State v. Winkley

Gilchrist, J. The facts stated in this case, render it necessary to inquire how far a witness whose testimony has been impeached by evidence that he has made contradictory statements in relation to the same transaction, may be permitted, on his reexamination, to give Ms statement of the conversations in which the contradictions of his present testimony are said to have been made. Holmes, a witness for the state, testified to a certain transaction. The prisoner then introduced three witnesses, Foss, Locke and Avery, whose testimony tended to prove that Holmes had given accounts of that transaction inconsistent with the truth of his testimony. All these witnesses related conversations between themselves and Holmes. Holmes was then re-called by the attorney general, and was asked what he said to Foss, to Locke, and to Avery, on the several occasions to which their testimony referred. This was objected to, but was permitted by the court to be put, the court ruling that Holmes might state all the conversation ho had with these witnesses, — 491 — at the times to which they referred. To this ruling the prisoner excepts. Holmes was re-called because his testimony had been impeached. Three witnesses had testified that in certain conversations he had made certain statements. Upon these points, therefore, he was entitled to be heard, either by way of express denial that he had made the statements, or by explaining or qualifyingdhem. Their effect upon his credibility might have been destroyed by evidence that they were made in an ironical manner and. tone, by showing that they were connected with other remarks in such a way that they ought not to impair his credit, or that he could not have been supposed to be serious in making them. The purpose of the counsel’s argument is, to show that Holmes should have been confined to an admission or a denial of the statements he was charged with having made, and consequently that he should not have been allowed to state all the conversation he had with the impeaching witnesses on the occasions to which they referred; and he cites the Queen's case, 2 Brod. Bingh. & 298, as an authority for this position. In that case a distinction is made between a conversation by a witness with a party to a suit, and a conversation with a third person. The reason given is, that the conversation of a party is evidence against him in the suit, and the whole of it ought to be given, because it would not be just that a part of it should be used against him, without giving him the benefit of the residue. But the conversation of a witness with a third person, is evidence, only as it may affect the character and credit of the witness, which may be affected by his antecedent declarations, and by the motive under which he made them; “but when once all which had constituted the motive and inducement, and all which may show the meaning of the words and declarations, has been laid before the court, the court becomes possessed of all which can affect the character and credit of the witness, and all besides this is irrelevant and incompetent.” The question before the court was not like the, one now before us. It was not whether — 492 — a witness who had been impeached by evidence of his contradictory statements could relate the whole of the conversation in which those statements were alleged to have been made, but whether, when a witness for the prosecution, who on his cross-examination states that he told A. that he was one of the witnesses against the defendant, and upon his reexamination states what induced him to mention this to A., may be further reexamined as to such conversation. It was held that he could not be further reexamined, even so far as the conversation related to his being one of the witnesses. It was also held, that a counsel had a right, upon reexamination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on the cross-examination, if they be in themselves doubtful, and also of the motive by which the witness was induced to use those expressions, but that he had no right to go farther, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. The effect of this decision is to sustain the ruling of the court. The object of the questions to Holmes upon the reexamination was, to procure an explanation of the sense and meaning of the expressions attributed to him by the impeaching witnesses. The meaning and effect of the expressions must depend on the connection in which they were used. If, in stating the conversation, he admitted having used them, but explained them by the context, the ease would fall clearly within the principle stated in the case referred to. If in stating what he says was the whole of the conversation, he repeats no expressions of the kind, then he makes a denial in substance of having used the expressions in question. But when a witness is impeached by evidence that in a certain conversation he has made statements inconsistent with his present story, we are not aware of any principle that should prevent us from permitting him in the first instance to relate that conversation. This would give him the opportunity of — 493 — explaining them. If in his relation he state none of the alleged expressions, he may then be asked the question distinctly, whether he did or did not make the statements testified to by the contradicting witnesses. In the subsequent case of Prince vs. Samo, 7 Ad. & E. 627, Lord Tenterden's opinion, which was that of the court, was denied. Lord Tcnterden said that a witness might be reexamined, not only as to so much of his former testimony as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced on the previous examination, provided, only, that it relate to the subject matter of the suit. This was said by Lord Denman, to be extra-judicial in the case in which it was stated, and not to rest on any previous authority ; and the distinction made in the Queen’s case, between the conversation of a witness and that of a party, seems also to be overruled. But we see nothing in either of the cases that conflicts with the