Willard v. Goodenough

The opinion of the court was delivered by Barrett, J. I. The first question raised by the bill of exceptions and discussed by counsel, being in relation to the manner of cross-examining Asa P. Goodenough, we pass, without expressing any opinion upon it. [396] II. The plaintiff called Steen, as a witness, to impeach the character of the defendant for truth. On cross-examination, the defendant’s counsel asked him “ if he would believe the defendant on oath.” The court, on objection, ruled out the question. Under the rule, as well settled in this state, such a question could not be put on the direct examination. It is claimed that that rule does not apply to the cross-examination, so as to exclude the question. We are not aware of any formal decision of the supreme court upon the subject, as it is now presented. Yet we are quite sure that the understanding and usage of the courts and bar of the state have not recognized the distinction here taken, between the direct and cross-examination. There may be reasons favoring the distinction and justifying this mode of cross-examination. These reasons have been well presented in the argument of this case. But we find it difficult to place the subject, when the proposed question is put on the cross-examination, on any ground of principle that would not equally justify its being put on the direct examination. Under the rule and practice, as we understand them, the cross-examination may extend to every matter of fact within the witness’ knowledge, bearing on the fact of the bad character to which he has testified; and thus the proper consideration and weight may be given by the jury to the whole testimony of the impeaching witness. After such an examination of a witness has been made, for him to superadd that he would or would not, believe the impeached witness on oath, must be, in effect, merely giving his own opinion to the jury, as to the net result of his own impeaching testimony. Though such an opinion might evince his personal estimate of the credibility of the witness in question, and how much detractive force he gave to the defective character, still, we see no good reason for 23ermitting that opinion to be given in evidence on cross-examination, which would not operate with nearly equal force for permitting it on the direct. If we were now called on to institute , a rule on this subject) instead of administering and applying an old one, we might not have much difficulty in copying the rule of the English, and some of the American courts. But, at present, we are not disposed to [397] engraft a new feature into tlie law of this subject, as always understood and generally practiced by the bench and bar of this state. On this point we think there was no error in the decision of the county court. III. As to the proposal by the plaintiff, to show that, at and about the time of the defendant’s going through bankruptcy, (in 1842) his character for truth was bad, we think, as a distinct prop-position, disconnected with the examination of the witness, as to present character, it was improper. It is well settled that the question should be, “ what is the 'general chai-aeter or reputation for truth ?” Under a question thus put, it is quite coxnmon for the witness under examination, in giving his knowledge of the character in question, to state what was the character of the impeached witness at particular prior periods. It is practically impossible to limit the scope of the answer to any particular period. The testimony, when given under such a question, will bear more or less strongly upon the'present character of the impeached witness, according as it fixes the existence of the bad character at a more or less recent point of time. It may be proper, under some cireuxnstances, as in case an impeaching witness should' answer the question thus put, that he does not know what the present character is, or that he has not heard it talked about recently, or in some other way implying his knowledge of former bad character-, to inquire of him as to his knowledge of it at former periods. But we think this should be done only as following upon such a kind of answer to the questions put as above indicated. The present chax-acter is the point in issue. What the character had formerly been is relevant only as it blends with the continuous web of life and tinges its present texture. It could not, with any show of reason, or authority, be held, that under the law of evidence permitting a witness’ general chax-acter to be impeached, it would be proper to make the issue, as to what his character was at a given period, prior to the time of his being used as a witness in the case on trial. If not, then it is equall^ clear that, as a distinct and independent proposition, it would be improper to offer evidence as to what his chax-acter was at such prior' period. [398] In the present case, it is somewhat difficult to determine from the bill of exceptions, in what connexion with, and relation to the other impeaching evidence, or in what form the proposal under consideration was made. We therefore pass this point with the foregoing remarks indicating the views of the court on this subject. IV. The testimony of Prouty, “ that he called and read the indorsement twenty-five dollars,” and called the amount due in the inventory one hundred dollars, seems to us to be merely testifying the witness’ opinion as to the questionable indorsement. lie was not an expert, and therefore does not fall within the rule allowing opinion to be given in evidence. Whether the word was twenty-five or seventy-five, was the question in issue, and, in the absence of the testimony of experts, it was to be determined by the jury from an inspection of the paper, with the aid of the other evidence tending to show how much in fact the defendant paid at the time of the indorsement, and designed to be covered by it. The principle governing this point was fully recognized and reaffirmed in the case of Frazer v. Tupper, decided, on full argument at the last term of the supreme court in Windsor county.* We think the court erred in admitting this testimony. Y. As to the reading of that part of the minutes of the testimony of Levi Goodenough, which was objected to by the defendant, we should have found no difficulty, if the court had given proper instructions to the jury respecting it. The fact that the witness was dead, could not operate to render that part of his testimony any more relevant than it would have been if he had been living and present on the stand. The fact that he gave that testimony on a former trial without objection, did not preclude the defendant from objecting to it when the same was offered on a subsequent trial. It does not fall within the principle of Glass v. Root, 5 Vt. 172, or of the other cases in which the objection of interest in the witness, or the rule requiring written instead of parol evidence was waived. If it were held to be proper that the whole of the minutes should be read, still it was the duty of the court to instruct the jury that that part of the testimony was irrelevant, and not to be considered by them. Instead of [399] doing so, the court left it for the jury “to say whether they would give any weight to that part of it,” with some Very good advice as to the light in which they ought to view it. In this we think the court erred. Judgment is reversed and the case is remanded to the county court for a new trial. Footnotes [*] See 29 Vt. 409.