|
People v Gillette. Points of Counsel | |
| Appellant's Point I | |
|
It was error to receive in evidence and to read to the jury the letters of the deceased which she had written to the defendant. Upon having arrested the defendant and while he was in jail at Herkimer the prosecuting officers forcibly entered the living room of the defendant at Cortland, New York, and with force opened his private desk and took therefrom a number of letters which had been written and sent through the mail to the defendant by the deceased. The seizing of these letters was without the knowledge or consent of the defendant. (Case vol. 1, folios 2194-2219.) On the trial these letters, each in the envelope in which it appears to have been sent, were produced, identified and marked as exhibits. The envelopes being numbered and the letters enclosed being marked with the number and the letter A. These exhibits are from "10-A'' to "22-A'' inclusive. There was another letter marked "Exhibit 23." Another letter and envelope are marked "24" and "4-A". (Case vol. 1, folios 2165-217l.) The District Attorney offered each `of these letters and envelopes in evidence beginning with Exhibit No. "10" and "10-A", whereupon the defendant promptly objected as to each of the said letters that it was incompetent, immaterial and inadmissible as against the defendant; that it was obtained wrongfully and forcibly from the desk of the defendant and without his knowledge or consent; that the defendant cannot be made to surrender testimony and letters and make proof against himself. That the letter is a declaration of a person other than the defendant and is not competent or binding upon him in any way. The ruling of the Court was: "The letter is received but only for the purpose of showing how the deceased regarded her relations with the defendant and not admitted for the purpose of proving any facts stated in the letter. It is not received for the purpose of proving any alleged statements of facts stated therein, but only for the purpose of showing how the deceased regarded her relations with the defendant." The same objection and the same ruling was made to each of the letters of the deceased separately. (Case vol. 1, folios 2251-2261.) Thc defendant objected again when the District Attorney proceeded to read these letters ito the jury, and the same ruling was made by the Court and exception taken. (Case vol. 1, folios 2277-2290.) Exhibit No. 10 was dated April 11, 1906 and posted April 13th, 1906. (Case vol. 1, folio 2277.) Exhibit No. 11 was posted April 14th,.1906, and dated April 13th, 1906. (Case vol. 1, folio 2290.) Exhibit No. 12 is postmarked: "June 19, 1906." (Case vol. 1, folio 2299.) Exhibit No. 13 is postmarked: "June 21, 1906." (Case vol. 1, folio 2307.) Exhibit No.14 is postmarked: "June.21, 1908." (Case vol. 1, folio 2312.) Exhibit No. 15 is postmarked: "June 23, 1906." (Case vol. 1, folio 2321.) Exhibit No 16 is postmarked "June 23, 1906" (Case vol. 1, folio 2330.) . Exhibit No. 17 is postmarked: "June 26, 1906." (Case vol. 1, folio 2342.) Exhibit No. 18 is postmarked: "June 28, 1906." (Case vol. 1, folio 2335.) Exhibit No. 19 is postmarked: "July 2, 1906." (Case vol. 1, folio 2339.) Exhibit No. 20 is postmarked: "July 3, 1906." (Case vol. 1,. folio 2379.) Exhibit No. 21 is postmarked: "July 4, 1906." (Case vol. 1, folio 2394.) Exhibit No. 22 is postmarked: "July 6, 1906." (Case vol. 1, folio 2403.) The Court received all these letters and let the entire contents thereof be read to the jury by the District Attorney. It is true that the Court in its ruling limited the purpose for which it received these letters, (which ruling we will examine later) but it received all the letters and let the entire contents be read to the jury by the District Attorney. From that time on during the trial the letters were continually resorted to and used by the District Attorney as proof of time facts therein stated, especially were they adroitly used as such in the summing up. Constant appeal was made to them. Almost sentence by sentence they were read and from each sentence comments were made treating it as a declaration of fact and proof in the case. Every statement in those letters which the District Attorney thought would be useful or effective with the jury was used as proof of the verity of the statement by the testimony of the deceased. (Case vol. 3, folios 2200, 222, 2244, 2250, 2274, 2284, 2293, 2304, 2306, 2308, 2314, 2315, 2324, 2337, 2338, 2339.) Indeed, it is not too much to say that the major part of the able discussion of this case to the jury was