Aulger v. Smith

Mr. Chief Justice Walker, delivered the opinion of the court: •This was an action vi• et a/rmis, for an assault and battery. The declaration avers that defendant stabbed plaintiff with a knife. The general issue and a plea of son assault demesne were interposed, upon which issues were joined. A trial was had, resulting in a judgment in favor of defendant, to reverse which this writ of error is prosecuted. On the trial below, the court permitted a witness to testify to a part of the evidence of plaintiff in error, given to the jury on a criminal trial for the same offense, but prevented him from testifying to the balance that was then said by plaintiff in error. This was in the nature of an admission by the party, and when made evidence by one party, the other has a right to call for the whole statement. To permit detached portions only, of an admission to be given in evidence, would work great injustice and manifest wrong. It would not be giving evidence of what was said, but of something never intended. If any portion of an admission is unfavorable to the party having a right to call for it, he need not call for any portion of the statement. It is objected that the court erred in excluding the proof of the contents of the lost deposition of C. L. Burns, taken and read in the criminal prosecution for the same assault. It was proved that his deposition was lost, and the witness had died after it was taken. The rule is well recognized, that the contents of lost papers may be proved by the best attainable secondary evidence. The rule grows out of necessity, to prevent injustice and wrong. So long as the paper can be produced, such evidence is not admissible, but if its loss is established, it is otherwise. lío difference is perceived between lost depositions and any other written testimony, except that if the witness was living, proof of the contents could not be made, as it would not be equal, as testimony, to the production of the witness himself. We are of the opinion that the contents of this deposition migiit be proved by any person who knew, and could testify as to its contents. Hor was the court below warranted in excluding this evidence, upon the ground of irrelevancy. The deposition of Speck gave a conversation between the witness and defendant in error, in which he gave his version of the difficulty. If plaintiff in error chose to do so, he had the right to make defendant’s statements evidence. They tended to prove the issue in the case. As plaintiff in error claimed special damages, Burns’ testimony was material, as it tended to prove malice. It is true that the statement from which it might be inferred, was made after the occurrence, but it as fully showed the state of feeling on the part of defendant in error, as if it had been made at the time, or previous to the occurrence of the difficulty. It, in fact, was stronger evidence than if made at the time, as sufficient time had elapsed for passion and excitement to cool. Evidence of the contents of both of these depositions should have been admitted, and the court erred in rejecting it. The judgment of the court below is therefore reversed and the cause remanded. Judgment reversed.