The evening telegraph. (Philadelphia [Pa.]) 1864-1918, June 10, 1871, FOURTH EDITION, Image 1

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VOL. XV. NO. 137.
Speech by General President Welch.
At the annual meeting of the stockholders of
the New Jersey Kallread and Transportation
Company, held at Jersey City, June 8, 1871,
Ahbel Welch. Esq., the General President of
the consolidated companies, being called upon,
spoke as follows:
Qenttemetuk yon already know, a negotia
tion has been made with the Pennsylvania Rail
road Company for the lease to them of your
canal, railroads, property, and franchises for
999 years, at such rent as will give you a
clear annual dividend of ten per cent, on your .
The acceptance or rejection of this offer be
longs, not to your representatives, but to you
alone. I have, therefore, aided in the prepara
tions to bring the question before you, as well
as In securing such provisions as most effectu
ally to protect your Interests; scrupulously
avoiding, myself, as far as possible preventing
in others, any action or public expression tend
ing to take the decision out of your hands. I
have also advised officers and employes not to
mingle in the conflict about the lease, since it
has come before the stockholders; as any hos
tility incurred by them as partisans impairs their
usefulness as officers.
When it was proposed that the Board of Direc
tors should express their opinion in favor of
the lease, I opposed it partly because I thought
the property worth more than we were to get
for it, and partly because I thought it was not
a question for the directors, but for the stock
holders only.
I therefore take this occasion to say a few
"words about the policy which the present ad
ministration has pursued since the consolidation
of these companies.
This policy has been to make the avenues of
traffic between the two great cities of this con
tinentthe main trunk through which the
traffic of the South and Southwest seeks the
commercial metropolis fully adequate to their
purpose; to make them perform all the duties
of their location, to do this at the least possi
ble expense; to end the thirty years' war be
tween some of the companies and the public;
to guard against competition, or to make com
petition harmless, by the sufficiency and supe
riority of our facilities, and the moderation of
onr rates, and consequent Increase of business;
and to continue to show that, if corporations
have no souls, they may have integrity and
honor; and by all these means to add greatly to
the amount, and especially to the certainty, of
yonr dividends.
Of conrse the increase of facilities required a
large increase of investment. This was not
only wise, but unavoidable. Our railroads were
calculated for a small high-priced business, and
in that state of things the threatened competi
tion, prevented only by our Improvements,
wenld have been ruinous. The aim was to pre
pare for and develop a heavy business, which
could be but little affected by competition.
Though our increase of investment is so great,
though some of the expenditures have not yet
had time to become productive, though the
work and materials used in the maintenance
and operation of our roads have been from
60 to 80 per cent, higher than before the war,
though the public demands for more luxurious
accommodations have added greatly to our
expenses, and though many of the rates have
been very much reduced, yet the per
centage of profits now made on the
whole enlarged investment of our four
companies is not greatly different from the
percentage on the former small investment.
The greater proportion of stock receiving ten
per cent., to debt receiving six per cent., and
the great increase of taxation, the gold pre
miums, etc., have prevented this equality from
appearing in the dividend fund. The United
States taxes since the consolidation have ave
raged something like one-and-a-half per cent,
on onr stock more than they probably will here
after; and our works, rnn down at the close of
ihe war, are now in better condition than ever
Onr railroads have never been calculated for
a heavy freight tonnage. Tet it is upon such
tonnage, carried in large quantities, at low
rates, and small profits per ton, that the most
prosperous roads make their gains; and it is
upon such that ours must mainly rely hereafter.
The net profits of the Pennsylvania Railroad
Company in 1869 were more than three times as
much per mile run of trains with freight as with
passengers. Their profit for the year was nine
times as much on freight as on passengers; ours
only two-thirds as much on freight as on pas
sengers. A fully developed business on our roads would
, doubtless differ in its proportions from that on
the Pennsylvania Railroad, but it would differ
still more from the present business. Why
have we missed this important and, In our
future, all-essential branch of traffic? Because
we have not yet fully expiated the errors of
When the companies were consolidated, and
their mutual jealousies were no longer in the
way, we fonnd the transit duties which in the
early inexperience of railroad legislation and
railroad management had been laid upon us, a
legal prohibition of a heavy freight traffic. To
do such work cheaply, expensive preparations
must be made, and large quantities carried; to
get large quantities, rates must he low. But as
the law stood, every cent of profit, at rates not
very unusually low, would have been paid to the
State in transit duties.
As soon as we succeeded in getting that perni
clous system abolished, in the spring of 18G9,
we endeavored to stimulate cheap freight, and
succeeded in 1870 in more than doubling the
way tonnage; it being in 18G8, 819,000 tons, and
in 1870, 665,000 tons; or, including coal, a great
deal more. In the four years since the cousoll
datlon the whole tonnage has been trebled.
But one difficulty remains. A large part ot
this heavy tonnage seeks the shores ot the
Hudson river. Much of it ought to remain on
the west bank to await final distribution ta the
consumers; for if taken at once to New York
and distributed afterwards, the extra cartage,
storage, handling, and often extra ferriage costs
as much as hauling over 5JUU miles oi railroad
Now, valuable as our improved property in
Jersey City is for other purposes, It is not avau
able for this. We have no place on which to
store heavy goods awaiting distribution.
