Imágenes de páginas
PDF
EPUB

§ 461. Yet it is held, that for the purpose of discrediting his testimony, the witness may be asked upon cross-examination, as to specific facts. 1 Greenl. Ev. § 456. This shows that upon a cross-examination of a witness, with a view of testing his credibility, inquiries are proper as to facts not competent to be proved in any other way. Such inquiries do not relate to the issue directly upon trial, but relate only to the credibility of the witness. They are entirely collateral to the principal issue. As to the former the same strictness is not required when the evidence is confined to the cross-examination of the witness introduced by the opposite party. In such examination the presumption is strong, that the witness will protect his credibility as far, at least, as truth will warrant. All experience shows this to be so. It would be productive of great injustice often, if where a witness is produced, of whom the opposite party has never before heard, and who gives material testimony, and from some source, or from the manner and appearance of the witness, such party should learn that most of the life of the witness had been spent in jails, and other prisons for crimes, if this fact could not be proved by the witness himself, but could only be shown by records existing in distant counties, and perhaps states, which for the purposes of the trial are wholly inaccessible. No danger to the party introducing the witness can result from this class of inquiries, while their exclusion might in some cases, wholly defeat the ends of justice. My conclusion is, that a witness upon cross-examination may be asked whether he has been in jail, the penitentiary, or state prison or in any other place that would tend to impair his credibility, and how much of his life he has passed in such places. When the inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply."

§ 234. When Party may Contradict His Own Witness-On this important subject, a recent case from Indiana may be regarded as authority. Upon a very careful investigation of the subject, the reasoning of Judge Elliott seems to accurately state the present posture of the law in reference to this topic. In nearly every criminal prosecution, owing to the peculiar circumstances with which crime is committed and its perpetrators known, one of the first difficulties that confront the prosecution, is the character of the witnesses by which it is required to prove its case. It would grossly hinder the administration of justice, if the prosecuting attorney was ab

[ocr errors]

solutely concluded by the statement of witnesses on the stand. Obviously, this would be a monstrous perversion of justice. The subject is regulated by statute in many jurisdictions, and the exposition given it by the Indiana court, gives every reason that can support the rule. It is said: "It is no doubt true that the state may, in the proper case, contradict its witnesses by evidence of contradictory statements made out of court. Conway v. State, 118 Ind. 482. Justly limited and rightly applied, the statutory rule is a wise and salutary one, but if not properly limited and employed it may be very unjust and mischievous. If a party may call a witness, elicit from him only what is expected and what is not prejudicial, and then prove statements made out of court by the witness, great harm may be done the adverse party. It happens, as the decisions and the books show, that witnesses make careless or reckless statements out of court, which they will not make under oath, and such statements ought not to be brought out by the party who produces the witness unless the testimony of the witness is prejudicial to him. It is, indeed, doubtful whether they can be brought out where there was no obligation on the party to call the witness, and the testimony was what the party knew, or had reason to believe, the witness would give. It is true that evidence of such statements is theoretically evidence affecting credibility only, and is not evidence of the facts embraced in the contradictory statements; but nevertheless, evidence of contradictory statements does often influence the jury. The limitation placed upon the statutory rule by the decisions is a wise one. That limitation is this: Where the witness gives no prejudicial testimony upon that point to which the contradictory statements relate, evidence of statements made out of court is not competent. Where the party calling the witness is surprised by his testimony, or where it is prejudicial then contradictory statements as to the point upon which the evidence is prejudicial is competent, otherwise not. Hull v. State, 93 Ind. 128; Conway v. State, 118 Ind. 482, and cases cited; Miller v. Cook, 124 Ind. 101. In the case last cited it was rightly held that the contradictory statements must relate to the point upon which the evidence is prejudicial, and so we hold here." Elliott J. in Rhodes v. State, 128 Ind. 189.

§ 235. Statement of the New York Rule.-The rule upon this subject of impeachment has frequently been made a matter

of consideration by the New York courts, and it is now well estab lished that to entitle the party interrogating the witness by way of cross-examination, to introduce evidence to contradict his statements, the cross-examination must be directed to a material inquiry in the case, or to evidence establishing a hostile or unfriendly bias, against the party in the mind of the witnesses. Carpenter v. Ward, 30 N. Y. 243, 245; Plato v. Reynolds, 27 N. Y. 586; First Baptist Church v. Brooklyn F. Ins. Co. 28 N. Y. 153; Chapman v. Brooks, 31 N. Y. 75, 87; Stokes v. People, 53. N. Y. 164, 175, 176; Schultz v. Third Ave. R. Co. 89 N. Y. 243.

