Dorr v. Osgood

2 Tyl. 28 | Vt. | 1802

Per Curiam.

By our practice, when a witness appears on the stand, who is considered to be interested in the event of a cause, a party may prove his interest by written or unwritten testimony. He may show by documents, or by other disinterested witnesses, that he is interested, or he may appeal to the conscience of the witness by having the voir dire oath administered to him. The party has his election to do either, but he cannot do both. If the witness perjures himself by testifying that he had no interest, when he knows he has, he is amenable for the perjury ; but if he purges himself from interest, the opposing party must rest satisfied. He has put the question of interest upon the witness’s conscience, and he shall not be permitted to proceed virtually to try the witness for perjury. This would create a useless altercation, and impede and devest the trial of the cause; for it is to be observed, that while the question whether the witness be interested or not is tried by the bench, the trial of the cause in issue to the Jury is suspended. The opposite party is not, however, without remedy. During the trial, if the witness perjures himself on the voir dire, his admission only establishes his competency. The party may still lessen or entirely do away his credibility, by showing that his character for truth and veracity is bad, or by counter proof may invalidate his testimony.

It appears from the books, that anciently the English courts were so strict, that after a witness had been sworn in chief, they would not admit the voir dire oath to be administered to him. This strictness has in more modem cases been greatly relaxed. In England, as well as here, after the witness has been sworn in chief, and partly examined, the Court, upon suggestion of his interest, will permit the party to show it by administering the voir dire, or by other proof.

If our undeviating practice is founded in reason, surely it ought not to be contended, that when the Court uniformly drive a party to his election of either mode to prove the interest of a witness, and confine him strictly to the one he has elected during the trial, that he may elect the voir dire, and be confined to it during the trial per pais, and on motion for a trial de novo, come forward with the other mode of proof; for if it is reasonable that the party should avail himself of both modes of proof, it would be more reasonable that he should have this benefit of them during the trial; for if the result should be the exclusion of the witness, the delay and costs of a new trial had better be saved.

Cephas Smith, junior, and Samuel Prentice, for plaintiff. Daniel Chipman, for defendant.

The Court, therefore, consider, that when a party on trial to the Jury has elected to prove the interest of a witness by causing the voir dire to be administered to him, he shall not, on motion for a new trial, be admitted to show the interest of the witness by other proof, and therefore that the plaintiff take nothing by his motion.

Motion dismissed with costs.