Along our route there are many favorable
locations for manufactories, u we had a tuna
Lie place of deposit for their products at the end
of our road.a saving would be effected (partly to
the Company, partly to we customer) oi more
man half the present freight to New York,
With such a place of deposit we could adopt
low rates. Our local tonnage would become
very great, and sure of the profits on that, the
evils of competition would not be at all in pro
portion to our traditional nervousness about
them. Our way business now is not far from
half of all.
Fully Impressed with these views (though
circumstances did not formerly permit their ex
pression), feeling that the salvation of the com
panies required a good freight terminus, I long
ago selected Hareimus Cove as the best, and,
latterly, the only remaining available site for it.
As soon as that essential step In the grand move
ment the consolidation was effected, meaas
were taken to secure it. It was secured just in
time to prevent it from falling into other hands.
It is to reach this seventy-five acres, now
flowed by the tide, that the Pennsylvania Rail
road Company offer to lease our works and pay
us ten per cent. But it is a great mistake to
suppose that its purchase and improvement
were intended mainly for the business of that
road, which gives us only a quarter of our ton
nage. It is just as absolutely vitally necessary
for our own local business.
This Improvement was of such magnitude,
and there were so many other urgent demands
for expenditures, that it has been postponed to
the present time. It was, perhaps, to be ex
pected that those not practically acquainted
with railroad transportation on a large scale,
and with the rapid growth of traffic when it has a
chance to grow, would hesitate about going
into an expenditure of three millions, required
for the development of this property.
The purchase of Harsimus was not a land
speculation; not a lucky accident; not merely
an engineer's project to bring rail transporta
tion, shipping, lighterage, ferriage, cartage, and
storage all into contact, and to save one, two,
or three dollars a ton, and extend the commer
cial metropolis of this hemisphere to the west
bank of the Hudson; not an instrument to secure
a particular alliance; but an essential means of
creating a great freight traffic, and carrying out
the policy which has always been kept in view.
If we had made the improvement at once we
should probably now get twelve per cent, rent
instead of ten; or make twelve per cent, our
selves. And we should have been able to carry
out much more fully than we have done (and
we have done something in that direction) our
liberal pslicy.
Should the lease fall from any cause, we can
not stand still. We should lose no time in mak
ing this improvement; making it ourselves
not in connection with anybody else, but re
taining all the power it confers.
Then, with our unequalled location, our
ramifications among the sources of business,
manufactories stimulated by low freights, and
favorable locations springing up along our
route, the business of the South reviving, and
that of the whole country growing, with legal
trammels now removed and valuable rights ob
tained ; we, opening our doors to all connect
ing lines and ail other parties on fair and equal
terms, and giving them assurance for the future
by permanent contracts; lifting ourselves out of
any old grooves that no longer run in the right
direction; adopting a single simple organiza
tion in place of the present provisional govern
ment; shunning the tainted air of legislative
ante-chambers; then we doing this i the
lease falls through, we shall have little r bon
to regret the failure.
A Pleasant Party of 'Respected Citizens"
Lyucn a Murderer.
Oconto, Win., Letter to Orten Bay Advocate.
Tbere was a dance In this city Tuesday evening at
Turner II all. Owing to some previous disturbance
some parties were snut out from the halL one man
by the name or Luawig wear armea niniseu witu a
revolver and a long kufe, and announced his deter
mination of protecting the place or Injuring some
one before the evening was over.
At about 11 o'ciock at nignt ne rusnea aown toe
stairs from the hall, and in some fracas, drew his
sabre and severely cut a man in both arms. Then,
running out on me piauorm, wnere Beverai were
standing or sitting, he drew his revolver, and at
some slight word of provocation, fired. At this, those
sitting there began to run, and he fired again. This
time, Joseph Kuelle, who had been quietly sitting on
the steps, while, It is supposed, In the act of running
away, was shot through the head. Ue was not found
for some minutes. Then Nenr was arrested by au
ottlcer, assisted by parties arriving, and, after belug
roughly handled and narrowly escaplag lynching
through Interference of Mayor Smith and others, he
was taken to jau.
From this time popular feeling began to grow
more Intense. The next morning a crowd sur
rounded the jail, and towards noon an examination
was held by K. II ai t, Esq., and the prisoner com
mitted, with directions to be taken to the Brown
county jail on account of the Insecurity of our pre
sent miserame structure, ue was to go dj toe
Northwest at noon, but by that time a crowd,
headed by the frantic father ot the boy, seemed de
termined to prevent his removal. Again, tarough
the persuasion of the mayor, the father and crowd
dispersed, and the prisoner was not removed ; and
many believed that the people would reflect aud let
the law take Its course.
At about dusk of last night the mob gathered
again, led by the exasperated rather of tue mur
dered boy, numbering something like five hundred,
broke open the Jail, tore the prisoner out, dragged
him through the streets a short distance beyond the
MethodiBt church, and hung him. There was no
sympathy for the prisoner. Man, woman aud child,
high and low, were sattslled he ought to die. It is
currently reported that he had acknowledged he had
killed others elsewhere, and this was the third or
fourth murder he had committed.
A Passenger Train on the Western Penu.
sylvaiila Railroad Saved from Wreck.
On Thursday afternoon, as the express train on
the Western Pennsylvania Railroad was proceeding
eastward, and rounomg a curve aDout mia way be
tween Leechbunr and Apollo, in Armstrong county.
the engineer observed a woman on the track, waving
her apron violently In the air. The first thought was
of dancer, and be Immediately applied his brakes
and got the train stepped just In time to prevent a
terrible accident, as a mass of rock, weighing about
fifteen tous, had fallen upon the track a tew rods
from where the woman had given the signal. When
the train stopped, the passengers were not long lu
ascertaining the cause, and appreciating the aoble
conductor the poor countrywoman to whose pre
sence or mind they oweu meir rescue irom a buock
in it CBknair r.
