Dunlop v. Patterson , 5 Cow. 243 ( 1825 )

Curia, per Woodworth, J.

I incline to the opinion that the Court of Common Pleas decided correctly, in disallowing the testimony of Cole, to prove Fuller an interested witness. He was sworn before the justice; and no objection taken to his competency. When a cause was brought before the court by appeal, the act in question declared, that the parties should proceed to the hearing on an examination of the same witnesses named in the return, that were sworn and testified before the justice, unless they should have been objected to, and illegally admitted. (4 Laws, sess. 41, ch. 94, s. 19, p. 83.) The intention of the act was, that the merits of the cause should be tried on appeal, by the same witnesses and testimony given in the court below. If objections to the competency of a witness could have been raised, for the first time, on the appeal, the consequence might have been, that the evidence upon which the recovery was had, would have been excluded; and if so, there could not have been a trial of the merits upon the same testimony. Such a construction of the act would have given as undue advantage to the party omitting to take the objec tion to the competency of a witness in limine, and reserving it, to exclude him, in case of an appeal. It is obvious that such a course might operate as a surprise upon the adverse party when, perhaps, the objection might have been obviated, if taken in the court below. Besides, how could it have been known that the appellant was not apprized of the interest of the witness, on the first trial ? If it was known, the omission to object might well have been considered a waiver, ^(a)

The next question is, was the charge of the court of Common Pleas correct 1 In deciding this point, we cannot take into view any omission of the Judge to charge the jury on matter of law which may he deemed essential; especially, when the attention of the court was not called by the counsel to the points alleged as material to be given in charge.^(b) • The exception, then, applies to the opinion delivered. It that is correct, as far as it proceeds, the exception is not well taken.

The court stated to the jury, that Fuller’s testimony was competent; that they might give it such lueight as they thought it deserved ; that it ivas, in some measure, supported by Rathbone, and, therefore, entitled to that additional weight.

After an attentive consideration of the evidence given by Fuller, it seems to me that this part of the charge was manifestly erroneous. The jury, it is true, are judges of fact, and the credibility of witnesses ; but in the exercise of this power, they must be governed by the judgment of law on the facts. If the law has adjudged that certain facts render a witness unworthy of credit, the jury cannot rightfully give credit to his testimony or found a verdict upon it. They have no arbitrary discretion. It is their duty to follow the advice of the court as to the law. In this case, the charge gave them the most extensive range. Their attention was not called to the fact, that Fuller, by his own admission, had sworn falsely. According to himself, on a former trial, he testified that the boat in question was his own property ; and subsequently declared the same thing to Meigs ; and that at the time he so testified, it was in truth the property of Patterson. On the trial in this cause, he testified that it was not his property; but belonged to Patterson. No reason whatever is assigned for this prevarication, and disregard to truth. He was not, therefore, a credible witness, unless supported as to the material fact which he attempt- ■ ed to establish. The law will not permit either life or property to be put in jeopardy by such testimony. If it would, there must be but little securityfor either. A stronger case could scarcely be made out than that of a witness who, by Iris own statement, appears to be guilty of false swearing. This imputation is warranted by the circumstances disclosed in the case; for it cannot be pretended that he, who was the purchaser of the boat, did not know whether the purchase was for himself, or another person. If he knew his testimony was false, either on the first or second trial, how could the jury safely rest on such testimony ? But it was said that he was, in some measure, supported by Rathbone. This I apprehend to be a mistake. Rathbone’s testimony was immaterial and irrelevant. He proved the sale of goods to Fuller on account of Patterson, for which the latter agreed to pay; but says nothing in relation to the right of property in the boat. Fuller may have testified truly in this respect; but it neither impeaches, nor supports the testimony in question. When the court instructed the jury to give the evidence the weight they thought it deserved, this implied that they had an uncontrolled discretion, to do as their judgments might direct; without any legal restraint as to the manner of exercising it. Under such d charge different jurors would probably form different opinions, founded on considerations not recognized by the law. The court ought to have charged the jury, that the testimony of Fuller was so strongly impeached as to justity them in disregarding it altogether; that the unsupuorted testimony of a single witness, who swore at one time ir direct contradiction to the testimony given by him at another, in relation to the same transaction, was not entitled to credit, and ought not to be regarded. If the charge had been of such a character, it is probable the result of the trial would have been different.

My opinion is, that this exception is well taken; that the judgment be reversed, and a venire de novo issue in the court below.

Judgment reversed.

(a) The frequent questions made under the act here in questions, as to the admission of evidence upon appeal, in reference to what evidence was received by the justice, cannot now arise. The late act, (sess. 47, ch. 238,) does not prohibit the introduction of testimony on appeal, as upon an origi nal trial, without regard to the evidence hi the justice’s court.

(b) Vid. Douglass v. M’Alister, 3 Cranch, 298. Smith v. Carrington, 4 id. 62. Vasse v. Smith, 6 id. 226. 17 John. 218. Reg. Gon. Dist. Court Phil. Wharton’s Penn. Dig Error, A.