Opinion
03-21-1892
RICE v. RICE.
G. D. W. Vroom and Geo. C. Macpherson, for complainant. William M. Lanning, for defendant.
(Syllabus by the Court)
Suit by William Rice against Lydla E. Rice for divorce. Application for an order permitting defendant to recall a witness. Order granted.
G. D. W. Vroom and Geo. C. Macpher son, for complainant.
William M. Lanning, for defendant.
BIRD, V. C. This is an application for an order permitting the defendant to recall a witness for the purpose of further direct examination. The application was made before the party asking the privilege had rested her case. Upon the former examination the witness now sought to be recalled gave such answers to repeated inquiries as to justify counsel and every other person reading her testimony in believing that she had no knowledge whatever of any intimacy between the petitioner and his alleged mistress. Upon this application counsel says that since such examination she has made statements which, if believed, show most conclusively that the crime of adultery had been committed by the petitioner. Counsel further states that the witness came to him, so far as he knows, upon her own motion, and confessed that she bad done wrong in refusing to tell the whole truth, and now desires to make what amends she can by telling the truth. Counsel for petitioner waived the necessity of affidavits, if there were any rule requiring them, and consented that the motion should be determined upon the statements as made by counsel. This application is addressed to the sound discretion of the court. 2 Daniell, Ch. Pr. & Pl. 1104;; Purcell v. McNanmara,17 Ves. 433; Mulock v. Mnlock, 28 N. J . Eq. 15. This clearly implies that there may be conditions which ought to influence the court to reject the application. Does this most extraordinary case embrace any such condition? It is proper to state that in the vast majority of instances where such an application is made in cases tried at the circuit by justices of the supreme court, when such application is made before the case is rested on behalf of the party making the application, permission is given to recall and further examine a witness; and this I have known to be done not unfrequently even after the case has been rested on both sides. While technical rules will sustain the rejection of such applications, courts of justice have, year by year, become more mistrustful of such rules, and act upon the impression that less mischief is committed in administering justice by hearing whatever is pertinent to the issue, especially when the omission sought to be cured may reasonably be attributed to mere negligence or forgetfulness, or any other infirmity not criminal in itself, rather than to exclude such testimony. The rules referred to have their origin in the just desire of courts to prevent undue advantage, even though no criminal intent be involved, or criminal act committed.
This case, as now presented by counsel, shows most unmistakably that the witness was guilty of willful and deliberate perjury. What she is now willing and desirous to tell she knew just as fully when she was upon the witness stand, and swore to tell the truth, the whole truth, and nothing but the truth, as she does now. It may be that she can be excused from the charge of perjury upon the allegation that she had not a clear and comprehensive conception of the criminal character of her conduct. In considering the rights of the applicant for this motion it is proper to take this view of the case; especially since, so far as appears, she soon became convinced that she had been guilty of a great wrong in suppressing the truth, and made known the state of her mind to the counsel who first examined her. If such a case were to be presented to a justice of the supreme court at the circuit before the case had rested by the parties making the offer, I am inclined to think such justice would allow the testimony to be presented, trusting the jury to give such weight to it as the circumstances of the case would justify. It seems to me it would not be a mistake to follow such practice in this court. I have said I think that such offer would be allowed at the circuit, not so much because it would be in harmony with the ancient practice, but because of the imperative character of the legislation upon this subject. The statute (Revision, p. 378, § 1) provides as follows: "That no person offered as a witness in any action or proceeding of a civil or criminal nature, shall be excluded by reason of his having been convicted of a crime, but such conviction maybe shown on cross-examination of the witness, or by the production of the record thereof, for the purpose of affecting his credit." From this it is evident that the greatest criminal cannot be excluded, even after conviction for his crimes; and, therefore, it seems impossible to say that the present case is not embraced within the statute. As in every other case, nothing remains but for the court to determine whether or not the testimony proposed is relevant when it is offered. If relevant, it cannot be excluded; but every circumstance must betaken into consideration in deciding what credit is to be given to the witness or what value to her testimony. This conclusion has been reached in the face of a decided case which is entitled to the greatest weight, (Bott v. Birch, 5 Madd. 66,) in which it was held that when the re-examination of a witness might open the way to perjury it was refused. Not that I would criticise or disregard this opinion, but because 1 think the statute must be my guide. Besides, in this case, the perjury has been committed, the crime confessed, and consequently every principle is presented which must have controlled in the creation of the statute. Therefore, however much one may shudder at such a spectacle, the due administration of the law makes it his imperative duty to give permission for its production, unless someof the rules which have been established to aid courts in the exercise of the judicial discretion above referred to may be violated thereby; for I have not the slightest impression that the legislature meant to say that the party offering such testimony could not so conduct himself in the management of the case as to forfeit all right to the favorable consideration of the court. There is nothing before me that shows any fault upon the part of the party asking for this favor. She comes without delay, having, when the witness was first upon the stand, applied every test allowed in direct examination to the witness, in order to elicit whatever she might know pertaining to the issue. I think this motion may well be sustained upon the ground that the evidence was newly discovered, as well as upon the right to recall the witness for the purpose of re-examination, which implies an examination upon the same subject-matter as that upon which the witness had been before examined. Indeed, it was upon the latter right or theory that counsel presented the question, and he doubtless did this because the examination already made shows that the only intent of the examination was to produce testimony establishing the offense of adultery. Yet, while this is so, it is nevertheless true that neither the counsel nor the party then knew what they have since discovered from the lips of the same witness. Hence it is unquestionably proper to regard this testimony as newly discovered, notwithstanding the offer is to bring it before the court by the mouth of the witness which has before been examined. That such newly-discovered evidence is admissible is no longer questioned. Mulock v. Mulock, supra. And, although this witness may be sadly self-impeached, yet reflection will bring to the mind the possibility of her being so sustained by facts and circumstances established by other witnesses as to justify the court in giving considerable weight to her testimony. When to what has been said is added the consideration that the state has a vital interest m every suit for divorce, it will be difficult for the most skillful critic to find sufficient reason for refusing the order prayed for. Perhaps I ought to add that it will be in accordance with well-set tied practice for the master to instruct the witness that she need not answer questions that will tend to criminate her. This precaution is the safer course, notwithstanding the witness comes confessing her fault, and expressing a desire to make reparation. When this view is taken of the case, it is fair to presume that she will not claim any protection under the rule. But if she be cautioned the court will feel that no duty upon its part has been neglected. I will advise an order accordingly.