CHAPTER XV.

CONFIRMING AND CORROBORATING WITNESSES.

§ 217. The Right to corroborate a Witness.

§ 218. The Necessity of Corroboration, generally.

§ 219. Where Witness is shown to have falsified.

§ 220. To overcome Answer in Chancery.

§ 221. Competency of Corroborating Evidence.

§ 222. Its Sufficiency and Effect.

§ 223. Sustaining a Witness by Proof of Character.

§ 224. Showing Previous Consistent Statements.

$ 225. Corroboration of Prosecuting Witnesses in Certain Cases.

§ 217. The Right to corroborate a Witness. A party has the unquestioned right to introduce evidence in corroboration of a witness who has been impeached or contradicted, and no exception lies to the admission of such evidence.1 He may introduce as many witnesses as he deems necessary to prove his side of the issue, and if his opponent brings in contradictory witnesses, he may call others to corroborate those first examined.2 And the rule is the same where the witness sought to be corroborated was impeached on his own cross-examination only, and not by extraneous evidence.3 Where plaintiff impeaches defendant's witnesses by evidence in rebuttal, defendant may corroborate them after plaintiff has rested.4

Not only may an impeached witness be corroborated by evidence extrinsic to his own, but he may be confirmed by his own testimony taken on re-examination. If, on cross-examination, facts have been elicited which tend to impair his credit, he may, on re-examination, be asked such questions as tend to explain those facts.5 Thus, where, in a criminal case, the defendant's witnesses were asked, on cross-examina

1 Green v. Gould, 3 Allen (Mass.) 465.

4 Wade v. Thayer, 40 Cal. 578.
5 United States v. High wines, 8

son v. Sharretts, 7 La. Ann. 54.

2 Outlaw v. Hurdle, 1 Jones (N. C.) Blatchf. (U. S.) 475. Contra, Dick

L. 150.

3 Richmond v. Richmond, 10 Yerg. (Tenn.) 343.

tion, where they came from, to which they answered that they came from jail, it was held error to refuse them the privilege of stating upon what charge, and under what circumstances they had been committed to jail.1 So where, for the purpose of contradicting a witness, his attention is called, on cross-examination, to a communication sent by him to a newspaper, he should be allowed to explain the circumstances under which the communication was written.2 And the rule is the same where impeachment is attempted by the proof of verbal statements contradicting the witness' testimony; but proof of a detached statement, made previously to the trial by the witness, will not authorize proof of all that he said at the same time, but only of so much as can be connected in some way with the statement proved.4

This right to confirm the witness on re-examination extends to cases where the cross-examination is as to facts not in themselves admissible in evidence; 5 this, however, is a departure from general rules of evidence.6

But a witness cannot be supported before he has been attacked, though it is always permissible to strengthen a witness' testimony by connected incidents showing its consistency and reasonableness.8

§ 218. The Necessity of Corroboration, generally. Whether it be necessary to corroborate an unimpeached and uncontradicted witness, is a question which most frequently arises in

1 State v. Ezell, 41 Tex. 35. S. P., ment, forming a part of a conversaMcAffee v. State, 31 Ga. 411.

2 Smith v. Weeks, 54 Iowa, 411. 8 See infra, § 224; State v. George, 8 Ired. (N. C.) L. 324.

The Queen's Case, 2 Brod. & B. 297; Prince v. Samo, 7 Ad. & E. 627; overruling a broader doctrine laid down in the Queen's Case by Lord Tenterden.

5 Goodman v. Kennedy, 10 Neb. 270; State v. Cardoza, 11 So. Car. 195.

6 Mitchell v. Sellman, 5 Md. 376; Shedden v. Patrick, 2 Swab. & Tr. 170. Upon the point as to how much of a previous conversation, a part of which has been gone into on crossexamination, may be elicited from the witness on the re-direct, Mr. Phillips says, "Upon a review, therefore, of the authorities, the correct rule seems to be as follows: That where a state

tion, is given in evidence, whatever was said by the same person in the same conversation, that would in any way qualify or explain that statement, is also admissible; but detached and independent statements, in no way connected with the statement given in evidence, are not admissible, and that there is no difference in this respect between statements made in conversation by a party to the suit, and those made by a third party." 1 Phil. Ev. *416.

