Phenix v. Castner

Mr. Justice Scholfield delivered the opinion of the Court: There was a conflict in the evidence with reference to the speaking of the words in the second and third counts, and also in that with reference to the defence of justification. The ninth instruction, given at the instance of the plaintiff, was as follows: “No matter how prominent or respectable any one man or woman may be, the jury ought not arbitrarily and without just cause believe such man’s or woman’s testimony as against the testimony of two or more persons testifying differently upon the same matter.” We are of opinion that this was calculated to mislead. The fact that two or more persons testify one way, and a “prominent and respectable” person testifies another way, is all that is tangible. What is “just cause,” in the sense in which the term is here used, is not defined, but is left to be determined by the members of the jury to suit themselves. One “respectable” person may be believed, notwithstanding any number of persons testify the other way, if, from their reputation, or the matters or manner of their testimony, it is doubtful whether th'ey tell the truth. A jury would doubtless understand this as asserting that where two testify one way, and only one the other way, the one, although “prominent and respectable, ” ought not to be believed as against the two, disregarding any circumstances affecting their credibility, and the letter of the instruction plainly justifies this,— in other words, that mere numbers should control. The tenth instruction, given at the instance of the plaintiff, is as follows: “If any witness, introduced for the purpose of establishing adultery, has testified to circumstances which may be construed against plaintiff, and if those circumstances would tend to show that perhaps the plaintiff committed adultery with such witness, and if such witness positively testifies that such adultery was not committed or attempted, the jury ought not, without good and sufficient cause, believe the. things such witness testifies which may be deemed beneficial to defendant, and disbelieve all- such testimony (if any) as may be deemed favorable to plaintiff. Especially is this true if the testimony-deemed favorable to plaintiff must either be true, or else the witness be a willful and corrupt and intentional perjurer.” This is a mere argument directed against a particular witness, and erroneous in the implied assumption that if his evidence be false in a particular respect, he will be guilty of willful and corrupt perjury, while if false in another respect equally pertinent and material, he will not be guilty of willful and corrupt perjury. Besides, the jury are left in the dark as to what, in such connection, is .meant by “good and sufficient cause.” It is always seriously objectionable to single out in an instruction a particular part or piece of evidence, and hold up to the jury the horrible consequences that would result from perjury with reference to it. The jury are suj)posed to know that all witnesses testify under oath, and they should not be morally intimidated by pictures of the results of perjury in one part more than in another. During the progress of the trial Frederick 6. White was called and examined as a witness on behalf of plaintiff, and gave material evidence on her behalf. On cross-examination he admitted that he was then unfriendly towards the defendant. He was then asked if he had not, on different occasions, to different persons, (giving time, place and person,) made remarks (that were 'repeated in the several questions) in regard to the defendant, showing a bitter and revengeful feeling towards him. He denied that he had made such remarks. The counsel for the defendant, at the proper time, called the persons named in these questions, and offered to prove by them, respectively, that the witness had made such remarks, but the court, on objection, refused to allow the witnesses to be heard in that respect. As to collateral matters in general, if gone into on cross-examination, the party is bound by the answers of -the witness, but the state of feeling of the witness towards -the adverse party is held not to be irrelevant, (1‘Greenleaf on Evidence, sec. 450,) and hence it is held to be competent to inquire, on cross-examination, whether the witness has not used expressions of animosity or revenge towards the party against whom he bears -testimony, and if the witness deny that he has, to introduce evidence to contradict him. 2 Phillips on Evidence, (Cowen & Hill’s and Edwards’ notes,) 971; Best on Evidence, (1st Am. from 6th Lond. ed.) 1081; Stark v. The People, 5 Denio, 106 ; Newton v. Harris, 2 Seld. 345. But counsel insist the witness having admitted that he felt unfriendly towards the defendant, the inquiry should have been stopped,—that that was all that could be shown by proof of the making of the revengeful remarks,—and in confirmation of this he cites Schmidt et al. v. Sinnott, 103 Ill. 160. That case is not at all analogous. There the witness vTas asked: “Has there not been a feud or quarrel between your family and Dr. Schmidt’s family ?” This was disallowed by the trial court, because the inquiry was not limited'to the feelings of the witness, and we said it might, with propriety, • have been answered, but that the ruling did no harm, because the witness elsewhere stated fully what his feelings were towards the party. Between a mere feeling of unfriendliness, which was here admitted, and a willingness to do a personal injury, of which the offer was to make proof, there is morally a very wide difference. The one implies, of necessity, no lawlessness, and may be perfectly consistent with the highest type of morality, while the other shows a disposition of lawlessness, and indicates a heart favorable to the commission of crime. Suppose it could be' proved that a witness had said his feelings towards a party were such that he would be willing to commit any crime that could injure him,—even perjury. Must the inquiry be stopped in such a case by the simple answer of the witness that he felt unfriendly towards the party? Surely not. The inquiry would then, beyond all question, go directly to his veracity. If, in such case, it would not be limited to the answer of the witness, upon what principle can that .ease be distinguished from this, so as to limit the inquiry here to the answer of the witness ? We can perceive none. Geary v. The People, 22 Mich. 222, is in point. There the witness was asked whether she had not made certain specified declarations in regard to the defendant, and the trial court refused to allow the question to be answered. On error to the Supreme Court this was held to have been improper, and ground of reversal, the court, among other things, saying: “We think this proof should have been admitted. It is true that where a wdtness is cross-examined on matters purely collateral, the cross-examiner can not inquire of other witnesses whether the answers are truthful, because the inquiry would open irrelevant issues. But the interest or bias of a witness has never been regarded as irrelevant. It goes directly to his credit, and must determine, with the jury, how far facts depending on his evidence are to be regarded as proven. A party can not be compelled to put up with the statements of a witness concerning his own interest or personal relation to the ease or parties, where it becomes necessary to know his position. ” We think it was error to refuse to admit the evidence. For the errors indicated the judgment is reversed and the causó remanded. Judgment reversed.