The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1893-07-29

ness was with one partially insane. The
testimony of such a person is received
with the utmost caution, all possible safe
guards are thrown around its admission,
and the utmost range allowed in the in
vestigation of the vital question of it's
trltthfulneSS.
But suppose it should be considered
that the testimony of Mrs. Pease upon
cross examination was of character to
be admitted or excluded at the discre-
ton OF the presiding judge, and that his
decision in the matter upon the ground
OF discretion would not have been the
subject OF exception, then we have the
case where the presiding justice, having
the discretion to admit certain testi-
mony, has admitted it, and where the
court can see that sound judicial discre-
ton required such admission. In such
case will the verdict be disturbed sim
ply because the presiding justice called
this act of his ruling upon law instead
of an exercise of judicial discretion? Ii
this verdict were to be set aside and
new trial granted, isslt not plain that it
would be the duty of the presiding
Justice again to admit this testimony, at
least in the exercise of his discretion, if
not as legal right? If SO, we submit
DuGI6 Is uO CIIOl III lCOOl0s SlOttI4y
there is no error in result The only err
ror is in calling what was in fact good
exercise of discretion rule of law.
But if the evidence should be held to
have been improperly admitted because
it does not affect the credibility or
capacity of the witness, then it must fol
low that it is entirely immaterial
1t could not possibly affect the
case in any way except as it dis
closed the truth about the witnesses state
of mind and eredlbility. 1t was not of a
character to excite any prejudice or i'll
will against the plaintiff, or to do him or
his case any harm, beyond what effect it
was fairly entitled to have in the minds
of the jury uponath credibility of Mrs.
Pease's statements. If this testimony
did not detract from her credibility, then
it was wholly immaterial; it could have
no effect in the case adverse to the plain
tiff except in so far as it diminished the
credit the jury gave to Mrs. Pease If.
as the plaintiff claimed, all Mrs. Peases's
statements were true, then the testimo-
ny received subject to objection was i'm
material, and the admission of it, if an
error, was harmless. We never sought,
or intended to contradict her upon any
collateral fact. The plaintiff had the
full force of her statement before the
jury. If our claim that these statements
of hers impair her credibility is not true,
then the case falls within that class of
cases where wholly immaterial evidence
is received which is without prejudice to
the excepting party, and therefore af-
fords no ground for sustaining the ex-
captions The evidence is either imma-
terial and non-injurious, elseit has an eff
feet to impair Mrs. Pease's incredibility.
lift has that effective submit it is just
and legal result Ii it does not, then it
is immaterial.
To support each of the several points
submitted counsel argued at lengh, cit
ing authorities at each step.
The decision upon the motionfor at
new trial will not be made for some time.