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and being repeated, his lordship thought it necessary to interpose for the protection of the witness. Phill. Ev. 921 (ne) 8th ed. In another case, where a witness was asked on cross-examination, whether she lived in a state of concubinage with the plaintiff, Lord Alvanley interposed, and gave the following opinion on the subject of such questions : “He thought questions as to general conduct might be asked, but not such as went immediately to degrade the witness; he would therefore allow it to be asked, whether she was married, as she might be married to the plaintiff. But having said she was not, he would not allow it to be asked, had she slept with him?” He added, "I do not go so far as others may.. I do not say that a witness may not be asked to what may tend to disparage him, that would prevent an investigation into the character of the witness, which may often be of importance to ascertain. I think those questions only should not be put which have a direct or immediate effect to disgrace or parage the witness."
witness." Macbride v. Macbride, 4 Esp. 242. Upon an in dictment for a rape, the prosecutrix on cross-examination was asked, “ Whether she had not before had connexion with other persons, and whether not with a particular person (named).” This question was objected to, and the point was reserved for the opinion of the judges, who held the objection good, Hodgson's case, Russ. and Ry. C, C. 211 (a). It does not appear in the latter case, whether the question itself was objected to, or only that the witness was not bound to answer it, but both in this and the preceding case of Macbride v. Macbride, it seems that the questions were inproper to be put, as they imputed to the witness an offence punishable by the ecclesiastical law. Upon the same ground, Best, C. J., interposed to prevent a witness being asked whether she lived in a state of incestuous concubinage with a particular person.
Cundell v. Pratt, M. and M. 103 (b). Where, in an action for seduction, the party seduced was asked whether she had not been criminal with other men, Lord Ellenborough said, this was a question she ought not to answer, and that the same point having been referred to the judges, they were all of the same opinion. Dodd v. Norris, 3 Campb. 519.
With regard to compelling a witness to answer questions tending to degrade him, (such questions not being relevant to the matter in issue, there appear to be only two authorities that a witness is so bound. In Holding's case, O. B. 1821, Arch. Cr. Pl. 102, 2d ed., Bayley, J., is reported to have ruled, that though a witness may refuse to answer a question exposing him to punishment, yet all other questions, for the purpose of impeaching his character, may not only be put, but must be answered. So ( *165 | where in a civil cause, a witness *b ing asked on cross-examination, whether he had not been tried for theft, refusing to answer, and appealing to Lord Ellenborough, whether he was bound to answer, his lordship said, “If you do not answer the question I will conimit you,” adding, “you shall not be compelled to say whether you were guilty or not.” Frost v. Holloway, 1918, Phill
. Ev. 922, (n.) 8th ed. Assuming that a question is not irregular, merely from its tendency to degrade the witness's character, and that the witness is not compellable to answer, yet if he chooses to give an answer, the party who asks the question must be bound by his answer, and cannot be allowed to falsify it by evidence. Phill. Ev. 923, 8th ed.; and see Watson's case, ante, p. 160, and infra.
(a) 1 Eng. C. C. 211. (b) Eng. Com. L. Rep. xiv. 285, n.
Evidence of general character.) Where a witness is called to impeach the general character for veracity of another witness, he cannot be examined as to particular facts. The proper question is, “ From your knowledge of his general character, would you believe him on his oath ?” (1) If the witness state that he has seen him before a magistrate, and from what passed there he would not believe him on his oath, it is not evidence. Mawson r. Hartsink, 4 Esp. 102. “The rule is," says Mr. Justice Bayley, “that a party against whom a witness is called, may examine witnesses as to his general character, but he is not allowed to prove particular facts in order to discredit him." Watson's case, 2 Stark. N. P. C. 152 (a). “The reason,” says Pratt, C. J., “why particular facts are not to be given in evidence, to impeach the character of a witness is, that if it were permitted, it would be impossible for a witness having no notice of what will be sworn against him, to come prepared to give an answer to it; and thus the character of witnesses might be vilified, without their having any opportunity of being vindicated.” Layer's case, 14 How. St. Tr. 285. But no such injustice attends an inquiry into the general character of a witness. “General character," says Chief Justice Gibbs, " is the result of general conduct, and every witness who presents himself in a court of justice undertakes for that.” Sharp v. Scoging, Holt's N. P. C. 541 (6). In answer to general evidence of bad character for veracity, the witnesses called to prove it may be examined as to their means of knowledge, Mawson v. Hartsink, 4 Esp. 103; and the grounds of their opinion; or the other party may attack their general character, and by fresh evidence support the character of his own witness. Phill. Ev. 925.
