Bakeman v. Rose

By the Court, Savage, Ch. J. On the supposition that an exception was taken to the charge of the court, I see no cause to find fault with it when understood as the court no doubt intended to decide. The idea of the court was, that when an equal weight of testimony is produced on either side and placed in opposite scales, no effect is produced. The maxim of law is “ponderantur testes, non numerantur ” 3 Stark. Ev. 470. The court considered the testimony of the defendant as neutralized by that of the plaintiff, and that therefore the witness stood unimpeached. The credibility of testimony depends not so much upon the number of the witnesses as upon their characters, their connection with the parties, their manner of testifying, and other circumstances of which the jury are the proper judges. The court came to the correct conclusion, by stating to the jury that it was their province to decide whether the witness was impeached ; that is, whether she was worthy of credit. The court judge of the competency of witnesses; the jury of their credibility. It is usual to say that the jury are to weigh the testimony. When it is all on one side, and no impeachment of any kind, there is nothing to be weighed—there is nothing in the opposite scale; but where there is contradictory testimony, or testimony on one side, and that impeached by testimony or by circumstances, then the jury must [110] weigh it, and give credit or not, as one or the other scale preponderates. The charge I think could not be misunderstood by the jury, as stating that the witness was competent, and it was for them to say whether she was credible. As to the second exception, it is unnecessary, perhaps improper, to discuss it at all, as no testimony was given under the decision excepted to. I will merely say, that in general it cannot be necessary or proper, for the party calling a witness to impeach another, to go at all into particulars. He proves the character to be either good or bad, and there stops; the opposite counsel inquires, if he chooses, into the means of knowledge of,the witness who is testifying. But if the witness goes in advance of the question put by the counsel who calls him, and says that since a certain period he has heard some people speak against the witness, whose character is sought to be impeached, the court may in its discretion permit the inquiry who those persons are, with a view to ascertain whether they are not in some way connected with the opposite party, or whether the bad character of the witness has not been produced by efforts of such party. 7 Cowen, 263. The main question in the case is, whether the defendant below had a right to prove that the witness Sally Holton was a public prostitute. This point was expressly adjudged near twenty years ago, in Jackson v. Lewis, 13 Johns. R. 504, 5. In the language of Chief Justice Thompson, “ The inquiry should have been as to her character for truth and veracity. At all events, this should have been the principal and first inquiry; but that was not attempted. The inquiry as to any particular immoral conduct is not admissible against a witness.” This rule has not been departed from, to my knowledge ; a discusssion of it is unnecessary. It is not improper, however, to refer to the reasons by which it is supported by writers upon the Jaw of evidence. Starkie says the credit of a witness may be impeached by general evidence, that he is not worthy to be believed under oath, but no evidence can be given of collateral facts, for the purpose of discrediting him. This would lead to an indefinite number of issues. The character of each witness might be impeached by separate charges, and loaded with such a burthen of collateral proof that the ad [111] ministration of justice would become impracticable. Besides, although every man may be supposed capable of defending his general character, he cannot be prepared to defend himself against particular charges. Stark. Ev. pt. 2d, l46, 7. Swift's Ev. 143, 4. 1 Phil. Ev. ch. 8, § 7, p. 229. Judgment affirmed.