Colonel Hicks, the conduotor of the train, at once
consulted with some of the passengers, and in a short
time a purse of twenty dollars was made up and pre
Rented to her. She ir&ve her name as Mrs. Frank
A passeDger on ihe train, from whom we obtained
our information, desires that we should commend
the case of this humble woman ti the ortlcers of the
corosany. Had It not been f -r her waruing signal,
t.h train would have been danlied into the rock, aud
KPrinna rlmnHfffl to the train. If not to the paioeuirera.
would have been the consequence. ttiubwg Cow-
Ttmpus fugit Fly time.
Th "Pai-iflo nmiu" milpt husbands.
Negroes are to be placed ou the Cincinnati
pouce lorce.
Eleven white girls married colored men in
Germany has nineteen zoological gardens
one bear, Bismarck.
The thirty-fourth year of Queen Victoria
reign ends June 20.
A glass of soda water, with syrup, costs the
m anhfuiliF&.i stent Ant Ali.rlor
Mies Burdett Coutts once had the offer of
the hand and heart of the Duke of Wellington.
A. Hcvcro Lesson,
Case of Dr. 0. W. Reid.
Judgo 2?azson's Decision.
Sent to the Penitentiary
For Six Years and Five Months.
Foints of LaAV Involred.
Court of Quarter Stations Judge Pax ton.
In the case of Dr. Oliver W. Reld, who was in
January last convicted of performing a criminal
surgical operation, Judge Paxson this morning,
upon a motion for new trial, delivered the following
able opinion, overruling the motion aud settling a
most vital question of law, as to the competency of
a wife to testify In such a case :
Twenty-six reasons In support of the motion for a
new trial have been tiled in the above case. The
first, second, and third of said reasons refer to an
alleged error of the Court in allowing an investiga
tion in the presence of the panel of jurors into the
reason why au officer of the court had been unable
to serve a subpoena upon one Anne McKeon, a wit
ness i or me uommonweaiiB. xne tacts are mat
prior to the Jury In the above case being impan
elled and sworn, an officer of this court was called
and examined publicly In court In regard to the ab
sence of the said witness and his efforts to procure
uer mieuaauue. uue oi me co-aeienaants, wasn
ington Faynter, was shown to have been In her
company the previous evening. The counsel for
Dr. Held objected to a public examination Into this
matter In the hearing of the panel of jurors, which
objection was overruled bv the Court. We Art not
see any error In this. Examinations of this nature
are usually and necessarily in public, and if we were
to sustain this objection it would be practically Im
possible to make any examination as to the absence
of a witness without withdrawing the whole panel
of jurors from the court-room.
The fourth and Dim reasons allege error In over
ruling the prisoner's challenge for cause as to
Thomas Stephenson and Thomas Hall, who were
called as jurors. The ground of the challenge in
lauii cams wan mat tuo juror naa Deen present in
court during the Investigation above referred to.
The prisoner's counsel called two of the reporters of
the press who were in court at the time; another
testified to the fact of such investigation having
Milieu puwc in iiue presence ui tue panel OI jurors,
and npon this evidence they rested their challenge.
They did not examine either Juror to ascertain It he
bad heard what had transpired at the time. It was
quite possible the attention of the particular Juror
was attracted by something else, and that he did not
hear one word of th testimony of the officer ; and
even if he had, the challenge for cause could not
have been sustained npon that ground. In a capital
case, where the rule upon this subject Is enforced
with more stringency, it Is not enough to disqualify
a juror that he has read and heard full accounts of
the i opposed offense. It must be shown that his
mind has received thereby impressions as to the
guilt or innocence of the accused which will In
fluence his judgment notwithstanding the evidence.
In this case there was no evidence that the Juror
even heard that which It was alleged might bias his
mi do. xms cnaiienge is wholly unsupported by
either precedent, authority, or reason.
The sixth and seventh reasons allege error In per
mitting the Commonwealth to challenge Andrew J.
Damon, a juror, after the defendant bad exhausted
his peremptory challenges. It is to be noted that In
stating these reasons the learned counsel have as
sumed the very point to be decided, viz., that the
District Attorney had waived the challenges
allowed him by law, when he came to challenge this
juror, in oraer, tnererore, mat tne grounds or my
ruling upon this point may be understood, I will
siate the facts substantially as they occurred.
