17 Me. 19 | Me. | 1840
Lead Opinion
The opinion of a majority of the Court, Shepley J. dissenting, was drawn up by
The party who would establish a will is bound by law to call the subscribing witnesses. By their attestation, they give credit to the will; and Parsons C. J. says, it is their duty to be satisfied of the sanity of the testator, before they subscribe the instrument. Buckminster & al. v. Perry, 4 Mass. R. 593. But they may disappoint the expectations of the party, who calls them. They may deny their attestation as witnesses, or they may testify, that the testator was not of sound disposing mind and memory.
The credit of the party’s witness is thus, by necessary implication, impeached, by showing the falsity of his testimony. This may be done, by calling witnesses directly to contradict him. To prove that he has contradicted himself, is of the same character in principle. The question to be determined is, the truth or falsity of his testimony. A want of consistency, conflicting declarations, made at other times, whether under oath or not, are fairly calculated to throw light upon this question. And if excluded, the party who has no other alternative but to call the witness, is obliged by force of a technical rule, to submit to a perversion of truth, which he has it in his power to expose, from the declarations of the witness himself. The rule is intended to promote the cause of justice, by refusing to allow a party the advantage of impeaching his witness or not, according to the character of his testimony. And while limited to the case of a witness, whom he is at liberty to produce or not, the rule may be both reasonable and salutary, but when extended to one, without whom he cannot proceed in his case, it is carried farther than the reason of the rule would seem to
It has been found best to serve the cause of truth, that relevant testimony should be liberally received, for the consideration of the jury. Hence many objections are now held to go to the credibility of a witness, which were formerly regarded as affecting his competency. And while a direct impeachment of the credit of the party’s own witness has been uniformly denied, an indirect impeachment has in certain cases been permitted. A direct impeachment affects general character, an indirect, brings into question the truth of the facts, to which the witness has testified. And a majority of the Court is of opinion, that in the class of cases, like the one under consideration, this may be done, by showing that the witness has made at other times contradictory statements. In Brown v. Bellows, 4 Pick. 179, this was expressly held not to be in conflict with the general rule, and upon that ground admitted. In Whitaker v. Salisbury, 15 Pick. 544, the court decide, that the party who calls a witness, shall not be permitted to impeach his general character, which they state was also decided in Brown v. Bellows. But in the latter case, proof of conflicting declarations as to the fact, to which the witness had sworn, was not regarded as impeaching his general character.
It is not easy to extract from the case of Ewer v. Ambrose, 3 Barn. & Cres. 746, any decided opinion, upon the point under consideration. Bayley J. notices that it is a case, where the witness was not forced upon the party, as he was here. He thought the party was not to be permitted to discredit his own witness, by producing an answer made by him in chancery, conflicting with his testimony. And he adds, “ the present impression of ray mind therefore is, that the answer ought not to have been received in evidence.” Holroyd J. says, “ it was certainly not admissible to prove generally, that the witness was not worthy of any credit. It might perhaps be admissible, if the effect of it were only to show that, as to the particular fact sworn to at the trial, the witness was
Such a limitation of the technical rule, as applied to witnesses, the party is obliged to call, as would admit the testimony rejected in this case, will lead to a more thorough investigation of the facts, upon which a jury may be called to pass, and will best promote the cause of truth. And the case before us very strongly illustrates the necessity of such a limitation. The subscribing witnesses must have been aware, that their attestation was desired to support the will. By becoming such, they are supposed to have satisfied themselves of the capacity of the testator. At the trial, they impeach the will upon this ground. If this may not be repelled, by showing that they have declared and testified differently, the whole weight of their judgment is thrown against the will, although it may be shown from their own mouths, either that their judgment, from want of consistency, is entitled to little weight, or that they have not truly stated the facts. It results, that competent and admissible testimony, in the opinion of a majority of the Court, having been rejected at the trial, the verdict must be set aside, and a new trial granted.
Dissenting Opinion
A dissenting opinion was drawn up by
The rules of evidence are the result of sound reasoning and of long experience, proving, that their general operation is to aid in the investigation of truth, while it may be from the imperfection of all human regulations, that they will not have that effect in every instance. The general good result is to be regarded rather than the particular inconvenience. And some general rules must be established, or it will be w'ithin the unregulated discretion of each Judge to admit such and only such testimony as may seem to him expedient. It is upon these and other considerations more immediately applicable to it, that the rule has been established, that no one shall be permitted to impeach the credibility of his own witness; while he is left at liberty to prove the facts to be different from the statement of them by the witness.
Upon principle and upon authority, the testimony appears to me to have been properly excluded. And to admit it in this case be