Marsh v. Jones , 21 Vt. 378 ( 1849 )

The opinion of the court was delivered by

Redfield, J.

The only question, which it is deemed of importance to discuss much in detail, is that in regard to the mode of identifying the testimony of a deceased witness. There has been a good deal of discussion in the books, on this subject, and it is one not entirely free from difficulty. The rule laid down in State v. Hooker, 17 Vt. 658, is perhaps as liberal, as could be desired,— more so, than'will b.e found in any of the English cases. All the witness could there state, of the testimony of the deceased witness, was the substance of the testimony, in Ids own words, including both the direct and cross examination. Under that .rule there could be no doubt of the correctness of the decision below.

The testimony in the present case is, what it seems to us the reason of the rule justly requires,- and nothing more, that is, that the testimony of the deceased witness, or the substance of the testimony, should be given, in the very words of the deceased witness. This is the rule required in proving the words spoken in slander, libel, and on indictments for perjury; and substantially- the same rule is' required in giving evidence of the declarations and admissions of a party made out of court. But, no doubt, evidence must, in many case, be received, which falls short of this. But unless, upon the whole, the jury, or the triers of .the fact, are satisfied, that they get all the substance of the deceased witness’ testimony, in his very words, it should not be regarded as of any force. And this must extend to the cross examination as well as the direct evidence.

There is good reason, perhaps, for requiring more strictness, in regard to the testimony of a deceased witness, than in regard to original evidence. There is always more or less uncertainty, when the testimony comes from the original witness. But when upon this uncertainty we found another, the doubt is increased, not in a simple arithmetical proportion, but in a geometrical ratio. The hazard, in regard to the truth, increases, not in the simple ratio of the numbers of the witnesses, through whose testimony we receive that of the deceased witness, but in the ratio of the squares of the numbers.

This subject does not appear, very clearly, to have much occur pied the attention of the English courts. The testimony of de» ceased witnesses, until within the last fifty years, perhaps, was only given in evidence, at a subsequent trial, when it had been taken down in the form of a deposition. This is the case in Rex v. Payne, 1 Ld. Raym. 729, — reported more at length, and far more intelligibly, in 5 Mod. 163, — S. C., 2 Salk. 281, 417, 418. That was the case of a deposition, taken in a preliminary examination before a magistrate, when the accused was not present and had no opportunity for cross examination, and was rejected on that ground.

fuller’s Nisi Prius is, perhaps, as good evidence, as any boo}* can be, of the state of the law upon any given subject, at the time he wrote. He alludes to this subject, pp. 142, 143, but in such a manner, as to leave great doubt how the law then stood. Depositions taken before the coroner were to be used, “ For the coroner is an officer appointed on behalf of the publicand by certain statutes, examinations before justices of the peace, in cases of felony, are to be used, against the accused, “ if the witnesses be dead.” This is no doubt the ovum from which the practice proceeded. Justice Buller farther says, “ Another way of perpetuating the testimony of a person deceased, analogous to this of giving depositions in evidence, is by giving the verdict in evidence and the oath of the party deceased.” He says farther, “ it must be between the same parties,” — thus showing very clearly, that it was not then fully settled, that it must be the very same cause, which is now abundantly settled, in practice, certainly.

No question seems thus early to have arisen, whether the testimony of the deceased witness must be given in his very words. It rather seems to have been, for a long time, taken for granted, that it must be so. For in Rex v. Jolliffe, 4 T. R. 291, Ld. Kenyon, Ch. J., in giving judgment, alludes to this subject, arguendo, citing the instance of Ld. Palmerston's evidence, which was offered in a case at bar, saying, “ But as the person, who wished to give Ld. Palmerston’s evidence, could not undertake to give his words, but merely to swear to the effect of them, he was rejected." He seems to entertain no doubt, that such was then the acknowledged rule upon the subject. It seems to have been nothing more or less, than giving in evidence a former deposition. This, like the proof of any other writing, should be done by producing the original, where that can be done, or, in default of that, a copy, or lastly, by oral proof of the contents, which, unless it substantially report the very words, must of necessity be very inadequate proof.

But as much testimony, given viva voce, is never reduced to writing, and, when it is, is done by short hand writers, and very imperfectly done, it becomes, in practice, necessary to somewhat relax the rule. Accordingly this has been done, both in England and America. See Mayor of Doncaster v. Day, 3 Taunt. 261 ; Cornell v. Green, 10 S. & R. 16; and numerous American cases, referred to in Greenleaf’s Cases Overruled, &c. 436. In 1 Stark. Ev. 327, 328, and note (n,) it is very distinctly declared, that it is sufficient, where the witness, in rehearsing the testimony of one indicted for perjury, committed on a former hearing, said “ he could not swear he had stated all which fell from the prisoner, but that he said nothing to qualify it.” Rowley’s Case, 1 R. & M. Ill; and it is argued, that the same degree of certainty is sufficient, in rehearsing the testimony of a deceased witness.

In Tod v. Winchelsea, 3 Car. & P. 387, it was allowed to give the substance of what a deceased witness had deposed on a former trial, from the short hand notes of one of the officers of court. Phillips, in his treatise on Evidence, vol. 1, pp. 215, 274, seems to countenance the ancient strictness, but not to the extent that it should of necessity be testimony given in the very same cause, but only in an action between the same parties, where the same point is involved. But however that may be, the practice certainly is, not to extend the rule beyond the very same case. And the rule, as to the degree of strictness required, in proving the very words of the witness, seems correctly laid down in Glass v. Beach, 5 Vt. 175, by Baylies, J. “ It may be given in evidence, either from the judge’s notes, or by the notes, which have been taken by any other person, who will swear to their accuracy; or the former evidence may be proved by any person, who will swear, from his memory, to its having been given.” Mayor of Doncaster v. Day, ub. sup. This is substantially the rule followed in the county court, in this case.

The charge, we think, was as favorable to the defendant, as he had any just grounds to claim. Judgment affirmed.