66 of experiments made with a view to test the possibility of the alleged recognition, and the conclusion he drew was that all stories of recognition from the flash of gun or pistol must be founded upon a fallacy.' There were many circumstances in the case calculated to produce a strong impression on the young woman's mind that the prisoner was her assailant, and she doubtless mistook the impression so created for ocular demonstration. On the other hand, it is asserted in Taylor's "Medical Jurisprudence" (4th ed. 1894, Vol. I, p. 729) that from information which the author was able to collect on this point, there appears to be no doubt that an assailant may be thus occasionally identified. No doubt it depends largely upon the quickness of individual sight. 299. CAL ARMSTRONG'S CASE. [Printed post, as No. 339.] 300. THE BEER-WAGON CASE. of Witnesses. Illinois Law Review. I remember two cases in my own experience, both of which have always been very interesting to me, as they illustrate how easy it is for one to be mistaken as to the real facts in a case which he has studied well. The first one was a personal injury suit where a boy about twelve years of age was suing for the loss of a leg, claiming to have been carelessly run down by the driver of a brewer's wagon while crossing South Halstead street upon a crosswalk. In preparing the defense of this case I several times talked with the driver of the wagon which was alleged to have caused the injury. He appeared perfectly honest, but insisted that he knew nothing of the accident, and that he did not run over anybody. He was a purely negative witness, and in the presence of anything like a strong array of positive evidence, his testimony would manifestly amount to nothing. Just before the trial, he came in with a new idea; our evidence showed that the accident had happened at 3.30 P.M. on the 17th of December, 1896, one of the shortest days of the year. This driver said that he had discovered and could prove by other witnesses in the employ of the defendant that while he ordinarily passed the point of the accident at 3.30 o'clock P.M., on this particular day he went to a (AMOS C. MILLER. Examination 1907. Vol. II, p. 247.) funeral and left the brewery an hour late, which brought him to the point of the accident at 4.30 P.M., an hour after the accident. I replied, "Then your story is that on 364 days of that year you passed the point of the accident at the hour of the accident, but on the 365th day you passed there an hour later." He said that was right. I did not believe it; and my fear that we were in the wrong was strengthened by this apparent willingness of the person charged with the delinquency to put forward an unbelievable story; and I went into the trial not very hopeful. What then was my surprise to hear the plaintiff's counsel, an able and well-known trial lawyer, state to the jury in his opening statement that he would prove that the accident happened at 4.30 P.M. That he would show out of the mouths of the defendant's witnesses that this driver, while he ordinarily passed that point at 3.30 P.M. was late and did not get there until 4.30 P.M. As a matter of fact, that driver had told me the truth, and the plaintiff's counsel by a careful investigation had learned that it was the truth, and had therefore shaped his other testimony to meet it. I lost no time in shifting my own course to suit this sudden develop ment. As luck would have it, this trial began on the 15th of December, 1899, three years after the accident, lacking two days. In my opening statement I said nothing about the time of the accident; but in crossexamining the large number of plaintiff's witnesses I incidentally brought out the fact that it was broad daylight at the time of the accident and for more than a halfhour thereafter, and that the witnesses had read the name upon the wagon and the number of the telephone, and had recognized the driver when the wagon was almost a block away. The plaintiff's counsel put upon the stand the driver of the wagon, and showed by him that he had left the brewery an hour late. On the 17th day of December at 4.30 o'clock, just three years to a minute from the time the defendant's wagon was at the scene of the accident, I arose and interrupted the proceedings and called the attention of the court and the jury to the clock upon the wall recording the hour of 4.30, and then to the looks of things outdoors. Every one, of course, looked out of the windows. The sun had set long since, a heavy snow was falling, and it was as dark as the blackest midnight. The facts were so clear that there was scarcely room for argument. The boy had been run over, by a wagon, but not by our wagon, and the driver had been telling me the exact truth. 