Leonard v. Allen

Dewey, J. 1. Considering the nature of the evidence relied upon to prove that the defendant had charged the plaintiff with maliciously burning a school-house, we think it was competent to inquire of the witnesses what they understood the defendant to mean by using “ certain expressions, gestures, and intonations,” both as to the person intended, and in regard to the charge made against him. This case differs from that of Snell v. Snow, 13 Met. 278; that being a case of naked conversation, and the whole language capable of being stated fully to the jury, and capable of being fully understood by them. When the charge is made by gestures and signs, and not solely in words, it is the more necessary to allow a departure [245] from the strict role that has certainly to some extent prevailed,' of refusing to permit a witness to state what meaning he understood the defendant to convey by the words used. Perhaps the cases of Goodrich v. Davis, 11 Met. 484, and Miller v. Butler, 6 Cush. 71, may be found to extend somewhat the rule, but however that may be, the court perceive no objection 1o the ruling on this point. 2. The ruling of the court upon the evidence proposed ro be offered to impeach the character of the plaintiff was correct. The case of Stone v. Varney, 7 Met. 86, went no further than this. There the question allowed to be put was as to the character of the plaintiff “ as a man of moral worth.” 3. The propriety of allowing the party whose character is impeached by a general statement of his bad reputation for moral worth, to elicit particulars on a cross-examination, seems to follow from the general practice in reference td evidence of bad reputation of a party, more frequently occurring in the case of witnesses, who are impeached. It has been thought useful and favorable to the elucidation of truth in such cases to allow on cross-examination an inquiry as to particulars in the charges, and also in reference to the persons who made them, or gave their opinion as to the character of the individual impeached. We think the ruling was right upon this point.. 4. The question arising on the cross-examination of George L. Bowe, is somewhat different, as he was ■ a witness introduced by the plaintiff. Being so, the plaintiff as a general role, could propose to him only the general question, and this was done in the present case. But the witness having said: “ Some spoke very ill of the plaintiff,” it was competent for the presiding judge to permit the party who may be supposed to be surprised by the answer, to. go further and interrogate the witness, and ask for his explanation of the phrase used by him, and in what respects the community “ spoke very ill ” of him. Without this power, the witness might, under general words used, convey an erroneous idea, and an effect be given to evidence not warranted by law, and that in a case where the general answer was an entire surprise upon the party call [246] ing him, and susceptible of an explanation consistent with maintaining a good reputation as a man of moral worth. 5. As to the evidence of Cyrus Leonard and Charles Leonard, sons of the plaintiff, and called by him in answer to some statements by other witnesses as to reports in the community that the plaintiff had turned his two daughters out of doors, and who were inquired of “ whether they had ever heard that their father had turned his daughters out of doors,” we are of opinion that this evidence was not strictly competent, and ought not to have‘been admitted. It is at least immaterial, and for that cause should have been excluded, though, upon the ground of immateriality, its admission might not have required us to set aside this verdict. 6. The testimony of Jason Feary, a witness introduced by the plaintiff, that shortly after the fire, it was currently reported in the neighborhood, that the defendant had charged the plaintiff with burning the school-house, does not seem to us to have been admissible. It was supposed to be so for the purpose of showing that the plaintiff was injured by the charges of the defendant being put into general circulation. But the objection arises from the want of proof that the defendant had circulated those charges, which were abroad generally in the community. The evidence, so far as it went to connect the defendant with them, was mere hearsay. It proved the existence of current reports that the defendant had made such a charge, but it went no further. The admission of this testimony having been seasonably objected to, and it being material upon the question of damages, the verdict must be set aside and a New trial granted.