Sweet v. Gilmore , 52 S.C. 530 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Gary.

The facts of this case are set forth in the decree of his Honor, Judge Klugh. The defendant appealed from said decree upon exceptions, which raise practically but two questions, the first of which is whether the Circuit Judge erred in not sustaining the objection to the testimony as to the immoral connections of the defendant and other witnesses who testified in his behalf, which was introduced for the purpose of showing that the defendant and his other witnesses were not'worthy of belief. .

1 When a witness is examined for the purpose of impeaching the credibility of another witness, the practice prevailing in this State is to ask the impeaching witness: “What is the general character of the witness, good or bad?” If the witness under examination answers that the character is bad, then he may be asked: “Would you believe him on his oath?” But, in general, the impeaching

witness can not testify upon his examination in chief to particular facts; this, however, may be done on cross-examination. State v. Merriman, 34 S. C., 38; State v. Alexander, 2 Mills, 174; Dollard v. Dollard (unreported), 1; Rice’s Dig., 294; 29 Am. & Eng. Enc. of Daw, 797. The exception to the rule is that the witness may testify upon his examination in chief to particular facts, when they are such as directly show that the impeached witness is unworthy of credibility, as in the case of (anonymous), 1 Hill, 251, in which the Court says: “The credit of a witness may be assailed by showing him to be unworthy of credit in a court of justice. This is generally done by proof of bad character. And in proof of this kind, the party assailing the witness can not go into evidence of particular crimes committed by the witness (unless a conviction of felony for the crimen falsi can be produced), and this is what is meant by not being allowed to go into evidence of particular facts to show a want of character. Eor the witness is not supposed to come prepared to answer for every particular act of his life, but to show, on the whole, that he has supported such a character as entitled him to credit. But a generally bad character is not the only mode of discrediting a witness. His examination in court, or contradictory accounts of the same transaction, may authorize a jury to disbelieve him. So, too, the belief of a witness, that he was not bound on oath to tell the truth, would, if coming from his own lips, render him incompetent to be sworn, or, if after he was sworn and had testified, it was proved by another witness, it would constitute a most satisfactory reason why the jury should disbelieve him. The testimony allowed for the purpose of impeaching the testimouy of Nimrod Mitchell, was of this character. It was proved that he had said, ‘that if he heard any man say he would not swear a lie, he would not believe him, for on some particular occasions he would, for lie thought any man would.’ * * * Is not such testimony better evidence to discredit the witness than even a want of character? * * * Such evidence is not establishing bad character from particular facts. It is showing that the witness holds such opinions of the obligations of an oath as to render him unworthy of belief, when he had called God to witness the truth of what he asserts.” The particular facts as to immoral connections were not such as to take this case out of the general rule. It did not necessarily follow that the defendant and his witnesses were unworthy of belief because of immoral connections which did not directly touch the question of their veracity. If the defendant and his witnesses had indulged in immoral connections to the extent that their characters had become bad, then this fact should have been proved in the manner hereinbefore stated, which would have shown that they were unworthy of belief.

This is a case on the equity side of the Court, and, while there was error in allowing testimony to be introduced as to particular facts, the case will not be remanded for a new trial, but the other exceptions will be considered as if such testimony had not been admitted.

2 The second question raised by the exception is, whether there was error, on the part of the Circuit Judge, in his finding of fact as to the amount due under the mortgages. For the reasons stated by the Circuit Judge, apart from the testimony as to the immoral connections, this Court is satisfied that the exceptions raising this question cannot be sustained.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.

Mr. Chief Justice McIver concurs in the result.