140 S.W. 520 | Tex. App. | 1911
Lead Opinion
Appellant brought this action against appellee to recover the value of certain cotton belonging to him, alleged to have been converted by appellee. During the year 1902, it appeared that appellant was the tenant of appellee, and had raised a certain crop of cotton on 75 acres of land rented by him from appellee. It was alleged that during the fall of said year appellant, being desirous of removing from said premises, had turned over to appellee the crop of cotton thereon, with the agreement that appellee should gather and haul the same to market, and after deducting one-fourth thereof for his rent, and the expenses of gathering the same, and also paying certain items of indebtedness owing by appellant to himself and another, he was to deliver the remainder of the cotton to the People's National Bank at Ennis, for the benefit of appellant; it being alleged that the value of said cotton so gathered by appellee was the sum of $1,025.47, and that appellee had failed to account to him, after deducting said above amounts, for the sum of $645.90, for which he brought suit.
Various defenses were urged to the suit of plaintiff; among others, that appellee had fully accounted to appellant for all of the cotton that he was entitled to, after deducting his share of the rent, expenses, etc. There was also a plea in reconvention on the part of appellee.
On trial, there was a verdict and judgment in behalf of appellee on his cross-action, from which this appeal is prosecuted.
The principal question raised in this appeal is presented by appellant's fourth assignment of error. There had been a former trial in this case in 1904, at which one Charles Allen, a witness sworn for the appellant, gave material testimony as to the amount of cotton gathered on the premises by appellee after he took possession thereof. This testimony showed that appellee had gathered some 10 bales of cotton more than he had accounted for to appellant. And the witness also gave damaging testimony against appellee, relative to the marking in the name of appellee, at his direction, of some cotton gathered from said premises, as well as to the deficiency in the weight of one of said bales. Subsequent to said trial, the same witness made an ex parte affidavit, in which he admitted that all of his testimony at the former trial was false and that he wished to retract it; that he at the time of said trial was on very unfriendly terms with appellee, and very much prejudiced against him, while he was on intimate terms with *521 appellant; and, further, that he was induced to give said testimony in appellant's behalf by appellant and certain of his friends.
On the present trial, it appeared from the bill of exceptions that this witness Allen was out of the state and beyond the jurisdiction of the court; whereupon appellant was allowed to reproduce the testimony of said Allen, given at the former trial, which was done. Thereupon the appellee, over appellant's objection, was allowed to and did introduce the ex parte affidavit of said witness Allen, taken subsequent to said first trial, contradicting his said testimony at said trial. Appellant, among other things, objected to the introduction of this affidavit, on the ground that a proper predicate had not been laid therefor, and the ruling of the court in admitting this affidavit is challenged by appellant's fourth assignment of error.
No objection appears to have been made by appellee to the reproduction of this evidence. The rule seems to be that the testimony of a witness, who has previously given evidence on the trial of a case, may be reproduced by any person who is able to give, in substance, the testimony given by said witness, provided that it first be shown that said witness is dead, or is beyond the jurisdiction of the court, and cannot be found after diligent inquiry, or that he has been kept away from the trial by the adverse party. See 16 Cyc. 1088 et seq.; 20 Cent. Digest, §§ 2401-2406, inclusive; Greenl. Ev. vol. 1, § 163; 14 Ency. Ev. 584; Boyd v. St. L. S.W. Ry. Co.,
While there is some conflict in the decisions, the great weight of authority, both in this country and in England, seems to be in support of the view that such contradictory statements are not admissible, unless the proper predicate is laid therefor, and that the death of the witness, or his absence from the jurisdiction of the court, furnishes no exception to the rule. See volume 30, p. 1125, Ency. Law (2d Ed.); Wigmore on Evid. vol. 2, § 1030 et seq.; Ency. Evid. vol. 7, p. 101; Mattox v. United States,
In Mattox v. United States, supra, wherein an effort was made to impeach the reproduced testimony of a witness given at a former trial, who had died since the trial of the cause, by contradictory statements made subsequent to the trial, it was held incompetent to do so. Justice Brown, after reviewing the decisions of the Supreme Court of the United States upon this subject, wherein it had been uniformly held that such evidence was not admissible, said:
