half past ten when the transaction took place in Thomas street; he speaks upon belief, not having resorted to a watch or clock upon the occasion. I would appeal to your own tried and frequent experience on this subject; I would venture to say, if any of you were called upon to say what the hour is at this moment, you would all mention different hours or parts of hours, and that not one of you would name a time that would not be refuted by looking at his watch, and in your watches would be found perhaps as much variety as in the several guesses you should make yourselves; nay, even the public clocks of the town do not agree. Then see what the supposed contradiction is - he was in company with a poor sickly man, who was anxious to get to his bed, which he could not do till he had first got rid of his friend, that friend too (the prisoner) something intoxicated - the night advanced the state of his mind calculated to make the time hang heavy and appear long- he is of opinion, it was half past ten o'clock before they separated. He did not say it was so by his watch he did not refer to a clock, and, if he had, it might have misled him his computation then might also deceive him. Gentlemen, you cannot but be of opinion, that two men, intending each of them to speak truth, may differ in the hour at which a shot was fired, or any other fact happened, and may, of course, without fraud or crime or moral falsehood, give a different, and one of course innocently a false account. -But what is the inaccuracy here? it is, in my humble judgment, such an inaccuracy as sets up the witness, Butler, and his credit, instead of putting them down. Does not the prisoner know at what time he was apprehended, as far as the time could be ascertained? - And is he to be charged with suborning a witness to state a fact which is utterly inconsistent with his defense? If the defense were fabricated, the witness would ask, "what time am I to state you were with me?" and that time would be made correspondent with the other circumstances the witness would have been tutored to state an hour or time that should not be contradicted and refuted by the known and indisputable fact of the prisoner's being in custody at the time he should be said to have parted with the witness. But no such thing is done; no preconcerted accuracy is resorted to, and you, gentlemen, can best collect the truth from the evidence which has been given. The difference between the witnesses is, that lieut. Brady states the prisoner to have been arrested at half past ten in Thomas street; Butler states him to have left Abbey street at half past ten; this amounts to a variance evidently proportioned to the time the prisoner would occupy in walking from Abbey street to Thomas street; twenty minutes would be a large allowance for that purpose; either of the witnesses may easily be mistaken to the amount of twenty minutes; the error may be all on one side, and it is impossible to decide upon which; or both parties may be equally mistaken, each to the amount of ten minutes. I have said thus much upon this subject upon the place where the prisoner was found on the direction in which his face was turned, and the species of light by which the soldier attempted to justify the accuracy of his eye; because, taking all these circumstances together, it is impossible but they must raise a doubt in your minds. . . . I will not undervalue your understandings and your hearts so much as to believe it possible, but that everything taken together-the utter impossibility of accurate vision in the soldier the insignificance of the difference, or inaccuracy in point of time the consistency of the prisoner's case with his occupation-. . . I say, taking all these a Mr. Solicitor-General. - My Lords and Gentlemen of the Jury: . . . In this case, no questions of law or difficulties in matter of fact arise. The only question for your consideration is "what part the prisoner took in the insurrection of the 23d of July?" In order to ascertain that, I will first call your attention to the evidence which has been given upon the part of the Crown, and then to the exculpatory evidence on behalf of the prisoner. It appears, that at half past nine o'clock, a party of the army arrived at Thomas street. . . . It appears, that this firing kept up, and which from its nature spread a continued glare, not sudden like a volley, but constant, the men firing one after another, afforded sufficient degree of light to distinguish objects. The witness Watt was upon the left of the division, next the flag way, and the prisoner was upon the flags. The soldier did not observe him till he came close, which is accounted for, not from want of light, but that the attention of the soldier was directed toward the enemy in front, rather than to the place where the prisoner was. The prisoner approached within a yard, when he was called upon to stop ;at the time he was thus called upon he was armed with a pike, which was described as a white pole. Is there any doubt, that the witness could distinguish that that weapon clearly, when the firing was going on in front, and lamps were on the same side of the street with the prisoner? Is it credible or doubtful in the slightest degree, that a soldier could see the weapon under such circumstances? But see how he is fortified by the other witness, North; he heard something fall the moment the first soldier called out; and a pike is found at the feet of the prisoner. The first soldier called to the prisoner, and there being only a short interval of space between them, he stepped out and seized the prisoner. North at the same time heard the pike fall, and there was no other person near the prisoner who could throw it down. Can you believe that the soldier threw it down? and therefore when the learned counsel insinuates, that some other person threw down the pike, he must mean the