Butler citizen. [volume] (Butler, Pa.) 1877-1922, 1883-08-01

ties had behaved we'll or i'll toward on
another whether or not the defenC
ant believed that he had been cheate
before and was afraid he would be agai
unless the Court protected him-wa
surely as far as possible away from an
thing the Court could look into in sue
a proceeding. But that was exactl
the nature of the paragraph in the pet
tion upon which this accusation of pei
jury is based. Smith said there wa
an unsettled account between him an
one of his adversaries on which he be
| lieved that a balance was due to him
What possible difference could it max
to the case then at the bar whethe
this was true or false What connec
tion had Smiths belief about this un
settled account with the matter il
hand Or what influence could i
have on the decision ? The judge whc
heard the petition was the same judg'
who presided at the trial of the indict
ment for perjury, and he knows tha
no proof of an unsettled account lik'
this would have been considered by
him for moment in making up hi
mind.
Test the materiality of this state
ment in another way. Suppose tina
on Smiths application to open th'
judgment the court had ordered The
plaintiffs to take out scire fdcias anC
try the dispute by jury. That woulc
have been the shorter, the better AM
the more regular mode of proceeding
Evidence admissible on the trial of the
scire facias would be admissible on the
hearing before the court sitting il
equity. Would the court permit Smith
to prove before the jury, either by him
self or by anybody else, that he believ
ed there was q balance due him from
Wolford on an unsettled account in ad
dition to the terms of agreement con
cerning the judgment No; his belle
however sincere, or however vel
founded in truth, that he had right o.
action against Wolford in assumpsi
would weigh no more than a similar
belief that he could recover damages il
he would bring suit against the same
person for slander or trespass. Ar
offer tc prove any such fact or the belle
of it by the plaintiff would be rejected
instantly because it is manifestly and
plainly without even the shadow o
materiality. Yet the statement of this
fact in the defendants petition is charg
ed as material and wilfully false. Wa:
ever new trial asked for on stronger
or clearer ground !
But even if we assume the material
ity of the statement in question, new
trial is due because the proof of it;
falseness does not come up to the re
requirements of the law. Not having
before me an entire and perfect repor
of the evidence, l do not trust mysel
to discuss the particulars of it. Bu
the outline of it which l have seen
enables me to say with confident GER
tainty that:
l. Smith himself not only swore to his
belief at the time he presented his petl
ton, but repeated his oath on the tria
of the indictment.
3. This oath of Smith was contra
dicted by the testimony of no witnes:
except Wolford, who alone was able tc
speak directly on the subject Ever
by him the contradiction was not full
because the psychological fact which
the indictment puts in issue, tina
Smith believed what he said could no
be known to Wolford more or bette
than to anybody else.
3. The direct testimony concerning
the existence of the unsettled accoun
being thus balanced by oath agains
oath, the prosecution instead of pro
ducing another witness to contradic
Smith, undertook to discredit him; first
by an assault upon his general charac
ter, and then by showing that he hat
made conflicting statements in loost
conversation out of doors.
4. The attempt to defame him wa
an utter failure. 1t was met by over
whelming evidence of the high esteem
in which he was held by his neighbors
and acuuaintances for honesty and goot
moral behavior throughout long ant
active life filed with much business o
various kinds.
5. From the instructions given mt
| infer that the prosecutors were sue
cessful, at least to certain degree, il
showing that some of the defendants
talk out of court was not in accord will
his oath on the SAINT subject Severa
witnesses appear to have testified tha
on q certain occasion he gave utteranct
to what they call an admission tina
there was 70 unsettled account between
him and Wolford What he said wa!
no such thing as an admission. bu
their mistaken construction Of hi
words. This was not part of tb'
Commonwealth case in chief, but IN
troduced as rebutting Smiths testi
mony in his own defence, and tina
irregularly, for he had not been giveI
an opportunity on cross-examination K
explain it.
Now see what this amounts to. |
Smith had sued Wolford in assumpsi
for the balance due him on an unsettled
account and these contradictory oath
of the parties had been made, the,
would have stood fairly off against eacl
other. Either of them might have in
troduced evidence however slight T.
discredit the other, and whether it wa
sufficient or insufficient would be
question for the jury to decide afte
weighing it in their own minds an,
giving to every part its natural effect
do not think there is enough here t
turn the scale against Smith even a
plaintiff in civh suit That howeve
is not much to the purpose, for the jur,
might think otherwise.
But this is not civil suit 1t is
criminal indictment. The verdict doe
not depend on the mere opinion Of th
jury. They may very honestly believ
that Wolford is the true man an
! Smith the false one and yet have n
more right to send one than the othe
to the Penitentiary. The law exact