To sustain an action against one summoned as trustee in foreign attachment, for answering falsely in his examination under oath, the rule being the same in such a case as in a prosecution for perjury. Laughran . Kelly, 8 Cush. (Mass.) 199. Where he testifies from recollection, merely, after the lapse of seventeen years. Ridley v. Ridley, 1 Coldw. (Tenn.) 323. Where, being called to prove fraud, he testifies to a conversation in which he did not participate, when his attention was not requested or particularly attracted to it. Hall v. Layton, 16 Tex. 262. Where he came to testify before a master with a prepared deposition, a part of which had been written by the defendant, requesting him so to testify, and his testimony varied in some material points from that of another witness, although his general character was unimpeached. McDaniels v. Barnum, 5 Vt. 279; 6 Vt. 177. The unsupported testimony of the accused, which the jury do not believe. Binfield v. State, 19 N. W. Rep. (Nebr.) 607. To impeach the character of another witness for truth and veracity. Wafford v. State, 44 Tex. 439. CHAPTER XIII. CONTRADICTING, DISCREDITING, AND IMPEACHING § 196. The Right to contradict or impeach a Witness. § 197. Right to impeach Character. § 198. Competency of Witness to Character. § 199. What Questions may be put to Witness to Character. $201. Showing Previous Conviction or Prosecution for Crime. § 203. Proof of Contradictory or Inconsistent Statements, generally. $ 205. Proof of Contradictory Written Statements. § 206. Whole Paper need not be shown Witness. § 207. Proving Contents of Lost Writing. § 208. Cross - Examination as to Previous Statements must show whether they were in Writing or in Words. § 209. Contradiction not allowed where Former Statement is Impertinent or Immaterial. § 210. Showing Previous Expressions of Opinion Inconsistent with Witness' Testimony. § 196. The Right to contradict or impeach a Witness.—As a general rule, subject to the exceptions hereafter to be examined, either party to an action at law or suit in equity may, after first cross-examining a witness introduced by the opposite party, impeach, contradict, or discredit such witness either by evidence showing him to be interested or biassed, or to be of bad moral character, or to have previously made statements inconsistent with or contradictory to those made on the trial, or by other proof tending to lessen his credibility with the jury. Thus a party may examine a witness as to the details of his transactions, in order to show his interest, at any stage of the suit. He can contradict the testimony of an adverse witness, if material, even when he cannot impeach his general character. He can always impeach, unless 1 Baldwin v. West, Hard. (Ky.) 50. See Head v. State, 44 Miss. 731. 92. 2 Frank v. Manny, 2 Daly (N. Y.) he has introduced new matter in the cross-examination.1 But it is said a witness cannot be called to impeach the memory, merely, of another witness.2 Even where, by statute, the oath of a party, e.g., denying usury, cannot be directly contradicted, circumstances may be proved tending to show that the oath was falsely taken.3 A party to the suit may be impeached in the same manner and on the same grounds as any other witness, and so may a defendant in a criminal prosecution; 5 and an impeaching witness may be himself impeached. Inasmuch as the credibility of a witness must be judged of by the jury, any evidence which tends to affect it is competent. His manner, the improbability of his story, or his self-contradiction, may justify the jury in not believing him, or only partly believing him. So, also, the force of circumstances otherwise proved, may contradict him.10 But mere variance between the statements of two witnesses will not necessarily impeach or affect the credibility of either, as the contradiction may arise from mistake, or other cause consistent with their integrity. Nor can it be shown to impeach the credibility of a witness that he swore to the same facts on a former trial and the jury did not believe him; 12 nor that he is of negro extraction; 13 nor that he attempted to settle the case before trial; 14 nor that he came from a distance without sub 1 People v. Moore, 15 Wend. (N. Y.) Iowa, 180; State v. Moore, 25 Iowa, 4 Varona r. Socarras, 8 Abb. (N. Y.) Pr. 302. Compare Holbrook r. Mix, 1 E. D. Smith (N. Y.) 154. 5 State r. Hardin, 46 Iowa, 623; Mershorn v. State, 51 Ind. 14; State r. Beal, 68 Ind. 345; State v. Clinton, 67 Mo. 380; State v. Cox, Id. 392; State v. Efler, 85 N. C. 585. Contra in Alabama prior to the passage of the recent enabling act. Chappell . State, 2 Ala. L. J. 183. 6 Phillips v. Thorn, 84 Ind. 84; s. c., 43 Am. Rep. 85; State v. Brant, 14 128; Starks v. People, 5 Den. (N. Y.) 106; State v. Cherry, 63 N. C. 493. 7 Magehan v. Thompson, 9 Watts & S. (Pa.) 54. 8 French v. Millard, 2 Ohio St. 44; Burtus v. Tisdail, 4 Barb. (N. Y.) 571; George v. State, 39 Miss. 570; Terry v. State, 13 Ind. 70. 9 Compare Hansell r. Erickson, 28 Ill. 257; Rankin v. Crow, 19 Ill. 626. 19 Koehler v. Adler, 78 N. Y. 287. 11 Sharon v. Hill, 26 Fed. Rep. 55; Vernon v. Tucker, 30 Md. 456. 12 Schenck v. Griffin, 9 Vr. (N. J.) 462. 18 Dean v. Commonwealth, 4 Gratt. (Va.) 541. 