Harris v. Berry

Erskine, J. “ I am decided of opinion that you cannot ask the question. Mr. Baron Parke has, I know, so ruled, 2 Moody & Bob., 133, and I recollect ruling the same way myself on the Oxford Circuit, with the approbation of Justice Patterson, whom I consulted; and 1 have since talked with several of the judges on the point, and find they are generally of the opinion that Mr. Baron Parke’s decision is right.” In DeLisle vs. Priestman, 1 Browne, 182, although the witness was called for the plaintiff, it was competent to the plaintiff to prove he was mistaken in any part of his evidence by calling other witnesses to rectify the mistake, or to swear that on other occasions he had related “ the story in a different manner. There it would seem‘that the mistake was of an important matter relevant to the issue. In Queen vs. State of Maryland, 5 Har. & J., 232, the prosecutor was permitted by the County Court (Chase, Oh. J., and Bidgley, J.,) to give evidence that his witness had made a contradictory statdment to impeaoh his credit, but that point was not decided, because, as a bill of exceptions would not lie in a criminal case, the Court said the question was not regularly before them, and they can only say, “ If a similar point had been presented to them they would have given a different decision.” In Cowden et al. vs. Reynolds, 12 Serg. & R., 283, it was decided that where a party is obliged to call a subscribing witness, he may contradict him as to a particular fact showing that he had told a different story at another time; the ques — 280 — tion did not go to impeach his general character for veracity, but only as to a fact pertinent to the issue. In Brown vs. Bellows, 4 Pick., 194, the witness was called by the plaintiff from the necessity of the case, he being a subscribing witness, and the Court permitted the plaintiff by another witness to disprove the fact which his witness had stated. In Jackson vs. Lesk, 12 Wend., 106-8, the plaintiff, being disappointed by his witness, wras permitted to prove his case by other witnesses. And Savage, Ch. J., said that u the plaintiff, by disproving the facts sworn by his witness Wooley, did not violate the rule which prevents a party from discrediting his own witness. He did not attack the character of Wooley, but proved the facts tobe different from those stated by Wooley. This he was at liberty to do. If this plaintiff calls the subscribing witness to an instrument, who disproves it, the plaintiff may prove it by other witnesses.” In Stockton & Stokes vs. Demuth, 7 Watts, 39, the Supreme Court of Pennsylvania held that a party will be permitted to impeach the character or testimony of his own witness by other testimony necessarily tending to that effect and for that purpose; but having called a witness who disproved his case, he is not thereby precluded from resorting to other evidence to support it. And that a party, by calling and examining a witness accredits him as competent and credible, and is estopped from averring the contrary. In delivering the opinion of the Court, Sergeant, J., said: “ It seems to be a principle of law that a party cannot discredit the testimony of his own witness and show his incompetency, for it would be unfair that he should have the benefit of the testimony if favorable, and to be able to reject it if the contrary. When, however, the party is under the necessity of calling a witness for the purpose of satisfying the formal proof which the law requires, he is not precluded from calling other witnesses who may give contradictory testimony, as in the case of Lowe vs. Jolliffe, 1 W. Bl., — 281 — 365. It would seem, however, that he cannot contradict his witness by adducing any act or declaration of this witness himself of a contrary tenor,” “ because its only effect would be to impeach the credibility of the witness,” although it was competent to the party to, prove the fact by other witnesses. In Brown vs. Osgood, Law Reporter, 118, July, 1846, the plaintiff had taken and filed a deposition and the witness was cross-examined by the plaintiff. The defendant declined using it; the plaintiff was compelled to use it to prove certain facts brought out by the cross-examination. The deposition proved a fact necessary for the defence. The Supreme Judicial Court of Maine decided that the cross-examination must be considered as the examination-in-chief, and that the plaintiff had a right to offer evidence to disprove that fact, by showing that the witness was mistaken. In Regina vs. Ball, 8 Car. & P., 74, anno 1839, Erskine, J., at Stafford Assizes, said : “ You cannot put in evidence for the purpose of discrediting your own witness. You may call other witnesses to disprove the fact denied by this witness, and incidentally contradict her and show her to be unworthy of credit, but you cannot call a witness to give evidence not otherwise admissible, for the purpose of discrediting your own witness. In Regina vs. Farr, 8 Car., & P., 768, the prosecutor stated that he had other witnesses to prove that the statement made by his witness was not true, and proposed to cross-examine his own witness. Patterson, J.: “I cannot allow you to do that; he is your