CONRAD v. GRIFFEY

It was argued by Mr. Benjamin, for the plaintiff in error, and by Mr. Gilbert, for the defendant in error.

Mr. Benjamin, for plaintiff in error.

From this bill of exceptions, it appears that the defendant in error, who was plaintiff in the cause below, offered in support of his case the testimony of Leonard N. Nutz, taken in St. Louis, on the 18th June, 1852, under a commission issued by the Circuit Court on the 5th of the same month. This testimony is found at p. 14 of the record.

After the testimony of Nutz had been read, the defendant offered in evidence a letter of Nutz, dated 3d April, 1846, with his affidavit of the truth of the statements contained in the letter, in order, as stated in the bill of exceptions, "to contradict and discredit his deposition taken on the 28th June, 1852."

The evidence thus offered by defendant, was rejected on two grounds: 1st. That "the witness had not been cross-examined in reference to the writing of said letter, or allowed an opportunity of explaining the same;" and 2d. That "upon the former trial, the counsel for defendant had objected to the same document as evidence, and that the objection had been sustained by the Supreme Court of the United States."

On the first ground, the objection to the evidence proceeds on a misapprehension of a rule of practice in relation to the cross-examination of a witness. The rule and its reason are so clearly set forth in 1 Greenleaf on Evidence, § 462, (6th ed.) and the authorities there cited, that comment on it is unnecessary. The witness was not under cross-examination; his testimony was not taken in court in the presence of the parties where it was possible to give him an opportunity of explanation. It was impossible for the defendant, in New Orleans, to know in advance what answers the witness would make in St. Louis to the questions propounded to him; and when those answers were read on the trial, it was perfectly legitimate to offer the former written and sworn statements of the witness on the subject-matter, to contradict and discredit his later statements.

On the second ground, it is sufficient to say that evidence is frequently admissible against a party that he is not allowed to offer in his own favor, that it is frequently admissible at one period of the trial, when not admissible at another; that it is frequently admissible for one purpose, when not admissible for another; and that the decision of the Supreme Court, in 11 Howard, did not determine that the evidence in question was totally inadmissible for any purpose by either party, at any time, but only that it was not admissible for the plaintiff in the cause for the purpose for which he offered it. An array of authorities in support of these elementary principles of the law of evidence, would be deemed disrepectful to the court.

Mr. Gilbert, for defendant in error, made the following points:

First. To authorize proof of previous acts or declarations of a witness, for the purpose of invalidating his testimony, the witness must, previous to the introduction of such evidence, be examined as to the matter. The attention of the witness, Nutz, not having been called to the letter offered in evidence, and no opportunity allowed to explain what he intended by it, such letter was inadmissible in evidence to discredit him.

A witness should always be allowed to explain what he has said or done concerning the matter under investigation, otherwise his reputation might suffer wrongfully. If his attention is not called, by cross-examination, to the supposed contradiction, he will have no opportunity to explain seeming contradictions, or errors, by making more full statements, or showing the connection of things, or defining his meaning of expressions and the terms he may have used. No man always conveys his ideas in the same language. Many, even of the most learned, fail to express themselves clearly and properly. In such case, a few explanatory words may reconcile seeming contradictions. It would be unjust that the party should suffer where he has no means of giving an explanation, which may be most ample; and cruel to a witness to discredit him, thereby injuring his character, without allowing him an opportunity to show that he has committed no fault. Hence the rule that contradictory statements and acts of an inconsistent character cannot be given in evidence, without preparing the way for its admission by cross-examining the witness as to the supposed contradictory statements.

Phillips on Evidence, p. 294, says: "Thus it appears that a witness ought to be regularly cross-examined as to the contradictory statements supposed to have been made by him on a former occasion, before such contradictory statements can be admitted in evidence to impeach the credit of his testimony. And this rule has been extended not only to such contradictory statements, but also to other declarations of the witness, and acts done by him through the medium of declarations or words."