When the clerk was about to call the jury Into the
box, the prisoner's counsel asked Instructions of
the Court whether they should challenge
singly, i. ., as the jurors entered the box, or make
their challenges when the box was full. As there
was nothing before the Court upon which a ruling
could be had, I declined to give any advice as tA the
mode of challenging. The prisoner's counsel then
commenced challenging as the jurors' names were
called, as In capital cases, and when the box had
been tilled their challenges were exhausted. Up to
this point the District Attorney had not exercised
his right of challenge, nor had he been called npon
to do so. When the box was full he challenged the
juror Damon, which was objected to by the prison
er's counsel npon the ground that the District
Attorney had waived his right of challenge. I
overruled the objection and sustained the chal
lcD&e It was contended that under the 88th section of
the criminal procedure act, which provides that all
challenges In criminal proceedings shall bs alter
nate, the Commonwealth first challenging one per
son and then the defendant challenging one person,
the District Attorney waved h's right of challenge
because he failed to exercise It until after the prison
er bad exhausted his challenges; and the case of
The Com. vs. Frazler, 2d Brewst., 4)0, was cited In
support of this view. In Nartzeli vs. The Com., 4
Wright, 46, however, It was held thit this rale does
not apply to capital cases when the jurors are chal
lenged as they enter the box, for the reason that In
such case the Commonwealth's challenges would be
exhaused upon the first four Jurors. The Supreme
Court Ih Nan sell vs. Tne Com. limit the
rule requiring alternate challenges to "civil cases
and mlbdemeanors, where the Jurors are all called
into the box before the challenges begin." The
Com. vs. Frazler was a case of misdemeanor, and
the Jurors were all called into the box before the
challenging commenced. Here the offense charged
was a felony, and the defendant .challenged as the
jurors entered the box. If this mode of challenge
was proper, tnen the case comes within the rule in
Nar'zell vs. the Com, If, ou the other band, the
challenging should not have commenced until after
tbe box bad been filled, the Commonwealth oould
not be deprived of her challenges by the act of the
prisoner in challenging out of time. The Common
wealth can only be held to alternate challenges
When the box is foil.
The eighth, ninth, and tenth reasons bring us to
the vital question In this cause, viz., whether the
wire of a co-defendant not upon trial can be ex
amined as a witness for the Commonwealth. It is
important, because the case depends uoou it: It Is
still more important from the tact that it involves a
pnnciple of law never yet decided in Pennsylvania,
so far as I am Informed, and the authorities In re
gard to which eUewhere are conflicting and unsatis
factory. Much as we regard the interests of the
parties in this particular case, they fade out of sight
when we come to settle an lmportaut principle by
which the rights and liberties of hundreds of others
may be hereafter atlected.
1 he defendant was Jointly indicted with one Wash
ington Fainter, under the aud 6tt sections of
the Criminal Code, with procuring aud attempting
to procure by the use of certain Instruments aud
drugs npon the body of one Anne McKeou, then
pregi ant end quick with child, a miscarriage. On
the day, or the day but one before the trial, Wash
lnptou Paynter, one of the defendants, was married
to the said Anue McKeon, who was the most im
portant witness for the commonwealth, aud vlth
out whose testimony the charge could not have
been made out When the case was called for trial,
the pribOHer movedfor a separate trial. There being
bo objection on the part of the Commonwealth 1
allowed the motion, and the trial proceeded aginst
Dr. lteld. When Anne McUeau (uow Paynter)
was called to tue stand, the prisoner's counsel
objected to her competency as a witness npon the
ground that she was the wife of a co-defendant. The
witness was examine 1 upon her vmr dirt, and said
that she bad been married to Washington Farmer
ss hbive stated. The objection, after argument, was
overrnled, the witness was examined, aud it was
upon her testimony mainly that the prisoner was
convicted. It is upon the propriety of that ruling
we are now to pais.
The general principle that husband and wife can
not be examined for or against each other has been
long and well established. But the extent of the
application of this principle, and the exceptions
thereto, are not very generally understood, and have
given rise to a variety of conflicting opinions. I shall
endeavor briefly to examine some of the most im
portant authoiitles bearing upon this rule : the reason
of the rule; bow far It has been modified by recent
decisions, and the exceptions thereto ; and extract
Herefrom, if possible, the principles which should
be our guide In this and aaa ogons cases.
The case of Rex vs. Cllviger, S T. R. 98. citel
by the prisoner s counsel upon page 40 of their
paper book, is the leading case upon the Incompe
tency of the wife to give testimony concerning or
tending to criminate her husband. ThUwasacase
of the settlement of a pauper. A marriage, in fact,
had rtn proven between two paupers, after which
the first wife was called to prove her prior marriage
with James Whitehead, the mule pauper. But the
court held her Incompetent. Sys Ashhurst, J.:
"But the ground of her Incompetency arises from a
principle of pnblio policy which does not permit
husband and wife to give evidence that may even
tend to criminate each other. The objection is not
confined merely to cases where the husband or wife
are directly accused of any crime; but even in col
lateral cases, If their evidence tends that way, It
shall not be admitted."
It will be observed that this case goes to the ex
tent of excluding the wife even In a collateral pro
ceeding where her husband has no direct Interest In
the issue npon trial. It was soon seen that the court
had gone too far In the King vs.Cllvlger, and the law
of that case was shaken in the King vs. All Saints,
6 M. & 8., 194. and was overruled in the King vs.
Bathwlcb, 8 Barn, fc Ad., 639, to the extent of limit
ing: the rule to proceedings directly against the hus
band. Says Lord Tenterden, C. J., in the latter
case : "The decision In Rex vs. Cllviger appears to
have been founded npon a supposed legal maxim
or policy, viz., that a wife cannot be a
witness to give testimony in any de
gree to criminate her hnsband. This will
be undoubtedly true In case of a direct charge and
proceeding against him for any offense; in such a
case she cannot be a witness to prove his innocence
of the charge. The present case Is not a direct
charge so proceeding against the husband. It Is
true, that If the testimony given by both be con
sidered as true, the husband, Cook, has been guilty
of the crime of Mgamy;bot nothing that was Bald
by the wife In this case, nor any decision of the Court
of Sessions, formed upon her testimony, can here
after be received in evidence to support an indict
ment sgalDst him for the crime."
