SIR-In your review of the 21st American Reports in the 22d number of your valuable JOURNAL, the decision of the court in the case of The State v. Graham, 74 N. C. 646, is severely criticised; and in the last number Mr. J. W. Judd has approved and repeated these strictures. May I not, without offense, respectfully suggest that both of you have either misapprehended the point there decided, or have mistaken the law?

The prisoner was indicted for larceny, and his conviction depended upon identifying him as the person who made certain foot-tracks which were admitted to

be those of the thief, made when committing the felony. The officer having the prisoner in charge compelled him to place his foot in the tracks, and was then allowed to give in evidence the result of the comparison. Whether this evidence was competent was the precise question before the court. In delivering the opinion, the judge, speaking for the court, said:

We

agree in the opinion that when the prisoner, upon be ing required by the officer to put his foot in the track, did so, the officer might properly testify as to the result of that comparison. It is unnecessary to say whether or not the officer might have compelled the prisoner to put his foot in the tracks if he had persisted in refusing to do so." The point thus decided was the main one, and the decision of which is assailed. Is the decision not correct and fully supported by the weight of authority? Let us see.

"Where a

Starkie on Evidence, Part IV, p. 50, says: fact has been ascertained in consequence of an admission improperly obtained, it may still be proved, for the fact cannot have been affected by the influence used; therefore, upon an indictment for receiving stolen goods, where, in consequence of the confession which had been unduly obtained, the stolen property had been found, concealed between the sackings of the prisoner's bed, it was held by the twelve judges, that the fact of the finding of the stolen property in the prisoner's custody was clearly evidence. But in such cases nothing is to be left to the jury but the fact of the prisoner's having directed the witness where to find the goods, and his finding them, but not the acknowledgment."

So Mr. Greenleaf, in his work on Evidence, Vol. I, § 231, says: "The object of all the care, which, as we have now seen, is taken to exclude confessions which were not voluntary, is to exclude testimony not probably true. But where, in consequence of the information obtained from the prisoner, the property stolen, or the instrument of the crime, or the bloody clothes of the person murdered, or any other material fact is discovered, it is competent to show that such discovery was made conformably to the information given by the prisoner. The statement as to his knowledge of the place where the property or other evidence was to be found, being thus confirmed by the fact, is proved to be true and not to have been fabricated in consequence of any inducement." Sec, also, to the same effect, 1

Phill. on Ev. 411; Archb. Cr. Pl. 131, and note by Waterman.

The same law of evidence is announced by Hawkins, East and Leach, and is based upon innumerable decisions.

Nobody denies the general rule that confessions improperly obtained are inadmissible against the prisoner, but the limitations of that rule, as expressed above, are as well established as the rule itself. The rule thus limited fully covers The State v. Graham.

The reason why extorted confessions are excluded is, that not being voluntary, they may not be true. Hence, if one thus influenced confesses his guilt, the evidence will be excluded because it may not be true; but if, in consequence of a confession improperly induced, a material fact is brought to light, that fact is competent evidence, because it is a fact, independent of the confession, and being natural evidence, extrinsic to the confession, the prisoner has no more right to complain than if a witness had testified to have seen him make the tracks. All that the court decided in Graham's case was, that the evidence was competent. It was for the jury to say what weight and effect it should have, in connection with the other testimony.

A pocketbook is stolen, and it is proposed to search the person accused, and, upon his objecting, his person is searched by force and the pocketbook is found upon him. No one will deny that the fact of so finding the stolen article is competent evidence against him. So if one, charged as the thief, is alleged to have made certain tracks admitted or proved to be those of the thief made in committing the felony, refuses to apply his foot to the track, and is then forced to do it, the result of the comparison is a fact and equally competent as evidence. The principle of the two cases is the same, whatever difference there may be in the conclusiveness of the two species of evidence. The weight and effect of the testimony is for the jury and not the court. I have not seen the Tennessee case, referred to by Mr. Judd, but I think it entirely safe to say, that the decision in The State v. Graham is supported by the weight of authority.

This sort of evidence, though treated under the head of "admissions," or "confessions," in the books, belongs to neither, but, as was said by the court, it is properly called by the civilians "real evidence." In placing his foot in the tracks, the accused neither "admits" or "confesses" any thing. The foot may not fit the track, and that fact would be conclusive in his favor. It may fit, but that would be no admission or confession, for it may be shown that others had feet of the same size, which would weaken the force of the evidence; or that another actually made the track, or that he was elsewhere at the time of the theft, which would entirely destroy the weight of the evidence from "resemblance." In State v. Garrett, 71 N. C. 85 the prisoner was indicted for the murder of a child by burning. At the coroner's inquest, she alleged that the child's clothing caught fire, and that in trying to extinguish it, she, the prisoner, had her hand burnt, which she then had wrapped up. She was forced to strip the covering from her hand, when it appeared to a physician to exhibit no evidence of a burn. The testimony as to the appearance of the hand was held to be competent. It is true that the device of the accused was a fraud, but that could not be discovered until the force had been applied. The result was the evidence, no difference how brought about. If a witness

says he can identify the accused only by a scar on his body, which is concealed by his clothing, doubtless it would be competent for him to testify to having seen the scar on the prisoner, whether he made the inspection by consent, force or fraud. Whether the court, on the trial, could compel the prisoner to strip and thus establish or disprove the fact, as the court remarked in State v. Graham, "it is unnecessary to say." The most remarkable cases of modern times, if not of all times, upon the question of identity, were the recent Tichborne trials. Every species of evidence which human ingenuity could devise, to prove or disprove an identity, was there resorted to, and I think all that is claimed in The State v. Graham was fully admitted or adjudged, and more.