7 Hamilton v. Conyers, 28 Ga. 276; State v. Rorabacher, 19 Iowa, 154; Bryant v. Tidgewell, 133 Mass. 86; Adams v. Greenwich Ins. Co., 70 N. Y. 166.

8 Bruton v. State, 21 Tex. 337.

dealing with the testimony of accomplices - the cases upon that branch of the subject will be examined later on1other cases in which such corroboration is essential are adultery, bastardy, divorce, perjury, seduction, rape, and treason cases, and chancery cases, where a sworn answer is to be overcome. There still remains, however, a class of cases where the testimony of a single witness needs corroboration by other testimony, or confirmation by circumstances in evidence, even though such witness be unimpeached and uncontradicted. Thus the testimony of a too willing witness, as to his "understanding" of a conversation between the parties, if uncorroborated, has been held entitled to no weight; the testimony of a single witness has been deemed overridden by written assignments on a note and mortgage ;6 and, the question being whether certain real estate passed under a deed from a firm "of all and every parcel of real estate heretofore acquired, or now held by them," the testimony of a single witness, given after a lapse of twelve years, that one of the partners had said that he received the land in payment of a debt due the firm, was held to be insufficient proof to establish such admission.7

In all cases where the testimony of one party or his witnesses is explicitly contradicted by that of the other party and his witnesses, the party holding the affirmative of the issue must be corroborated in some manner, or fail.8 § 219. Where Witness is shown to have falsified. general effect of the maxim, "falsus in uno falsus in omni

1 See infra, Chap. XVI. 2 See infra, § 225.

See infra, § 220. 4 See supra, § 195.

5 Powell v. Swan, 5 Dana (Ky.) 1. 6 Mann v. Cross, 9 Iowa, 327.

7 Benedict v. Horner, 13 Wis. 256. 8 Shearman v. Hart, 14 Abb. (N. Y.) Pr. 358. Within this principle the testimony of a state's witness whose credit has been impeached, must be corroborated by proof of a fact tending to show guilt, to justify a conviction. Martin v. State, 28 Ala. 71. But see to the contrary, Riley v. Butler, 36 Ind. 51.

As to the sufficiency of the uncorroborated evidence of one witness, to

The

establish a contract, or prove the payment or extinguishment of an item of account, exceeding $500 in amount, under the laws in force in Louisiana, see Sieran v. Keenan, 14 La. Ann. 705; Jones v. Fleming, 15 Id. 522; Collins v. McElroy, 15 Id. 639; St. Romes v. New Orleans, 18 Id. 210; Brady r. McWilliams, 19 Id. 433; Goldsmith v. Friedlander, 20 Id. 119; Field v. Harrison, Id. 411.

A usage of business may be established by the testimony of a single witness. Robinson v. United States, 13 Wall. (U. S.) 363; Jones v. Hoey, 128 Mass. 585; Bissell v. Campbell, 54 N. Y. 353; Adams v. Pittsburgh Ins. Co., 95 Pa. St. 348.

bus," upon the credibility of witnesses who testify falsely in part, has been heretofore considered; and we found that it is within the province of the jury to believe such portions, if any, of such a witness' testimony as they see fit. It was early held that where the testimony considered false by the jury was on an immaterial point, it was competent for them to give their verdict upon his testimony-in-chief upon other points, if corroborated. The true rule for the adoption of juries undoubtedly is, that where a witness knowingly and wilfully swears falsely in a material matter, his testimony should be rejected entirely, unless corroborated by the facts and circumstances of the case, or other credible evidence, 3 and the mere fact that his evidence is corroborated in some other immaterial respects will not restore the credibility of such a witness.4