The large number of English and American cases
cited in the defendant's paper book, to the point
that a wife may not give testimony tending to
criminate her hnsband, had their origin in Rex vs.
Cllvlser. which I submit is not law now to the ex
tent that it formerly was the rule being that a wife
may give testimony tending to criminate ner nus
band, in a collateral proceedinir. when, as was ob
served by Lord Tenterden, lu The King vs. Bath
wick, above cited, nothing that was said by the wire
In ber testimony, nor any decision of the Court
founded upon her testimony, can affect ber hus
band. "But though the husband and wife are not admissi
ble as witnesses against each other, when either is
directly interested in the event of the proceeding,
yet in collateral proceedings not immediately ai
fectlng their mutual interests their evidence is re
ceivable, notwithstanding it may tend to criminate,
or may contradict tne otner, or may suoject tne
other to a legal demand." Green leaf on Bv. sec. 313.
citing King vs. Bathwick, and a number of other
English and American cases.
"Although husband and wife are not allowed to
be witnesses against each other, where either is di
rectly and immediately Interested lu the event of
the proceeding, whether civil or criminal, yet in col
lateral proceedings not Immediately affecting their
mutual interest, their evidence is receivable, not
withstanding that the evidence of one tends to con
tradict the other, or may subject the other to a legal
demand, or even to a criminal charge." Phillips on
Ev., p. 78.
The lame principle Is recognized In Roscoe's
Criminal Evidence. Says that learned author (see
p. 147) : "It Is not in every case In which the hus
band or wife may be concerned that the other la
precluded from giving evidence. It was, Indeed, In
one case, laid down as a rule, founded npon a prin
ciple of public policy, that a husband and wife are
not permitted to give evidence which may tend to
criminate each other (citing Rex vs. Cllviger). But
in a subsequent case the Court of King's Bench,
after much argument, held that the rule as above
stated was too large, and that where the evidence of
the wire did not directly criminate the hnsband, and
never could be used against him, and when the judg
ment fonnded upon such evidence could not affect
him, the evidence of the wife was admissible."
Citing Rex vs. All Saints. 1 PhiL Ev. 164, 8 Ed. ; 6
An. & 8., 194.
In Taylor on Ev. vol. 2, 5 ed., sec. 122T, see. 1230,
after stating the rule which excludes the hus
band or wife, or . one defendant from testify
ing against the other, the learned author says:
"But trough the rule of exclusion is thus stringent
when a married person is criminally accused In con
Junction with others, it is clear, that where a mar
ried defendant has pleaded guilty, or is entirely re
moved from the record, whether by a verdict pro
nounced in his favor, er by a previous conviction,
or by the Jury not being charged with his Interest
at the time of the trial, his wife may testify either
for or against any other persons who may be parties
to the record." Citing Rex vs. Thompson,- 8 Fost.
A Fin., 624; Hawks worth vs. Sholer, 19M.andW.,
94; Rex vs. Williams, 8 C. and P., 284, and other
The reasons for the rule excluding husband and
wife from testifying for or against each otner are
twe-fold. First. The community of interest subsist
ing between husband and wire and the Identity of
their legal right. If the husband has such Interest
in the matter in controversy as rendered him an In
competent witness, a fortiori, the wife was Incom
petent. Second, Motives of publio policy which
excluded them upon the ground that it would tend
to disturb the harmony of the domestic relations to
allow the wire or husband to be a witness for or
against each other.
The principle which excludes a party In Interest
from testifying extends to husband and wife, and
applies to all cases In which the Interest of the other
are Involved. Ureenleaf on Ev., 834-5 ; Rex vs.
bmlth, 1 Moody Cr. c. 230; Rex vs. Rand, ibid, 281.
In the Queen vs. Densley, 2 Cox Cr. c. b80 ; Reg. vs.
bartlett, 1 Cox Cr., c. 106, and in Reg. vs. bills, 1 C.
and Rex, 494, such evidence was rejected, because
it tends to benefit the other.
So tar as the husband and wife are excluded frsra
testifying from motives of publio policy, there would
seem to be no reason for any distinction as to whe
ther they are called to testify for or agatnit each
other. And in Rex vs. Sergeant, Ry. fc Moo. 852
(21 E. C. L. R. 453), It was held that there was no
such distinction. The same principle is recognized
by Ureenleaf, "and when, in any case, they are ad
missible against each other, they are also admissible
for each other." Roscoe lays down the rule thus:
"The circumstance of one of the parties being called
for or against each other makes no distinction In the
law." See page 147. To the same polnl Is Wharton,
vol. i. 1 770.
It must be borne In mind that there Is a marked
distinction between the competency of the husband
or wile to testify where the other is upon trial, and
the competency of either to testify in a collateral
proceeding, or In one that is analogous thereto.
