Stirn v. Nelson

The opinion of the court was delivered by Johnston, J.: Mary Nelson brought an action for damages against George Stirn, in which she alleged that Stirn maliciously and wantonly assaulted, beat and struck her with a hammer upon the head and arms, breaking one of her arms and inflicting other serious injuries. The trial resulted in her favor, the jury awarding her damages in the sum of $1375. The principal error assigned here is the reception of testimony given in behalf of the plaintiff to corroborate and sustain one of her own witnesses. Lettie Nelson, her daughter, gave material testimony as to the assault upon her mother, and to contradict and impeach her the defendant introduced a witness who testified that on the evening after the assault he had a conversation with Lettie Nelson, in which she made statements of the occurrence entirely inconsistent with those given on the trial. To meet this attack on the credit of the witness, and to corroborate and sustain her testimony, plaintiff offered evidence to show that, at a preliminary examination of the criminal prosecution of Stirn for the same assault, Lettie Nelson gave testimony which was substantially the same as she [421] gave in the case on trial. The impeaching statement was claimed to have been made on the evening following the assault in the morning, and the corroborating statement about five or six days later. Is such testimony competent and admissible ? As a general rule, evidence that a witness has at other times made statements similar to those given in testimony is not admissible. Ordinarily the repetition of a declaration does not give weight to it, nor credibility to the one who makes it. Testimony as to statements which are not of the res gestse are generally regarded as hearsay, and testimony so easy to manufacture, and, therefore, so dangerous, is carefully excluded, except in rare cases. Indeed, some courts make no exception whatever to the exclusion of such testimony, while others recognize exceptions and are more or less liberal in its admission. In The State v. Petty, 21, Kan. 54, this court recognized an exception to the rule, and allowed supporting statements where a witness was assailed and contradicted by proof of prior inconsistent declarations. The court carefulty confined the admission of such testimony to cases where the witness was charged with a recent fabrication and where the confirmatory statements were made anterior to the date of the alleged fabrication. It was expressly held that before, such testimony could be received it must clearly appear that the corroborating statements were madej antecedently to the contradictory declarations given, in evidence. i In The State v. Hendricks, 32 Kan. 559, 4 Pac. 1050, the reception of such testimony was again considered and the rule of the Petty case somewhat extended. It was held : j “If a witness be impeached by proof of his having previously made statements out of court inconsistent [422] with his testimony in court; he may then be corroborated by evidence of other statements made by him out of court in harmony with his testimony, if made immediately after the occurrence of which he has testified took place, and made before he has had any reason or ground for. fabricating an untrue or false statement.” In the practical application of the rule, there is little difference between confirmatory statements made before and those made contemporaneously or immediately after the occurrence of which testimony was given. If made immediately after the occurrence about which the witness has testified, there would be little, if any, danger that he had been improperly influenced, while, if later statements were admitted, it. would enable a witness to neutralize the effect of former statements, which, for reasons good or bad, he might desire to modify or destroy. In this case, however, the confirmatory statements received were not made immediately after the assault, nor immediately after the making of the contradictory statements, but were made five or six days after that time. The intervening time was brief, it was true, but long enough for some one to discover the effect of the first statement in establishing a right to damages by the evidence of the witness, and long enough so that the witness might have been subjected to disturbing influences. It would be difficult to fix a limit of time that would give competency to such statements if they could be received when made after the lapse of five days. Whatever may be the rule in other states, and there is considerable diversity in the decisions, we have no disposition to* extend the rule of the Hendricks case, nor to countenance the admission of supporting statements made so long after the occurrence which is the [423] subject of testimony. The rule of the Petty case was reaffirmed in Cloud County v.Vickers, 62 Kan. 25, 61 Pac. 391. We refer to the following additional authorities, and these and the cases therein cited illustrate the different views that have been taken as .to the admission of this kind of testimony : Elliott v. Pearl, 10 Pet. 412, 9 L. Ed. 475; Conrad v. Griffey, 11 How. 480, 13 L. Ed. 779 ; 1 Greenl. Ev. 469 ; 1 Whart. Ev. 570 ; Rapal. Wit. §224; 3 Rice, Ev. §233; 29 A. & E. Encycl. of L. 823. It is contended that the impeaching testimony was of little weight; that there was no motive on the part of the witness for fabrication; and, further, that if the evidence was erroneously admitted, it was not sufficiently material to justify a reversal. While the testimony in favor of the plaintiff below is strong and convincing, we cannot say that the erroneous testimony did not affect the verdict. For this error, the judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.