competency of Holmes’s testimony as stated in the case. The inquiry, in relation to each of the three witnesses, was limited to the particular conversations to which they alluded, and the only point we intend to decide is, that when the credit of a witness has been impeached by proof that in a certain conversation he has made statements inconsistent with the truth of his testimony, he may on his reexamination state what that conversation was. We are not aware that any direct authorities are to be found on this matter, and we are led to this conclusion by a regard for what, as it seems to us, the interests of truth and justice require. This view of the case, and it appears to us to be a sound one, avoids the objection which exists to proving that the witness has made statements at other times similar to his testimony, and thus fortifying his testimony by his declarations made out of court. The cases in New-York which recognized the competency of such declarations, were overruled in Dudley vs. Bolles, 24 Wend. 465. And such dec — 494 — larations are not now received in England. Rex vs. Parker, 3 Dougl. 242, 244. The other question in the case relates to the evidence of the marriage. In civil actions, evidence of cohabitation, reputation, &c.,is sufficient; but in indictments for bigamy, and in actions for criminal conversation, there must be proof of an actual marriage. Morris vs. Miller, 4 Burrow 2059; Birt vs. Barlow, Dougl. 171. In this case there was a marriage in fact. Andrew Welch, the husband of Betsey Welch, testified that he was married to her in the month of July, 1822, and for this purpose he was a competent witness. There must be proof of the identity of the party, even if a copy of the record be produced. Wedgewood’s case, 8 Greenl. 75; The State vs. Wallace, 9 N. H. Rep. 515; Commonwealth vs. Norcross, 9 Mass. 492. In The State vs. Kean, 10 N. H. Rep. 347, on the trial of an indictment for bigamy, evidence was offered that the prisoner was married to one Olive McKusic, by Timothy Remick, a resident in the town of Cornish, in Maine, who had for some time officiated as a minister at Cornish, where the marriage took place. It was objected that the evidence did not prove that the marriage was solemnized by any person authorized to do so by the laws of this state. But it was said by the court that the exception could not prevail. “ There was a marriage in fact, and that is sufficient.” It does not appear to be laid down what is a marriage in fact. In Morris vs. Miller, 4 Burr. 2059, Lord Mansfield says, “ we do not at present define what may or may not be evidence of a marriage in fact." In that case he had just said that “ in an action for criminal conversation, there must be evidence of a marriage in fact; acknowledgement, cohabitation and reputation, are not sufficient.” Upon the argument, and before the judgment of the court was pronounced, he had said, “proof of actual marriage is always used and imderstood in opposition to proof by cohabitation, reputation, .and other circumstances from which a marriage may be in — 495 — ferred.” In the subsequent case of Birt vs. Barlow, Dougl. 174, Lord Mansfield said, that registers were in the nature of records, and need not be produced, nor proved by subscribing witnesses. “ A copy is sufficient, and is proof of a marriage in fact, between two parties describing themselves by such and such names and places of abode, though it does not prove the identity.” In Henmings vs. Smith, 4 Dougl. 33, which was an action for crim con, Lord Mansfield said, speaking of the proof of the marriage, “ reputation will not do for that purpose; a marriage in fact must be proved.” Proof of a marriage, then, may be made in various ways, according to the nature of the proceeding in which the proof is required. In all civil actions, excepting that for criminal conversation, it may be inferred from those circumstances which generally accompany a marriage, such as acknowledgement, reputation, cohabitation, Sec. But in criminal prosecutions, like indictments for bigamy, adultery, Sec., direct evidence of the marriage is required, and this may appear from the testimony of witnesses who were present at the ceremony. This constitutes proof of a marriage in fact, and is merely direct evidence of the marriage, as contradistinguished from cohabitation, &c., which is indirect evidence of the marriage. The marriage now in question was solemnized before Elder Nathaniel Berry. The evidence showed that he had been a preacher for twenty-five years. It did not appear when he was ordained, but he had united persons in marriage as many as sixteen years ago, at the time of the trial, which was in August, 1841. One of the witnesses had seen a certificate containing evidence of his ordination. We are of opinion that this was competent evidence prima facie, that he was an ordained minister, as required by the act of 1791, N. H. Laws 172, Ed. of 1830, at the time the ceremony was performed, in July, 1822. In Londonderry vs. Chester, 2 N. H. Rep. 276, it is said by the court, “the minister in this case was an acting minister; he was in the — 496 — habit of performing ministerial duties; he witnessed this contract of marriage in his official capacity, and whatever may have been his want of qualification, we have before seen that by our statute it is punished only by a penalty, and the marriage is in no case declared void.” It has been held in Connecticut that a clergyman, in the administration of marriage, is a public officer, and his acts as suchr in the celebration of marriage, are admitted as prima facie proof of his qualifications, without higher evidence. Goshen vs. Stonington, 4 Conn. R. 209. There seems, indeed, to be no reason why the acts of a minister, coming in question incidentally, and not declared to be void by statute, should not be considered valid as well as the official acts of an inspector of the revenue, a deputy sheriff, or an attorney. Jones vs. Gibson, 1 N. H. Rep. 268; Johnston vs. Wilson, 2 N. H. Rep. 205; Berryman vs. Wise, 4 T. R. 366. Judgment on the verdict.