§ 220. To overcome Answer in Chancery. - It is a familiar rule of chancery pleading and practice, that the explicit denials in the sworn answer of a defendant, to the allegations of a bill so framed as to compel an answer on oath, cannot be so overcome by the uncorroborated evidence of a single witness testifying in support of the bill, as to afford a sufficient basis for a decree in favor of the complainant.5 The civil law rule formerly followed by courts of equity, and still in force in Louisiana, required the oath of two witnesses, or, at the least, the testimony of one witness, strongly corroborated by circumstantial or written evidence, to overcome the answer. The modern rule of courts following the principles of the common law is, that the defendant may claim for his sworn answer a credit equal to that of any one witness, in all cases where his answer is "positively, clearly, and precisely" responsive to any matter stated in the bill, as to which he is called upon to answer; for by so calling upon him the complainant is held to admit the answer to be evidence. But the evidence of an additional witness, or even the evidence of circumstances alone,

1 Supra, § 192.

2 Turner v. Foxall, 2 Cranch, C. C. 324. S. P., in later cases. Meixell v. Williamson, 35 Ill. 529; Brett v. Catlin, 47 Barb. (N. Y.) 404.

470.

4 Smith v. State, 23 Ga. 297.

5 1 Greenl. Ev. § 260.

6 Hynson v. Texada, 19 La. Ann.

7 Gresley, Ev. p. 4; Cooth v. Jack

3 Pierce v. State, 53 Ga. 365; Day son, 6 Ves. 40. v. Crawford, 13 Id. 508.

may be sufficient to turn the scale in favor of the complainant.1

-In gen

§ 221. Competency of Corroborating Evidence. eral, a corroboration, to be of any avail, should be as to some matter material to the issue. Thus, where a witness has been shown to be infamous, the confirmation of his testimony should be as to such parts of his narrative as may reasonably satisfy the jury of its truth; not restricted to any particular points, or extended to facts generally known.3 Ordinarily, the truth of a witness' testimony as to one fact or set of facts, cannot be demonstrated by proving the exist ence of another and distinct fact or set of facts. Thus, the fact that a debtor had the means of paying a debt, is not admissible as evidence tending to corroborate his testimony that he did pay it; and a witness denying that he stated a fact as another witness swears he did, and claiming to have stated a different fact, evidence that the fact existed, which he has testified that he stated, is inadmissible to corroborate him.5

But this rule is not an inflexible one; accordingly, where the date of a transaction is in issue, dates of other transactions may be gone into to enable witnesses to fix the date in dispute. So, also, in a real action, a deed for other land than that in controversy may be read in evidence to corroborate statements of witnesses.7

1 Pember . Mathers, 1 Bro. Ch. 52. See also Abbott v. Case, 11 C. E. Gr. (N. J.) 187; Morris v. White, 9 Stew. (N. J.) 324; Vigel v. Hopp, 104 U. S. 441; Campbell v. Patterson, 95 Pa. St. 447; Jones v. Abraham, 75 Va. 465. In New York the rule no longer obtains. Stilwell v. Carpenter, 62 N. Y. 639. See also 3 Greenl. Ev. § 289 and notes, where the conclusiveness of an answer in chancery is further discussed.

227; Goodhand v. Benton, 6 Gill & J. (Md.) 481.

7 Buie v. Carver, 75 N. C. 559. See also Richardson v. Stewart, 4 Binn. (Pa.) 198; Boston &c. R. R. v. Dana, 1 Gray (Mass.) 83.

But a witness testifying to a confession by the accused, cannot be corroborated by proving the commission by the accused of another offence of the same kind as that for which he is on trial. People v. Schweitzer, 23 2 Fraser v. People, 54 Barb. (N. Y.) Mich. 301. In Ashley v. Wolcott (11 306. Cush. (Mass.) 192), a witness, testify

3 United States v. Biebusch, 1 ing to the existence of a certain McCrary (U. S.) 42.

watercourse, stated that many years previous, as he was putting in a waterwheel, the plaintiff's father struck him, and he still bore the marks on 6 Harris v. Rosenberg, 43 Conn. his arm. Being asked by the party

4 Atwood v. Scott, 99 Mass. 177. 5 Edgerton v. Wolf, 6 Gray (Mass.) 453.