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CHAPTER XIV.

DISPROVING OR IMPEACHING THE EVIDENCE OF

ONE'S OWN WITNESS.

$211. The General Rule forbidding Impeachment.

§ 212. Its Scope and Extent.

§ 213. Its Limits and Exceptions.

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§ 215. How far the Rule applies where One Party calls the Adverse Party. § 216. Unfriendly or Hostile Witnesses.

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§ 211. The General Rule forbidding Impeachment. - A party who voluntarily puts a witness on the stand to testify in proof of his cause, thereby vouches for the witness as a person worthy of belief, and is, as a general rule, thereafter estopped from impeaching such witness, or assailing his character for truth and veracity. He can neither impeach him by general evidence of character,2 nor by proof of contradictory statements,3 or interest in the result of the trial. The removal of this salutary restriction on the right of impeachment would enable the party calling a witness to destroy him if his testimony happened to be adverse, and to make him a good witness if his testimony suited his purpose, condition of things not conducive to the proper administration of justice.5

1 Rockwood v. Poundstone, 38 Ill. 199; Griffin v. Wall, 32 Ala. 149; Thorn . Moore, 21 Iowa, 285; Winder v. Diffenderfer, 2 Bland (Md.) 166; Pollock v. Pollock, 71 N. Y. 137; Sisson v. Conger, 1 Thomp. & C. (N. Y.) 564; Perry v. Massey, 1 Bail. (S. C.) 32; Fillmore v. Union Pac. R. R. Co., 2 Wyom. T. 94.

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219; Roundtree v. Tibbs, 4 Hayw. (Tenn.) 108.

5 B. N. P. 297. Mr. Phillips in his admirable treatise on evidence says, as to this point: "It is clear a party is not to be sacrificed to his witness; he is not represented by him, nor ought he to be identified with him, or bound by all he may say. On

2 Coulter v. American &c. Exp. Co., the other hand, a party ought to be 56 N. Y. 585.

3 Coulter v. American &c. Exp. Co., supra; People v. Safford, 5' Den. (N. Y.) 112; Sanchez v. People, 4 Park. (N. Y.) Cr. 535; s. c., 22 N. Y. 147.

4 Helm v. Handley, 1 Litt. (Ky.)

placed under such restrictions as may

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§ 212. Its Scope and Extent. In applying this salutary rule, it has been held, that where a party calls two witnesses, the second of whom contradicts the first, he cannot recall the first witness to disprove what the second has said;1 that where the party's own witness has sworn he was conscious and recollected what he did on a certain occasion, the party cannot show that he was, in fact, insane at the time in question; that a party cannot prove that his own witness had, at different times, made declarations at variance with his testimony, or even ask him if he had not made such contradictory statements, or if he is not interested in the suit.5

The rule is the same where depositions are used, and where both parties join in taking the deposition of a witness, neither can impeach his credibility; but where the party taking the deposition refuses to use it, and the adverse party reads it, the deponent becomes the witness of the party reading the deposition, and may be impeached by the other party.7 In analogy with this doctrine, where one party calls a witness, and after examination and cross-examination, he is recalled by the party adverse to the party originally calling him, he

evidence disappoints or deceives him, he ought not to be allowed to prove his infamy for the purpose of destroy ing the effect of his evidence. Knowing the infamy of his character, he had more reason to suspect and disbelieve than to trust him: nor has he any just ground to complain that his cause is prejudiced by false evidence, as he could expect nothing less from such a witness; and he suffers not unjustly for using a witness whom he knew to be infamous. But if a party, not acting himself a dishonest part, is deceived by his witness or if a witness, professing himself a friend, turns out an enemy, and after promising proof of one kind gives evidence directly contrary is the party to be restrained from laying the true state of the case before the court? The common sense of mankind might be expected to answer this proposition in the negative, and to decide that the true state of the case should be made known." 2 Phil. Ev. *981.

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1 Rapp v. Le Blanc, 1 Dall. (U. S.)