based upon the statements contained in those letters. No effort was made or caution given by the Court in its charge or otherwise to instruct the jury about the use of these letters, but every word of them went to the jury as proof of fact embellished by the eloquence of the District Attorney and sanctified by the pathetic death of this poor girl. (a) The letters were hearsay and not admissible. Willett vs. People, 27 Hun, 477. (b) These letters cannot be received under the claim that the defendant is to be taken as admitting the truth of the statements therein contained. Sometimes if a statement is made to a party orally which under the circumstances he is called Upon to answer and lie does not answer, he will be regarded as admitting the truth of the statement, or, if he makes answer, his answers may be given. The rule is of very much less force when the statements are made to the party in writing or by way of a letter. A person receiving a letter may or may not answer it for a variety of reasons, and to say that his failure to answer commits him to the truth of the statement. in the latter, is hardly safe or proper. Wigmore on Evidence, section 1073. Such evidence is most dangerous and should be received with great caution. People vs. Smith, 172 N. Y., 232. This rule applies only to such matters as are stated in the letter or communication about which the defendant is clearly seen to have known and was called upon to answer. As some cases have stated it, there must appear a motive on the part of the defendant to make an answer. And as others put it, the statement must be such as to call for some response or act on the part of the defendant. An examination of these letters shows that only a very small part of the statements therein contained are of the character which becomes evidence by the rule of "Assent by Silence." For the most part these letters are made up of statements of matters about which the defendant could not know and as to which he was not called upon to make any answer. For instance in Exhibit 10 vol. 1, folio 2279 the deceased writes: "I had such a tiresome journey that I am about sick." "I coughed all the way there and was ill all night." And again, (Case vol 1, fol. 2289:) "I did not think all the home folks would he so glad to see me; they eat me up and if you have ever thought I was spoiled, dear, I don't know what you will think when I get back. You or anyone else won't be able to do anything with me." Again, (Case vol. 1, fol. 2289:) "I don't mean the horrid things I write, but I am so blue and tired and have coughed so much all day. You can't read this because I am in bed writing. Now, please don't forget about writing, dear, and please don't be cross." And again, (Case vol. 1, fol. 2316:) "I hope I can die. The doctor says I will, and then you can do just as you like." And so the whole thirteen letters written by this young woman and which are read bodily into the evidence in this ease are made up nearly altogether of matters which do not in any way fall within the rule above stated. It is possible that some extracts from these letters might have been received under the rule; that is, there may be some statements of fact to which the defendant was called upon to reply, although as to most of these letters I think it will he difficult to find statements of fact which are material to this case, and as to which the defendant can be held to the rule of "Assent by Silence." If, however, there are such statements in the letters, those statements should have been read as extracts. It cannot follow that the whole body of the letters can be read in evidence because somewhere in some of the letters there may have been a statement or a few statements to which the defendant was called upon to reply. Here are some twenty-seven pages of closely printed matter which comes into this ease as testimony against the defendant in the irresponsible form of a letter written by one not a witness in the case. It may be argued that as to some of these letters the defendant did reply. Exhibit 9-B (Case Vol. 1, Fol. 2351) was written June 25, 1906. In this letter the defendant refers to statements contained in the girl's letter of June 21st, which is Exhibit No. 14, and lie expressly denies and repudiates the things which the girl had written about his association with other girls. It can hardly be said that the letter written to the defendant proves by the rule of "Assent by Silence" such facts as he expressly answers and denies or repudiates. | |
|
Page 2
 The Historical Society of the Courts of the State of New York
| |