soldier, which you cannot believe. Watt and North both appear to be men of very clear understandings, more capable of ascertaining and describing facts accurately, than usually occurs in their rank of life. . . Thus is the evidence for the Crown of that kind and character that you cannot well refuse your assent to it. The veracity of the witnesses is not impeached, and it is only said, that they may be mistaken. But it appears to me that there is no circumstance in the case upon which that allegation can be supported. The two witnesses correspond in their testimony, and all they say is irresistibly corroborated by the conduct of the prisoner himself, in making violent resistance, not only at the moment of his arrest, but long after he was in the custody of the king's forces. Such, gentlemen, is the case, as resting on the evidence given by the witnesses for the Crown. At a quarter past nine, Kearney tells you, he and the prisoner separated. Where does he go? To a baker in Abbey street — he arrives at Butler's, and stays with him till half past ten so that there is no mistake by Butler with regard to the time, as alleged by the prisoner's counsel; he and Kearney agree and tally exactly; at half past nine, he quits one and arrives with the other; so that the inconsistency which was relied upon to prove there was no confederacy amongst the witnesses, is not founded, because they are perfectly consistent. - But, says Mr. Ball, it would be ridiculous to fix upon an hour, when the soldiers, who took the prisoner, could ascertain it.And why keep back the prisoner from Thomas street?-Because they knew that all the outrages, all the murders of that melancholy night, were committed in Thomas street before ten o'clock - so that upon that account you can reconcile their anxiety for keeping the prisoner out of Thomas street till after ten o'clock. The prisoner produces no companion from Abbey street to Thomas street, because there were none there but such as were implicated in this transaction, and it might not be convenient to them to appear. . . Then how does he get into the situation in which he is found? It is impossible he could but as one of the rebel party. In addition to all this, it appears, that the house, to which he alleges he was going, is situated upon the opposite side of the street from the place where he was found. But when I allude to the circumstance of his going to Gilligan's house, I must remind you, that the declaration of the prisoner himself is the only evidence in the case to support the assertion. When a man makes an assertion, which becomes material upon his trial, and has witnesses to prove it, if true, it is not to be regarded unless the witnesses are produced. . . . I have attempted to draw back your attention to the evidence on the part of the Crown. It is a plain and simple narrative against which there is no objection, and I have gone through the evidence of the prisoner, only to meet the observations of his counsel. ference, from which you are called upon, if you believe it, to pronounce him an innocent man. It appears that the prisoner is an inhabitant of Naas, a town situated sixteen miles from the city of Dublin, and it certainly was incumbent upon the prisoner, not being an inhabitant of Dublin, being found in such a place, and upon such an occasion, to show why he was in the city at that time. His defense is offered to show, that he was in the city upon an innocent occasion. With regard to the hour, at which the prisoner (if you believe his witnesses) was in Abbey street, it differs from the time stated by the witnesses for the prosecution. If you believe the testimony of lieut. Brady, the prisoner was in Thomas street at a much earlier hour than he could have been, if the witnesses on his part swear true. It is for you to judge with regard to that contradiction; and if you should believe the witness for the Crown as to the hour, the conclusion which would naturally follow, but which is for your determination, is, that the defense is fabricated. The material fact to ascertain is, whether the prisoner was found in Thomas street armed with a pike against the king's troops. That he was there is not disputed; that he struggled is not disputed; and the only circumstance upon which a shade of doubt is cast, is, whether he had a pike?- That is not contradicted by direct evidence; nor could it from the nature of the case. But it is controverted by inference - by showing, that he came from Naas with an innocent intention, and therefore was not likely to have a pike. There is one thing remarkable, however, that though he said he resided for the occasion in Thomas street, there is no evidence that he did reside there. He himself said, that he lodged at Gilligan's in Thomas street, but there is no evidence of the fact. . . . If you believe from his own assertion, that he lodged in Thomas street, and that he was in Abbey street at the time his witnesses say, and notwithstanding what the witnesses for the Crown say, that he innocently went to Thomas street, and was standing innocently there during the action. or if you have any reasonable doubt of that you ought to acquit the prisoner. But in doing so, you must reject the testimony of the soldier, and many circumstances that flow from the evidence of the prisoner. The jury retired, and in five minutes returned a verdict of Guilty. . . . Prisoner. - I am as innocent as the child unborn. I leave it to my God, I never saw a pike in my life. He was executed the following day in Townsend street. 