63. See also Delisle v. Priestman, 1 Browne (Pa.) 176, 182; Cowden v. Reynolds, 12 S. & R. (Pa.) 281. See infra, § 214.

2 Montgomery v. Hunt, 5 Cal. 366. 3 Chamberlain v. Sands, 27 Me. 458; People v. Jacobs, 49 Cal. 384; Commonwealth v. Starkweather, 10 Cush. (Mass.) 59; Adams v. Wheeler, 97 Mass. 67; Brewer v. Porch, 2 Harr. (N. J.) 377; Stearns v. Mechanics' Bank, 53 Pa. St. 490. To the contrary, Champ v. Commonwealth, 2 Metc. (Ky.) 17; Delisle v. Priestman, 1 Browne (Pa.) 176. And see McDowell v. General Ins. Co., 10 La. Ann. 16, and infra in this section.

4 Com. v. Welsh, 4 Gray (Mass.) 535; Moore v. Chicago &c. R. R. Co., 59 Miss. 243.

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becomes the latter's witness, and cannot be discredited by him; and the same rule applies where the witness, upon cross-examination, is inquired of regarding a new subject, not connected with any matter for which his evidence was offered by the other side, but for the benefit of the crossexamining party.2

Most of the difficulty hitherto experienced by the courts in applying the rule of evidence we are now considering, has been on the question whether a party may show that a witness called by him, and who has testified against him, has made at other times a statement contrary to that made by him at the trial. The better opinion seems to be that, ordinarily, this cannot be done; that the party having called the witness must take him for better or for worse, and must be bound by all his statements on the stand; that he cannot contradict him except by proving facts bearing upon the issue,3 unless the witness has deceived the party, promising to testify one way and swearing another, and the party himself is entirely innocent, calling him in good faith, and fully believing him to be a friendly and not a hostile witness. In such cases, according to what the writer deems the weight of authority, the party (on the ground of surprise) may show the facts, i.e., that the testimony of the witness is contrary to what he disclosed on his preparatory examination, or to what the party calling him had reason to believe he would swear to, or anything else tending to show that the witness had deceived him. Any other course would seem to place an innocent litigant at the mercy of a designing and unscrupulous witness.4

1 Com. v. Hudson, 11 Gray (Mass.) 64; Craig v. Grant, 6 Mich. 447. Compare State v. Taylor, 88 N. C. 694. Contra, State v. Jones, 64 Mo. 391.

2 Fairchild v. Bascom, 35 Vt. 398; First Baptist Church v. Brooklyn Ins. Co., 23 How. (N. Y.) Pr. 448. To the contrary, see Lewis v. Hodgdon, 17 Me. 207. See also Jones v. People, 2 Colo. 351; Artz v. Chicago &c. R. R. Co., 44 Iowa, 284; Bebee v. Tinker, 2 Root (Conn.) 160.

3 See infra, § 214.

4 A review of the cases upon this

interesting topic would unduly swell the limited space available for its discussion here. A mere citation of some of them is all that can be attempted.

The following hold that evidence of the previous contradictory statement cannot be given: Holdsworth v. Mayor of Dartmouth, 2 Moo. & R. 153; Winier v. Brett, Id. 357; Allan v. Hutchins, Id. 358n; Queen v. Ball, 8 C. & P. 745; Queen v. Farr, Id. 768; R. v. Moran, Jebb, C. C. 91; Ir. Cr. R. 506n (a).

The following decide that such

§ 213. Its Limits and Exceptions.-There are some exceptions to this rule forbidding a party to disprove or impeach the testimony of his own witness. The principal ones are: (1) Where the party is compelled to call the witness in order to make out his case; (2) where the object is to show the true facts, not merely to discredit the witness; (3) where the witness is an adverse party; and (4) where he is hostile or unfriendly. The first of these exceptions will be consid

evidence is admissible under the circumstances stated in the text: King v. Olroyd, R. & R. C. C. 88; Ewer v. Ambrose, 3 Barn. & C. 749; Bernasconi v. Fairbrother, cited in 1 Moo. & R. 427; Wright v. Beckett, Id. 414; Dunn v. Aslett, 2 Id. 122; Rice v. New England Marine Ins. Co., 4 Pick. (Mass.) 439; Brown v. Bellows, Id. 179; State v. Norris, 1 Hayw. (N. C.) 437, 438; Bank of Northern Liberties v. Davis, 6 Watts & S. (Pa.) 285; Melluish v. Collier, 15 Q. B. 878; Hemingway v. Garth, 51 Ala. 530; Blackburn v. Com., 12 Bush (Ky.) 181.