That this Distinction has been lost sight of In many
of the cases cited by the learned counsel for the
prisoner, 1 think is very clear. Two of the cases
referred to, viz., Commonwealth vs. Shiron and
Commonwealth vs. Gordon, are undoubtedly at va
riance with the rule I have referred to. As to the
first, I have no report beyond the brief syllabus la
Wh., p. 7t0, pi. 1310. This Is to be regretted, as we
have no light as to how tar the case was con
sidered, and to what . extent it Is to
be regarded as authority. In Com. vs. Gordon, a
Brewst. 507, In the trial of a man charged with adul
tery, it was held that the husband of the woman
with whom the adultery was said to have been com
mitted, was not a competent witness for the prose
cution, "Not because (as Brewster, J.) this evi
dence can be used as evidence against him either
for purposes of a defense in a desertion case or of
otrense lu a suit by him for a divorce, bat he should
not be heard because the evident effect of his testi
mony Is to affect the marital relations." There are
no authorities cited by the learned judge, and it was
probably ruled hastily at fsul l'rius and without
subsequent consideration. Our most learned
text writers, as we have already seen, and manr
of the modern cases are the other way. To those
already cited may be added, King vs. Rudd, 1 Leach
Cr. C, 157, when the wife was admitted to testify to
the forgery or a bond which her husband had ut
tered; The King vs. Halllwsy, 8 Cox Cr. 0., 298,
when the husoaud was admitted to prove that the
wife had no authority to sign his name In a prose
cution for forgery, In which the wife was cturged
In one count as a co-conspirator; and Chamberlain
vs. The People, 23 N. Y. it., 85. where, on au indict
ment for perjury, committed In a divorce suit, the
wife was held competent to prove sexual couaec
tlon with him, which fact he had falsely denied In
the divorce suit.
Many of the cases cited npon pages 40 and 41 of
the defendant s paper-book do not bear upon the
pnnciple referred to that is, the c jmpetency of tue
husband or wile to testify lu a collateral pro' eedlng.
In some of them other and material considerations
entered into the Judgment of the Court, and in
others the decisions have been modified bvthe cases
I have cited. In Rex. vs. Deuslow, S Cox, A. C,
830, the defendants were tried jointly, and the testi
mony of the wife would have directly benefited the
husband ; Corse vs. Patterson was a civU suit, ia
which the husband had a direct Interest; the
State vs. BurUngham was a joint trial
for conspiracy, au4 the wife was offered
as a wit aess against her husband
and bis co-defendant In bparhawk vs. BuILsvl.
41, the wife was offered to testify directly atralnst
ber husband in a sun in equity; in uex vs. biuun
and Moody, A. C.,889, the defendants were tried
together for burglary. Draper, one of the defend
ants, after having called and examined one witness
in his behalf, proponed to call his daughter in far
ther i roof of the alibi set np by him. but It appearing
that she was the wife of the prisoner Smith, the
learned judge held she could not be a witness be
cause her evidence would tend to benefit ber hus
band ; in Rex vs. Wood, W., the defendants were
Jointly tried, and the case was ruled upon the au
thority In Rex vs. Smith, above cited; In the Queen
vt. Bartlett, Cox, A. C.. 105, the prisoners were
lolntly indicted for stealing potatoes. It appeared
upon ihe evidence that some of the potatoes were
found in the room of one of the defendants, and
others in that of the other. One of
the prisoners called the wife of the other
to prove that the potatoes fonnd in
his apartment were not the property of the prose
cutor. Welgbtman, J., after consultation with his
colleague, admitted the evtdence. In the Queen vs.
uensiow, s cox. Cr. U, 105, the wire oi a oerendant
was admitted as a witness for a co-defendant on a
joint trial, npon the ground that each defendant had
a distinct aerense, and tne conviction or tne one aia
not necessarily Involve the conviction ot the other.
and a doubt whs expressed whether the case of Kex
vb. emun, aoove cited, was law. to same eirect is
Rex vs. bills, 1 Car. A Kir., 494. In Rex vs. Ser
geant, R. & M., 852, it was held that the
wife Is not competent in a trial where another and
her husband were charged with a conspiracy to
abduct ber; and it is placed npon the ground that a
conspiracy is a joint otrense of which both must be
convicted or both acquitted. We shall presently see
that the wife is competent against her husband npon
a charge of abduction when the force continued
up to the marriage, and even In one case when there
was no evidence of force. In Pedley vs. Wellesby,
8 C. and P., 658, It was merely held that the fact or
the marriage of a witness being after subpoena served
upon ner aia not anect toe question or ner com
petency as a witness ; the cases of State vs. Welch,
13 Shep., 80, State vs. Gardner, 1 Root, 485, Com. vs.
Sparks, 7 Allen, 534, Com. vs. Scbrlver, and Gordon
vs. Com. are evidently decided npon the authority or
Rex vs. Cllviger and other cases which rest thereon,
and we have seen that Rex vs. Cllviger has been ex
pressly overruled. In the cases of state vs. Smith,
8 Iredell, 402, PnUen vs. People, 1 Dougl., 43, and O.
S. vs. Wade, 2 Cr. C. C, 680, It was held that the wire
or one defendant is not a competent witness for his
co-defendant, but these cases were decided upon the
principle that the hnsband defendant not being a
competent witness for the co-defendant, the wife was
also incompetent, which was the ground of the
ruling In the People vs. Bull, 10 John, 85. The
reason of the rule which excludes a defendant as a
witness for bis co-defendant is manifest, and it
would seem to extend with equal force to the wife.
