100 Kan. 247 | Kan. | 1917
The opinion of the court was delivered by
Neta Colvin, the plaintiff, .resides with her husband and children on a farm near Bronson in Bourbon county. Ed Wilson, the defendant, is a married man living near the plaintiff’s home. The two families were neighbors and visited back and forth. Mrs. Colvin brought this action against Wilson to recover damages for two alleged assaults upon her person. The defendant answered with a general denial. The jury returned a verdict in plaintiff’s favor for $500 upon which the court rendered judgment. Defendant appeals.
The plaintiff testified that on two occasions-defendant came to her home during the absence of her husband and forcibly grabbed her in his arms, pulling her close to him; that she screamed and tried to get loose and struggled with him for two or three minutes until he desisted. She testified, that on
“Q. And you never fainted before this? A. No, sir.
“Q. In your life? A. No, sir, I never did.
“Q. You did n’t tell Mrs. Howard that you was out in the cow lot and a cow got after you and frightened you before this occurred? Did you tell her that? A. No, sir.”
Similar questions asked her as to statements made to Mrs. Leek were answered by the plaintiff in the negative. The defense subsequently called as witnesses Mrs. Howard and Mrs. Leek, who flatly contradicted plaintiff’s statements on these matters. Again, on cross-examination, plaintiff was asked if she had ever flirted with defendant at his home, and if she had ever winked at him, to both of which questions she answered “No.” The defense subsequently called Mrs. Wilson and her husband, who testified that plaintiff had flirted with him at his home and had winked at him. The defendant likewise called other witnesses who contradicted plaintiff on other wholly collateral matters. In each instance counsel asked the contradicting witnesses questions for which he claimed he had laid the proper foundation by the previous examination of plaintiff. The manifest and only‘purpose of the cross-examination as to these matters and the introduction of the testimony contradicting plaintiff’s statements in respect thereto was to impeach her veracity as a witness; and we can conceive no sufficient reason why testimony showing the plaintiff’s general reputation as to truthfulness and veracity was not
“The sole object in asking a witness whether he had made statements elsewhere not in accordance with his testimony, and npon his denial, calling other witnesses to show that he did make Such statements, is to create a belief that he is not a credible witness. Impeachment of a witness by proof of his bad character is intended to accomplish exactly and only the same thing. The statement and the bad character are alike immaterial, except for the single purpose of affecting the credit of the witness, and it is not easy to say that the two methods are not about equally efficient in accomplishing the end. In either case, the credibility of the witness is impaired. . . . If it is just in the one case that a party should be permitted to establish the credit of his witness by showing his good character, it is alike just in the other case.” (p. 427.)
The same conclusion was reached by the court in the case of First National Bank of Bartlesville v. Geo. W. Blakeman, 19 Okla. 106, 91 Pac. 868. In the opinion in that case the Oklahoma court concedes that there is an irreconcilable conflict in the authorities, and adopts the rule favoring the admission of such testimony in rebuttal as one founded upon the better reason.
However, we do not wish to be understood as favoring the adoption of the hard and fast rule that wherever proof has been admitted showing contradictory statements of a witness who is a party concerning matters foreign to the issues the party whose, veracity as a witness in the particular instance has been assailed has then the absolute right to offer rebuttal testimony to show his general reputation for truth and veracity. The better rule, we think, is to leave the question' of the admissibility of such rebuttal testimony to the sound discretion of the trial court. In view of the course pursued by the defendant in the case at bar, there was certainly no abuse of the trial court’s discretion. The main issue was
The judgment is affirmed.