Gannon v. Stevens

— 456 — The opinion of the court was delivered by Valentine, J.: This was an action brought by John Stevens against Lawrence Gannon for the sum of $250 as damages for the killing of a certain horse. The main question tried in the court below, if not the only contested question, was whether Gannon did in fact kill said horse. All other questions in that court grew out of the trial of that question. In this court the plaintiff in error (defendant below) has raised many questions founded upon supposed irregularities claimed to have occurred during the trial of the case in the court below. We do not think’ that it will be necessary for us to discuss all of the questions separately, for many of them may be discussed in gi’oups, and some of them need not be discussed at all. In general terms, therefore, and without going into details, we would say that we think the court below erroneously permitted some irrelevant testimony to be introduced on the trial, and also erroneously permitted several leading questions to be put by the plaintiff below to his own witnesses. But still we think that none of these errors were of such a substantial character as to require a reversal of the judgment of the court below. Errors like these are often committed in the trial of causes in nisi prius courts, and yet it is seldom that any such errors are complained of in this court, and seldom that a judgment could be reversed on account of them. This case, as said before, was for killing a horse. No person except those who participated in the act saw the horse killed; and hence the plaintiff had in the nature of things to resort to circumstantial evidence to prove his case; and in such cases great latitude must always be allowed in the introduction of testimony. And therefore much of the evidence which the plaintiff in error supposes to be irrelevant testimony, and much that would under other circumstances be in fact irrelevant testimony, was, under the circumstances of this case, both relevant and competent. For instance, it was both relevant and competent for the plaintiff to show that the defendant had — 457 — some motive as well as an opportunity to kill the horse by showing that the horse was in the habit of trespassing, and did, immediately before he was killed, trespass upon the defendant’s corn crop. But even if said evidence was both irrelevant and incompetent, it is still strange that the plaintiff in error should now ask us, as he does, to reverse the judgment of the court below on account of the following question and answer, to-wit: “Question: State what you know about stock trespassing on that corn at the time?” “Answer: I don’t know. I never saw any stock in his crops.” The witness did not at any time state that he knew anything about the matter, and yet the plaintiff in error asks us to reverse the judgment on account of his testimony. With regard to leading questions we would say, that many of the questions put to witnesses which the plaintiff in error supposes were leading, were not leading. It is not every question that is put in a direct or leading form, or that may be answered by “yes,” or “no,” or by a simple affirmative or negative, that is leading. To ask an impeaching witness directly if he knows the general character of the witness to be impeached for truth and veracity, is not leading. And generally a direct question upon any preliminary matter, merely introductory to something else, and not calling for an answer which will tend to prove or disprove any issue in the case, is not leading. For instance, after it had been shown that Mrs. Patrick Gannon had previously testified in chief and on cross-examination, on a former trial of this same case, and that she had since died, the following question was asked, to-wit: “ Do you recollect her testimony in chief on the trial of that case?” Answer: “Yes.” This question was not leading. It did not call for any testimony which tended to prove or disprove any of the issues in the case, but simply called for the recollection of the witness, a purely preliminary matter, introductory of what was to follow. But even where nisi prius courts allow leading questions to be asked, still as such courts have such a wide discretion in allowing or disallowing such questions, appellate courts can seldom reverse their de — 458 — cisions for allowing such questions to be asked. It can only be done where the nisi prius courts have manifestly abused their discretion. The plaintiff below, Stevens, introduced as a witness Patrick Gannon, a nephew of the defendant below. The witness testified at one time he saw the defendant leading a mare which he thought was the defendant’s own mare. He also said in his testimony, “I do not recollect that he had any ax.” The plaintiff then asked the witness the following question: “Do you recollect of testifying at Erie that your uncle had an ax on his shoulder when he was leading the horse?” Answer: “ I do not recollect.” This question was allowed to be asked and answered, over the objections and exceptions of the defendant. Of course, the court erred in allowing this question to be asked and answered. The witness was the witness of the plaintiff; and the plaintiff did not even claim that he was surprised, or that the witness testified differently from what he had expected, or that the witness did not testify to the truth, or that the witness had the slightest prejudices in the case.. The question is objectionable for at least three reasons: first, it is leading; second, it is an attempt to prove the declarations of a person not a party to the record, nor interested therein, nor in privity with any person interested therein; third, it is an attempt to lay the foundation for an impeachment of the plaintiff’s own witness without any reason being given therefor. But still we do not think that the defendant’s rights were materially prejudiced by the error of the court. The witness himself stated nothing in response to this question in contradiction or corroboration of what he had already stated. His answer really amounted to nothing. And there was no attempt to prove by any other witness what this witness had ever said at any other time or place. The plaintiff introduced evidence over the objections of the defendant to show what Mrs. Patrick Gannon had previously testified to on a former trial of this same case. The defendant claims that the evidence was erroneously admitted for the following reasons: first, that it was not sufficiently shown that Mrs. Gannon had died since the former trial; second, — 459 — that it was not sufficiently shown that a legal oath had been administered to her before her testimony was given; third, that the witnesses proving her testimony were not