Roscoe, Criminal Evidence, p. 182, says: "But in order to let in this evidence, in contradiction, a ground must be laid for it in the cross-examination of the witness who is to be contradicted. When a witness has been examined as to particular transactions, if the other side were permitted to give in evidence declarations made by him respecting those transactions at variance with his testimony, without first calling the attention of the witness to those declarations, and refreshing his memory with regard to them, it would, as has been observed, have an unfair effect upon his credit."

In the Queen's case, 2 Brod. Bing. 312, (6 Com. Law Rep. 130, 131,) Abbott, C.J., said: "If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary; and the witness has an opportunity of giving such reason, explanation, or exculpation of his conduct, if any there may be, as the particular transaction may happen to furnish."

In Angus v. Smith, 1 Moody Malkin, 473, (22 Com. Law Rep. 360,) Tindal, C.J., said: "I understood the rule to be, that before you can contradict a witness by showing that he has at some other time said something inconsistent with his present evidence, you must ask him as to the time, place, and person involved in the supposed contradiction." Cowen Hill's Notes, 774, 775; Williams v. Turner, 7 Ga. 348; Doe v. Reagan, 5 Blackf. 217; Johnson v. Kinsey, 7 Ga. 428; Franklin Bank v. Steam Nav. Co. 11 Gill J. 28; Palmer v. Haight, 2 Barbour, Sup. C. Rep. 210, 213; McKinney v. Neil, 1 McLean, R. 540; Moore v. Battis, 11 Humph. 67; The United States v. Dickinson, 2 McLean, R. 325; Chapin v. Siger, 4 McLean, R. 378, 381; Wienzorpflin v. The State, 7 Blackf. 186; Check v. Wheatley, 11 Humph. 556; Beebe v. DeBaun, 3 Eng. R. 510; McAteer v. McMulen, 2 Barb. 32; Clementine v. The State, 14 Mo. 112; Regnier v. Cabot, 2 Gilman's R. 34; King v. Wicks, 20 Ohio 87.

The rule is the same whether the evidence offered by way of contradiction rests in parol, or is in writing. In Roscoe's Criminal Evidence, p. 182, he says: "So, what has been said or written by a witness at a previous time may be given in evidence to contradict what he has said on the trial, if it relate to the matter in issue." . . . "But in order to let in this evidence in contradiction, a ground must be laid for it in the cross-examination of the witness who is to be contradicted."

3 Starkie's Evidence, 1740, 1741. "Where the question is so connected with the point in issue that the witness may be contradicted by other evidence, if he deny the fact, the law itself requires that the question should be put to the witness, in order to afford him an opportunity for explanation, although the answer may involve him in consequences highly penal." Same, p. 1753, 1754. The Queen's case, 2 Brod. Bing. 284, (6 Com. Law Rep. 112,) proceeds throughout upon this principle.

Greenleaf, vol. 1, p. 579, in relation to laying a foundation by cross-examination, before offering contradictory evidence, says: "This course of proceeding is considered indispensable, from a sense of justice to the witness; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to the subject he should have an opportunity to recollect the facts, and, if necessary, to correct the statement already given, as well as by a reëxamination to explain the nature, circumstances, meaning, and design of what he has proved elsewhere to have said. And this rule is extended, not only to contradictory statements by the witness, but to other declarations, and to acts done by him through the medium of verbal communications, or correspondence, which are offered with a view either to contradict his testimony in chief, or to prove him a corrupt witness himself, or to have been guilty of attempting to corrupt others."

In Carpenter v. Wall, 11 Adol. El. 803, (39 Com. Law Rep. 234,) Denman, C.J., the other judges concurring, said: "When words are to be proved as having been uttered by a witness, it is always expected that he shall have an opportunity to explain." Regina v. St. George, 9 Car. Pa. 483, (38 Com. Law Rep. 198); Johnson v. Todd, 5 Beavan, 600, 602, cited 1 Greenleaf on Ev. p. 581; Conrad v. Griffev, 11 Howard, 480.

