Hudson v. . Jordan

Clark, J :

The first three exceptions were without merit, and were abandoned on the argument.

The fourth exception was: “The defendant was present in Court during the whole of the trial. The plaintiff’s counsel was proceeding to comment on the failure of the defendant to take the stand as a witness, when defendant objected that it was improper to comment on his failure to take the stand. The Court overruled the objection, and defendant excepted.” There is no exception to the nature of the comments of counsel as being an abuse of the privilege of counsel, and an exception of that kind must be made at the time, or it is waived. State v. Suggs, 89 N. C., 527; State v. Lewis, 93 N. C., 581; State v. Powell, 106 N. C., 635.

The point presented is the right to comment on the fact that the opposite party in a civil action does not go upon the stand as a witness in his own behalf. The Code, § 1353, prohibits such comment as to the defendant in a criminal action, but there is no such inhibition in regard to parties in civil actions. Whatever may have been the intimations of the Court in the earlier cases, when the statute allowing parties to civil actions to testify (The Code, § 1350) was fresh and considered almost revolutionary, there was never any statute prohibiting such comments in civil cases; and it has been settled in Goodman v. Sapp, 102 N. C., 477, that the introduction or non-introduction of a party asa witness in his own behalf is the subject of comment exactly as the introduction or non-introduction of anj7 other witness would be. There was evidence tending to show, and which the jury found did show, fraud on the part of the defendant. He was in Court and heard it. The truth of the facts was peculiarly within his knowledge, and he was a competent'witness. That he failed to go upon the stand and contradict evidence affecting him so nearly was a pregnant circumstance which the jury might wrell consider, and which counsel, within proper limits, might call to their attention.

It is contended, however, that while this is generally true, this case is an exception, because the plaintiff had caused the examination of the defendant to be taken prior to the trial, as authorized by The Code, §§ 581, 582. That proceeding is a substitute for the bill of discovery under the former practice (§ 579), and the plaintiff could have rebutted his deposition on the trial by adverse testimony (§ 583). Besides, the deposition was put in evidence by the defendant himself, and the plaintiff “did not make one his witness by taking his deposition which he declined to read” Pearson, J., in Neil v. Childs, 10 Ired., 195.

Everyone knows that, as a matter of practice, the evidence of a witness viva voce is usually more effective with a jury than the reading of a deposition; and again, one of the recognized aids to a jury in arriving at the truth of controverted facts, is the bearing of a witness on the stand, his manner in giving in his testimony, his frankness or efforts at concealment, and the like. That the defendant, who was in Court when his character for truth and honesty was so strongly impeached, should prefer lo put in his deposition and deprive himself of the benefit of his viva voce testimony, and the jury of the advantage of seeing his bearing and manner on the stand, was surely a subject of legitimate comment. It was open to his counsel to argue that it proceeded from delicacy and a sense of propriety, but that did not deprive the plaintiff’s counsel from calling attention, in a proper way, to the fact that the defendant preferred giving the jury his deposition instead of the benefit of a personal examination before them. There was no exception that the comments of plaintiff’s counsel were of a nature to be an abuse of the privilege. Besides, there was brought out on the trial for the first time the material testimony that the money was handed over'in a package uncounted, the plaintiff’s mother, who was relied on as a witness to prove the payment of money, not knowing, therefore,how much it was; and further, that the defendant went to Pender only one year before the deed was executed to him, and that he was insolvent when he went there. That the defendant did m-t explain these circumstances, which did not appear in the deposition, of itself made it legitimate to comment upon his failure to go upon the stand It is not always proper to comment upon the fact that anyone does not go upon the stand. When, however, the witness is in Court, and can give important information to the Court and jury in their search after the truth, the fact that he is not called by the party who should put him on the stand is a subject of proper criticism, and it makes no difference (in a civil case) that such witness is a party to the suit.

The. fifth exception is, that plaintiff’s deed, though executed before action brought, was not registered till- the same day the summons was issued. The plaintiff had the equitable title without registration, and could introduce the deed as evidence if registered the very day of the trial. There is no question hereof the prior registration of a junior deed which would defeat plaintiff’s claim. Acts 1885, ch. 147.

The sixth exception is, that the Court charged the jury “ If they should find that E. B. Jordan (the father of the defendant and the grantor in the deed) reserved sufficient, ample and available property to pay all his debts existing at the time of the execution of the deed to the delendant, and if they should also find tbat'the purchase-money was paid by the defendant, yet, if they should find that E. B. Jordan made said deed with intent to defraud his creditors, and that intent was known to and participated in by the defendant, the deed would be-void ” This charge is supported by Savage v. Knight, 92 N. C., 493; Woodruff v. Bowles, 104 N. C., 197.