Stanton County v. Canfield ( 1880 )

Maxwell, Ch. J.

In November, 1879, the defendant filed an account against Stanton county for the sum of $223.50 for guarding and boarding one Frederick Bruner. The board of county commissioners of said county allowed him on said account the sum of $123.50. The defendant 1 appealed to the district court, where judgment was. rendered in his favor for the sum of $223.50 and costs. The county brings the cause into this court by petition in error.

On the trial of the cause in the district court, the defendant having testified on. his direct examination that he held the prisoner from May 10th to September 15th, 1879, was asked on cross-examination the following question: “Isn’t it a fact, Mr. Canfield, that during the greater part of this time that you claim for in this bill for guarding and boarding this prisoner, that the service of guarding and boarding had not been performed?” The question was objected to by the attorney for the defendant because it was incompetent, irrelevant, and immaterial, and the objections were sustained, to which the plaintiff excepted.

The answer of a witness on his direct examination, however positive it may be, does not preclude the adverse party, upon cross-examination, from requiring the witness to deny or re-affirm his previous statement, or from stating the circumstances connected therewith, which tend to disprove it. The question therefore was pertinent and proper cross-examination, and the court erred in excluding it.

Other questions of the same nature were asked, and ruled out upon the same grounds.

This case differs from that of Malloy v. McMillan, ante page 228, in this: In that case the plaintiff sought to pi’ove the, existence of certain facts by preserving the questions asked the witness in the bill of exceptions without showing or offering to show what he expected" to prove by the witness. In such case it was held that the evidence must be offered and excluded; in other words, that the mere exclusion of a question proper in itself did not establish the fact that the answer would be responsive to the question or favorable to tbe party asking it. . But this rule has no application to the cross-examination of a witness. In such ease all questions properly within the scope of the examination, which do not tend to criminate the witness, and which tend to elucidate, vary, affirm, or contradict the direct examination, are pertinent and proper.

The judgment of the district court is reversed, and the cause remanded for a new trial.

Reversed and remanded.