The San Francisco call., 1897-05-14
It Is Wanted by the Plaintiffs
to Bolster Up the Alleged
Alibi
Opposition to the Document by the
Defense Is Based u pom Purely
Legal Reasons.

luo dttOTueSS IOE tUe e2eCutOTS OI Tue
Fair estate are extremely anxious, or at
least pretend 10 be--to prove this docu-
ment TO have been forged. as we'll as the
deeds over which this present suit is
about. 1t is plain that their object in at
tenn pting this is to establish some sup
port Tor their alleged alibi-the claim
that Senator Fair was in San Rafael on
the Oath OF September, 1894. and there
fore could not have been in this City at
the same time and delivered the deeds to
Mrs. Craven, and could not have written
that will, as she asserts he did. Their
con tention is that il The will falls the
deeds must fall, too.
The defense is opposing the introduc-
ton of this class OF evidence on the ground
that ii is collateral, TO say the most, and
more than that, is in no manner involved
as an issue In this proceeding TO quiet
title TO the disputed property. ID. Nj. Del
mas denounced in scorching terms, yes
terday, the insinuation emanating from
the other side that the defense shrank
from meeting an issue involving the ''pen-
cil'' will. Simple rights under the law,
and desire to avoid burdening the case
with immateriaI and extraneous matter
was, he said, all that actuated his side in
opposing mad missible evidence.
The argument on this proposition con-
sumed the major portion OF the session
! and is not done with yet. Judge Slack
did not compel the Jurors to stay and
listen to II, US it was a matter calling only
for a decision from the court-some thing
in which the jury could have NO interest
The debate was inaugurated when K. b.
Mitchell. for the plaintiffs, attempted to
put into evidence magnitled photo
graphic reproduction of the pencil" will.
Judge Curtis of the defense wanted to
know what connection the will had With
the case, and inquired as to the purpose
of introducing the reproduction. After
some backing and filling Mr.. Mitchell ad-
mitted that the purpose was to prove, if
possible, that the will was not genuine.
That was what Judge Curtis had antici-
pated, and he said he was prepared TO
| present an argument showing that the
| will, whether good or bad, could not be
dragged into this particular proceeding.
To begin with, the Judge cited the Cali-
fornia Code OF Civil Procedure and said
lit pronounced the class OF evidence
sought to be interjected as being wholly
irrelevant in case of this character. An
other point was that the plaintiffs had
not alleged the will to be forgery in the
pleadings He asked, as matter OF prin-
ciple, whA benefit could Mrs. Craven
hope to gain by forging that will. She
was not named as a legates therein. The
history Of her life divuiged the fact that
she had always striven zeaiousIy with
Senator FAIR TO have him treat his chill
dren jus lily in his will. There was not a
suspicion OF seltishness as lar as she was
concerned.
There was an old principle to be con-
sidered, Judge Curtis said-a principle
| older than Blackstone. This was a require
ment that before a charge of forgery can
be proved it must first be shown that the
forgery was intended to injure somebody
or that it was to benefit the author. The
eminent "wiIl-smasher" of New York
then took occasion 10 rap expert hand.
| writing evidence on the head. He had
had 10 do with a great MANY cases in
| court, he said. where this class OF testi.
mony pred ominated-in fact more so than
most other attorneys in the country. He
had followed litigation of this kind in
twelve different States, and his experience
had forced him to the conclusion that
with q few exceptional cases, the courts
| were right when they expressed doubt and
suspicion regarding the testimony of
handwriting experts. He himself be-
lieved it to be dangerous, indeed, and
something that should be handled with
extreme care.
Taxing another view of the question
uuder discussion the Judge said That the
plaintiffs counsel had not laid proper
foundation for the introduction OF this
evidence. but were going to make great
show before the jury with their photo
graphs and wise-looking professors" in
the hope Of swerviug opinions or raising
doubts.
Their theory is that in desperate causes
| they must appeal to the senses,' said the
Judge. "As was once said in elebrated
homicide trial they are going to convict
with the paraphernalia of the chemist ;
Suppose this pencil will is forgery.
would that be evidence that the deeds
held by Mrs. Craven are not genuine :?
Suppose, l say, the will is forgery, does
that prove that the acknowledgment a re
spurious? The moral struggle of the
plaintiffs here in this case is 10 prove that
the defendant, Mrs. Craven, is Grim nal-
to prove also that Notary J. J. Cooney is
a criminal. But it is not going to be ac-
com plished by means OF improper evil
dence if | am to be permitted 10 lift NV
voice against 1t.
The Judge next read a mum Der of au.
thorities to show that evidence regar ding
the pencil will was inadmissible even as
collateral evidence. The laws of England
he said, were strict in prohibiting the
method of proving a person guilty Of an
offense by means OF collateral evidence
showing that he had committed other of.
lenses similar 10 the one charged. The
defense in this case, he said, was asking
for no merciful considerations. 1t would
be shown that MRS. CravenS deeds were
valid and genuine. They would com bat
the proof against this only for legal rea-
sons.
Attorney Mitchell replied to the Curtis
argument. The sworn deposition of Mrs.
Craven had been introduced in evidence,
he said, and in it was the declaration that
on Septem Der "a, 1894, Senator Fair wrote
the pencil will in her house, and on the
same day handed her the disputed deeds.
Therefore, he held that all of the docu-
ments became part and parcel of the one
transaction, and one was as admissible as
evidence as the other. The attorney re.
ferred to United States Circuit Judge
Deady's decision in the celebrated Sharon
case, in which it was declared that it was
Just imp portant tc prove the validity or
invalidity of the "dear wife" letters as to
establish the nature of the marriage con.
tract.
Charles S. Wheeler and Garret Nc
Enerney followed Mr.. Mitchell and ciIed
additional authorities tending to support
the plaintiffs claims.
Then the defense was given another
turn, this time Mr.. Delmas taking the
floor. He did not have an opportunity to
say much, however, being interrupted by
the arrival of the adjournment hour. But
he will open the proceedings tais morning.