Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-10-16

note coming from the occupant OF Room
81 with the note found in the waste
basket is perfect, and passes upon the
sufiiciency Of the proof Of identity, set
ting the question.
Why should such shadowy testimony
prevail, when it is in proofthst the boy
had the note in his hands for some time
and carried il OUT Of the hotel? Where
is he. who alone could prove that the
note he received and the note he re-
turned were the same? No reason II
assigned for his absence. His evidence
is the best and highest, indeed the
indispensable evidence IN the mat
ter. He might. and the pre-
sumption from his absence is that
he would, have proved that the person
who gave him the note for the deceased
was not the prisoner. He lthe prison.
erl might have been personated by an
other: hence the absolute necessity oi
producing the boy. If it had appeared
that the prisoner was not the person
sending the note. but his name was
used by another, then the note OF the
deceased was wholly without signit-
csnee. irrelevant. and must have been
rejected. No rule Of the law OF evi-
dence is more firmly fixed than that the
best evidence ought TO be produced. and
when il is not the presumption Is IN
cvitable that it would be adverse. This
principle seems TO have been overlooked
by the Court in weighing the proof
Of identity. Circumstantial evidence
was offered from which an III
ference had to be drawn. while
direct testimony might have been
had for aught that appearsl OF the TACT
inferred by the Court. From the meagre
circumstances detailed by Dodson and
Hunt the Court had to infer the fact
that the note delivered the boy was
identical with the note returned by
him, when the testimony Of the boy
would have settled the question by
direct proof. The failure TO produce
him, while possibly not inyalidatlDg that
given in point OF law. tended. and
str ngly tended, TO weaken the force OF
that which was offered. which IN itself
was wholly insufficient to prove the
identity the Court found as matter OF
fact to exist, after reexaminIng Hunt and
Dodson Oh the matter Of identity, using
this strong language
That Cnroofof Identity is the only gues-
fion Il ont which have any doubt. ON al
other questions ] WAS always OF opinion
that b wssAs dmissibie. think now inat Il
II admissible having been identified astne
note delivered 10 the messe uger-boy ana
returned boy the boy TO Dodson.
But tssys the petition). upon the
theory that the Court did not err IN is
action in holding that the testimony
established the identity OF the note, 1t
Is respectfully insisted that the note
could not be used as evidence against
the accused upon his trial for other res-
soDs. The prisoner. as the evidence
discloses. was II no wise privy 70 IT,.
There is not 6 scIntilla Of proof that he
evoked it. Ii is certain 1t never
reached him. How can it affect him (:
Under what principle Of evidence
can note never solicited, and
never received, lie held to bind
party TO whom it is addressed:
The evidence IN the record shows
that the deceased arrived at the Amer
can Hotel on the morning OF the 18Th
March about . or o'clock. went u
her room. and was eating her breakfast
ID her room about i O'Clock o. that
dGy, at which time the note was writ
ten. There Is neither proof nor pre-
tence that the prisoner had seen er
communicated with her since her ar
rival There is absolutely no proof
that the note she received was from
him. But upon the mere fact, assumed
10 be true, that the note was ad-
dressed 10 hin. this note Is employed 70
prove that be had written 10 her and
she had replied 10 him, and that they
were thus ID correspondence and he was
soliciting her 10 meet him. All this Is
mere conjecture. and rests upon no
solid basis Ofreason or Of law. \ man
is held responsible tor his own conduct
and action. but when was Il ever
known that the law holds him respon-
sible for the conduct or action OF another.
unless he was party or priyy 10 II;
Then follows q citation OF the law
and authorities. and discussion Of the
res qesto theory. and an application 70
this case OF the principles laid down.
and then the following
Here II the absence OF all such
proof ls. Is required a note. which wa-
never delivered, is put in evidence to
prove that the accused wa IN commu-
nicRtion with the deceased. To reach
that result il Is arbitrarily assumed
that the note she received wa from
him. and her declaration Is held sufii-
cient. therefore. not only 10 prove what
she said, but what he did. How far
letters addressed TO prisoner. but not
received by him. NAV be used in evi-
dence against him viii appear IN the
recent case Of Reg. rS. Cooper 1876, L.
r.. l0B. -. There, by divided court.
il was held that letters which had
been invited by the prisoner by sdyer-
tlsements II the newspapers. and which
were IL the pOst-ofiice, directed 10 his
address il the mede Indicated IN his ad-
veItisement. might be used against him
but only then upon the theory that the
postmaster was her agent. And IN
PAyue rs. Com. 81 Grat.. S55. the
syllabus states - On trial for q mis-
demeanor proof Of the contents Of q
letter or paper which the defendant did
notsn receive Is inadmissible. There
the paper was carried TO the room OF
the prisoner, and. was found upon the
floor. where II had been dropped by the
messenger who carried II. The Court
SAYS p. s59):
a written communication no. received
by the person for whom u Is intended
stands OF no higher grounds S. evidence
than q verbal declaration made not IL the
presence OF one who Il sought - be Affected
by u. They cannot he treated as sdmis-
EoDs II either case Both are hesrssy.
And so IN Smith rs. Shoemaker, l.
Wall. $50. II is held;
"A letter addressed 10 party cannot be
admissible ss proof against aim niles u De
proved that ne received and acted upon H.
These principles, so manifestly Just.
humane. and wise, have been utterly