Year: 1875


of credit to which these witnesses, thus
in conflict, may be relatively entitled,
you are to remember they speak of what
occurred al time of great excitement,
While the one was pouring out his
thoughts in the agony of self depreca-
tion, the other may well have been NOV
ed in sympathy. The law has tender
consideration for


An Infirmity of Memory


thus inherited. The witness is not expect
ed to speak of events with certainty as
the subject thus spoken to by those wit
nesses. You should be prudent in re-
ference to mere probabilities. You are
not to indulge In speculation or rightly
consider matter which has been affirm
ed, because it may not seem reasonable.
The Judge said that reference by him to
other papers would be merely unneces-
sary, but from them it appears that the
defendant was conscious of hay-
ing committed some wrong
affecting the plaintiff and
his family. With that observation as to
the import of papers | submit them to
your consideration, that you may, taking
them into consideration with the proof at
large, determine what that wrong was.
Passing to the second branch Of evidence,
as to the principal charge, in the order
stated, ] call your attention TO the alleged
oral admissions. The confession OF party
made against his own interest as to IN cts
known and understood by him, if clearly
proved, are regarded rs of high class
of evidence and deservedly so, because
it's contrary to experience for men to ad-
nit what hurt them If not true. Exper-
fence proves rather that men eyade or
deny the truth when truth hurts. les
timony to prove oral admission should be
carefully scrutinized. The jury should
be satisfied that the witnesses clearly un-
derstood correctly remembered, and
fairly repeated what was saidi but caution
against relying on such testimony too
explicitly should find its counterpoise in
the caution against the too read y reJec-
tion of it.


The third point of the evidence in the
arrangement stated, is AS to tacit or i'm
piled admissions in theory. II appeals
10 principle peculiar to presumptive
evidence. 1t is assumed that on suitable
occasions most men have such regard for
their own interests that Oh being un-
Justly charged they will speak out in de-
NAL, hence it is that silence may often be
regarded confession. The most obvious
difficulty in applying this doctrine arises
from the considerations, that all men
NAV not act alike in the same clrcum-
stances, and that the jury may possibly
ascribe to "A sense of guilt what really
was due to mere surprise, or to some un-
known restraint. The testimony of the
plaintiff and of Mr.. and Mrs. Moulton
i to two forms of admission
and imposes upon the jury the exercise
of great caution. Upon the testimony
YOU will inquire whether witnesses were
correct in their statements or whether
defendant was misunderstood by them.


In considering the other portions of
the testimony as to implied admission, also
contradicted by the defendant you should
inquire whether in the conversations had
by him with the witnesses, his adultery
with the plaintiffs wife was spoken OF
in clear and express terms. If you hnd
that he was thus charged, so that acting
on the impulse common to inno-
cent men, he would have de-
MED it without foundation, you will
consider the inference to be drawn from
any apparent excuse for his silence.
The remaining class of evidence as to the
principal question, relates to the conduct
of the defendant in the first place. You
will consider his conduct in his inter-
,,,h Ttlt
Joseph H. Richards and Kate Carey.
The circumstances stated by them are
claimed to disclose an undue familiarity.
Your attention has been called to
series of events to the reasons which may
here lead to certain modes of action, OF
acquiescence, of restraints to occasional
disturbances, apprehensions and resent
ments, lapsing into seasons of peace
and patient endurance. The coun-
sci have given you their views
as to the significance of each iact
AMI circumstance, the vital and absorb
ing question remains not whether de-
fendant acted wisely and well, but as he
would not have acted if innocent of this
particular charge. | recur to the letter
of the 2sth of December, delivered by
Bowen, in which the plaintiff said to the
defendant, II demand that for reasons
that you explicitly understand, You I'M
mediately cease your ministry The
question as to the manner in which this
demand was read to the plaintiff, seems to
have been, that as the offence charged In
this complaint had been perpetrated,
the reasons thus generally referred to,
would be apprehended in rending the
letter. Defendant said,


This Man IN Crazy.


II is for you to consider whether that
remark was or was not in the nature OF
suggestion; that. there was no sensible
reason for making that demand, and
whether in conversation or in manner
the defendant betrayed any conscious
ness of guilt.


The Judge next referred 10 the policy
of silence, and said that Beechers course
throughout was to be carefully scrutiniz-
ed. You will inquire whether attentions
were paid to Mrs. Woodhull to eoncIllate
her. at the instance or with the appro-