Carpenter's Appeal From Probate , 74 Conn. 431 ( 1902 )

The question to Dr. Tingley was properly rejected. It was too general and indefinite, and not directed to any pertinent matter. It called for any conversation upon whatever subject. The question was not only too general, but it was not accompanied by any suggestion to the court as to the character of the testimony expected to be elicited in reply. The court having been kept in the dark by both the question and the silence of counsel, cannot be held to have erred, even though some reply can be imagined which might have been relevant. Furthermore, any statement of Walker's could only have been admissible as an admission against interest. Walker was one of three who under the will received the bulk of the estate. His was not the only interest which the evidence, if admitted, might have affected adversely. The question was therefore properly excluded, upon the principles enunciated in Dale's Appeal, 57 Conn. 127,140, and Livingston's Appeal, 63 id. 68, 76.

Concerning the inquiry put to Bowen, it is to be noted that counsel was not asking for the mere privilege of propounding leading questions. Had such a request been preferred the court would have doubtless granted it, as the record discloses was done in the case of the witness Mrs. Bosworth.

The desire of counsel was to examine, or rather, in form, to cross-examine the witness, being his own, as to alleged contradictory statements previously made out of court. The reason urged was that the evidence which the witness had given was a surprise and contrary to what he had stated while preparing for the trial, and to what the party calling him had reason to believe he would testify.

It has long been the accepted general rule that a party presenting a witness might not directly discredit or impeach him. This rule we have more than once approved. Olmstead v. Winsted Bank, 32 Conn. 278; Wheeler v. Thomas, 67 id. 577. A few courts have accepted, as the logical corollary of this rule, the subordinate one that neither examination of one's own witness concerning conflicting statements elsewhere made, nor contradiction by evidence of such statements, is permissible, and have strictly and literally applied this latter rule to all cases where the witness was not one whom the law compelled the party to call, or the adverse party, whom the exigencies of the case practically compelled to be called. Adams v. Wheeler, 97 Mass. 67; People v. Safford, 5 Denio, 112; Regina v. Farr, 8 C. P. 768. Most courts, however, have not gone to this extreme. A great variety of attitudes has been taken. In most, the subordinate rule above referred to has apparently been adopted in its letter, only to be broken in its practical application. The unfortunate results of a strict application of the rule have been so apparent, that some reason has been sought and found for permitting the cross-examination of one's witness concerning conflicting statements elsewhere previously made, and in some States the contradiction by evidence of other witnesses as to such conflicting statements, where the witness' testimony has proved adverse and a surprise. The reasons which have been assigned for this apparent departure from the letter of an accepted rule have not been altogether uniform. Sometimes it has been to enable the party calling the witness to put himself right before the jury and prevent any special weight or consideration being given to the witness' testimony as being that of the party's own witness. Bullard v. Pearsall,53 N.Y. 230; Johnson v. Leggett, 28 Kan. 590, 591. More frequently the reason given has been that the witness' recollection might thereby be refreshed and he caused to modify his injurious statements. Hickory v. United States,151 U.S. 303, 309; Hildreth v. Aldrich, 15 Rawle I. 163; Hurley v. State, 46 Ohio St. 320; Humble v. Shoemaker,70 Iowa 223; Babcock v. People, 13 Colo. 515; Campbell v. State,23 Ala. 44. For other reasons assigned, see Smith v. Briscoe,65 Md. 561; Dixon v. State, 86 Ga. 754; 1 Greenl. on Ev. § 444.

Not all courts, however, have accepted the rule which we have called the subordinate one, as the necessary corollary of the principal rule that a party may not directly discredit or impeach his own witness. It has been said that the basic principle involved in the main rule has no rightful application to the situation under consideration, and that, as it has not, the interests of justice demand that, under proper circumstances and subject always to the sound discretion and control of the court, one who is surprised by the adverse testimony of his witness, although one voluntarily called, may be permitted to examine him for the purpose of showing that he has made statements contradictory to his testimony upon the stand. Selover v. Bryant, 54 Minn. 434, contains a strong statement of this position. As a natural result of its reasoning this case finds no difficulty in extending its doctrine to the right to contradict.

It is unnecessary for our present purpose to determine whether or not the principles last stated are sound. It is enough that those courts which take the other and narrower position — with very few exceptions — agree that examinations such as are in question may be properly permitted where the testimony of the witness is a surprise, adverse, and is claimed to be contrary to statements previously made. We are strongly convinced that the interests of justice require that trial courts be vested with the power thus recognized, and therefore have no hesitation in saying that such power, whether we adopt one conception or the other of the consequences of the general principle that a party may not directly discredit or impeach his own witness, resides in our presiding judges, to be exercised by them carefully and judiciously as and to the extent that the interests of justice, under the circumstances of each case, shall seem to dictate.

From this statement of the rule it is apparent that the appellant has no foundation for a claim of error in the conduct of the trial court in this regard. The question asked was one which the court might in its discretion allow or disallow. The appellant was not entitled to the question as a matter of right. Its exclusion can therefore furnish no foundation for error.

Mrs. Bosworth's adverse testimony had, as counsel claimed, proved a surprise. Her examination was concluded. On the following day the appellant recalled her and asked her concerning alleged conflicting statements made by her since testifying. For reasons already sufficiently indicated the refusal of the court to permit the desired examination cannot furnish the appellant foundation for his claim of error.

The attempt of the appellant, through the testimony of Keith, to show that this witness, Mrs. Bosworth, had, since testifying and out of court, made statements contradictory of her testimony, was clearly improper, and the action of the court thereon was in consonance with the decision of this court upon a precisely similar situation in Wheeler v. Thomas,67 Conn. 577.

There is no error.

In this opinion the other judges concurred.