Opinion
12-09-1886
PULLEN v. PULLEN.
G. O. Vanderbilt, for appellant. W. Y. Johnson, contra.
On bill for divorce. Appeal from ruling of the master.
G. O. Vanderbilt, for appellant.
W. Y. Johnson, contra.
BIRD, V. C. The suit is for divorce. The defendant sought, on the examination of witnesses before the master, to discredit one of the witnesses called and examined by the complainant. This he endeavored to do, first, by asking him, on cross-examination, if he had not been guilty of larceny, particularly naming the goods said to have been stolen, which the witness denied; and then by offering to prove that he had admitted to others that he had stolen the goods. This testimony was objected to, and rejected by the master. The master was right. He followed the rule as laid down by Greenleaf, in his work on Evidence, (section 449,) and by all the judges who have considered the question on appeal. The question is not whether the witness may be asked such a question or not, nor whether he can plead his privilege and refuse to answer, but, having been asked and answered, whether or not, in such case, he can be contradicted, when it appears to touch upon matters wholly collateral to the issue between the parties, and solely to pertain to the credibility of the witness.
In State v. Roberts, 81 N. C. 605, a witness for the state was asked, on cross-examination, if he had not said to one Wills "that, rather than be outdone by a negro, he would swear to any amount of lies;" and also if he had not admitted, on a trial before a justice of the peace, that hehad declared "that he would have all the corn cut down on Sandy Marsh creek, and would poison all the stock on said creek." The witness denied making any such statements. An offer was made to contradict him, which was overruled. On appeal the supreme court said:
"The general rule is that when a witness makes statements in the course of his evidence, and as a part thereof, as to any fact or facts constituting the subject-matter under investigation, he may be impeached by proof of statements or representations to the contrary; but as regards statements of a witness, drawn out on cross-examination collateral to the investigation, the same are to be taken as conclusive, and it is not admissible to contradict him by showing declarations or statements inconsistent therewith; with an exception, however, that disparaging evidence of inconsistent statements in matters collateral may be received when it tends to show the temper, disposition, or conduct of the witness in relation to the cause or parties." Greenl. Ev. § 455.
In Com. v. Mason, 105 Mass. 163, the court, on appeal, said:
"The questions put the government witness on cross-examination, whether he had not offered, in another case, to suborn a witness, and whether he had not forged the name of the defendant Francis D. Willard to certain notes, were inquiries as to collateral and irrelevant matters, and the ruling of the presiding judge rejecting them is not open to exception."
See, also, Com. v. Murry, 36 Leg. Int. 392; People v. McKeller, 53 Cal. 65; People v. Bell, Id. 119; Fames v. Whittaker, 123 Mass. 342; Gerrish v. Gary, 120 Mass. 333; Hester v. Com., 85 Pa. St. 139-157; Madden v. Koester, 52 Iowa, 692-694; S. C. 3 N. W. Rep. 790; Lewis v. Steiger, 8 Pac.Rep. 884; Plato v. Reynolds, 27 N.Y. 586-588; Chapman v. Brooks, 31 N. Y. 75-87; Corning v. Corning, 6 N. Y. 97-104; Stokes v. People, 53 N. Y. 165-176; Ryan v. People, 79 N. Y. 593-600; Furst v. Second Ave. R. Co., 72 N. Y. 542; Conley v. Meeker, 85 N. Y. 618; Steph. Dig. Ev. (Chase's Ed.) 227, art. 130.
An offer was made to make proof of criminal conduct of this same witness, by producing a justice of the peace with his docket, and asking the justice respecting his actions in issuing process, and then offering to prove what he had done, and the nature of the offense charged by his docket. The docket was admitted under objections. An appeal was taken. These offers must fall, for the reasons above given, and also for the reason, as every one must admit, that nothing could be more monstrous than to solemnly adjudge that to impeach a witness you need only show he has been charged and arrested for a crime, and also for the further reason that the justice has no authority to keep a docket, and to make record in any such case, for any such purposes. In this respect the principles laid down in Hester v. Com., supra, are applicable.
In these respects the ruling of the master ought to be sustained. The defendant must pay the costs of appeal.
It will be seen that the questions presented do not involve any construction of the first section of the act concerning evidence, (Revision, 378,) which provides that a witness convicted of a crime may be shown to have been convicted either by cross-examination or by the productionof the record thereof. I have not been called upon to decide whether or not, in such a case, a witness who has been convicted, and on cross-examination denies it, could be contradicted by the record.