301. THE BOTTOMRY BOND CASE. (Boston "Transcript," July 15, 1910; reprinted from the "National Magazine.") The master of a vessel in a port in the Gulf of Mexico being in need of money borrowed it and to secure its repayment executed what is called a bottomry bond. By this bond it was agreed that if the money was not paid within so many days after the vessel arrived at New York proceedings might be taken to have the vessel sold and the debt paid out of the proceeds. The money was not paid and I was retained to enforce the bond and began a suit. Some one interested in the vessel appeared in the suit and denied that the bond had been executed by the master, as had been alleged. It became necessary to take the testimony on this point of a sailor whose name was subscribed to the bond as having witnessed its execution. In answer to my questions the sailor said that the captain called him into the vessel's cabin and asked him to be a witness to the bond, and he signed his name to it as a witness, and he spoke of the paper as the bottomry bond. The opposing counsel in a sharp cross-examination asked him how he knew it was a bottomry bond, and the witness answered that he read enough of it to know what it was. Some other skillful questions brought out the fact that when the sailor came into the cabin the captain was sitting on the other side of a table with the paper before him and the sailor sat down at the side of the table facing the captain, so that the paper was between them; that the paper was not read to him, that the captain turned over the first leaf of the paper and signed his name at the end of it, and told the sailor where to sign his name, which he did and then left the cabin. My heart sank, for I saw that it was open to the other side to say that the document lay on the table upside down to the sailor, and that his statement that he read enough of the document to know it was a bottomry bond was false, because, of course, he could not read writing which was upside down, and, therefore, his whole evidence should be disbelieved. The lawyer opposed to me saw the point also; but, instead of leaving the matter where it was, he concluded to clinch it, and taking the document he laid it down on the to be a decoction of buckeye. The glass was handed to the judge; he tasted; then to the jury, and all of them took a timid sip; and in a few minutes there was an acquittal. The bitterness had no doubt been the result of negligence with the coffeepot, and fright had caused the convulsions of the cook. Witches however have been burnt, and other women both bond and free have been convicted on evidence less satisfactory than that produced against this slave before the magistrate, and, with sadness be it said, executed. This great advocate [Alexander H. Stephens] had often delivered prisoners from the dread. penalty, and his name was in all men's mouths for his matchless tact and unrivaled eloquence. But to his immortal honor be it told that he ever counted his unfeed and unostentatious defense of this helpless slave among the proudest of his victories. 302. THE POISONED COFFEE CASE. (JOHN C. REED. Conduct of Lawsuits. 2d ed. 1912. § 403.) We add some illustrations. A master one morning at breakfast suspected that there was poison in his coffee, and he immediately accused his cook. The negro was thought to evince manifest signs. of guilt. The whole family showed alarming symptoms, and the master in his rage made the cook drink all the remaining coffee. She fell into convulsions. Of course it was poison. They all saw in the coffee grounds fragments of the fatal buckeye. The doomed slave was hurried through an examination. A lawyer, A lawyer, whose heart went out in yearning love to the poorest and lowliest in distress, inquired into her case and quietly learned all of the testimony against her. Every one who had drunk the coffee had sworn to its unusually bitter taste. It chanced that our lawyer had been lately prescribed by his dentist a decoction of buckeye for toothache, and he knew that its taste was sweet and not bitter. He was too prudent to proclaim his dissent, for, the infuriated family learning, the mob might have balked him. He waited until the trial, when he volunteered to defend the friendless woman. The court of course assigned him to her as counsel. He made all of the witnesses for the State dilate upon the bitterness which they had testified to at the examination; he almost made them quarrel with him by appearing to doubt what they said on this point bitter tasted the coffee was; they had never tasted anything so bitter. His only evidence was a glass of fluid, proven by the dentist a man well known to the jury The following is related by David Paul Brown: A young and interesting girl, of respectable position, had trusted and been betrayed. She became a mother. At the age of three weeks the child died somewhat suddenly. A post-mortem examination took place. The death was said to have been produced by arsenic, and the medical witnesses strengthened that opinion by testimony. The mother was indicted for murder, and was tried before Judge Symser, of Montgomery County, a humane and industrious and eminent judge. In addition to the scientific evidence and in strong corroboration of it, it was 66 shown that a day or two before the death of her infant the mother had sent for half an ounce of arsenic to a grocer's; that after the death the arsenic was taken to the grocer's and weighed, and had lost twentyfour grains in weight. The circumstance, together with the opinion of the chemist, presented a strong case. Neither was sufficient in itself, but together they were dangerous. Of course the cross-examination as to the weight was very rigid and severe. Upon this particular point it ran thus: "When the arsenic was purchased, how did you weigh it?" "I weighed it with shot." "How many shot?" "Six." "Of what description?" "No. 8." "When it was returned to you, did you weigh it in the same scales?" "Yes." "Did you weigh it with the same shot?" "I weighed it with shot of the same number, for I had no other number." "How much less did it weigh?" "Twenty-four grains less." It was plain that the testimony bore hard upon the prisoner, but at this stage of the case the court adjourned. Immediately my colleague (Mr. Boyd) and myself visited the stores of all the grocers and took