McGuire v. Kenefick

Ladd, J. 1 The court rightly excluded evidence sought to be elicited from the defendant on direct examination concerning a usurious loan previously made to him by the plaintiff. It was an entirely independent transaction, having no possible connection with the execution of the note in suit. [148] II. No unvarying rule as to how far back inquiry concerning the general reputation of a witness for truth and veracity may properly extend can be stated, as this must, of necessity, depend on the peculiar facts of each case. Because of the presumption that status, once established, continues until a change is shown, some courts hold that proof of such reputation at a time somewhat remote" from the trial, and at a place of residence other than then had, may be received; these circumstances affecting only the weight to be given the evidence. Mynatt v. Hudson, 66 Tex. 66 (17 S. W. Rep. 396); Kelly v. State, 61 Ala. 19; Snow v. Grace, 29 Ark. 131; People v. Abbot, 19 Wend. 192. A person of [149] mature age, possessed of character notoriously had, will be unlikely to so reform as to acquire a different character within a brief time. Nevertheless, men change, though not often suddenly; and evidence of recent reputation, near the time of trial, is ordinarily entitled to greater weight than should be accorded that of a more remote period. This is recognized by all the authorities, and, when obtainable, it would seem such evidence ought to be produced, because of its superior quality, especially where, as in this state, the practice of limiting the number of witnesses testifying to character prevails. Besides, to extend the inquiry far. in the past, and to a residence other than that recently had, miay impose an unwarrantable burden on the witness whose character is assailed, and frequently work irreparable wrong. As said bv Brewer, J., in Fisher v. Conway, 21 Kan. 25; “Impeaching testimony is for the purpose of discrediting the witness by showing that the community in which he lives do not believe what he says; that he is such a notorious liar that he is generally disbelieved. It is his present credibility that is to be attacked. Is he now to be believed ? What do his neighbors think and say of him at the present time; not what did they think and say months or years ago? True, general reputation is not established in a day; and so the inquiry is not to be restricted to any particular week or month or year. The reputation a man has in any community is based upon all the years, few or many, of his living in such community.” To the same effect, see Sun Fire Office v. Ayerst, 37 Neb. 184 (55 N. W. Rep. 636); City of Aurora v. Cobb, 21 Ind. 492; Packet Co. v. McCool, 83 Ind. 392; Webber v. Hanke, 4 Mich. 198; Keator v. People, 32 Mich. 484; Young v. Com., 6 Bush, 312; Wood v. Matthews, 73 Mo. 477; Smith v. Hine, 179 Pa. Sup. 203 (36 Atl. Rep. 222). In State v. Potts, 78 Iowa, 659, the defendant had established a reputation in Des Moines by five years’ residence, and the admission of evidence of his previous reputation at Newton and Brooklyn of the same state [150] was adjudged error. But in Schoep v. Insurance Co., 104 Iowa, 356, the witness had removed from Sioux Center a year previous to the trial, and, it not appearing that he had acquired a new residence at any other place, proof of reputation there was held to have been properly received. In that case we said, “The rule in regard to the admission of such evidence, so far as it relates to the time when the reputation existed, is somewhat flexible.” Whether a new residence has been acquired, and for such a- length of time and under such circumstances as that proof of character in that neighborhood, rather than at the former home, must be adduced, is for the determination of the trial court; and its decision, ought to be final. Teese v. Huntington, 23 How. 2 (16 L. Ed. 479); Holliday v. Cohen, 34 Ark. 707; Brown v. Perez, 89 Tex. Sup. 282 (34 S. W. Rep. 725); Buse v. Page, 32 Minn. 111 (19 N. W. Rep. 738). Chief Justice Bleckley, in Watkins v. State, 82 Ga. 231 (8 S. E. Rep. 875, 14 Am. St. Rep. 155), declared that “on such a question the past and present are so related that no complete severance between them can be made. * * * As the law prescribes no definite limit in time, we think the discretion of the court must, of necessity, be exercised in every instance where the proposed evidence is not so remote as to preclude all difference of opinion.” There the witness had moved to Florida four years before the trial, and, as the statute made no provision for taking depositions in criminal cases outside of the state, rejecting evidence of reputation while residing in Georgia was adjudged error. But it somietimes happens that a witness who has established a reputation at a particular locality leaves it, and thereafter wanders from place to place up to the time of the trial, without remaining anywhere long enough to become thoroughly known to his neighbors. In such a ease, evidence of his reputation at that locality may be' received, though antedating the time of the trial many years, Holmes v. Statler, 17 Ill. 453; Snow v. Grace, 29 [151] Ark. 131; Blackburn v. Mann, 85 Ill. 222. See, generally, eases collected in 10 Enc. Pl. & Prac. 307. We reach, the conclusion that the rule best adapted to such an investigation restricts inquiry to the neighborhood of the present residence of a witness sought to be’ impeached, and to proof of reputation at a time near that of the trial. When a residence has been so recently acquired that the neighbors of the witness are not likely to have ascertained his true character, and he, in all probability, has not thrown off that established in the neighborhood of his former abode, evidence of his reputation at the latter place may be received, as it may also when he has subsequently remained in no place long enough to become well known to his neighbors. 3 4 III. Though McGuire was not asked his place of residence, it appeared that he had moved from Ackley more than seven years before the trial. To the question, “When did you first go to Kansas City?” he answered: “I cannot say exactly. I think it was seven years ago. I came back, and claimed iny residence in Eranklin county, occasionally, after I went there. I never bought any property there in Kansas Oity.” One of the impeaching witnesses thought his residence at Britt, and another had heard him say two years before that he lived in Kansas Oity. There was also evidence tending to show him to have been in Ackley frequently, transacting business, several weeks of each year. As he ceased to be a resident of the neighborhood of Ackley more than seven years before the trial, evidence of his general reputation there was inadmissible, unless it appeared that h'e had not maintained a residence elsewhere in the meantime. This was not shown, and, without some proof bringing him within the exceptions heretofore noted, we think the impeaching evidence rightly rejected. Whether one may acquire a reputation, provable in court, at his place of business, when other than the locality [152] of bis residence, is not presented in this record, as 'McGuire was at Ackley but a short time each year, during 'which he is not shown to have established a general reputation. Exceptions to rulings on objections to other questions propounded are not argued, and for this reason have received no attention. — Aeeirmed.