96 Mass. 255 | Mass. | 1867
The witness Parks had procured this bond from Fawcett and others in Massachusetts to indemnify Day in becoming surety, in Maine, upon the probate bond of Parks, as guardian there of certain minors. At the trial Parks was an important witness for the plaintiff; the execution of the bond in suit being proved mainly by his testimony. To show that he was not a fair witness, but was hostile to the defendants, or under a strong bias of feeling or purpose adverse to them, which ought to affect the degree of credit to be given to his testimony, he was asked, in cross-examination, whether he had told “ Rice or any one, in words or in substance, that he meant to get the money on this bond of old Fawcett, so as to get back the rent he had paid him for the Marlboro House.” This he denied. The defendants offered testimony to contradict him in this particular, and impeach his credit. This testimony was excluded, on the ground that it related to a collateral matter. But the
The declarations of the witness Parks, that were sought to be proved, related to the bond which was the subject of his testimony, and to one of the defendants in the suit. If he made declarations, such as are indicated by the inquiry, his testimony would not be entitled to the fullest confidence. The court see no ground to question any of the other rulings and instructions to the jury at the trial; but as the testimony offered to contradict and impeach Parks was improperly excluded, the exceptions must be sustained as to that point and a
New trial granted.
This ease was re-argued in November 1867 upon the admissibility of the evidence to contradict Parks.
IL W. Paine 8f R. D. Smith, for the plaintiff. The testimony objected to was offered for the alleged purpose of contradicting
J. S. Abbott, for the defendants.
Having again heard the parties, upon the suggestion of the plaintiff’s counsel that the question above determined had not been fully presented at the argument, in consequence of their mistake in supposing the point to be waived, we see no reason to recall or in any respect to modify the opinion already given.
The argument now addressed to us, as we understand its force, seems to be this: That the defendants in their exception are to be confined to the purposes for which the testimony was offered, as stated by them at the trial, namely, to impeach and contradict Parks; that in order to contradict, the inquiry was not in proper form; and in order to impeach him, the substance of the proposed proof was inapplicable; that is, that proof of personal bias, or of a state of feeling or purpose adverse to the defendants, was not of the nature of evidence to impeach a
If the proposed proof were competent only for the purpose of contradiction, and the contradiction could arise only from a previous denial by the witness that he had made such a declaration, it might be well so to limit the inquiry. But otherwise the position can have no foundation, except upon the rule requiring that, in order to contradict a witness in this mode, his attention must first be called to the precise matter that is to be proved against him; a rule which, as before suggested, does not prevail in this commonwealth. Under our practice a declaration, made out of court, contrary to or inconsistent with the testimony of a witness, in any material matter, may be proved by other testimony, either with or without a previous inquiry to the witness thus contradicted. Tucker v. Welsh, 17 Mass. 160. Commonwealth v. Hawkins, 3 Gray, 463. Harrington v. Lincoln, 2 Gray, 133. It must follow therefore that the inquiry to the contradicting witness need not be restricted to any such prescribed form, but may be in any form proper to elicit the facts or statement sought to be proved. Gould v. The Norfolk Lead Co. 9 Cush. 338-347. This is especially true when the contradicting testimony is also admissible as affirmative proof, either to impeach the witness or for any other legitimate purpose.
In the present case, the testimony sought would have been admissible as such affirmative proof; and we are satisfied that it was properly offered as evidence tending to impeach Parks. Impeachment is not limited to attacks upon the general character of the witness. It embraces all means, the purpose and tendency of which are to impair the credit of a witness. Under the English rule requiring that the witness should himself be interrogated as to his interest, bias or hostile feeling, before other witnesses could be called to prove it by his declarations, such proof always -‘nvolved a question of contradiction, and was generally treated in this secondary aspect alone. But the whole
We think the questioris that were disallowed were sufficiently directed to a legitimate point of inquiry, and indicated testimony which would have been competent for either purpose ; to contradict or to impeach Parks. The plaintiff calls our attention particularly to the case of Starks v. Sikes, 8 Gray, 609. But in that case the hostile purpose which was shown related to another transaction than that which was the subject of the suit. The evidence did not show any personal hostility, nor adverse purpose as to the matter then on trial. No grounds are stated for the decision upon this point in that case, and the decision itself is not inconsistent with the rules of evidence as herein maintained. New trial granted.