from various uncut bags of No. 8 the requisite number of shot, subjected them to weight in the most accurate scales, and found that the same number of these different parcels of shot varied more in weight than the difference referred to as detected in the arsenic at the time of its return. The shot, the grocers, the apothecary, the scales, were all brought before the court. They clearly established the facts stated. . We give another example from the practice of a celebrated lawyer. Action for a cargo of goods sold on credit. Plea, that plaintiff had represented the goods to be mer was the chantable, and that defendant, relying on the representation, had bought and shipped the goods to a foreign market, where he suffered great damage because they proved to be unmerchantable. The main witness for the defense appeared to be reliable. He had been employed in the ship that carried the goods, he explained how they were made of bad material, not fit for use, and he alone testified to the false representation alleged. The counsel who had brought the action and prepared the case said to Choate, whom he had called in at the last moment, that the witness inventing. "No," replied leader, "he is truthful, but mistaken." He began his cross-examination by establishing a friendly understanding. He made the witness report the appearance of the seller of the goods as to size, dress, complexion, and whiskers. The picture given was so unlike the plaintiff that it became manifest he had a different person in mind. When he was made to name the ship, the plaintiff easily proved that his goods were sold two weeks later and shipped in another vessel; whereupon the defense collapsed. At the beginning of the trial, Choate, noticing the indignation which the defense excited in the plaintiff, said of him to his associate, "He is honest, and we shall find our way out of the scrape." The certainty with which he discerned the honesty of the plaintiff and the witness at the first glance made him see that the only possible explanation of their apparent conflict was that the latter had mistaken a seller of other goods for the former, solution which had not occurred to the associate, who had had sole charge of the plaintiff's case until the trial. 303. LADY IVY'S TRIAL. [Printed post, as No. 348] a 304. CAPTAIN BAILLIE'S TRIAL. (1778. HOWELL'S State Trials. XXI, 216.) [Captain Baillie, Lieutenant Governor of the Greenwich Royal Hospital for Seamen, had published a pamphlet exposing the abuses in its management, due to political spoilsmen on the Board of Directors. After a prosecution for libel against Captain Baillie had fallen through, the House of Lords undertook an investigation into the abuses. One of the charges was that "in many parts of the clothing, such as shoes, stockings, linen, beds, washing, etc., there are great abuses."] . . . Thursday, March 25, 1779. Whether there have been any abuses in the linen in Greenwich Hospital? There have been many complaints made to me by the pensioners of Greenwich Hospital, that the quality of the linen has been very different from what it used to be, that it has decreased in size as well as in goodness. Inform the House whether you made any experiments, to know whether it was decreased in size? In consequence of that information, I sent the proper people, as I thought they were, the boatswains and nurses, into the different quarters of the hospital, to measure the linen throughout the hospital, in particular in the infirmary, where I thought it was of the most consequence; the persons who measured the linen there, brought reports to me that all the men's sheets, upon an average, were deficient in half a yard in every pair, one with the other; some wanted a yard, some three quarters of a yard, and the average about half a yard upon the whole, generally throughout the hospital. Is there anybody here that can speak to that?-There are the people here who measured it; they likewise measured the shirts; Thomas Field measured them. . . Thomas Field, one of the boatswains, called in. Did you measure any linen belonging to the hospital at any time? - Yes. -I How much did you measure? measured 388 pair of sheets in the infirmary. How much did they measure? -They measured half a yard short and better in each pair of sheets. Half a yard of what?-Of the cloth; I had been told by the lieutenant governor, that they were to be two yards and one half long, five yards in each sheet. Upon an average, how much did they measure short of that?— Better than half a yard. In each pair, or in each sheet ? - In each pair. Upon what number of sheets did you say you made this measurement?-388 pair. And upon each of the 388 pair, if I understood you right, there was a deficiency of half a yard? - There was in each pair. Did you measure any other linen? Yes, all the boatswains in the House had orders to measure the linen that belonged to the pensioners that were in their division. Did you measure them?--I measured the linen that was in the division that I belonged to; they run 95 yards short upon shirts and sheets, 160 sheets and 160 shirts. What you mentioned before related to the infirmary? Yes. What you speak of now relates to your ward? - Yes. And in your ward how much did you find short in the sheets and shirts-95 yards. What do you imagine was the allowance for shirts?-I was told three yards and a half. Did you measure the linen in any other wards?-No, none at all but the division I belonged to, and the infirmary sheets. (Thomas Field withdrew.) Mr. Godby, the Steward, called in. |