Rothrock v. Gallaher

Mr. Justice Mercur, delivered the opinion of the court, This was an action by the executor of Robert C. Gallaher, to recover for the alleged conversion of certain United States bonds. At one time during the life of the decedent, they were owned by him, and were in his possession. The plaintiff attempted to prove that the defendant had purloined them either a short time before Gallaher’s death or soon thereafter. The defendant alleged they had been taken by some of the plaintiff’s witnesses. In a previous suit by the plaintiff against the defendant for the same subject-matter’, and after witnesses had testified, the plaintiff took a non-suit. Many of those witnesses testified again on the trial of this cause. There was no direct evidence of the taking or conversion — 112 — of the bonds. The plaintiff sought to prove the taking by showing the defendants had access to the safe in which the bonds were kept and had actually caused it to be opened. This attempt as well as the effort to show that some of the witnesses had sworn differently on the former trial, gave a wide range to the evidence. Under all the circumstances we see no error in the court having admitted evidence of the declarations as well as of the acts of the persons sought to be inculpated. The ease was so w'ell and carefully tried that we do not deem it necessary to consider all the assignments in detail. We will briefly consider the thirteenth and fourteenth. The thirteenth is to the admission of the evidence of Wright given on the former trial. Plis evidence was then taken down by the judge before whom the case was tried, and on the present trial the judge testified to the correctness of his notes of evidence. That evidence was of entries which he testified he had made in a small book, of bonds and coupons, which he was going to sell and did sell. Those entries showed in figures the various numbers and, amounts of twenty bonds. Two leaves showing the entries, had by some person been torn out of the book, prior to the first trial. From memory and some written memoranda he then testified to the entries which he had made on the lost pages of the book. On the present trial he was present but was unable to state that he had testified in regard to this matter on the former trial. He swore, however, that if he did so testify, his testimony was correct and true. The judge swore he did so testify. It appearing on the last trial that the witness was eighty-seven years old, and in consequence of his great age and ill health his memory had failed him in respect to the facts in question, the court permitted the testimony which he had given on the former trial, to be read in evidence. If he had been dead or beyond the jurisdiction of the court, it is clear this evidence would have been admissible. Chess v. Chess et al., 17 S. & R. 411; Moore v. Pearson, 6 W. & S. 51; Jones v. Wood, 4 Harris 25; Rhine v. Robinson, 3 Casey 30; Haupt v. Henninger, 1 Wright 138: Wright v. Cumpsty, 5 Id. 102: Evans’s Adm’x v. Reed, 28 P. F. Smith 415: Pratt v. Patterson, 31 Id. 114. We cannot see any substantial reason why the testimony of a witness once duly taken in a pending cause may not afterwards be read in evidence in another cause between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health. The justice and propriety of receiving the evidence are as strong as if the witness were dead, insane, out of the jurisdiction of the court, or unable to attend by reason of sickness. Although bodily present, yet if shown to have become so bereft of memory by senility or sickness, that he is unable to recall a past transaction to which he had once testified and has forgotten that he,ever testified — 113 — in regard to it, he may be considered as practically absent, and his former testimony, if otherwise admissible, may be read in evidence: 1 Greenl. on Ev., §163 n. It is also intimated in Jack v. Woods, 5 Casey 375, and ruled in Emig v. Diehl, 26 P. F. Smith 359. The 14th assignment presents an objection to the defendant’s testifying to a fact existing after the death of Mr. Gallaher. It is claimed that inferentially, this tends to prove a condition of things prior to his death, and inasmuch as the suit was brought by the executor, the defendant was incompetent to so testify. We think this objection unsound. The Act of 9th April 1870 makes the defendant competent to testify “ to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” It fixes no period of time after his death, when the matters shall have occurred, whether they be immediately thereafter or whether months or years have intervened; the defendant is thereby made competent to testify in regard to them. She is not made incompetent to testify to any fact occurring or existing after the death of the decedent, by reason that her testimony may inferentially tend to prove the same facts existed prior to his death. If the executor had given evidence to prove that certain chattels had been destroyed or a certain animal killed during the life of the decedent, it cannot be successfully contended, that the defendant would have been precluded from testifying that she saw the property immediately after his death, and then the chattels were uninjured and the animal in full life. The decisions applicable to the eighth and tenth assignments are not in harmony with each other. In 2 Greenl. Ev., sects. 462, 467; McAteer v. McMullen, 2 Barr 32; Wright v. Crumpsty, supra, it is said that a witness cannot be discredited by proof of contradictory statements, unless he be first examined as to such statements, so as to give an opportunity for explanation. On. the contrary it is held in Sharp v. Emmet, 5 Whart. 288; Kay v. Fredrigal, 3 Barr 221; Walden v. Finch, 20 P. F. Smith 460, whether his attention must first be called to the matter, rests in the sound discretion of the judge, and unless that discretion be abused, its exercise is not ground for reversal. We think it best to adhere to the rule laid down in the last case. So holding we see no such abuse of a sound discretion in this case as to give cause for reversal. The testimony of the witness was by deposition. When it was taken, the defendant does not appear to have had knowledge of the declarations sought to be proved. The remaining assignments are without merit. Judgment affirmed.