The rules of evidence applicable to questions of "identity," "legitimacy," etc., necessarily allow much latitude in their application. The State v. Graham is an example as to identity, illustrating the principles of evidence, as laid down by Starkie and Greenleaf, supra, and Warlick v. White, 76 N. C. 175, is an interesting case upon the question of "legitimacy."

A word as to The State v. Neely, 74 N. C., which is also severely commented on. That case was decided by a divided court, three to two, and while I do not concur in the correctness of the decision, we must not, in justice, lose sight of the single question decided, nor must we confound the decision with the somewhat heated dicta of the judge, arguendo. The prisoner was indicted for an assault with intent to commit rape, and the single question was whether there was any evidence of the intent. In North Carolina, any legal evidence, however slight, tending to support the charge in the indictment, cannot be withheld from the jury, the weight and effect of it being the independent province of the jury to pass upon. While I do not think there was any evidence of the intent charged, it yet must be admitted that the line between what is no evidence and what is slight evidence of a fact, is so dim and shadowy, that sometimes the coolest and most discriminating judgment of the judge fails to determine the question to the satisfaction of all minds; and accordingly the decisions are not uniform as to the line of demarkation between what is admissible and what is not admissible. Where the question is doubtful, the temperament of the court or its feeling, often, even imperceptibly, determines the question. It might have been so in this case, but the antecedents of the majority of the court making the decision preclude such a supposition. December 26, 1877.

NOTES.

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HE necrology of the past year includes the names

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of an unusual number of lawyers and jurists. Among the more prominent are the names of Emory Washburn, the author and teacher; Chief-Justice Shipley, of Maine; David A. Smalley, for eighteen years United States District Judge of Vermont; Edward Kent, formerly a Justice of the Supreme Court of Maine; Enoch H. Rosekrans, once a Judge of the Supreme Court of New York; Chief-Justice Moses, of South Carolina; Isaac Ames, Judge of Probate of Suffolk county, Mass.; Joseph T. Platt, of the Philadelphia Court of Common Pleas; Chief-Justice Draper, of the Province of Ontario; Judge Rawson, of the Supreme Court of New York, and Professor Tyler. Among the names from England are those of Lord Justice Mellish and Mr. Samuel Warren.

Messrs. A. L. Bancroft & Co., of San Francisco, have initiated an enterprise which, if it shall prove successful, will make the library of the future literally "infinite riches in little room." They propose to publish in about 75 volumes all important cases decided by the various courts of this country prior to 1869, when the "American Reports began. The editorial control of these reports-which are to be called the "American Decisions"-is to be in the hands of Mr. John Proffatt, who has achieved some reputation as a legal writer, and whose experience will doubtless enable him to discharge the difficult duties of the position with skill and judgment. We heartily wish the enterprise success.

The new judicature act, which changes the system of practice and the organization of the courts, went into effect in Ireland on the 1st inst. The

Oneida County Bar Association met on the 21st

ult. to consider the new Code, but came to no conclusion as to whether it ought to be repealed or retained. Judge Van Hoesen, of New York, thinks $2.000 a year too much for the fees of a committee of a lunatic, whose services consist in spending an hour a month in visiting the lunatic, subscribing for a paper and ordering an occasional suit of ready-made clothes. He so held in Matter of Brinkerhoff, decided on the 26th ult.- -A right to a seat in the New York Cotton Exchange was held to be property in the case of Ritterband, receiver, etc., v. Boggett, decided on the 26th ult. in the New York Superior Court, and an assignment of it to a proper person, desiring to purchase it from a receiver of the property of its owner, ordered.

The appointment of Halbert E. Paine, of Wisconsin, to be Judge of the Court of Claims in place of Judge V. Peck, resigned, is said to be fully determined upon. Mr. Paine was born in Ohio in 1826, and was graduated from the Western Reserve College. He was admitted to the bar in 1848. He served in the Union army during the war, and was breveted a major-general in 1865. He was a member of the Thirty-ninth, Fortieth and Forty-first Congresses.-The man who doesn't squander any money hiring lawyers has turned up in Sonoma county, Cal., where he recently recorded a deed to $15,000 worth of land in which one of the boundaries is described as "being between the wheat and corn now growing on said land."