351. WM. C. ROBINSON. Forensic Oratory; a Manual for Advocates. (1893. p. 210.) . . . The cross-examiner may attack a willful liar by attempting to involve him in contradictions with other witnesses whose credibility is above suspicion. The points of inquiry selected for this purpose must be related to the cause, and either conclusively established by evidence already offered, or capable of being proved by that which is about to be produced. They must also be such as the witness clearly knows, or clearly knows that he does not know; for the contradiction sought is one that demonstrates the liar's evil will, and therefore has no reference to matters of opinion, about which upright witnesses may widely differ, nor to long past sensations into which errors of memory or perception may have innocently entered. On any of these points the cross-examiner may test the witness by questions which do not disclose their actual purpose, in the hope that he will make some statement by which his disposition to pervert the truth will be revealed. A single instance of willful falsehood will be sufficient to destroy him. The maxim, "falsum in uno, falsum in omnibus," expresses not merely a rule of law, but the natural instinct of all honest men, who will unhesitatingly repudiate a witness when once his voluntary untruthfulness appears. 352. CHARLES C. MOORE. A Treatise on Facts, or the Weight and Value of Evidence. (1908. Vol. II, § 1073.)... "Falsus in Uno, Falsus in Omnibus." It is a maxim that if a witness willfully and corruptly swears falsely to a material fact in the case, the Court or jury is at liberty to disregard the rest of his testimony, except in so far as it may be corroborated by other credible evidence. It is said that there is no maxim of the law of evidence requiring greater caution in its application, than that of "falsus in uno, falsus in omnibus." A witness may, under great temptations, and in some isolated case, swear falsely; and yet, where the temptation is removed, where there is nothing to operate on his hopes and fears, his passions and prejudices, where he has no interest in the matter except to tell the truth, his testimony may be of great value. . . . In a bastardy case in Massachusetts the following admonitions in the Court's instructions to the jury were pronounced free from objection: "It is not true that because a witness is inaccurate as to some of the circumstances and incidents connected with the story, the story is necessarily false as to the main fact. Illustrations might be given without number of this principle. If one of your friends tells you that he has been fishing, and proceeds to tell you how many fish he caught, and what they weighed, you may distrust somewhat the accuracy of his count, or the correctness of his scales, without disbelieving the main fact that he went fishing. The weight or significance of such discrepancy is always a question of fact. It may be such as to induce distrust of the whole story; but it is not necessarily so. . . Strictly speaking, this maxim is not applied to testimony merely because the witness has committed innocent mistakes. . . . An unintentional mistake respecting a material fact may, and usually does, affect the general credit of the witness to a greater or less degree; but it is often the case under such circumstances that no sufficient cause exists for disregarding his testimony respecting other material matters. . . . Nevertheless, if a witness is proved mistaken in all his statements except one which is incapable of investigation, the Court is quite likely to apply the maxim in an inverted form by concluding that he is mistaken in that one. . . . If a witness testifies emphatically to a series of events identical in character, and is found to be mistaken as to one of them, perhaps the Court will say: “But he swears to this as positively as to the others, and therefore his evidence, as to all, should receive some corroboration before implicit reliance can be placed upon it." E.g. where a witness testified that no whistle was blown or bell rung by a locomotive on approaching a crossing, and it was clearly shown that he was mistaken as to the whistle, the Court remarked that he "was equally liable to be as to the ringing of the bell." 353. JOHN C. REED. Conduct of Lawsuits. (1912. 2d ed. § 512.) We think that this subdivision [Contradiction] occupies the largest place of all in practice. There is serious disagreement of testimony in the large majority of cases, and it is nearly always the main problem to deal with. To mention but one instance of frequent occurrence, the parties, with their families, are often arrayed against each other. We drop the thread of our connection for a moment to say that it is better for you, if you can, to show that there is actually nothing but apparent clashing with your side, or that both sides can be reconciled in a way to save your case. Jurors, and judges too, trying facts, are loath to discredit witnesses. But if a conflict lies right in your way, you must needs try to show that the evidence of the other side on the point is to be disregarded, while yours is to be accepted. Where the former is palpably suspicious or grossly improbable, you will have but little trouble. But the common difficulty is where the colliding witnesses are all honest and intelligent, or where there are circumstances strongly opposing you. Here you must have the acumen to find the turning point, and the talent to show with patience that what seems to be the superiority of the adversary upon it is deceptive, and is really unequal to your side. One witness of yours, from his greater experience upon the subject, his better means of knowing, his more complete agreement with the probabilities and the indisputable evidence, or a stubborn and speaking fact in your favor, may decidedly overbalance the more numerous proofs offered. 354. HANS GROSS. Criminal Investigation. (1907. transl. J. and J. C. Adam, p. 104.) The witness may pretend that a certain man has read him something, whereas the man in question can neither read nor write. Again, a witness affirms that his house was in danger of catching fire, although it was not in the direction in which the wind was blowing at the time; or he |