French v. Sale , 63 Miss. 386 ( 1885 )

Arnold, J.,

delivered the opinion of the court.

We find nothing in the various errors assigned in this cause for which the judgment should be reversed, except the third instruction given for the plaintiff. In giving this instruction an error was committed fatal to the judgment. The instruction declares in effect, among other things, that the assumption and exercise of acts of ownership by A. H. French over the property in question was in consequence of the property belonging to him. It is not contradicted that A. H. French had had possession of the property and exercised acts of ownership over it, but it was a disputed point of vital importance in the case, whether this was in consequence of his being the agent of his brother, J. W. French, or of his being owner of the property. This was a question of fact to be determined by the jury, and not by the court.

The instruction is erroneous in another aspect. After enumerating certain facts, it announced that they were to be taken into consideration by the jury as evidence tending to show that the property did in fact belong to A. H. French. In this respect' it was an instruction on the weight of evidence, which is positively forbidden by law. Code, § 1714.

The weight, tendency, and effect of testimony after it goes to the jury is to be ascertained and settled by them. In its admission the court determines that it tends to prove the issue joined, but after it reaches the jury they may judge otherwise. Their freedom of action on the subject should not be restrained by instructions from the court. The convictions of the court as to the tendency of testimony should not be impressed upon the jury any further than is done by permitting it to go to the jury.

As to the second assignment of error, it may be said that when an order is made requiring witnesses to be examined out of the hearing of each other, a party to the suit who is also a witness, should not be included in the order, so as to prevent him from being present during the progress of the trial. He has a right to be present, and to compel him to leave the court-room unconditionally, while the cause to which he is a party is in process of judicial investigation, would be repugnant to that provision of the constitution which declares that “ no person shall be debarred from prosecuting or defending any civil cause for or against him or herself before any tribunal in this State, by him or herself, or counsel or both.” Constitution of Miss., Article I, § 30; 1 Greenlf. Ev., § 432, note; Ryan v. Cranch, 66 Ala. 244.

But if it is deemed essential to the discovery of truth that a party to a civil suit, who is also a witness, should be examined before he has heard the testimony of other witnesses in his own behalf, it is not error to require him to testify before such witnesses are examined, and in case he refuses to do so, as J. W. French did, to put him under the rule while such witnesses are being examined. If in this manner he is absent from the court-room during any part of the trial, it is his own fault, and he has no cause to complain of it.

It is doubtful whether the witness, Henwood, had sufficient knowledge of the general reputation of J. W. French to render him a competent witness on the subject. When asked if he knew the general reputation of French for truth and veracity, etc., he answered, that he could hardly say; that he had no test; that he had never heard any one speak of it; but after “ further questions,” not set out in the record, he answered, that he did know it, and would not believe him on oath. In this condition of the record, it may be, and perhaps must be, assumed that the “ further questions ” suggested and elicited explanations, not contained in the record, which rendered his last answer reconcilable with his first, and that his evidence, with or without explanation, and however contradictory, should have been submitted to the jury, as was done, for what it was worth.

But the testimony of this witness suggests the reflection that in the administration of justice the settled rules of evidence should be observed and enforced. These rules are established for the benefit and protection of all, and should not be disregarded even to secure the ends of justice in a particular case. The wisdom and justice of our laws are strikingly illustrated in the clearness and certainty of the evidence which they require to deprive one of his life, liberty, character, or property.

Testimony as to general reputation is usually and necessarily indefinite as to the dimensions of the neighborhood in which the person whose character is involved resides, or has resided, and as to the number of those who have been heard to speak in reference to his character, but there is no good reason why a witness as to character should not be required to answer with certainty at the outset of his examination whether or not he knows whereof he is called to speak.

The best character, it is said, is generally that which is the least talked about, and the best evidence of good character is that the witness has been thoroughly conversant with the party for years, and never heard anything against his character. 1 Greenlf. Ev., § 55, note ; 1 Whart. Ev., § 49; 1 Taylor Ev., § 350.

A witness may well say that he knows the general reputation of a person, and that it is good, if he has known the person long and well and never heard his character questioned, and such testimony is admissible to prove good character; authorities supra ; but it is not perceived how a witness can, according to legal rules, swear that the general reputation of a person is bad, unless he has heard it discussed by the neighbors and acquaintances of such person.

When a witness is produced to impeach the character of another by general evidence affecting the character of the latter for veracity, he should be asked and compelled to answer, as a preliminary matter, whether or not he knows the general reputation of the person for truth and veracity in the community or neighborhood in which he resides or has resided. 1 Whart. Ev., §§ 563, 565 ; 1 Greenlf. Ev., § 461; 2 Taylor Ev., § 1470. If he answers in the negative, his examination on that topic should close. If he answers in the affirmative, he may be examined further as to whether the general reputation of the person is good or bad, and whether from such general reputation he would believe the person under oath, and the so.urces and extent of the information of the witness may be tested by cross-examination.

If it appears that the witness does not understand the nature of the preliminary question, he should be instructed by the court to the effect that he is not, in response to this question, to express his own estimate or private opinion of the character of the person, or to speak of particular facts tending to show good or bad character, that it would be a gross violation of law for him to do so, but that before he says aught else, he must answer the question whether or not he knows the general reputation of the person for truth and veracity iu tbe community or neighborhood in which the person resides, or has resided within a period not too remote to indicate the present status of his character for truth and veracity—that general reputation means the estimate in which one is commonly held, or the character attributed to him in a general way by his neighbors where he is best known—that knowledge of what a majority, or any definite number, of a person’s neighbors think or say of him is not necessary to qualify a witness to testify as to such person’s general reputation, but if the witness has heard a sufficient number of them express themselves to be able to say, as a matter of conscience, that he knows the common or general opinion of the community or neighborhood on the subject, he is competent. Pickens v. The State, 61 Miss. 563 ; Powers v. Presgroves, 38 Ib. 227.

After such instruction no further testimony as to character should be received from the witness, unless he answers the preliminary question in the affirmative. For the error in the third instruction given for appellee the judgment is

Reversed.