14 People v. Austin, 1 Park (N. Y.) Cr. 154. pœna or fees; nor that the witness had the opium habit, no serious or present effects appearing.2 Again, the interest of the witness may be shown for the purpose of impeaching his credit; and the case being a criminal one, the fact that the witness is the defendant is admissible to show interest. The state of feeling, and relationship of the witness toward a party, is also admissible; 5 but his admissions out of court are not to be received in proof of his interest. And it may be shown directly that facts sworn to by the witness as existing, do not in fact exist." So, also, it has been held that a witness may be discredited by showing him to be deficient in mental capacity or intelligence, the result of illness or other cause.8 But the courts are cautious in permitting impeachment on this ground, and will not allow it to be done by general evidence that the witness is not possessed of ordinary intelligence or powers of mind; 10 and an instruction calculated to lead the jury to assume that a witness may be just as effectually impeached by showing his lack of intelligence, as by contradicting him by the positive testimony of other witnesses, is erroneous.11 Weakness of memory, also, may be shown to impeach a witness.12 This may be done by resorting to the opinions of persons intimately acquainted with the witness,13 or by questioning the witness himself with a view to testing his memory and afterwards contradicting him by other evidence.14 For reasons analogous to these, a witness may be impeached by showing that at the time of the occurrence as to which he testifies, or at the time of the trial, the witness was or is insane, 15 or intoxicated.16 1 Hurst v. Burnside (Oreg.) 8 West Coast Rep. 445. 2 McDowell v. Preston, 26 Ga. 528. See also, for analogous instances, Brock v. State, 26 Ala. 104; Sealy v. State, 1 Ga. 213; Blake v. Everett, 1 Allen (Mass.) 248; Pleasant v. State, 13 Ark. 360; Ellsworth v. Potter, 41 Vt. 685. & Geary v. People, 22 Mich. 220; Hunter v. Wetsell, 84 N. Y. 549. 4 State v. Zorn, 71 Mo. 415. Fairchild. Bascomb, 35 Vt. 398. His religious belief, also, 9 Carpenter v. Dame, 10 Ind. 125. 10 Bell v. Rinner, 16 Ohio St. 45. 11 Chicago &c. R. R. Co. v. Bert, 69 Ill. 388. 12 Alleman v. Stepp, 52 Iowa, 626; Rivara v. Ghio, 3 E. D. Smith (N. Y.) 264; Terry v. McNiel, 58 Barb. (N. Y.) 241. 13 Isler v. Dervey, 75 N. C. 466. 15 McGuirl . McGuirl, 12 Ill. App. 624; State v. Kelly, 57 N. H. 549. 16 Fleming v. State, 5 Humph.(Tenn.) 564; Sisson v. Conger, 1 Thomp. & C. (N. Y.) 564. But compare Tuttle v. Russell, 2 Day (Conn.) 201. may be shown, but he cannot be himself examined as to that.1 § 197. Right to impeach Character. "Character," or "general character," as used in this connection, means the standing of a person in general estimation; i.e., public opinion of him, common report of, him,3 his reputation. To prove this to be bad is a common mode of impeachment, but the inquiry must be confined to the general reputation of the witness; particular facts, which, if true, would impeach his character for veracity, cannot be gone into; and the reason is that every man may be supposed capable of supporting his general character, but it is not likely that he should be prepared to answer to particular facts, without notice; and unless his general character and behavior are in issue, he has no notice.5 A more difficult question arises when we come to consider whether it is the general moral character of the witness or his general reputation for truthfulness that is the proper subject of inquiry. Upon this much discussed question the courts are hopelessly divided in opinion. Some able textwriters take the view that the moral character, as well as the reputation for truth and veracity, is open; and they are. supported by numerous authorities. With all due respect for the eminent judges who laid down this rule, the writer is forced to accept as the safer and better doctrine, that enunciated quite recently by the Supreme Court of Minne 1 Searcy v. Miller, 57 Iowa, 613. 2 Boynton v. Kellogg, 3 Mass. 192; Douglass v. Tousey, 2 Wend. (N. Y.) 354. 3 Kimmel v. Kimmel, 3 S. & R. (Pa.) 337. 4 Ibid, p. 338, per Duncan, J. 5 Bull. N. P. 296, 297; Layer's Case, 16 How. St. Tr. 246, 286; Thurman v. Virgin, 18 B. Mon. (Ky.) 785; Long v. Morrison, 14 Ind. 595; Wilson v. State, 16 Ind. 392; Taylor v. Commonwealth, 3 Bush (Ky.) 508; Macdonald v. Garrison, 2 Hilt. (N. Y.) 510; Barton v. Morphes, 2 Dev. (N. C.) L. 520; Walker v. State, 6 Blackf. (Ind.) 1; Wike v. Lightner, 11 S. & R. (Pa.) 198. 6 Cow. & H. notes to 2 Phil. Ev. note 598; 2 Tayl. Ev. §§ 1082, 1083. 7 Majors v. State, 29 Ark. 112; People v. Beck, 58 Cal. 212; State v. Kirkpatrick, 19 N. W. Rep. (Iowa) 660; State v. Hart, 25 Id. (Iowa) 99; State v. Egan, 59 Iowa 636; Hume v. Scott, 3 A. K. Marsh. (Ky.) 260; Blue v. Kibby, 1 T. B. Mon. (Ky.) 195; State v. Shields, 13 Mo. 236; Day v. State, Id. 422; Gilliam v. State, 1 Head (Tenn.) 38; Tacket v. May, 3 Dana (Ky.) 79; State v. Breeden, 58 Mo. 507; State v. Grant, 76 Mo. 239; State v. Rugan, 5 Mo. App. 592; People v. Mather, 4 Wend. (N. Y.) 257, 258; State v. Stallings, 2 Hayw. (N. C.) 300; State v. Boswell, 2 Dev. (N. C.) 209, 210; and many others. |