1 Greenleaf on Ev. p. 579, in note beginning at the bottom of the page, where it is said the rule in the Queen's case is adopted in the United States, except in Maine and Massachusetts, and cites 2 Cowen Hill's Notes on Phil. Ev. p. 774.

Jenkins v. Eldridge, 2 Story's Rep. 181, 284, Story, J. says: "If one party should keep back evidence which the other might explain, and thereby take him by surprise, the court will give no effect to such evidence, without first giving the party to be affected by it an opportunity of controverting it. This course may be a fit one in cases where otherwise gross injustice may be done."

Crowley v. Page, 7 Carrington Payne, 789, (32 Com. Law Rep. 737.) "If the witness made a previous contradictory statement, in writing, on a matter relevant to the issue, he may be asked, on cross-examination, whether the paper containing it is in his handwriting; and if he admit it, that will entitle the other side to read it; and if he contradicts the evidence of the witness, he may be called back to explain it." 4 Harrison's Dig. 2948, No. 11.

Yeos v. The State, 4 Eng. R. 42. "Where a witness has made a different statement from the one made by him on the trial, he is not thereby discredited, unless the discrepancy is wilful."

Story v. Saunders, 8 Humph. R. 663. "When the deposition of a witness is taken, evidence of his having made contradictory statements are not admissible to impeach his testimony, unless an opportunity to explain had been first offered him."

The contradictory statement offered in this case was the witness's testimony on a previous trial.

In Everson v. Carpenter, 17 Wend. 419, referring to the requisites for admitting a written instrument by way of contradiction, Cowen, J., said: "It was introduced, with the proper preliminary question to the witness, whether he had made the indenture and the representation about to be imputed to him. He answered with such explanations as occurred to him. Here was all the precaution required by this kind of examination by the Queen's case and others."

In Kimball v. Davis, 19 Wend. 437, Nelson C.J. considered this question at length, in a case where the defendant offered to prove that witnesses who had been examined undera commission, had subsequently made statements contradicting their written testimony. The marginal note of this decision is in these words:

"The declarations of witnesses whose testimony has been taken under a commission, made subsequent to the taking of their testimony, contradicting or invalidating their testimony as contained in the depositions, is inadmissible in evidence, if objected to; the only way for the party to avail himself of such declarations, is to sue out a second commission; such evidence is always inadmissible until the witness whose testimony is thus sought to be impeached, has been examined upon the point, and his attention particularly directed to the circumstances of the transaction, so as to furnish him an opportunity for explanation or exculpation."

This case went to the Court of Errors, and is reported in the 25th of Wend., 259, where it was affirmed. Walworth, Chancellor, there said: "I concur with the Supreme Court in the opinion that it was improper to give the declarations of the witnesses in evidence without giving them, in the first place, an opportunity to explain; and the fact that the witnesses had been examined under a commission did not prevent the operation of the principle upon which the rule is founded."

Edwards, Senator, said he was satisfied with Chief Justice Nelson's reasoning on this question.

Howell v. Reynolds, 12 Alabama R. 128. "The rule that a witness cannot be contradicted by proof of previous counter declarations, either written or verbal, applies to testimony taken by deposition, and if such supposed contradictory declarations exist at the time the deposition is taken, the witness must have an opportunity afforded him of explaining it, if in his power. "The reason of the rule is, that he may have it in his power to explain the apparent contradiction, and the rule is the same, whether the declaration of the witness supposed to contradict his testimony be written or verbal." 3 Stark. Ev. 1741. "The question is usually made when the witnesses are examined orally in open court, and in our opinion it must also apply to testimony taken by deposition, as the deposition is a mere substitute for the witness; and we can perceive no reason why a witness testifying in this should not be entitled to the same protection as if he had testified orally, in the presence of the court and jury. If this paper existed when the plaintiff was notified that the deposition of the witness was to be taken, and was informed by the interrogatories of the testimony the witness was expected to give, it was his duty to give him an opportunity of explaining it, if he could, and reconciling it with the evidence he then gave, if there was any real or apparent contradiction between them."