The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1907-06-28
disregard ana torset tho truc issue in

furnishing evidence of tho facts tliem-
selves, but as communications made TO
the husband. and which wore calculated,
more or less, to operate upon his mind
aud to Influence his conduct. and to
enable you In the light of Subsequent
events TO Judge how far they did SO
operate. and to determine to what OK.
tent the knowledge or Information OF
those facts was calculated to explain
and to mitigate or to justify The homi-
side subsequently committed. as TO }in-
terpreting the prisoners subsequent con-
duct as throwing light upon the state
of his mind, they are admissible ane
proper to be considered As furnishing
evidence to you in this case OF cor-
mission OF adultery they We're not al-
lower to be introduced, and are not
proper to be consldered,
In that case Cole was Indicted for the
murder of IIiscock and ono OF the
was because the deceased had soduCcd
Coles wife, and that IN the transport
OF rage producedN In the defendant ny
such an invasion of his domestic rights
or by the subsequent or Overwhelming
disclosure of the fact to him. ho com
mttod the homicide for which he was
then on trial Further In his charge the
Judge says:
at may DO that the deceased was not
guilty of this oifense. He has not had
any opportunity to try that question,
and his lips are now sealed in death.
we are not therefore, In n condition
to say upon which side upon fair trial
the. ,prepondorance Of the evidence would
boz
1t is suggested that no case has ever
occurred in which this evidence has over,
been Ignored BY a jury. Tint is not the
question. 1T is not necessary for us to
inquire whether former juries have or
have not violated their oaths. by ac-
cepting as evidence facts which have not
been proved. 1t Is a dangerous and IN
admissible proceeding In court Of
Justice,
was stated by counsel for the defense,
md not controverted by the representa-
tlves Of the commonwealth, that IN
perhaps the most famous and noted
for years-the Thaw trial-proof OF the
truth or falsty of the communications
made by Evelyn Nesbit Thaw to her
husband was excluded without serious
objection by Mr.AsJarome who repre-
sentod the prosecution, and case IN
California which could not be furnished
to the court, was cited to the same
effect.
not binding on this court, arc strongly
persuasive, representatives for the Com
monwoalth cite no decided cases as au-
thorty for their position. hut urge the
Introduction of the testimony as part
of tho res gesta and proper to so to the
OF the res gestae and proper to go to the
jury to impoach the testimony Of Miss
Loving
Should 1t he admitted to contradict
Miss Loving Z
it is said In the syllabus: No question
rs to irrelevant facts can be asked
witnesses for the purpose of impeach!ng
his credit by contradictlng him. but
II asked and answered. his answer Will
be conclusive"
As already said, what occurred on the
drive with Estes could not have been
proved by the Commonwealth as part
OF it's case. and according to this test.
the facts sought to be disclosed on Mics
Lovings cross-eNamination in this case,
In reference to tho ride and her return
to Lovingston, are collateral, and cam
not be contrndicted. In the same EJECT
is Am. and Eng. Enc. OF Evidence, 30th
Vol, page 1897, and Nuckols's Adnir. vs..
and ". Rwy. Co. VS.. Carr, Va Law Reg
star, June number, 1907, page 1875
William Carr was asked the question
on cross examinations: did you tell
Mary Bray that II she would testify for
you to day, you would see that she got
paid 2" After witness had denied that
he made tho statement flrtner ques.
tioning along the same line was objected
to, and the objection was sustained.
This evidence was collateral to the issue,
and calculated to divert the Jury from
the case before them In order TO avoid
an interm!nabie multiplication OF is
sues It is settled rule OF practice that
when witness is cross-exanl!ned on a
matter collateral to the issue he can
not as TO his answer be subsequently
contradicted by the party putting the
question wharton on Law OF Evidence,
Vol. l., section $50,
II was earnestly commended. however,
that this evidence should be admitted
as a part Of the res gestae. and as au-
thor.ty for this position Greenleaf on
Evidence Vol. l., page SO; Ward VS.
White, Sc Va. and Poindester's case. 81
Graft. were cited. Judge Lacy In Ward
.nTho area OF events covered by the
term as res gestae depends upon the cir.
cuinstances OF each particular case
and may be defined as those
circumstances which nre the undersigned
incidents OF a particular litlgated act
and which are admissible when Illus.
trative of such act. These incidents
must stand in Immediate causal relation
to the act"
In that case the newspaper publica'
lions were admitted. because they caus.
ed the assault. provoked It. and were o.
a character to greatly excite and In
In the Poindexter case tho difficulties
the two transactions. were between thu
same parties occurring on the same
day after an interval of only two hours
and tho court in that case says:
Now the first occurrence aforesaid
plainly led to and was the cause Of TIL
second. and was we'll understood BY
was clearly admissible evidence on tn
trial OF Poindexter for the homicide o
Curtis; but In this case 1t cannot b.
insisted that the buggy ride was tn
cause of the homicide, or stood in i'm
mediate causai relatiofs.to 1t.
Again. It has boon urged that the &C
cused did not act as a reasonable ma
should have acted, and that after hear
ing his daughters statement no shout
have investigated as to Its truth.
To hold such q doctrine or to ADM
the evidence as asked, would deprive til
prisoner of the beneft of that merc
In fhl ls,t ct, m ~
acts In the heat of blood from n gros
provocation Tho admission of sue
evidence would assume that he Shout
have inquired deliberately into the fat
when he had received the shock tina
had probably deprived him of self cor
troll and the power to deliberate
That would be most unnatural an
unreasonable, and would raise the HON
eide from manslaughter to murder |
the first degree. by requiring the a,
cusod 70 deliberate when the provocatlo
had deprived him OF the ability to
So And before this evidence can |
introduced the Commonwealth Shout
| good reason to believe that there was !
ground for the provocatlon when !
acted. Neither tho character of Mi
Loving nor OF the unfortunate youH
man are in Issue in this trial, and viii
| the court Appreciated and deeply Byn
| path2es with the desire and effort
| tho relatives OF tho deceased 70 clear II
| name and establish his innocence of al
crimna! act before the world, 1t cam
depart from established principles Of la
and evidence to accomplish this resu
| s. Neither the pressure OF sympathy NJ
| the alleged hardship OF tho case, n
| the earnestness and eloquent appeals
council for justice and Yindcation
tho deceased should induce the court
take any other course than to deci
this question according to the law Fl