Gottlieb v. Hartman

| Colo. | Feb 15, 1876

Brazee, J.

The declaration was in trover for one diamond cluster ring, value $900; one diamond cluster ring, value $450; one diamond cluster ring, value $300; one lady’s gold watch, enameled case, set with precious stones, value $200 ; one lady’s gold neck chain, value $150. Plea, not guilty.

The evidence tends to show among other things, that the articles in question were delivered to one John Morrison by the appellee, the owner of the property, for safe-keeping, and that he pawned them with the appellant, without authority from the appellee, for $742. 50, and that there is no evidence tending to show the contrary.

It is claimed by the appellant that the proof was not sufficient to show the title in the property and the right of possession in the appellee, and a conversion thereof by the appellant. We think the evidence in this respect sufficient to sustain the verdict.

’ There was evidence tending to show' a demand of the property before suit, a wrongful conversion, a loss of the property by larceny, and that a demand was unnecessary.

Therefore, the exceptions to instructions given to the jury respecting the law, applicable in case they should find either a wrongful conversion of the property by appellant, or a larceny of the property by Morrison, or that a demand was made, or that a demand would have been unavailing, were not well taken.

The charge did not, as claimed by appellant’s counsel, authorize the jury to assume any thing against the appellant.

All the requests of appellant, which were proper to be given, were substantially given by the court to the jury; the instructions as a whole gave the case fairly to the jury, while the requests to instruct, refused by the court, were properly refused. But one of these requests requires further notice.

The court was requested to instruct the jury “that they are sole judges of the credibility of the several witnesses, and that if they believe from the evidence that one of the witnesses has spoken falsely in any particular, then the jury are at liberty to disregard all the evidence of the witness.”

This request contained two distinct propositions. One, that the jury are the sole judges of the credit due the witnesses. This proposition applied to the evidence in this case is correct. The other proposition contained in the request is, that if the jury believe from the evidence that a witness has testified falsely in any particular, the jury are at liberty to entirely disregard his testimony. This is not the rule.

A witness through mistake, from imperfect memory, or through a misunderstanding, may unintentionally tell an Untruth in evidence. In such case, although the jury might believe, from all the evidence, that the witness had testified falsely in some particular, they would not, therefore, be at liberty to wholly discredit the witness unless they further believed from the evidence that the witness had intentionally told an untruth.

This element of corrupt intent, the request under consideration wholly omitted; hence in this respect, the request was improper. The request containing a proper and an improper instruction could not legally be given as a whole.

The appellee was a witness on her own behalf. She was permitted to testify after appellant’s objection to what she told one Smith, and Smith, under like objection, testified to the same conversation and also to what he did thereafter in demanding and searching for the jewelry.

This evidence was proper as tending to show that she authorized him to demand the property for her, and that a demand in pursuance of the authority was made.

Afterward she was recalled and asked certain questions, which were objected to on the ground that they were improper on re-examination; the objection was overruled, and she answered the questions. The ruling was excepted to, but it was within the discretion of the court to allow the witness to be re-examined, and that cannot be assigned for error.

The objection to appellant being called as a witness for appellee was not well taken. Texas v. Childs, 21 Wall. 489.

A witness,' Dugan, was asked Ms reason for supposing that certain jewelry had been returned to appellee, and after objection, was properly allowed to answer, because the answer might have developed some material fact. The witness, in answering, stated an impression which was improper, but in connection with it, a material conversation and transaction at which appellant was present. The appellant moved to strike out the material conversation, which motion the court properly overruled. The testimony of the witness Dugan, to other conversations with the appellant, relative to the matter in controversy, was properly admitted.

A search warrant which Smith had, after objection by appellant, was read in evidence, but it does not appear in the record, and we are, therefore, unable to determine that it had any effect prejudicial to appellant.