But no such interest exists when one defendant Is
called against bis co-defendaat, and therefore no
disqualification on account of the husband's Interest
attaches to the wile. Hence it was ruled In Wexon
vs. The People, 6 Parker's Or. C, 119, that when a
co-defendaut may be called as a witness, so may the
wife. Rex. vs. Georges Car. & M. ; Rex. vs. Uerber,
T. tt M., 647; Williamson ys. Rex, 1 L. H.
Rejecting, therefore, the cases which have been
overruled, or modified, or are Inapplicable, or when
the wire has been held t be Incompetent by reason
of her husband's interest, the weight of authority
seems to be overwhelming that in collateral pro
ceedings the wife may be permitted to testify against
her husband, even if ber testimony tend directly
to charge him with crime. And I think the
rule is sustained by reason as well
as authority. While there la some force
in the rule as laid down In Rex vs. Cllviger, that to
permit a wife to give testimony that tends to crimi
nate her husband may disturb in some instances the
domestic relations, It must be borne in mind that It
is perhaps a choice between evils, and that If the
bropd rule in that case were the law, society would
suffer greatly by the closing of the mouths ot wit
nesses as to transactions or which they are alone
competent to testify. The individual evil In isolated
esses must give way before the public policy and
necessity which imperatively require that the mouth
ot a witness shall not be closed for private reasons
when the general interests ot the public are affected
This brings us to the question whether In the case
of two defendants, jointly Indicted and separately
tried, the wife or the defendant upon trial may be
examined as a witness for the Commonwealth?
Something mp.y perhaps depend npon the charac
ter of the proceeding. Where the offense Is joint,
as in conspiracy, when the defendant not upon trial
must necessarily be affected by the verdict, It may
well be questioned whether she would be compe
tent ; and so in any other case where both defen
dants are necessarily Involved . But where one may
be acquitted and the other convicted the same rea
son does not exist. And hence It must be observed
that tbere Is a clear distinction between the compe
tency of the witness and the privilege or right to
deoline to answer to facts criminating bis or her
husband or wire. The witness may be competent
for some purposes, and not for all purposes.
Is there any solid distinction between what Is
proven as a collateral proceeding and a separate
trial, when the offense is not necessarily joint? In
other words, Is there any real difference as affecting
this question, between a separate indictment and a
separate trial? If the prisoner had been Indicted
separately I have no doubt, under the authorities
cited, Mrs. Paynter would have been a competent
witness for the Commonwealth, notwithstanding
the fact that her husband was charged with the
same offense in another bill.
Why? The reason Is clearly stated by Lord Ten
terden in The King vs. Bathwick, that "nothing
said by the wife In the case, and no decision of the
Court founded upon her testimony, could be there
after received in evidence against the husband,
upon an Indictment charging him with the crime."
And lu Taylor on Ev., before cited, the fact of "the
Jury not being charged with his (the husband's) In
terest at the time of the trial," renders the wife
competent. In Phillips on evidence, p. 90, he says:
When, bowever, of two or more, one of them is
not npon trial at the time- when the others are
tried, tne wire or tne party not upon trial is aamis
Bible as a witness." citing King vs. Williams. F. O,
and P., 284; cited by Baron Alderson, In 12 M. and
W., 49; King vs. Snlntell; Queen vs. GUI, 1 C. and
mr., 4U4. to tne same point is v n. Amer. v. u,
"But although In these cases the wife will be per
mitted to testily agaldst her husband, It by ne means
follows that she will be compelled to do so, and the
better opinion is, that she may throw herself npon
the protection of the Court, and decline to answer
any question which may tend to expose her hus
band to a criminal cnarge." layior on uv., sec.
In Roscoe's Nisi Prlus Ev., p. 176, 12 Ed., the rule
ia thns stated:
'There has been some confusion between incom
petency and privilege; and It was at one time
thought a bnBband or wife was in every case an in-
competent witness with respect to any fact which
might have a tendency to criminate the other (Kex
vs. Cllviger), but that decision Is no longer law; all
subsequent cases, with one exception (Rex vs.Gleed,
8 Rush.), treating husband and wife, except In au
indictment against eacn otner, aa competent wit-
"But tbous a the husband and wife are in such
cases competent, it seems to accord with principles
of law and humanity that they should not be com
pelled to give evidence which tends to criminate
eacb other ; an In Rex vs. All Saints, M. and H
184, Bayley, J said, that if the wltuets bad thrown
herself upon the protection of tha Court, on the
ground mat ner answer luigiit ieua to criminate
ber husband, be thought she would have been en.
titled to it"
The same doctrine is recognized in Eosco's Crlm.
Ev. bee pages 147-3.
Tbere are a number of cases In which the wife has
been admitted to testify against ber husuand when
separately tried, or in wblcn the principle has been
dihtmctiy recoguizeu.
In the Commonwealth vs. Easland, a case deter
mined in the Supreme Judicial Court Of Massachu
setts (1 Mass. 15), me application was to aumit tne
wife when ber husband was on trial jointly with
other defendants. The Court (Stroug, Sedgwick,
Bewail, and Thacher, Justices) ruled unanimously
that she could not be examined. But say the Court,
"To have bad the benefit of her testimony they
should bave moved to be tried separately from the
husband, which the Court would have granted bad
this been assigneu as me reason tor me motion.'
1 hi Court has long been dlBtlnuulshed for the learn
ing snd ability of its judges, aud for this reason the
esse last cited would seem to be entitled to great
lu WUon vs. The People, 6 Parker, Cr. C, 119, It
was held that the wife of a co-defendant, not on
trial, might be examined for the Commonwealth
against the oilier defendant when he is separately
tried- The same point wes decided In State vs. An
thony, 1 McCord, 2h5, while In btate vs. Wortbing
ton, 81 Maine, 6'i, it was ruled that where one of two
joint defendant defaulted on his recognizance bis
wife was held a com pt tent witness for the other.
