Justice Tighman, in the first OF Sergeant a. Kawle,
who says"-nOw these the bases OF the rule, even
when it was liberal
1t was recognized by ChiefJustice Tlghman, who
impeached i1 by evidence that he had said
sworn may be rebutted by proof of other declara-
tions by him conformity to what he has sworn be
cause being under OATH is good az the Other
and the jury win judge of his credit on the whole
"The same rule adopted, and was recognized by
Washington Judge of the Supreme Court Of the United
States. who says:
Declarations of witness cannot be given evidence.
except to other declarations OF the witness in
consistent with what he had before sworn to. Now,
giving evidence of contradictory declarations Of wit
dlscredt the witness and impeach his credl
duce that effect it may bs be reGf reoutfd .uo &
testimony And as it has been before remarked, it
make no difference in principle whether the lmpcach-
arises from evidence dsGreuths Ihe Witness OF
from a crosse Examination or direct examinations II the
witness sands-(hs own direct examination hal ls' o,
cOurscl-" ike man VINO swOfe ne was All acconpHCc'
Has Mrs. M0ultOn sworn she was an accomplcef
Mr. Beach-N0, but your proposition was that this evil
dence could be admitted unless there was an attack
from affirmative evidence outside.
MI Eyarts-I did say 80, exactly, and have proved IL
ny every word that have read, excepting that the
learned Court tries TO that an accomphce VINO ds
credits himself gets within the analogy Of having been
dscreded by evidence If Mrs Moulton has sworn that
she is an accOmplce- you put her IN that attitude
why then your case is such that perhaps you may be
able TO show what said before she became an accom-
Mice though il is very shadowy this accompice view, in
any
Mr. Beach-Your proof puts her in that position
Mr. Evarts-It does not. But even II II does-even II IL
does il is only by having witnesses prove this that ana
the other thing The question s whether you have been
directly impeached either by the principal impeachment
or by collateral impeachment, or by this quasi or mag
mary impeachment Of your own statement tha you arc
an accompce-an actual accompice in crime as you say
but of course the jury do not like to believe you hey
can help it, That has been always the rule. Now, when
II was the law that when witness had been 80 reduced
Inv evidence you could rebut by concurrent statements
sueh evidence was admitted; but never, even IN
that state of the law, except III
rebuttal of direct evidence, or collateral
evidence Of impeachment that is contradictory state
ments out of court But courts have exploded that
and since they exploded that general rule witness has
been admitted in any court in this State to give corro
orave evidence OF exraudcial statements in the same
sense in which the witness has sworn in court Every
case that has attempted TO be made an exception
and in which has been sought TO be introduced this
infracon of the rule of evidence has failed All that
there is-and it is more important in Finnegans case
than any otheris this "Iis sad-it is said that you
may rebut impeaching evidence If you have also
the fact Of changed relation; but If you have
not that fact OF changed relation then you cannot rebu
But here the effort is not 10 rebut for no evidence has
been offered none pretended; and If we had offered you
onld NOT introduce this because there Is changed
lation The mputaon is that the wife falls under the
husbands power. If she had married since June 1873,