Thorpe v. United States

154 F. 864, 1892 U.S. App. LEXIS 1561

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 9, 1892
• Docket: No. 266
• Status: Published

Opinion

WHEELER, District Judge.

In this case the question was as to whether the material of chief value was silk. That is a pretty doubtftxl thing. There is but one witness who testifies anything about it, and he is the man who classified it; and he does not want to say exactly, but says that he would rather see it analyzed. He is rather inclined to think that the chief material is silk, but is not sure. I do not think that a classification made by calling a man and having him rather fade out a little on his classification is very controlling. It is said that he is an adverse witness. That is true; and he hung back a little, but hanging back does not prove anything. If you had some witness the other way, and then he hung back, we would not dispute that so much; but, as there is but one witness, we must see how much is really proved by him. tie classified it one way, and afterwards he thought it might be the other way; but still he says: “I will not say any more than that is my impression. I would rather see it analyzed.” There is a way to take that right apart and have some one who knows state what it is, and how much of each material there is in it, without any question. That is not done.

I think that decision should be affirmed.