The only case cited by the defendant which 1 re
paid as bis direct conflict lth this principle Is Peo
ple vs. Colborn, 1 W hetllnir I r C. 479. Ia that cse
John Colbtirn and Kllzibeth Weir were indicted for
forgrrv. The termer only was placed upon trial,
Mrs. Weir sever having been arrested. A noUt pro
fijui was entered as to her, but the beoorder rejected
tne testimony ef ber husband as a witness for the
Commonwealth. Says Recorder Rlker, "The pros
ecutor s wife is a party to the record, and tao teeii-
Continual in tk$ Third Edition.
The Communist Trials,
Chances of tho Orloanlsts.
The Capital of Italy
It is Transferred to Borne
Italian Commercial Treaty.
Advices from the Pacific.
Bxeluaivtly to The avening TtltgrapK
Return of the French Government to Paris
Versailles, June 18. The seat of govern
ment will shortly be removed to Paris.-
The idea of
Burning the Bodies of the Victims
of the civil war In Paris has been abandoned,
and they will be exhumed from their present
burial places in the Park of Monceaux and the
Garden of the Luxembourg and transferred to
a new cemetery beyond the village and fort of
Fyat Is Known to be Concealed
in Paris.
The committee of the Assembly npon the sub
ject of tbe
Kcorgnulzatlon of the Army
is about ready to report, and will favor obliga
tory service.
The Prince de Jolnvllle and Duke d'Aumale -paid
visits, yesterday, to President Thiers,
the President of the Assembly, Grevy, Minister
of War, Cissey, and other members ot the Cabi
net. They were received with the utmost cour
tesy, and Thiers subsequently returned the visit.
The Orleanlsta and the Assembly.
At their interviews with M. Thiers and If.
Grevy, the two princes resigned their seats la
the Assembly, and disclaimed any intention of
intriguing against the republic. The Orleanlsta
are preparing a banquet to the Duke d'Aumale.
The reported arrival of the Count de Cham
bord at Boulogne is contradicted.
The Official Journal announces that the
Klectlona to the Assembly '
in 113 districts will be held on the 2d of July.
The same journal assures the people that the
deposits in the Bank of France are uninjured.
The Official Journal also states that the resig
nation of their seats by Jolnville and Aumale
will be communicated to the Assembly to-day.
Cold Weather In Pngland.
London, June 10. The weather continues
cold. There was a snow . storm of an hour's
duration at Birmingham this morning.
The Marquis of Lome
and the Princess Louise landed at Deal this
morning, on their return from the wedding tour
on the continent.
The Italian Capital Transferred te Rome.
Florence, June 10 The Government has
officially informed all the foreign ambassadors
that the capital of Italy, on the 4th of July
next, will be transferred to Rome. The Ambas
sadors await instructions from the home gov
ernments before making arrangements for a
change of residence.
The Chamber of Deputies has adopted the
treaty ot commerce with the United States.
This Morning's Quotations.
London, June 1011-80 A. M. Consols for money,
91 X; account, 9191K- Bonds, 1869, 90 : 18C6,
Old, 90 1867,92X5 10-408, 68X.
Liverpool, June 10 10 -80 A. M. Cotton firmer;
uplands, 8x8fed. : Orleans, 88d. Sales to-day
estimated at ie,000 bales. -
This Afternoon's Quotations.
London, June 10 1-80 P. M. Consols, l for mo
ney and account; Bonds, 1862, 90 ; Of 1869. 90X:
186T.92X; 10-40S, 88. "
Paris. June lo.Kentes, 53f. 18c
Liverpool, June 101-80 P. H. Bacon, Cum
berland cut, 87s.
Exclusively to The Evening Telegraph. ' ,
Pork Overland.
San Francisco, June 9. A train load of hogs
received overland front Iowa sold at 7K8c.
per pound, live weight, and another lot has been
Strange Cause of Fire.
The crew of the Russian war steamer Boyarin
saved the brig Curlew from destruction by fire
in the harbor to-day. Rats In tbe match-locker
caused the fire. The loss Is $2500.
will send an extensive contribution, embracing
specimens of all her industries, to the coming
Mechanics' institute Fair in San Francisco.
Exclusively to Tho Evening Telegraph.
Trading without a JUcense.
Baltimore, June 10 Yesterday in the crimi
nal court Edward C. Robinson pleaded guilty to
a charge of being a non-resident trader, selling
goods without a license, In violation of the act
of the General Assembly of this State, and was
fined 400 and coets.
The Detailed Meteorological Report for
The following Is tne meteorological report of tne
Signal Bureau of tne War Department for this
morning, all tbe observations being taken at 7-43
A. M., f hlladvlpbla time. The barometrical reports
are corrected lor temperature and elevation. The
velocity of the wind Is given In miles per hour,
and tbe force Is an approximate reduction to the
Beaufort scale :
Baltimore. I so s
Boston j80i7
Cape slay 80 84
Charleston, B.C. ,80X1
Chicago IW91
ClrcluoaU 180 03
Detroit S-8j
Key Wett, Fla..j80-18
Memphis 180 07
Mt. Washington., K0-2ft
New York 80-i
Norfolk ,8017
Omaha '94
Oswego 801S
V. gent
t strut
1. rain
8. K.
V. gent
V. gent.
V. gent.
V. geut
8. W,
8. B.
40 8. W.
71 iN W.
8. K.
N. W
8. B.
Philadelphia 80-86
Fliuourg 80-84
(it. LOU lit 80 UO
Washington 18088
a w.
Wilmington, N.C 80 88
I Fair
place of Obser. . f S 2 si . -fi
ration. !
1 06 N. E. 8
I S8 N. 8
I 63 E. 10