Opinion
June Term, 1821.
Under the act of 1796, a judge may say to a jury, that a particular fact is proved, if the jury believes the witness deposing to such fact. If a witness is proved to be a minister of the gospel, that fact may with propriety be mentioned to a jury, but it does not necessarily entitle his testimony to more weight than that of another man.
THIS was an action of debt from GRANVILLE, brought on a bond made payable to Samuel Creath for £ 25 of the currency of Virginia, executed by the defendant on 9 March, 1808, and on 23 September, 1818, endorsed by the executrix of the original obligee to the plaintiff. The defendant pleaded payment, and to support the defense introduced as a witness his brother William Creath, a minister of the gospel, who deposed that sixteen or seventeen years before the obligee of the bond now in suit informed the witness that a final settlement of accounts had taken place between himself (the obligee) and the obligor, and showed him the bond on which this action is founded, and also a deed of trust for a certain horse, to secure the payment of the bond; the witness also stated that he was informed by the obligee that this bond was founded in part upon a judgment obtained in court in favor of his mother. This witness also stated that the obligee had afterwards informed him he had received partial payments on the bond, and that in 1810 the witness was present at the house of the obligee, together with the defendant, when a final settlement took place; the bond now sued (310) on was produced and fully satisfied and the witness wrote a receipt in full against it, which the obligor signed and the witness attested, and that he left all the papers on the table.
The executrix of the obligee was introduced by the defendant to prove declarations by the obligee admitting payment of the bond. She stated that some short time before the death of the obligee he caused her to get this bond with the view of sending it to the obligor for payment, but that he declined afterwards sending it and directed her to put it away, which she did, and after his death was not able to find it until a short time before she endorsed it to the plaintiff. While it was lost, as the witness supposed, she applied to the defendant for payment, and was asked by him where the bond was? She answered it was mislaid, and defendant assured her he would not in consequence of that circumstance withhold anything from her or hers. This witness was present at the settlement spoken of by William Creath, and though not particularly attentive understood it to be a settlement of accounts and transactions different from those of which he spoke. Further, she stated that she at the time thought the witness Creath was intoxicated, that she understood the bond in question was given in consequence of the defendant's having sold a horse which the obligee owned. William Creath was then called again to explain his situation at the time of the settlement, when he stated that he was perfectly sober, and explained the circumstances and acts which had induced the belief in the last witness of his intoxication.
The plaintiff then produced the record of the judgment spoken of by Creath as being part of the consideration of the bond. The suit was in the name of Susannah Creath, but the bond had been transferred to Samuel Creath, who as agent for Susannah managed the suit. The judgment had been obtained (311) in the month of May after the date of the bond, on a bond in the penalty of £ 50 currency of Virginia, conditioned for the payment of £ 25 of the same currency, and the execution appeared to have regularly issued until February, 1809, when it was returned "stayed by order of plaintiff's agent, Samuel Creath, according to the order filed." A witness was then introduced who proved the drawing of a bond by Wynne (the subscribing witness to the bond in suit) for the sum of £ 25 currency of Virginia, which he understood from all parties was in some way connected with a transaction relative to a horse. The bond sued on was in the handwriting of Wynne, and appeared to have been written and executed at the same time.
The judge in his charge to the jury stated that the evidence of William Creath, if believed, proved a settlement of the bond on which the action was brought; that it was given in consideration of a bond in which Samuel was interested, made by John, the defendant, payable to Susannah Creath, the mother of the witness, the defendant, and Samuel, for the penalty of £ 50, conditioned for the payment of £ 25. That it did not appear that the witness William had any inducement to commit a perjury, that standing in the situation of a relation to the defendant, to Samuel the obligee, and to the individual who transferred the bond to the plaintiff, they ought in charity to believe the witness; that there was nothing to impeach his testimony, and being a preacher it ought to add weight to his evidence. If the jury believed the testimony of the witness William they should find for the defendant.
The jury found a verdict for the defendant. A motion was made for a new trial, which was refused, and judgment rendered pursuant to verdict, from which the plaintiff appealed.
A judge cannot, under the restraint (312) imposed by the act of 1796, give an opinion in charging the jury whether a fact is fully or sufficiently proved, "such matter," in the language of the act, "being the true office and province of the jury"; and if the charge in this case had simply stated that the settlement was proved by the witness it would have been in conflict with the law; when, however, it proceeds to state that the settlement is proved if the jury believe the witness it explains the sense in which the word proved is used as synonymous with evidenced, in which latter sense it would probably be understood by the jury, who would then feel themselves at liberty to estimate the weight of the evidence. It were to scan the instruction with too critical an exactness to award a new trial on this ground.
As to the other point, the profession of a preacher does not necessarily invest a man with that purity of morals which renders him more scrupulous in declaring the truth than another man, for it sometimes happens that even the members of that sacred vocation are overpowered by the temptations to vice. That a witness is a preacher ought if proved to be stated to the jury that they may judge how far that circumstance entitles his testimony to additional weight; but even then a jury would draw their conclusions from his individual character and its correspondence with his profession rather than from the profession itself. The instruction given in this case can only be sanctioned by assuming the position that a preacher ex vi termini denotes a person whose evidence is entitled to greater weight than that of another man; whereas a preacher whose life and profession are at variance is less entitled to confidence than another man, since to his other vices he adds that of hypocrisy; and he who could impiously aim to deceive the Deity would not scruple to mislead his creatures. On this part of the charge, therefore, a new trial must be awarded. (313)