Clark v. Reese , 35 Cal. 89 ( 1868 )

By the Court, Rhodes, J.:

The defendant cannot avail himself of the alleged error of the Court in compelling the witness Lincoln to answer the question propounded to him by the plaintiff’s counsel after his refusal to answer, on the ground that his reply would degrade and disgrace him. The privilege of refusing to answer is personal to the witness, and is not in any sense the privilege of the party calling him. Mr. Chief Justice Nelson, in Cloyes v. Thayer, 3 Hill, 564, says: “ If ordered to testify in a case where he is privileged, it is a matter exclusively between the Court and the witness. The latter may stand out and be committed for contempt, or he may submit; but the party has no right to interfere or complain of the error. It would be otherwise if the Court allowed the privilege in a ease where the witness had not brought himself within the rule, as the party would then be improperly deprived of his testimony.” (See, also, Ward v. People, 6 Hill, 144; 2 Phil, on Ev., C. H. & E. Notes, 935.)

The action of the Court is sustainable on another ground. The matter to which the question of the plaintiff’s counsel related was alleged in the defendant’s answer, and was thus a fact in issue. It is provided by section four hundred and eight of the Practice Act that a witness need not “give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or t# a fact from which the fact in issue would be presumed.” His privilege, therefore, would not shield him from answering the question.

When the defendant became a witness in his own behalf he subjected himself to all the rules regulating the examination and cross examination of witnesses. His privilege was no greater than that of any other witness. He dropped, for the time being, the character of a party, and took on that of a witness. On the cross examination the plaintiff’s counsel asked him this question: “Did you ever call Mrs. Clark your ‘Dear Carrie,’ or your ‘Dear Child?’ ” To which he replied: “I refuse to answer; when a man takes personal liberties with a woman, he should not come on the stand and swear to it.” Ho one hearing this remark could doubt that he meant to be understood as having taken personal liberties with the plaintiff'. The counsel then asked him: “ Did you ever take improper liberties with Mrs. Clark?” And, after the witness stated that he did not understand the question, it was put in unmistakable language. The witness declined to answer, and the Court held that he must answer or be committed for contempt; and afterwards, on motion of the plaintiff’s counsel, it was held that if the question was not answered the plaintiff would be entitled to have the defendant’s answer to the complaint stricken from the files, and to take judgment in accordance with the prayer of the complaint. Thereupon the defendant answered the question in the affirmative.

Was this question admissible? Had the witness, claiming privilege, refused to answer the first question proposed, on the ground that his reply would establish one fact in a transaction tending to degrade his character, the inquiry would be different from the one before us. But in advance of any question tending to implicate him in a transaction of that character, he volunteers a statement by which he insinuates that he had taken personal liberties with the plaintiff. The plaintiff" was clearly entitled to have direct answers, and a full explanation of the matter indirectly alluded to by the witness.

The defendant complains that the Court compelled an answer to the question by the threat to strike from the files the defendant’s answer, and give judgment for the plaintiff. The section of the Practice Act cited by the defendant’s counsel—section four hundred and twenty—is applicable only in case where a party calls on the adverse party to attend and testify as a witness on his behalf. But section four hundred and nine applies in a ease like the present. It is there provided, among other matters, that upon a refusal to answer as a witness, if the witness be a party, his complaint may be dismissed or his answer stricken out.

The instructions given by the Court very fully and fairly present the law applicable to the facts in issue. The instructions requested by the defendant are, in some respects, more precise than those given, but the latter substantially comprise the former; and we are of the opinion that the defendant suffered no injury from their refusal.

Judgment affirmed.