The Dickinson press., 1917-01-20

nave noticed JnlS Oelect q NUMBER OF
times shaking hands with him. and yet
whether it is on his right Or left hand.
10 fiia # k pa9tiinIat that indi fat With He reference fnom
now I should return and should meet an
Individual who satisfied my general
V Wbom I 9efer that and he It W sbou,d dhe snp man tbs to
one of his fingers was shorter than l
thought it ought to be. n it were in
f wst a a. di n e Gia9tr indiy bana and and the finger
the man whom l first knew. it would be
natural for me unconsciously. subconsci-
o9sly' to conform what then saw with
individual, and 1 would doubtless be pre-
pared to state positively that the finger
II s ausstiedd W Wa Be on N he; hand on whieh
l last saw. So it seems to me with
reference to physical characteristics, un-
less they he soa are very pron M;,n there
thereto when recollection is refreshed by
a subsequent. acquaintance with the par
ticular Individual.
mode of recollection, that is recollection
refreshed by tests, l might say, with
t6nt h;s rr to thi ;nt| Rartieuln az ,} PlaintSi if
greatest protection in this particular mat
ter. He is speechless, he is unable to
say by, word of mouth those things
he cannot thus demonstrate as well as
the ordinary, Individual of us might those
things which he knows and which we
inf1rmity Is his greatest protection, be-
cause it is impossible to ami him
or cross examine him with any particu-
which he assumes to have. AS, for in
stance. in this particular connection, I
inquired Of Mr.. Colgrove If he Was able
where he la been from August. 1915.
until the spring of 1916. Mr.. Colgrove
knows this plaintiff very well indeed. he
able to ascertain. I take it from Mr..
tiff in fact was. In other words. in this
particular case it is impossible to as
plaintiff with reference to his past I'M
less the party inquiring has q knowledge
auires which enables him to more or
less conjecture as to what. the plain
tiff means When he mods his head af-
frmatiys s; or - negatively and nj the
might say in passing, that there is no
question in my mind that the witnesses
who have Identified this PLAINTIFF do SO
WINGED in their own minds from the
tests that they have put and from their
there is absolutely no question but what
they are positive in their W mind as
to those things, but on the other hand.
timony and the weight which should be
attached to it in this particular case must
view that testimony in the light of the
guidance here, as 1 have just stated.
o the other hand, in this particular
case certain witnesses have been sworn
been just as positive with their state
ment that he was not Jay Allen Caldwell,
and it seems to me from the character
have testified that he was not AVE been
more positive natures than those that
testified that it was not. Whether or
not that has any particular significance
in this particular case is based upon a
question, and. as I stated in the begin
ming, it seems to me that there is a very
great deal of psyGhoIogical knowledge
case.
If the testimony in this case were sim
ply the testimony of those that recollect,
against the plaintiffs contention were
simply witnesses who testified from
knowledge, either of the first, SECOND or
recollection reinforced by phycical char
acteristics or recollection reinforced by
physical characteristics and tests, and to
What the decision ought to be. but the
defendant in this case has gone farther:
who have testified from positive records
made many years before this litigation
arose, many years before the disappear
| dnCG OF Jay "A. SdluWcu pCCdlllS ~"
as a fact. It seems to me that those
records have not been disputed or shown
to be unauthentic in any substantial par
~ticular so as to warrant me at this time
in not giving them q very grave consider
alton: 1 might say that there is no ques-
ton in this particular case but that Jay
14tb ea day Of dd]i etopee. 1867 on T Hh sG is ab sne
lutely no question as to that as l under
stand the contention of the parties. There
is no question but what the plaintiff was
!, tho ipcorn ocv1I1no of PnPhaStpr from
the 23rd Of April, 1908, until some time
after the 5th of July, 1913. no question
as to- that: might further say ma the
fled here, old friends and %neighbors who
have come here willingly, and, in some
cases, at their own expense, and a great
have voluntarily contributed to help the
cause Of this plaintiff in this particular
case under their belief that it was Jay
the exemplary character Of Jay A. Gald-
well. 1t seems to me it is a most elo-
quent tribute to hin as a man that these
people AYE cone ~ = and a. test tes III fbis wh n1ainr
in passing that I say this.
"Going now to the testimony OF the
defendant. There are certain matters
that the testimony of the mas
established which it seems to me are
entitled to very grave o weight, Of w the nr IS
mary question of fact in this particular
case. First, the testimony of the wit
nesses from the City of Waseca with ref
erence to the man who was picked up
there on the 10Th day Of June, 1907: II
the man who was turned over to the hos
pital at Rochester or the 23rd day OF
April, 1908, was the identical man who
was picked up in Waseca on the 29th day
of June, 1907, the plaintiff cannot prevail
in this action, because, as l have stated
it is conceded that Jay A. Caldwell dis
appeared in the month of October, i9o1'
and that this plaintiff was in the Roches;-
ter hospital from the 23rd day of April,
1908, until July, 1918, so if the man picked
up at Waseca was the plaintiff, then ana
in that event he cannot be Jay A.. CAD,
well. Nh witnesses who have ~testifeo
from Waseca nave been positive in their
statements, and their. testimony remains
mistaken, excepting insofar as the tes.
timony of the witnesses for the plalntiI
who have identified him tends to shake 1t.
we have the testimony of the physician
who tended him, the testimony of the
marshall and of the sheriff who picked
him up; the deposition showing the pay
ment for his care during the time that ne
was kept at he ~brickyard; deposition
kept at the Collins Hotel in the month
Of July. All Of these, things, it seems te
me, establish not only by a preponder-
ance of the evidence. but beyond any