Crooks v. Bunn

Opinion, Me. Justice Gkeen: The letter of December 26, 1884, was a private letter, written by the defendant to his friend, Mr. Lindsey. The latter had long been, and was at the time Mr. Bunn was appointed governor of Idaho, city editor of the Transcript, and continued as such thereafter. The letter was written in December, 1884. The defendant claims that he made a lease of the Transcript property to Jackson in June, 1884, and did not resume his connection with the paper till about June 1, 1886, or very shortly before. The contents of the letter prove that it was a mere friendly letter, in which the fact of Jackson’s connection with the Transcript, and his success in managing it, are mentioned, with an expression of the writer’s satisfaction, and of the hope that Jackson might be more able to buy the plant of him. The letter was in no sense any part of the transaction by which the transfer of the Transcript was made. It had nothing whatever to do with any of the actual facts of the case. It was of no more significance than would have been a conversation between Bunn and Lindsey, at the date of the letter, in which the same words were uttered verbally that were written in the letter. How can it be that such a declaration, made by the defendant to a personal friend, in the absence of [371] the plaintiff, in a casual letter, being no part of and having no possible connection with the actual transaction of the transfer of the newspaper in question, be made legal evidence in favor of the declarant and against the plaintiff, to support an allegation that such a transfer had been made ? If it was not evidence in support of such an allegation, it was not evidence at all, being totally irrelevant for any other purpose. It was, then, simply Mr. Bunn’s assertion to Mr. Lindsey that he had leased the Transcript to Mr. Jackson at some time anterior to the letter. As a matter of course, it was not original or primary evidence; nor, was it secondary evidence, which may be given when primary evidence is lost or cannot be had. But a single reason is, or can be, offered for its admissibility, and that is, that it is competent to show that the defendant, at another time and place, made a statement of the transaction consistent with his present testimony. But that is no reason of itself alone, else a party could constantly make testimony for himself, to be subsequently used in the trial of a cause. It is said, however, that such a declaration can be given to disprove a contrary allegation of recent fabrication. But what can we know respecting such an allegation ? Where does it appear in this case ? What is there on the record to show us that such a charge has been made against the defendant? Nothing. Where a person has testified in one way on the trial, and proof has been given that at another time he gave a different version of the same subject matter, that proof, of course, appearing on the record, it is sometimes, and in some circumstances, competent to show that at some other time he has made statements of the same matter consistent with his present testimony. Thus in Packer v. Gonsalus, 1 S. & R. 526, Chief Justice Tilghman thus states the rule: “ Where the credit of a witness is impeached by evidence that he said something inconsistent with what he has sworn at another time, this may be rebutted by proof of other declarations by him in conformity with what he has sworn ; because, both being'without oath, one is as good as the other, and the jury will judge of his credit on the whole.” Justice Duncan, in Henderson v. Jones, 10 S. & R. 322, says: “ There is only one point in this cause. Where a witness is contradicted, and evidence given to impeach his character, [372] can evidence be given of what he swore on a former trial, to show his consistency and corroborate him? ” The opinion proceeds to show that such evidence can be given. But these cases are of no service in the present contention, for the simple reason that there are no facts on the record to give them application. There is no proof that Mr. Bunn ever admitted to any one that, in point of fact, he was the owner, editor or publisher of the Transcript, at the time the libelous articles were published. There is certainly no proof that he ever so testified in any other case. What then is to be eoz’roborated ? Simply his own present testimony. But that will not do. He testified fully in regard to the whole subject of the ownership of the paper. He gave zzo inconsistent statements in regard to that matter, and no statements inconsistent with any other statements made by him at any other time, in or out of court, and hezice it is that the peculiar circumstances which permit the introduction of this very exceptional kind of testimony are not present. What is said in Craig v. Craig, 5 R. 91, is in no respect different from the ruling in the preceding cases. Gibson, C. J., said in that case: “But statements by a witness at another time, though admissible to contradict him, are not equally so to confirm him. They are certainly not receivable before his credibility has been assailed; but it is a vexed question whether they may not be used to rebut evidence of self-contradictiozz, by showing him to have been sometimes consistent.” Here, again, it will be seen that the limitation of the exception is to the purpose of rebutting evidence of self-contradiction. But there is zzo evidence of self-contradiction on the part of Mr. Bunn, and therefore there is nothing to be rebutted. It is argued, however, that the quotation from Starkie, by Chief Justice Gibson, covers this case. It is in these words: “ Adopting, then, the rule of Mr. Starkie with its exception, that consonant declarations may be given in contradiction of evidence tending to show that the testimony at the bar is a fabrication of a recent date, and to show that the same statement was made before its ultimate effect on the question trying could have been foreseen,” etc., etc. The difficulty in the application of the exception, as thus stated, is the absezzce of the evidence tending to show that the present testimony is a fabri [373] cation of recent date. Where is it? If Mr. Bunn had previously made a statement of the facts in hostility with his present testimony, it might well be said the fact of such discrepancy tends to show that his testimony now is a fabrication. But there is no such testimony, and we are not referred to any other testimony having such a tendency. Without such testimony, there is nothing to rebut or contradict. It is not necessary to review the numerous cases in which we have held that offers of such testimony cannot be sustained. It is inadmissible in the present case upon very plain principles, and does not come within the operation of any of the cases cited in its support. The case of McKee v. Jones, 6 Pa. 425, illustrates the subject quite clearly thus : “ Statements by a witness at another time, though admissible to contradict, are not equally so to confirm him. This is the general rule. But consonant declarations may be given in contradiction of evidence tending to show that the testimony at bar is a fabrication of recent date, and to show that the same statement was made before its ultimate effect oh the question trying could have been foreseen...... Here the witness resided in Kentucky. He was not examined in open court. In his second deposition he denied the truth of all he had stated in his first deposition. The declarations proposed to be proved were made prior to either deposition, and were in accordance with the evidence given on the first commission. It would seem that the case was within the rule in Craig v. Craig, 5 R. 91.” To bring the present case within the peculiar circumstances which must exist in order to justify the admission of the letter in question, it would have to appear that Mr. Bunn had at some other time either testified or spoken in contradiction of his present testimony, and then, in order to corroborate his present testimony, his declarations on a still previous occasion might be admitted. There are no such facts in the case, and certainly neither he nor his counsel would admit that there were. We are therefore of opinion that the letter of December 26, 1884, was improperly admitted, and the first assignment of error is sustained. The other assignments are without merit. The conversation testified to by Mr. Lindsey was a part of the res gestee. It was proof of the official notification by Mr. Bunn to him, Lindsey, the city editor, of the change in the management and control [374] óf the paper. Bunn and Jackson were both present; and the witness proceeded to testify that from that time on Jackson was in sole and absolute charge of the paper. The same remarks are true of the conversation offered and admitted in the testimony of Harper F. Smith, who was the business manager of the paper. Such communications were entirely proper, and were altogether consistent with an actual, bona fide transfer of the paper. The book entries proved by the testimony of the same witness were of the same description. They were evidence of the genuine character of the transfer. Judgment reversed, and a new venire awarded.