Wetherbee v. Norris , 103 Mass. 565 ( 1870 )

Morton, J.

1. It appears from the bill of exceptions that the only issue presented to the jury, when the evidence was put in, was, whether or not the note in suit was signed by the defendant. To this issue all the evidence was addressed. The defendant claimed that the note was forged, and to sustain this fact testified that when the note was dated he owed the plaintiff a less sum, and gave his note therefor, but did not give the' note in suit. The trial proceeded exclusively upon the ground that the note was forged, and the question of the amount due by the defendant to the plaintiff at the date of the note was not raised or investigated, except thus incidentally. The defendant denied the genuineness of his signature to the note; but did not raise the defence that by fraud or mistake it was given for too large a sum. In this state of the case, the instruction requested by the defendant was not appropriate or applicable to the evidence, and was rightly refused.

2. The ruling of the presiding judge that each of the witnesses called to impeach the plaintiff should be first asked the question, “ Do you know the reputation of the plaintiff for truth and veracity ? ” is not the subject of exceptions. The practice upon this subject differs in different courts. In this state, no practice is established as a rule of law, but it is within ttie discretion of the presiding judge to require the preliminary questian above stated to be asked of each witness if he shall deem that the interests of justice require it. The same principle is applicable to the examination of witnesses upon other subjects. It often occurs, in the trial of cases, that the judge is called upon to inquire of a witness whether he has knowledge of the matter of which he is called to testify. If it appears to be doubtful whether the witness understands and appreciates his duty to testify only to what he knows of his own knowledge, or if, for any reason, there is danger that he may testify to hearsay, it is the right, and may be the duty, of the presiding judge to inquire of him if he has knowledge of the matter as to which he is asked to testify; and the party calling the witness would not be thereby aggrieved, and no exceptions would lie. So in the examination of impeaching witnesses, if the presiding judge sees that there is danger that the witness, in answer to the usual question, “ What is his general reputation for truth and veracity?” may give incompetent testimony, either because he fails to understand the exact character of the question, or for any other reason, he may require the witness first to be asked whether he knows what that reputation is. Whether the circumstances of this case required the preliminary question to be put, was a matter within the judicial discretion of the presiding judge, and cannot be revised on exceptions.

The case at bar is clearly distinguishable from the case of Bates v. Barber, 4 Cush. 107. In that case, the presiding judge directed that the witnesses must first be examined as to their knowledge and means of knowledge of the character of the witness attempted to be impeached, and upon such examination assumed the right to decide whether the witness offered had sufficient knowledge to qualify him to. testify. In this case, the purpose and effect of the preliminary question appears to have been merely to ascertain whether the witness had any knowledge of the general reputation of the impeached witness, and not to inquire into the extent or means of such knowledge. The only witness rejected was rejected because he did not appear to have any knowledge; not because the amount of his knowledge was not satisfactory to the court.

Exceptions overruled.