United States v. Wood

28 F. Cas. 754, 3 Wash. C. C. 440

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: October 15, 1818
• Status: Published

Opinion

BY THE COURT.

The evidence is admissible. provided the witness can repeat the testimony which Hare gave, and not merely what he conceives to be the substance and effect of it, of which the jury ought alone to judge. He may refresh his memory from notes, which he took of the evidence at the trial, or from a newspaper, printed by himself, containing the evidence of Hare, as taken down by the witness; but he must be sure of the accuracy of the statement, from his own recollection, and not merely from a confidence in the accuracy of the statement to which he refers.

The witness acknowledged, that he could not say that he recollected the words of Hare, although he felt the most entire confidence that he had taken them down as the witness uttered them, and that they are truly copied into the paper published under his own inspection.

The court refused to suffer him to be examined.

Another objection was made to the examination of this witness—that the prisoner had not received a list of the witnesses, in which the name of this one was mentioned, as required by the 29th section of the act for punishing certain crimes, &c. 2 [Bior. & D.] Laws, 98 [1 Stat. 118].

BY THE COURT. The part of that section which requires a list of the witnesses to be delivered to the prisoner, three days at least before the trial, is expressly confined to cases of treason; the same section, immediately afterwards, requiring nothing more than a copy of the indictment, and list of the jurors, to be delivered in other capital offences.

The charge delivered by WASHINGTON, Circuit Justice, was in substance the same as on the former trial; except, that he stated, as the opinion of the court, the following principles, in relation to the construction of the 19th section of the post office law (4 [Bior. & D.] Laws, 297 [2 Stat. 598]): (1) That a sword or a dirk, in the hands of the robber, by means and under terror of which the carrier is robbed of the mail, is a dangerous weapon within the meaning of the act, although not drawn or pointed at the breast of • the driver at the time. (2) A pistol in the hands of the robber, by means and terror of which the carrier is robbed of the mail, is a dangerous weapon; and it is not necessary to prove that it was charged;—the presumption is, that it was so, until the contrary is proved. But in this case, this presumption assumes the form of positive proof, the demand of the mail having been accompanied by a threat to blow out the brains of the carrier, if he refused to deliver it; which could not have been effected, unless the pistols were charged, and in all respects prepared to endanger life.

The jury found the prisoner guilty upon the third count, as accessary to a simple robbery of the mail.