In the common case where a witness for the plaintiff asserts one thing, and a witness for the defendant asserts another, and direct fraud is not imputed to either, evidence to general character is not admissible. Bishop of Durham v. Beaumont, 1 Campb. 207.
When a party may contradict his own witness.] It is clear that the party calling a witness, will not be allowed to give general evidence that he is not to be believed on his oath (2). Ewer v. Ambrose, 3 B. and C.
(1). Jackson o. Osborn, 2 Wend. 555. Commonwealth o. Moore, 2 Dana, 402. Rixey o, Bayse, 4 Leigh, 330. Wike o. Lightner, 11 S. & R. 198. Swift's Evidence, 143.
When character is put in issue, evidence of particular facts may be admitted, but not where it comes in collaterally. Commonwealth o. Moore, 2 Dana, 402. See Sacket d. May, 3 lb. 80.
To discredit a witness, it may be asked, whether he is not a man of bad moral character ; State o. Stallings, 2 Hayw. 300. Hume o. Scott, 3 Marsh. 261. (Contra, Skillinger o. Howell, 5 Halst. 309.) If such question be asked, the impeaching witness may be cross-examined as to his character for veracity. Noel . Dickey, 3 Bibb, 263. See Mobely o. Hamit, 1 Marsh. 591. Kimmel o. Kimmel, 3 S. & R. 336.
The character for veracity of a female witness may not be impeached by evidence of her general character for chastity. Gilohirst o. M'Kee, 4 Watts, 380. Jackson o. Lewis, 13 Johns, 504. Commonwealth o. Moore, 3 Pick. 194. See Commonwealth v. Murphy, 14 Mass. 387. Sword o. Nestor, 3 Dana, 453. 2 Starkie's Ev. New Ed. 216, n. 1.
The credit of a witness may be impeached by showing that he was intoxicated at the time the events happened to which he testifies. Tuttle v. Russel, 2 Day, 201, though general character for intemperance is inadmissible. Brindle o. M'llvaine, 10 S. & R. 282.
Neighborhood is co-extensive with intercourse. It is not necessary that the character testified to, should be proved to be that of the place where he resides. Ches3 v. Chess, i Pennsylvania Rep. 32.
A party calling a witness as to character, is confined to general questions, but the opposite party may ask particulars. People v. De Graff, 1 Wheeler's C. Ć. 205. People o. Clark, Ibid. 295. (2) Lawrence o. Barker; 5 Wend. 301. Jackson v. Varick, 7 Cowen, 238. Do Lisle o.
(a) Eng. Com. L. Rep. iii. 290. (b) Id. iii. 180.
750 (a), Bull. N. P. 297. But where a witness is called, and makes statements contrary to those which are expected from *him, the party calling him may prove the facts in question by other witnesses. Alexander v. Gibson, 2 Campb. 555; Lowe v. Joliffe, 1 W. Bl. 365; Ewer v. Ambrose, 3 B. and C. 749 (6); 4 B. and Ad. 193 (c). Where a witness is contradicted by the party calling him, as to certain facts, it is not necessary that the remainder of his evidence should be repudiated. Bradley v. Ricardo, 8 Bingh. 57 (d).