witness, and you must treat him as such.” In the case of U. S. vs. Jones, 3 Wash. C. C., 210, the marginal note says : “A party cannot discredit his own witness by proving that on a former occasion he swore differently from what he now sworn. Quere, whether under some circumstances there be an exception to the rule.” (But such a decision is not found in the text of the report.) Mr. Bradley, for the defendant, contends that a party. — 282 — cannot give evidence contradictory to the testimony of his own witness, unless by proving facts which would be substantive evidence pertinent to the issue, if offered in the examination-in-chief. The question arising from the proceedings in this cause, and upon the motion for a new trial, is, I think, brought down to this: Whether according to the established rules of evidence it is competent for the plaintiff, whose witness has disappointed him in his testimony, to cross-examine his own witness as to matters not pertinent to the issue, (and which could not be given in evidence upon a direct examination-in-ehief,) for the sole purpose of discrediting hiB own witness. The authorities cited in support of the affirmative of this question are : Lord Ch. J. Denman, in Wright vs. Beckett, 1 Moody & Rob., 414. That opinion, however, is no authority, because the Court, consisting of two judges only, Lord Denman and Baron Bolland, differed in opinion, and the point was not decided. Lord Denman admitted that “ others of great weight and authority” differed from him in opinion. He cited the following passage from Buller’s Nisi Prius, 297: “A party never shall be permitted to produce general evidence to discredit his own witness, for that would be to enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with •the means in his hands of destroying his credit if he spoke against him. But if a witness proves facts in a cause which makes against the party who called him, yet he may call other witnesses to prove that those facts were otherwise; for such facts are evidence in the cause, and the other witnesses are not called directly to discredit the first witness; but the impeachment of his credit is incidental and consequential only.” But he did not consider that authority applicable to the case then before him. The opinion of Baron Bolland is sustained by Justices Bayley, Oldroyd and Littledale in Ewer vs. Ambrose, 3 — 283 — Barn. & C., 746; by Parke, Baron, in Holdworth vs. Mayor of Dartmouth, 2 Moody & Rob., 153; by Patterson, J., so stated by Erskine, J., in Winter vs. Butt, who also said that he had since talked with several of the other judges .on the point, and find they are generally of opinion that Mr. Baron Parke’s decision is right, and by Erskine, J., in Winter vs. Butt, 2 Moody & Rob., 357. The decision of Lord Ch. J. Denman in Wright vs. Beckett, 1 Moody & Rob., 414, permitting the plaintiff’s counsel to cross-examine his own witness by asking him ■“whether he had not given a different account of the facts to the plaintiff’s attorney two days before,” is not supported by the cases cited. The question is not whether the plaintiff may contradict his own witness by proving facts pertinent to the issue, and which would be substantive evidence in the cause, but whether he shall cross-examine his own witness as to a fact not relevant to the issue (and which could not be permitted to be given in evidence in the cause,) merely to throw a general discredit over the witness. This would not be permitted to be done by the counsel for the defendant and a fortiori should not be permitted to be done by the counsellor the plaintiff. 1 Starkie Ev., 211, (Ed. 1842). In Alexander vs. Gibson, 2 Campbell, 555, the plaintiff called another witness to contradict his first witness on a point material to the issue. In Rex vs. Oldroyd, Russ. & Byan, Crown Cases, 65, the witness was not called by the prosecution, and therefore was not his witness, and was not within the rule; the judge called the witness ex more motor, and the question was whether he had a right to do so, and having done so whether he could call for the witness’ deposition contradicting' her testimony on the trial. The Court held that he could, and the reporter •says Lord Ellenborough and Mansfield, Ch. J., thought the prisoner had the same right; but it is not stated whether the contradiction was in a matter pertinent to the issue. In Bradley vs. Ricardo, 8 Bing., 57, it was decided that — 284 — the whole of the testimony of a witness is not to be rejected because a part of it is disproved by other witnesses, and the Court adhered to the rule as laid down in Buller’s nisi prius. From consideration of all the cases and authorities cited I think the rule to be inferred is: “ That the plaintiff can not, for the purpose of impeaching the general character of his witness for veracity, give in evidence facts which would not be admissible upon a direct examination-in-chi ef.” There is no difference in principle between giving general evidence of particular facts, the effect of which is to destroy the general character of the witness for veracity, and which would not be admissible for any other purpose. We think there should be a new trial. Delivered nem. con.