Day v. Stickney , 96 Mass. 255 ( 1867 )

Wells, J.

The witness Parks had procured this bond from Fawcett and others in Massachusetts to indemnify Day in becoming surety, in Maine, upon the probate bond of Parks, as guardian there of certain minors. At the trial Parks was an important witness for the plaintiff; the execution of the bond in suit being proved mainly by his testimony. To show that he was not a fair witness, but was hostile to the defendants, or under a strong bias of feeling or purpose adverse to them, which ought to affect the degree of credit to be given to his testimony, he was asked, in cross-examination, whether he had told “ Rice or any one, in words or in substance, that he meant to get the money on this bond of old Fawcett, so as to get back the rent he had paid him for the Marlboro House.” This he denied. The defendants offered testimony to contradict him in this particular, and impeach his credit. This testimony was excluded, on the ground that it related to a collateral matter. But the court, upon consideration, are of opinion that the testimony was competent and should have been admitted. The credit of a witness, upon whose testimony in part the issue is to be determined, is not merely collateral, and cannot be immaterial". The weight of his testimony with the jury may depend entirely upon their supposition that he is under no influence to prevaricate. If he is prejudiced for or against one of the parties to the suit, or has a strong purpose or feeling of interest in relation to the matter in controversy, it is a circumstance which may materially affect his testimony; and his state of mind and feeling ought to be known to the jury. His prejudices can be known only t>y his expressions of them; and therefore such declarations are the legitimate evidence of their existence. They may be proved in any mode as a direct impeachment, under the rule as held in this commonwealth; or, if denied by the witness himself, may be proved by other testimony as a contradiction in a material point; which is one mode of impeaching the credit of a witness. 1 Greenl. Ev. § 450. 2 Taylor Ev. §§ 1296-1298. Perkins v. Adams, 5 Met. 44. Harrington v. Lincoln, 2 Gray, 133. Collins v. Stephenson, 8 Gray, 438. O'Neill v. Lowell, 6 Allen, 110. Tyler v. Pomeroy, 8 Allen, 480. Atwood v. Welton, 7 Conn. 66-70. Folsom v. Brown, 5 Fost. (N. H.) 114.

The declarations of the witness Parks, that were sought to be proved, related to the bond which was the subject of his testimony, and to one of the defendants in the suit. If he made declarations, such as are indicated by the inquiry, his testimony would not be entitled to the fullest confidence. The court see no ground to question any of the other rulings and instructions to the jury at the trial; but as the testimony offered to contradict and impeach Parks was improperly excluded, the exceptions must be sustained as to that point and a

New trial granted.

This ease was re-argued in November 1867 upon the admissibility of the evidence to contradict Parks.

IL W. Paine 8f R. D. Smith, for the plaintiff. The testimony objected to was offered for the alleged purpose of contradicting and impeaching Parks. Both of the questions which were put were too indefinite to furnish any contradiction of him. The only safe course, when a witness is to be contradicted by showing his declaration, is to ask him the question, “ Whether he has said so and so,” and then to ask of the contradicting witness the leading question, “ Has the witness said so and so (ipsissimis verbis) to you ? ” This is the only fair course to the witness. In this case, Parks has not denied that he meant to get back the money on this bond from old Fawcett; but a qualification was added to his denial. As to the substance, the testimony offered to contradict Parks was upon a matter quite immaterial and collateral. See Commonwealth v. Buzz ell, 16 Pick. 153. Starks v. Sikes, 8 Gray, 609. 1 Greenl. Ev. § 449, notes. The testimony was not admissible for the purpose of impeaching Parks. Starks v. Sikes, 8 Gray, 609. Stuart v. Lake, 33 Maine, 87. The object was to show an a/nimus, bias or interest. But the witness had been subjected to a sort of examination upon his voir dire; and if the interest of a witness is attempted to be shown upon his voir dire, and fails, it cannot be proved aliunde. Butler v. Butler, 3 Day, 214. Atwood v. Welton, 7 Conn. 66. Chaifield v. Lathrop, 6 Pick. 418, 1 Greenl. Ev. § 423, n. 5.

J. S. Abbott, for the defendants.

Wells, J.

Having again heard the parties, upon the suggestion of the plaintiff’s counsel that the question above determined had not been fully presented at the argument, in consequence of their mistake in supposing the point to be waived, we see no reason to recall or in any respect to modify the opinion already given.

The argument now addressed to us, as we understand its force, seems to be this: That the defendants in their exception are to be confined to the purposes for which the testimony was offered, as stated by them at the trial, namely, to impeach and contradict Parks; that in order to contradict, the inquiry was not in proper form; and in order to impeach him, the substance of the proposed proof was inapplicable; that is, that proof of personal bias, or of a state of feeling or purpose adverse to the defendants, was not of the nature of evidence to impeach a witness. The plaintiff contends that when it is proposed to contradict a witness by proving declarations made by him out of court, the inquiry should embody the exact statement which the witness to be contradicted has denied that he made; and that the party should be restricted to that limit.

If the proposed proof were competent only for the purpose of contradiction, and the contradiction could arise only from a previous denial by the witness that he had made such a declaration, it might be well so to limit the inquiry. But otherwise the position can have no foundation, except upon the rule requiring that, in order to contradict a witness in this mode, his attention must first be called to the precise matter that is to be proved against him; a rule which, as before suggested, does not prevail in this commonwealth. Under our practice a declaration, made out of court, contrary to or inconsistent with the testimony of a witness, in any material matter, may be proved by other testimony, either with or without a previous inquiry to the witness thus contradicted. Tucker v. Welsh, 17 Mass. 160. Commonwealth v. Hawkins, 3 Gray, 463. Harrington v. Lincoln, 2 Gray, 133. It must follow therefore that the inquiry to the contradicting witness need not be restricted to any such prescribed form, but may be in any form proper to elicit the facts or statement sought to be proved. Gould v. The Norfolk Lead Co. 9 Cush. 338-347. This is especially true when the contradicting testimony is also admissible as affirmative proof, either to impeach the witness or for any other legitimate purpose.

In the present case, the testimony sought would have been admissible as such affirmative proof; and we are satisfied that it was properly offered as evidence tending to impeach Parks. Impeachment is not limited to attacks upon the general character of the witness. It embraces all means, the purpose and tendency of which are to impair the credit of a witness. Under the English rule requiring that the witness should himself be interrogated as to his interest, bias or hostile feeling, before other witnesses could be called to prove it by his declarations, such proof always -‘nvolved a question of contradiction, and was generally treated in this secondary aspect alone. But the whole investigation relating thereto was regarded as belonging to the province of impeachment. Stark. Ev. (4th Lond. ed.) 237. Its character is the same although the contradiction be omitted. It is an investigation material to, but not of the main issue in the case.

We think the questioris that were disallowed were sufficiently directed to a legitimate point of inquiry, and indicated testimony which would have been competent for either purpose ; to contradict or to impeach Parks. The plaintiff calls our attention particularly to the case of Starks v. Sikes, 8 Gray, 609. But in that case the hostile purpose which was shown related to another transaction than that which was the subject of the suit. The evidence did not show any personal hostility, nor adverse purpose as to the matter then on trial. No grounds are stated for the decision upon this point in that case, and the decision itself is not inconsistent with the rules of evidence as herein maintained. New trial granted.