In the case of Hancock v. Rand, recently decided in New York by Horatio F. Averill, Esq., referee, an interesting question in relation to the law governing innkeepers was involved. General Hancock engaged rooms for himself and family at the St. Cloud Hotel, kept by defendants, at a specified price, which was less than that charged to transient guests. During his occupancy he and his family lost certain articles from their rooms, but there was no gross negligence shown on the part of defendants. The referee held that owing to the special agreement above mentioned General Hancock and his family were not the guests of the defendants, but only boarders, and therefore defendants were not liable for losses sustained. 2 Pars. on Cont. 151, 153; 1 id. 628; Stewart v. McCready, 24 How. Pr. 62; Seward v. Seymour, Anth. Law Stud. 51; Mowers v. Feathers, 6 Lans. 115; Thompson v. Lacey, 3 B. & A. 283; Parkhurst v. Foster, 1 Salk. 387; Dansey v. Rich, 2 Ellis & Bl. 144; King v. Ives, 7 C. & P. 213; Wintermute v. Clark, 5 Sandf. 247; Cromwell v. Stevens, 3 Abb..(N. S.) 34; Bennett v. Ditson, 5 Term, 273; Manning v. Wells, 9 Thomp. 746.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

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The Albany Law Journal.

ALBANY, JANUARY 12, 1878.

CURRENT TOPICS.

SOMEWHAT remarkable scene was witnessed

in the New York Court of Oyer and Terminer last week. Dr. Lambert, president of the notorious American Popular Life Insurance Company, who had been convicted of swearing to a false report of the condition of the company, was called up for sentence and asked the ordinary question if he had any thing to say why sentence should not be pronounced. He thereupon unrolled a huge parcel of manuscript, and for two hours harangued the court and the people assembled upon various subjects relevant and irrelevant to the inquiry made. He eulogized his counsel, denounced those opposed to him, complimented the court, and of course asserted that he was innocent of the crime of which he had been convicted. How thoroughly he was imbued with the idea of his own rectitude is indicated by this language: "Instead of standing here condemned," said he, "I should be commended by the policy-holders and stockholders and the public, and to-day it should be the pleasant duty of your Honor to invite me to sit at your right hand instead of being called to pass an unpleasant sentence; nor do I doubt that such would be your Honor's own opinion." He, however, intimated that the sixty other insurance presidents with which New York city is blessed had enriched themselves dishonestly, which indicates that he does not believe that insurance business in general is conducted upon principles of integrity. The court, in reference to his remarks, said that it was impossible to determine therefrom whether the prisoner or his jury was on trial. The charges made were answered completely and in detail by the court, and a sentence of five years at hard labor in the State prison imposed. It is somewhat surprising that the prisoner should have been given such latitude, but the importance of the case, the previous high standing of the criminal and the present public feeling against the dishonesty of insurance officials induced Judge Brady to be as forbearing as possible in the matter. trust, however, that his action will not be taken as a precedent. If it should be, the speech of the prisoner on sentence will become as important an event in the administration of penal justice as the speech at the gallows used to be in the days of public executions, and about as instructive and useful. When VOL. 17. No. 2.

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We

Wainwright, the English murderer, who was convicted a couple of years ago, was about to eulogize his counsel in his remarks previous to receiving sentence, the court checked him, saying that it was neither time nor place for that, and bade him confine himself to the objections he might have to the passing of sentence. The convicted offender is treated with more consideration here than in England, and it is fortunate for the courts that a Dr. Lambert does not often appear before them.

The law of negligence, as developed by the courts, is full of remarkable rules and doctrines, and these rules and doctrines become still more remarkable when they are the blended product of the law of negligence and that of master and servant. The House of Lords has, in the recent decision of Jackson v. Metropolitan Railway, at least unsettled the popular confidence in the justice of some parts of this law. The plaintiff in this case was a passenger on defendant's line, which is the London underground railway. By a by-law of defendant, passengers are not allowed to enter any compartment of a train in which the seats are all occupied. At a station where the train upon which plaintiff was, stopped, an attempt was made by persons to get into the compartment where plaintiff was, which was full. Plaintiff put up his hand to prevent the intrusion. At the same time a porter in the employ of defendant, in preparing the train to start, violently shut to the door of the compartment, which caught and severely injured plaintiff's thumb. In this action for the injury the trial court held that there was evidence of negligence for the jury, who found a verdict for the plaintiff. A rule nisi was obtained, calling upon plaintiff to show cause why this verdict should not be set aside on the ground that there was no evidence of negligence. The Common Pleas Division discharged this rule, and this decision was allowed to stand by the Court of Appeal, which was divided. The House of Lords reversed the judgment of the courts below, holding that there was no negligence in shutting the door, saying that it was necessary that it should be shut by the porter; "and as the train was on the point of passing into a tunnel, he could not shut it otherwise than quickly, or in this sense violently." Lord Cairns, who delivered the judgment of the House of Lords, says that it is impossible to lay down any rule as to negligence in such cases, except "that, from any given state of facts, the judge must say whether negligence can legitimately be inferred, and the jury whether it ought to be inferred." The London papers are not satisfied with the decision of the House of Lords, though the Law Times thinks it sustainable upon the principle that plaintiff, in endeavoring to prevent the intrusion of passengers into his compartment, was a volunteer undertaking to perform the duty of one of defendant's servants, and he could not, as such, recover