"The cases in the state courts are by no means numerous; but those courts, so far as they have spoken upon the subject, are unanimous in holding that the fact that the attendance of the witness cannot be procured, or even that the witness himself is dead, does not dispense with the necessity of laying the proper foundation. Thus, in Stacy v. Graham,
"`It seems to us,' said the court, `that to allow the death of a witness to work an exception would be to destroy the principle upon which the rule rests, and deny the protection which it was designed to afford. * * * In relieving one party of a supposed hardship, an equally serious one might be inflicted upon the other. * * * Without, therefore, the opportunity to the witness of explanation, or to the party against whom offered, of re-examination, we are of opinion that the supposed declarations lack the element of credibility which they should possess, before they can be used legitimately to destroy the testimony of the witness.' In Craft v. Commonwealth,
It must be remembered that the litigant also has a right in the reproduced testimony of a deceased or absent witness, and this right, we think, should not be lightly set aside or impaired. It is possible that if the witness whose testimony, is thus assailed could have the opportunity of explaining that he might satisfactorily do so; but, since a deceased or absent witness, whose reproduced testimony is thus attacked, has not the power of explanation, it would seem to us that no right should ordinarily exist in the opposite party to thus neutralize the effect of such testimony. We do not, however, go to the extent of holding that there are no exceptions to the rule of evidence as herein stated; nor that circumstances might not arise where the court would feel justified, in its discretion, as suggested by Judge Wigmore, in his work on Evidence (volume 2, p. 1198, § 1031), in allowing such testimony; but we do not believe that the present case falls within any exception that it is possible for us to suggest.
In the present case, it clearly appears from the record that appellant was in possession of this ex parte affidavit, contradicting the witness' former testimony, several years prior to the last trial of this cause, from which this appeal is taken. He therefore had the opportunity of propounding interrogatories to this witness, for the purpose of showing that his former testimony was untrue, as set forth in said affidavit. The record further shows, notwithstanding the admission that he is beyond the jurisdiction of the court, that this witness was at the time of the trial living in New Mexico, and his deposition could have been easily taken; and to permit the impeachment of this witness by an ex parte affidavit would, under the circumstances disclosed by the record, give, in our opinion, an unfair advantage to the opposite side. For which reasons we think the court erred in admitting said testimony; and, so believing, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.
Addendum
While concurring in the result reached in this case, I do not indorse all that seems to be held in the opinion of Mr. Justice RICE. It is not believed that a party has the right to prove by other *523
witnesses what a particular witness testified to on a former trial of the case, merely because that witness has gone to and resides in another state. It is believed that the true rule is that the party offering to reproduce the testimony must show conditions which render it reasonably certain that he cannot procure the evidence of the absent witness by deposition or otherwise. When such conditions have been shown, and the testimony of the absent witness reproduced, and it is made to appear that the opposite party never could have laid a predicate to impeach, and there is nothing to indicate improper conduct by him, or in his behalf, in procuring the contradictory statement of the witness, made subsequent to the former trial, then it seems to me that proof of such contradictory statement ought to be admitted. Such impeaching testimony was held admissible by our Court of Criminal Appeals in Hamblin v. State,
The numerical weight of authority may be otherwise; but many of the cases relate to contradictory statements, made before the witness gave the testimony which had been reproduced. At any rate, the rule announced in the Hamblin Case appears to me to be the sounder. But the facts do not bring this case within that rule. The witness being in New Mexico, appellee could have taken his deposition, and laid the proper predicate for the impeaching testimony. It is no answer to say that, for the same reason, appellant had no right to reproduce the former testimony of the witness. Appellee did not interpose any objection to what was done in that respect.