Whether the party calling a witness, who gives evidence contrary to what is expected from him, may prove contradictory statements previously made by the witness, does not appear to be well settled (1). Where a witness made such a statement, and the party calling him proved a contradictory statement made by the witness in an answer to a bill in chancery, the Court of King's Bench held, that the judge had improperly left it to the jury to say whether they believed the witness's statement at the trial, or that in his answer; the latter, at all events, not being evidence of the facts stated in it. Ewer r'. Ambrose, 3 B. and C. 746 (e). In this case Holroyd, J., observed, “ The answer might, perhaps, be admissible, if the effect of it only were to show that as to the particular fact sworn to at the trial, the witness was mistaken. But if its effects were to show that the witness was not worthy of credit, then it was not admissible.” Id. 750. Where the prisoner's mother, whose name was on the back of the indictment, was, by the direction of the judge, called as a witness for the prosecution, and her evidence was in favor of the prisoner, and materially differing from her deposition before the coroner, the judge thought it proper to have that deposition read, and stated to the jury tliat her testiniony was not to be relied upon. The point being reserved for the opinion of the judges, they were all of opinion, that under the circumstances of the case, it was competent to the judge to order the depositions to be read, to impeach the credit of the witness. Lord Ellenborough and Lord Chief Justice Mansfield thought that the prosecutor had the same right. Oldroyd's case, Russ. and Ry. C. C. 83 (f). And where, in an action of trespass, one of the witnesses for the plaintiff swore contrary to the statement which he had made before the trial to the plaintiff's attorney, Lord Denman, C. J., permitted the latter to prove the contradictory statement. Wright v. Beckett, Lanc. Sum. Ass. 1833, 1 Moo. avd Ry. 414, S. C. The correctness of the ruling in the above case was afterwards argued before Lord Denman, C. J., and Bolland, B., sitting as judges of the Court of Common Pleas of Lancaster, when those learned judges differed and delivered their opinions at length. See 1 Moo, and R. 416. In accordance with the principle he laid down in the above case, Lord Denman has also held, that a party calling a witness who on cross-examination has given testimony unfavorable to him, may, on re-examination, ask the witness questions to show inducements to betray him. Duon r. Aslett, 2 Moo. and R. 122. An opinion, adverse to the right of a party calling a witness to contradict him, by his own previous statement, has been expressed by a writer of great authority. Phill. Ev. 309, 7th ed. And this opinion seems to have been followed by other text writers. 2 Russ. 636. Mr. Phillipps, however, in the last edition *of his work, appears to have changed his [ *167 | opinion, and observes, that in the administration of criminal justice more especially, the exclusion of the proof of contrary statements, might be attended with the worst consequences. Phill. Ev. 905, 8th ed.
Priestman, 1 Brown, 176. Cowden o. Reynolds, 12 S. & R. 281. Queen o. The State, 5 Har. & J. 232. Perry o. Massey, 1 Bailey, 32. Winslow o. Mosely, 2 Stewart, 137. Webster d. Lee, 5 Mass. 334. Steinbach v. Columbian Ins. Co., 2 Caines, 129. Stockton o. Dernutt, 7 Watts, 39.
But an attesting witness is a witness of the law, and may be discredited by any one who examines him. Crowell v. Kirk, 3 Devereux, 355. See Jackson o. Varick, 7 Cowen, 238. Contra, Whitaker o. Salisbury, 15 Pick. 534. Patterson o. Schenck, 3 Green, 434. Booker 0. Bowles, 2 Blackf. 90.
It has been held in North Carolina, that the Attorney General may produce evidence to discredit a witness for the Commonwealth. State o. Morris, 1 Hayw. 438. But see Brown's case, 3 Rogers' Rec. 15), and Queen o. The State, 5 Har. & J. 232.
A witness subpenaed by the plaintiff, but not examined by him but by defendant, may be impeached by the plaintiff Beebe 1. Sinker, 2 Root, 160. The Commonwealth o. Boyer, 2 Wheeler's C. c. 151.
(1) Although a party calling a witness shall not be allowed to impeach his general character, yet he may show that he has told a different story at another time. Cowden o. Reynolds, 12 S. & R. 21.
But a party cannot, after examining a witness, give in evidence his former testimony and declarations, ostensibly to discredit him, but in truth to operate as independent evidence. Smith o. Price, 8 Watts, 447.
(a) Eng. Com. L. Rep x. 220. (6) Id. x. 220. (e) Id. xxiv. 47. (d) Id. xxi. 220. (C) Id. x.
200. (1) 1 Eng. C. C. 88.
Examination as to belief. A witness can depose to such facts only as are within his own knowledge, but even in giving evidence in chiel, there is no rule which requires a witness to depose to facts with an expression of certainty that excludes all doubt in his mind. It is the constant practice to receive in evidence a witness's belief of the identity of a person, or of the fact of a certain writing being the handwriting of a particular individual, though the witness will not aver positively to these facts. See Miller's case, 3 Wils. 427. It has been decided, that for false evidence so given, a witness may be indicted for perjury. Pedley's case, 1 Leach, 325 ; Phill. Ev. 898, 8th ed. (1).
Examination as to opinion. Although, in general, a witness cannot be asked what his opinion upon a particular question is, since he is called for the purpose of speaking as to facts only, yet where matter of skill and judgment is involved, a person competent to give an opinion may be asked what that opinion is. Thus, an engineer may be called to say what, in his opinion, was the cause of an harbor being blocked up. Folkes v. Chad, 3 Dougl. 157 (a); Phill. Ev. 901, 8th ed. ; 4 T. R. 498. S. C. cited. In a variety of other cases also, such evidence has been adınitted. “Many nice questions,” observes Lord Mansfield, “ may arise as to forgery, and as to the impression of seals, whether the impression was made from the seal itself, or from an impression in wax. In such cases I cannot say that the opinion of seal-makers is not to be taken.” Folkes v. Chad, 3 Dougl. 159 (6).
