Year: 1876


incompetent, because it is presumptive,
and is intended to show that the envel-
opcs, or one of the envelopes, was ad-
dressed to the defendant At this stage
of the case it is intended to establish the
conspiracy between the parties at ST,
Louis and the defendant; it is the con-
Meeting link in the theory of the prosecu-
ton. Thus far, the case is barren in evil
dence TO show that the defendant had
any connection with the conspiracy in
st. Louis. The naked question is
presented that the defendant did
receive letter, containing money,
from the conspiracy. No such presump-
tion can arise now. The evidence of the
witness has in fact no relevancy to the
question, because there is no evidence to
follow to show that the defendant ever
received the envelopes, evea if they were
deposited in the mail box. There is not
scintilla of evidence before your Honor
or the jury to show, thus far, that the
defendant ever had any connection what.
ever with the whisky ring in st. Louis.
Therefore there can be no presumptive
evidence that he ever received the en-
velope.


Judge Porter-Wlll Your Honor al
low me to state specifically the grounds of
objection. The rule Of law is this, that
where there is a conspiracy that conspira-
cy can be proved by the confessions ofths
conspirators themselves, but the con-
nection OF another party to
the conspiracy must be shown by ex-
traneous evidence. The declarations,
written or oral, of conspira-
tors connot bind q third
party; they cannot prove by their acts
another mans acts No declaration of
Joyce is evidence against Gen. Babcock.
| learn from the opening remarks OF the
District Attorney that he proposes to
show by the witness that Joyce wrote the
name of Gen. Babcock on this letter, If
Joyce had said / intend to send this money
to Babcock it would be inadmissable;
butthis evidence is only written decla-
ration. Joyce is no agent OF ours. He
is not entitled to act for us, and no act
or declaration of his can bind US. They
cannot give secondary evidence without
y
evidence. The question is, is this compt-
tent evidence? Ii they had found the let
ter in General Bahcock's possession
the Jaw would not charge him with n
knowledge OF its contents, unless he acted
on It. But this is not the case. 1t is
letter we never saw, never heard OF until
we heard these rumors here about It.
When it is made an act of General Bah
cock, it must he proved by some other
act of his antecedent to the time 1t was
sent. The evidence Is irrelevant on Its
face; there was only naked inclosure,
hut il il clear that the mailing of polluted
money to your Honor or 10 myself would
made us n member OF the conspiracy!
We submit that it would not have, and
we hold that the testimony OF the witness
Is totally irrelevant. Colonel Brodhead,
for the covernment, said: 1t is not a
question as to the conclusiveneSs OF the
testimony, but as to its competency, and
that Is all we claim for it. We claim that
Is competent to show to the jury whether
or not General Babcock was Il member OF
the conspiracy. We don't SAY that it is
conclusive. As to that point We don't say
that this Is all the evidence we have
to submit on that point; but we must
MAKE start and introduce part of the
testimony here and part there TO estsb.
l,sh the charge. No proposition in the
law of evidence Is more thoroughly es-
tablished than that jury, or any other
tribunal, may inter from one fact the
existence of another fact. Suppose
murder has been com,
m,tted in an orchard, and q witnes;
sees = man leave the orchard with gun
on his shoulder, about the time OF the
murder, and the gun had been diseharg'
ed that does not prove that the man
committed the murder; it does not prove
that he discharged the gun. Yet tht
Court IN the trial Of the case would tel
the iurv that they may infer the existence
of another fact from the one established
This case is no exception ic
that rule, We don't claim con-
elusive proof of the payment by
the witness, but only presumptive
evidence. We act on presumption
great deal Hardly case Is tried in oul
courts that the jury Is not compelled tc
consider some Presumptive fact. If the