sufficiently qualified therefor — that is, that they were not able to give her exact words, but could give only the substance of her testimony; fourth, that it was shown that Mrs. Gannon refused to answer several questions on the former trial. None of these-reasons are sufficient. The first, second and fourth are in fact superimposed upon very slender foundations. They are in fact not true. Nor were such reasons specifically urged in the court below. If such reasons had there been urged in the trial court, further evidence probably could have been supplied and probably would have been supplied. Changing the order of the first two reasons, and taking up the second one first, we would say that it was amply proved by different witnesses that Mrs. Gannon “testified” as a “witness” -at the former trial of this case; that she was examined in chief and cross-examined, and that her “testimony” was received by the court. Now to “testify” under such circumstances certainly means, to be examined as a witness under oath of affirmation. (See Burrill, Bouvier, Webster, and Worcester’s Dictionaries, “Testify.”) Returning now to the first reason urged against the introduction of said testimony: before any evidence was introduced to show what Mrs. Gannon had formerly testified to, it was shoAvn that the plaintiff and Mrs. Gannon lived in the same neighborhood, and then the plaintiff testified as follows: “I knew the wife of Pat. Gannon; she testified before ’Squire Williams in this case; she is dead; I did not see her die, or see her after she was déad. I saw people going there to the funeral of old Pat. Gannon’s wife; I have not seen her since.” This evidence was not objected to. After it was shown what Mrs. Gannon had testified to on the former trial,, the defendant, who was also a neighbor of the plaintiff and of Mrs. Gannon, and a brother-in-law of Mrs. Gannon’s, became a witness, and testified as follows: “I knew Mrs. Patrick Gannon, deceased, in her lifetime. I remember the trial of this case — 460 — before Esquire Williams, in Erie township. At that time Mrs. Gannon and I were on very unfriendly terms. I was present a little after she died. She sent for me before she died.” We think it is evident beyond all doubt that Mrs. Gannon was dead at the time of the last trial of this case in the district court, and whether her death was sufficiently shown before the evidence of what she had formerly testified to was introduced, we think is now wholly immaterial; but still we are inclined to think that for the purposes of this case her death was sufficiently shown before any evidence of what she had formerly testified to was introduced. As to the third reason given why said evidence should have been excluded we would say, that we think it was sufficient to prove the substance of what Mrs. Gannon testified to on the former trial, and not necessary to prove her exact words: 1 Greenl. Ev., §§165, 166; 1 Phillips’’ Ev., (5 Am. Ed., with Cow. & Hill’s and Edward Notes,) marginal page 395, et seq., note 115. This we think is the law,.both upon reason and authority. The reasons for this being the law we think are so obvious that it is not necessary to state them. There was not a particle of evidence tending to prove that Mrs. Gannon refused to answer any question put to her on the former trial; and the claim that there was any such refusal is now made for the first time in this court. The evidence upon which we suppose this claim is made is the last portion of the evidence of the last witness that testified with regard to Mrs. Gannon’s testimony, and is as follows: “I think there were several questions asked the witness on that trial that she did not answer.” If this can be construed into a refusal to testify, or a refusal to answer question's, why was not the point made in the court below? Why did not the defendant move to strike out all the evidence concerning Mrs. Gannon’s testimony? Or Avhy did he not ask the court below to instruct the jury to disregard it? He is too late now to raise any question concerning it. Prom anything that appears in the record the questions which Mrs. Gannon did not answer may have been withdrawn by the party ask — 461 — ing them, or the court may not have permitted them to be answered. The court below did not refuse to allow the defendant to disprove Mrs. Gannon’s testimony. The cross-examination of the defendant was a proper cross-examination. And indeed the defendant' had a very fair trial in every respect. The application of the maxim, falsus in uno, falsus in omnibus, was a proper application of that maxim according to the decisions of this court. (Campbell v. The State, 3 Kas., 488; The State v. Horne, 9 Kas., 131.) In the judgment of the writer of this opinion, however, it is unfortunate that such decisions were ever made, and he thinks' they should be overruled: Mead v. McGraw, 19 Ohio St., 55, and cases there cited; Paulette v. Brown, 40 Mo., 52, 57, et seq.; Blanchard v. Pratt, 37 Ill., 243, 246; Callahan v. Shaw, 24 Iowa, 441, 447. I shall certainly never be in favor of reversing a judgment of the district court for refusing to give such an instruction as the 2d one given in this case. The instruction referred to is as follows: “ If in your examination of the testimony in this case you should be satisfied that any witness has testified falsely and corruptly in reference to any material fact, you should disregard the whole of the testimony of such witness.” The following instruction was not erroneous, to-wit: “In cases of this nature all persons who aid, abet, or assist in the commission of the tortious act, are regarded as principal actors, and are severally as well as jointly responsible to the injured party for damages sustained by such tortious act.” The ' 4th instruction was not erroneous, or at most it was not so erroneous as to require a reversal of the judgment. That Mrs. Gannon was dead, there can be no doubt. The evidence sufficiently showed it, and there was no conflict of evidence upon this point. Her evidence was properly presented to the jury for their consideration, and the court properly instructed the jury to consider it with due caution. They were not told to believe it or disbelieve it, nor to believe or disbelieve any portion of it; nor were they told to believe or disbelieve any portion of the evidence of the witnesses who — 462 — testified with regard to it, exeept possibly they were told inferentially that Mrs. Gannon was dead, and this the defendant himself admitted and testified to as a witness on the trial of the case. We have already given this case more time and consideration than it merits, and shall therefore consider it no further. The judgment of the court below will be affirmed. All the Justices concurring.