The appellee, as a witness for herself, testified, among other things, in substance, that she owned a ring set with twelve diamonds, having a green emerald in the center; one ling having six quite large diamonds; one ring haVing nine smaller stones; a gold watch about the size of half a dollar, enameled purple and green, the case set with thirty-two or thirty-three diamonds, the smallest about the size of a pin head, three or four diamonds out; and that she owned a gold chain, a yard long, double, about as thick as a pencil, weighing near a hundred pennyweights; that she paid $800 for the watch and chain; that Dr. Hartman had examined the watch and chain, and Hatch and Davidson had examined the rings ; and other evidence tended to show that appellant had converted these articles.

Dr. Hartman testified in substance, that he had knowledge of a gold watch and chain owned by her, a lady’s watch, little larger than a silver half dollar, enameled and set with diamonds; and of a gold chain owned by her, about a yard long, double, very fine, nearly a quarter of an inch thick.

C. C.Hauck testified that he was a watchmaker and jeweler, engaged in dealing in watches and jewelry, and was acquainted with the market value of such things ; he was then asked to state what, in his opinion, would be the value of a lady’s gold neck chain about a yard in length, double, making two yards, about as thick as a pencil, weighing about one hundred pennyweights, an ordinary gold chain of these dimensions ; this was objected to by appellant on the ground that there was no evidence to support the question, and because incompetent, immaterial and improper.

The objection was overruled, and appellant excepted. The answer was in substance, — a chain like that, a fourteen carat chain, was worth $175, in that neighborhood. He further testified, after a like objection and exception, to a like hypothetical question, that the value of a lady’s gold enameled watch, in circumference a little larger than a half dollar, thirty or thirty-two diamonds in the back, about the size of a pin head, or a little larger, two or three diamonds out, depending a great deal on fineness, would be about $100, as near as he could get at it without seeing the goods.

The ruling of the court upon these questions, against the appellant, is assigned for error.

The cases cited by the learned counsel hardly go to the extent of showing these questions to have been improper. In 3 Douglas, 157, the question was, whether an embankment had caused the filling up of a harbor, and it was held that the opinions of scientific men were competent evidence in this question. In 45 Me. 397, the opinions of a physician, formed upon hearsay, as to the mental condition of a party, was held not to be competent, but that his opinion would have been competent, if predicated upon facts, testified to by himself or others. In 2 Comst. 514, without stating any fact upon which his opinion was based, except having seen certain cattle and the hay upon which they were fed, and without any other fact appearing, a witness was allowed to state his opinion of the amount of damage to the cattle resulting by reason of defendant not feeding them with as good hay as he had agreed, which was held to be improper. These cases go no farther than to maintain the general rule that the opinion, in a proper case, to be admissible, must be based upon evidence of facts, or upon facts in evidence in the case, but they do not throw any light upon the proper form of the hypothetical questions by which the opinion should be elicited, nor how the facts upon which the hypothesis are based should be determined. I have taken some pains to find a plain statement pf the rule applicable, and find it more tersely stated in Carpenter v. Blake, 2 Lans. 206" court="N.Y. Sup. Ct." date_filed="1869-03-15" href="https://app.midpage.ai/document/carpenter-v-blake-5475012?utm_source=webapp" opinion_id="5475012">2 Lans. 206, than elsewhere. It is there held that the hypothetical questions must be based upon the hvpothesis of the truth of all the evidence, or on a hypothesis especially framed of certain facts assumed to be proved for the purpose of the inquiry. Such questions leave it for the jury to decide, in the first case, whether the evidence is true or not, and in the second case, whether the particular facts assumed are or are not proved.

The questions under consideration were framed upon hypothesis assumed to be proved; there was some evidence before the jury tending to show the truth of the hypothesis, and the questions were, therefore, proper.

As to Hatch and Davidson’s testimony, no question is made upon the argument, except as to the sufficient identification of the property. We think it was sufficiently identified.

There is sufficient evidence to support the verdict in respect to amount. It does not appear to be excessive.

In my opinion the judgment should be affirmed, with costs.

Affirmed.