Collins v. Hoehle, 99 Wis. 639

99 Wis. 639 | Wis. | 1898

PiNNey, J.

The cross-examination by the defendant of his own witness Michael Collins, and the introduction of contradictory statements made by him, was for the purpose of his impeachment, and, beyond doubt, was effective for that purpose. The defendant voluntarily called Mike Collins as a witness in his own behalf, without being under any legal necessity or obligation to do so. TJnder the universal and well-settled rule of evidence, the defendant should not have been allowed, under the circumstances stated, to impeach him. This rule was violated repeatedly, and in a marked degree, as the foregoing statement of the case clearly. shows. The law upon this subject in this state has been definitely settled. Richards v. State, 82 Wis. 172-180. The rule is there stated to be that, while a party may show that the testimony of his own witness is incorrect or false in a matter material to the issue, he cannot be allowed to impeach such Avitness by direct testimony either of his bad reputation for veracity, or that he testifies to one thing in court and asserts the falsity of it out of court. This rule is elementary. The defense sought to establish, by the testimony of Mike Collins, a fraudulent intent on the part of Erickson & Collins and participation in it by the plaintiff. The admission in evidence of his statement to the effect that he had informed the plaintiff of such intent could not but exercise a prejudicial influence upon the plaintiff’s case.

In Smith v. Dawley, 92 Iowa, 312, one Elfie Childs was a witness for the defendant, and her testimony was favorable in part to the plaintiff, and afterwards the defendant sought to impeach her by introducing a letter written by her, which the court rejected, and this was assigned as error; but the court upheld the ruling, saying: “ Conceding that, if defendant was misled by the witness, and he placed her on the stand in pursuance of what she had said her testimony would be, he might show to the court or jury the facts leading to her being called as a witness, it does not follow that he can be allowed to impeach his own witness in violation of the general, if not of the universal, rule.” To the same effect is Adams v. Wheeler, 97 Mass. 67, where it was held that a party could not be allowed to prove by a witness statements previously made by a witness called by himself, inconsistent with his testimony at the trial, which would not be admissible as independent evidence, and could have no effect but to impair his credit with the jury. In People v. Safford, 5 Denio, 112, where the point was material, the court, after adverting to the conflict of cases and text-books on the subject, proceeded, as it is there "said, to consider it on principle, and determined that a party cannot prove contradictory statements made by his own witness. The court held that such evidence is only allowable with a view to the impeachment of the witness, which is not open to the party producing him. In Thompson v. Blanchard, 4 N. Y. 303, 311, a new trial was granted for a violation of the rule in question. Coulter v. Am. Merchants' Union Exp. Co. 56 N. Y. 585-589; Stearns v. Merchants' Bank, 53 Pa. St. 490.

It appears to, have been held in England, by the decided weight of authority, that, even when a party was surprised by the testimony of his witness, he could not impeach him by proof of different statements made by him out of court before the trial. But this question was set at rest by a statute allowing a party to prove that his own witness had made a statement inconsistent with his present testimony, but this was allowed only in case, in the opinion of the judge, such witness proved to be adverse, and only after laying the foundation for impeachment as in other cases. It seems that,, although the conflict of opinion upon this question which arose in England has continued in the American courts, it appears to be the rule, supported by the great weight of authority, that, in the absence of statute, a party cannot be allowed to offer direct proof by other witnesses either of the bad character of his own witness for truth and veracity, or that he has previously made statements inconsistent with his present testimony. 3 Jones, Ev. § 858, and cases cited; 1 G-reenl. Ev. § 444.

This rule has been so applied that, when one party calls a witness of the adverse party to prove certain facts, he is. thereby prevented from impeaching such witness; and so, even where a litigant calls the adverse party as his own witness to prove matters not merely formal, or where he is not compelled by law to call him. In Jones, Ev., swpra, it is said: “Although the weight of authority sustains the view that a party cannot prove the contradictory statements of his own witness to discredit him, yet the party is not wholly without remedy, if surprised or deceived by the testimony. In such a case he may interrogate the witness in respect to previous statements inconsistent with the present testimony, for the purpose of probing his recollection. He may, in this way, show the witness that he is mistaken, and give him an opportunity to explain the apparent inconsistency. This is also proper to show the circumstances which induced the party to call the witness. But, where the sole effect of answers to such questions would be to discredit the witness, the questions should be excluded; and, if the recollection of the witness is not refreshed after such questions, the party cannot prove his contradictory statements by other witnesses.”

The erroneous ruling of the circuit court in this regard requires a reversal of the judgment appealed from.

By the Gowrt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.