So it seems is the opinion of any person in the habit of receiving letters, of the genuineness of a postmark. See Abbey v. Lill, 5 Bing. 299 (c). So the opinion of a ship-builder, on a question of sea-worthiness. Thornton v. Roy, Exch. Ass. Co. Peake, N. P. C. 25, 1 Campb. 117; Chapınan v. Walton, 10 Bing. 57 (d) (2).
(1) A witness must not swear to impression simply. That is descending to a test too vague. It should be persuasion or belief founded on facts within his own knowledge. Carter o. Connell, 1 Whart. 392. Carmalt o. Post, 8 Watts, 406. Salmon v. Feinour, 6 Gill & J. 60. Jones o. Chiles, 2 Dana, 32. (2) Rochester o. Chester, 3 N. Hamp. 349. Forbes o. Carothers & al., 3 Yeates, 527. Car
(@) Eng. Com. L. Rep. xxvi. 63. (6) Id. (c) ld. xv. 452. (d) Id. xxv. 28.
In Campbell v. Rickards, 5 B. and Ad. 840 (a), in a case of insurance, it was held, (overruling several previous decisions) that the materiality of a fact' concealed is a question for the jury alone. Witnesses conversant in a particular trade may be allowed to speak to a prevailing practice in that trade ; scientific persons may give their opinions on matters of science ; but witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties acted in one way rather than another.”
It is the constant practice to examine medical men as to their judgment with regard to the cause of a person's death, who has suffered violence; and where, on a trial for murder, the defence was insanity, the judges to whom the point was referred, were all of opinion that in such a case a [ *168 ] witness of medical skill might be asked *whether, in his judgment, such and such appearances were symptoms of insanity, and whether a long fast, followed by a draught of strong liquor, was likely to produce a paroxysm of that disorder in a person subject to it? Several of the judges doubted whether the witness could be asked his opinion on the very point which the jury were to decide, viz., whether from the other testimony given in the case, the act with which the prisoner was charged was, in his opinion, an act of insanity. Wright's case, Russ. and Ry. 456 (b). On an indictment for cutting and maiming, Park, J., on the authority of the above case, allowed a medical man, who had heard the trial, to be asked whether the facts and appearances proved showed symptoms of insanity. Searle's case, 1 Moo. and R. 75 (1).
A question may arise in these cases, whether, where a witness, a medical man, called to give his opinion as matter of skill, has made a report of the appearances or state of facts at the time, he may be allowed to read it as part of his evidence. The practice in Scotland on this point is as follows : The scientific witness is always directed to read his report, as affording the best evidence of the appearances he was called on to examine, yet he may be, and generally is, subjected to a further examination by the prosecutor, or to a cross-examination on the prisoner's part; and if he is called on to state any facts in the case, unconnected with his 'scientific report, as conversations with the deceased, confessions made to him by the prisoner, or the like, utitur jure communi, he stands in the situation of an ordinary witness, and can only refer to the memoranda to refresh his memory. Alison, Prac. Cr. Law of Scotland, 541.
Where, on an indictment for uttering a forged will, which, together with the writings in support of such will, it was suggested, had been written over pencil marks which had been rubbed out, Parke, B., (after consulting Tindal, C. J.,) held, that the evidence of an engraver who had examined the paper with a mirror, and traced the pencil marks, was admissible on the part of the prosecution, but that the weight of the evi
malt o. Post, 8 Watts, 406. Gentry. v. McMinnis, 3 Dana, 382. Bullock v. Wilson, 5 Porter, 338. Kellogg o. Krauser, 14 S. & R. 137. Morse v. The State, 6 Conn. 9. People o. De Graff, 1 Wheeler's C. C. 205..
(1) As to the evidence of experts generally, see Norman o. Wells, 17 Wend. 136. Cottril 0. Myrick, 3 Fairfield, 222. Boies o. M'Allister, Ibid. 308. Lester ó. Pittsford, 7 Verm. 158. Goodwin's case, 5 Rogers's Rec. 26. Where the opinion of an expert is offered, the Court may hear evidence first to ascertain whether he is an expert, and then allow the opinion to be given in evidence. Mendum's case, 6 Rand. 704. See 2 Starkie's Ev. New Ed. 932 n. 2 Russ. C. & M. 623.
(a) Eng. Com. L. Rep. xxvii. 207. (6) 1 Eng. C. C. 456.