13 Kan. 447 | Kan. | 1874
This was an action brought by John Stevens against Lawrence Gannon for the sum of $250 as damages for the killing of a certain horse. The main question tried in the court below, if not the only contested question, was whether Gannon did in fact kill said horse. All other questions in that court grew out of the trial of that question. In this court the plaintiff in error (defendant below) has raised many questions founded upon supposed irregularities claimed to have occurred during the trial of the case in the court below. We do not think’ that it will be necessary for us to discuss all of the questions separately, for many of them may be discussed in gi’oups, and some of them need not be discussed at all. In general terms, therefore, and without going into details, we would say that we think the court below erroneously permitted some irrelevant testimony to be introduced on the trial, and also erroneously permitted several leading questions to be put by the plaintiff below to his own witnesses. But still we think that none of these errors were of such a substantial character as to require a reversal of the judgment of the court below. Errors like these are often committed in the trial of causes in nisi prius courts, and yet it is seldom that any such errors are complained of in this court, and seldom that a judgment could be reversed on account of them. This case, as said before, was for killing a horse. No person except those who participated in the act saw the horse killed; and hence the plaintiff had in the nature of things to resort to circumstantial evidence to prove his case; and in such cases great latitude must always be allowed in the introduction of testimony. And therefore much of the evidence which the plaintiff in error supposes to be irrelevant testimony, and much that would under other circumstances be in fact irrelevant testimony, was, under the circumstances of this case, both relevant and competent. For instance, it was both relevant and competent for the plaintiff to show that the defendant had
With regard to leading questions we would say, that many of the questions put to witnesses which the plaintiff in error supposes were leading, were not leading. It is not every question that is put in a direct or leading form, or that may be answered by “yes,” or “no,” or by a simple affirmative or negative, that is leading. To ask an impeaching witness directly if he knows the general character of the witness to be impeached for truth and veracity, is not leading. And generally a direct question upon any preliminary matter, merely introductory to something else, and not calling for an answer which will tend to prove or disprove any issue in the case, is not leading. For instance, after it had been shown that Mrs. Patrick Gannon had previously testified in chief and on cross-examination, on a former trial of this same case, and that she had since died, the following question was asked, to-wit: “ Do you recollect her testimony in chief on the trial of that case?” Answer: “Yes.” This question was not leading. It did not call for any testimony which tended to prove or disprove any of the issues in the case, but simply called for the recollection of the witness, a purely preliminary matter, introductory of what was to follow. But even where nisi prius courts allow leading questions to be asked, still as such courts have such a wide discretion in allowing or disallowing such questions, appellate courts can seldom reverse their de
The plaintiff introduced evidence over the objections of the defendant to show what Mrs. Patrick Gannon had previously testified to on a former trial of this same case. The defendant claims that the evidence was erroneously admitted for the following reasons: first, that it was not sufficiently shown that Mrs. Gannon had died since the former trial; second,
As to the third reason given why said evidence should have been excluded we would say, that we think it was sufficient to prove the substance of what Mrs. Gannon testified to on the former trial, and not necessary to prove her exact words: 1 Greenl. Ev., §§165, 166; 1 Phillips’’ Ev., (5 Am. Ed., with Cow. & Hill’s and Edward Notes,) marginal page 395, et seq., note 115. This we think is the law,.both upon reason and authority. The reasons for this being the law we think are so obvious that it is not necessary to state them. There was not a particle of evidence tending to prove that Mrs. Gannon refused to answer any question put to her on the former trial; and the claim that there was any such refusal is now made for the first time in this court. The evidence upon which we suppose this claim is made is the last portion of the evidence of the last witness that testified with regard to Mrs. Gannon’s testimony, and is as follows: “I think there were several questions asked the witness on that trial that she did not answer.” If this can be construed into a refusal to testify, or a refusal to answer question's, why was not the point made in the court below? Why did not the defendant move to strike out all the evidence concerning Mrs. Gannon’s testimony? Or Avhy did he not ask the court below to instruct the jury to disregard it? He is too late now to raise any question concerning it. Prom anything that appears in the record the questions which Mrs. Gannon did not answer may have been withdrawn by the party ask
The cross-examination of the defendant was a proper cross-examination. And indeed the defendant' had a very fair trial in every respect. The application of the maxim, falsus in uno, falsus in omnibus, was a proper application of that maxim according to the decisions of this court. (Campbell v. The State, 3 Kas., 488; The State v. Horne, 9 Kas., 131.) In the judgment of the writer of this opinion, however, it is unfortunate that such decisions were ever made, and he thinks' they should be overruled: Mead v. McGraw, 19 Ohio St., 55, and cases there cited; Paulette v. Brown, 40 Mo., 52, 57, et seq.; Blanchard v. Pratt, 37 Ill., 243, 246; Callahan v. Shaw, 24 Iowa, 441, 447. I shall certainly never be in favor of reversing a judgment of the district court for refusing to give such an instruction as the 2d one given in this case. The instruction referred to is as follows: “ If in your examination of the testimony in this case you should be satisfied that any witness has testified falsely and corruptly in reference to any material fact, you should disregard the whole of the testimony of such witness.”
The following instruction was not erroneous, to-wit: “In cases of this nature all persons who aid, abet, or assist in the commission of the tortious act, are regarded as principal actors, and are severally as well as jointly responsible to the injured party for damages sustained by such tortious act.” The ' 4th instruction was not erroneous, or at most it was not so erroneous as to require a reversal of the judgment. That Mrs. Gannon was dead, there can be no doubt. The evidence sufficiently showed it, and there was no conflict of evidence upon this point. Her evidence was properly presented to the jury for their consideration, and the court properly instructed the jury to consider it with due caution. They were not told to believe it or disbelieve it, nor to believe or disbelieve any portion of it; nor were they told to believe or disbelieve any portion of the evidence of the witnesses who
We have already given this case more time and consideration than it merits, and shall therefore consider it no further. The judgment of the court below will be affirmed.