Mr. Phillips says: "The chief objection to the proposed evidence appears to be this, that a party after calling a witness as a witness of credit shall not be allowed to discredit him. At first sight, this has the semblance of a principle of plain dealing. But let the same proposition be expressed in other terms -as near the facts of the case, if not nearer-and let it run thus: A party, after giving credit to a witness for speaking truth, shall not, although deceived by him, be allowed to show that the witness has deceived. The proposition so expressed might, to an unlearned reader, appear scarcely consistent with the principles of justice. The proposition asserts a fact as the foundation of the rule, - that a party by calling a witness places him in the box as a witness of credit. But is this the fact? The party does not vouch for his credit, nor ought he to be treated as if he had given such voucher. He may know little, perhaps nothing, of the witness's character, or may believe

it to be doubtful, and yet may not unreasonably give him credit for the truth of his statements, - not however intending thereby to vouch for him as a witness of credit; and if in such cases the witness deceives him, his deceit ought to be exposed, and his evidence weighed in the scales of truth. But, it is said, he shall not give evidence to discredit his own witness. The answer to this is, that the witness ought not to receive more credit than he deserves, and if he has given different statements of the same transactions, no wrong is done to him by proving them. Whether such proof may discredit him at all, or to what extent, the jury are to determine: the object of the party may be to discredit, and the witness may deserve to be discredited; but the duty of the judge is to search out the truth, and to take care that the exact degree of credit due to each witness, and not more, shall be fairly and justly apportioned." 2 Phil. Ev. *995.

In England, and several of the States, proof of the previous contrary statement is rendered admissible by statute, the proper foundation having first been laid. 17 & 18 Vict. c. 125; Dean v. Knight, 1 Fost. & F. 433; Jackson v. Thomas, 10 W. R. 42; Mass. Pub. St., c. 169, § 22; Blackburn v. Com., 12 Bush (Ky.) 181; Hemmingway v. Garth, 51 Ala. 530; Brooks v. Weeks, 121 Mass. 433; White v. State, 10 Tex. App. 381; Com. v. Donahue, 133 Mass. 407; People v. De Witt (Cal.), 9 W. C. Rep. 696. See also Hildreth v. Shepard, 65 Barb. (N. Y.) 265.

ered here; the others will form the subjects of subsequent sections.1

Where the witness is not of the party's own selection, but is forced upon him, as it were, as the only person by whose testimony a material fact can be proved, as in the case of a subscribing witness to a deed, or will, or the like, -it would seem that he should not be considered the witness of the party calling him, within the meaning of the rule; and the latter should be permitted to impeach him to the same extent as he could, if he had been called by his adversary.2 And it has been held by courts of the highest respectability, that in such cases the rule does not apply. Thus, where in a contested will case, the proponent produced the three subscribing witnesses, examining two, but declining to examine the third, until ordered to do so by the court, and then only as to the formality of the execution of the will, the witness having sworn on cross-examination, that the testator was insane at the time of executing the will, it was held that the proponent could impeach the witness by showing his previous declarations, to the effect that the testator was of sound mind when the will was executed. In analogy with this principle, where a party is taken by surprise by the witness,—as where being called under a well-founded supposition that he will swear to certain facts, he testifies to other and contrary facts, or gives other unexpected testimony,-the party may interrogate him in respect to his previous declarations inconsistent with his testimony, for the purpose of probing his recollection, recalling to his mind the statements he has previously made, and drawing out explanation of apparent inconsistency. This is also allowed in criminal cases, where the testimony of the witness is as to facts which are injurious to the party calling him."

$214. Fact sworn to may be disproved. "But if a wit

1 §§ 214-216.

2 2 Evans' Poth. 232, 266.

8 Dennett v. Dow, 17 Me. 19; Shorey v. Hussey, 32 Me. 579; Olinde v. Saizan, 10 La. Ann. 153; Williams v. Walker, 2 Rich. (S. C.) Eq. 291. But see Whitaker v. Salisbury, 15 Pick. (Mass.) 544, 545, Brown v.

Bellows, 4 Id. 179; Brown v. Buckley, 1 McCart. (N. J.) 294.

4 Thornton v. Thornton, 39 Vt. 122; Harden v. Hayes, 9 Pa. St. 151.

5 Bullard v. Pearsall, 53 N. Y. 230. S. P., McDanial v. State, 53 Ga. 253.

6 Thomas v. State, 14 Tex. App. 70; Tyler v. State, 13 Id. 205; Shannon v. State, Id. 139.

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