§ 236. Inconsistent Statements may be Shown.-The party producing a witness is not allowed to impeach his credit by evidence of bad reputation, except when he is compelled to produce him by reason of the nature of the evidence sought, but he may contradict him by other evidence, and may also ask him whether he has not made, at other times, statements inconsistent with his present testimony. Under all rules of reason he is not allowed to contradict his witness upon any particular and material fact.. Norwood v. Kenfield, 30 Cal. 393; Rockwood v. Poundstone, 38Ill. 199; Thorn v. Moore, 21 Iowa, 285; Burkhalter v. Edwards, 16 Ga. 593, 60 Am. Dec. 744; Cronan v. Roberts, 65 Ga. 678;. Gray v. Gray, 3 Litt. (Ky.) 465; Shelton v. Hampton, 28 N. C. 216; Warren v. Gabriel, 51 Ala. 235; Brown v. Osgood, 25 Me.. 505; Bradford v. Bush, 10 Ala. 386; Hall v. Houghton, 37 Me. 411; Wolfe v. Hauver, 1 Gill, 84; Brolley v. Lapham, 13 Gray, 294; Olmstead v. Winsted Bank, 32 Conn. 278, 85 Am. Dec. 260;. Brown v. Wood, 19 Mo. 475; Swamscot Mach. Co. v. Walker, 22 N. H. 457; Seavy v. Dearborn, 19 N. H. 351; Skellinger v. Howell, 8 N. J. L. 383; Lawrence v. Barker, 5 Wend. 301; Winston v. Moseley, 2 Stew. (Ala.) 137; Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544; Hunt v. Fish, 4 Barb. 324; Thompson v. Blanchard, 4 N. Y. 303; People v. Skeehan, 49 Barb. 217; Keutgen v. Parks, 2 Sandf. 60; Pickard v. Collins, 23 Barb. 444; Parsons v. Suydam, 3 E. D. Smith, 276; Bok v. Vincent, 12 Abb. Pr. 137; Bemis v. Kyle, 5 Abb. Pr. N. S. 232; Gibbs v. Huyler, 9 Jones & S. 190; Farr v. Thompson, Cheves, L. 37; Stockton v. Demuth, 7 Watts, 39; Hice v. Cox, 34 N. C. 315.

So a party may contradict his own witness by evidence of statements made out of court. The only limitation is that the witness shall not be contradicted unless he has given testimony prejudicial

to the party by whom he was called. Judy v. Johnson, 16 Ind. 371; Hill v. Goode, 18 Ind. 207; Hull v. State, 93 Ind. 128. In Hill v. Goode, supra, the court said, "that a party may prove previous statements of his own witness contradictory to those sworn to on the given trial." Other courts have so decided. Blackburn v. Com. 12 Bush, 181; Champ. v. Com. 2 Met. (Ky.) 17; Dear v. Knight, 1 Fost. & F. 433; Hemingway v. Garth, 51 Ala. 530; Com. v. Donahoe, 133 Mass. 407; White v. State, 10 Tex. App. 381.

A party cannot, after examining a witness, give in evidence his former testimony and declarations, ostensibly to discredit him, but in truth to operate an independent evidence. Smith v. Price, 8 Watts, 447.

He is not at liberty to discredit his own witness by showing his former declarations on the same subject (Sanchez v. People, 22 N. Y. 147); though he may show the truth of the facts by other witnesses. The fact that the other side has also examined the witness in chief does not change the rule. Ellicott v. Pearl, 35 U. S. 10 Pet. 412, 9 L. ed. 475.

The state cannot impeach her own witness. Quinn v. State, 14 Ind. 589.

But it has been held in North Carolina that the attorney general may produce evidence to discredit a witness for the commonwealth. State v. Norris, 2 N. C. 438. But see Brown's Cases, 3 City Hall Rec. 151; Queen v. State, 5 Harr. & J. 232; 1 Roscoe, Crim. Ev. 159.

Texas Code of Criminal Procedure, article 755, provides that "the rule that the party introducing the witness shall not attack his testimony is so far modified that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any manner, except by proving his bad character;" but before this rule can be applied, the witness must have stated some fact in evidence which was injurious to the party in whose behalf he was testifying; and it is not sufficient that he merely made a statement different from that which the party had reason to and did believe he would make. Bennett v. State, 24 Tex. App. 73.

The rule that a party cannot discredit his own witness by proving that he had made contradictory statements at other times, does not apply to those cases where the party is under the necessity of calling the subscribing witness to an instrument. Dennett

v. Dow, 17 Me. 19; Whitman v. Morey, 63 N. H. 448; 1 Roscoe, Crim. Ev. 160; Best, Ev. (Chamberlayne's ed.) § 644.

§ 237. Discrediting Party's own Witness on Ground of Surprise. A party who calls a witness, and is taken by surprise by his unexpected and unfavorable testimony, may interrogate him in respect to declarations and statements previously made by him, which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testimony or explain his apparent inconsistency, and for such purpose his previous declarations may be repeated to him, and he may be called upon to say whether they were made by him. In case the witness denies having made such statements, or his answer is ambiguous concerning them, it is not competent for the party calling him to prove them by other witnesses. Hurley v. State, 4 L. R. A. 161, 46 Ohio St. 320.

In the case last cited Mr. Justice Williams collates many valuable authorities in the course of his opinion and subjects them to analysis in the following language: "In the case of Com. v. Welsh, 4 Gray, 535, it is held that, 'A witness who has testified in chief that he does not know certain facts, cannot, although he shows a disposition to conceal what he knows, be asked by the party calling him whether he did not on a former occasion swear to his knowledge of those facts.' In the course of the opinion, Shaw, Ch. J., said: "The evidence of what the witness testified before the grand jury ought not to have been received. It bore upon no question pertinent to the issue. It could only be to

disparage the witness, and show him unworthy of credit with the jury, which was inadmissible.' The same rule was followed in the case of People v. Jacobs, 49 Cal. 384. On the trial of a prosecution for rape a witness was called by the prosecution to prove threats by the prisoner. The witness testified the prisoner made no threats, and the prosecutor was then permitted to call a witness who testified that in a conversation with him the former witness stated the prisoner had made threats. For the admission of this evidence the judgment was reversed.

"In Melluish v. Collier, 14 Jur. 621, 15 Q. B. 878, it is held that where a witness gives evidence adverse to the party who calls him, he may be asked whether he has not given a different account of the matter in question before the trial, but if the witness denies it, the person to whom he gave that account cannot

« AnteriorContinuar »