15 Ala. 457 | Ala. | 1849
In Riggs v. Tayloe, 9 Wheat. Rep. 486, in order to let in secondary evidence of an agreement alledged to be lost, a party made an affidavit, stating “ that his impression is, that
The witness, Brothers, who was introddced for the purpose of proving the genuineness of the receipt purporting to have been made by the plaintiff to the,-' testator, answered, that he had seen the plaintiff write once, but he did not know his hand-writing. The counsel and the court both informed the witness, that he was not required'to swear positively as to the writing, but if, from having seén the plaintiff write once, or oftener, he believed he was acquainted with his hand-writing, or would recognize it, then he was competent, and bound to give his opinion, or belief, whether the receipt in question was the writing of the plaintiff. The witness still insisted, that he was unacquainted with the plaintiff’s hand-writing, “ and did not believe that he could recognize or know it, if hie saw it.” Here the witness, after being distinctly informed of the character of the examination, and the latitude allowed to his answers, declared his inability to recognize the genuineness of the paper, even according to belief or opinion, and the court was not bound to permit the question to be propounded in a form merely varying in phraseology. If the witness seemed-to misapprehend the scope of the inquiry, then it would have been proper, and even the duty of the court to have permitted the examination to be prosecuted in a more intelligible form. But it was doubtless supposed, that no such necessity existed for protracting it, and that the witness had fairly shown himself incompetent. Assuming this hypothesis to be correct, as we must do upon the facts stated in the bill of exceptions, and the rejection of the questions proposed by the plaintiff’s counsel, was the exercise of a discretion, which this court cannot revsie. The general rules for the examination of witnesses, must necessarily be so often applied, or relaxed according to circumstances, apparent to no one except the
In respect to the frame of the questions, we cannot perceive that they were objectionable, the witness having first stated, that he had seen the plaintiff write; they seem to have been drawn with studied precision, with the view of informing the witness of the nature of the impression, belief or opinion, he was asked to express, and considering how difficult it is sometimes, to make a very conscientious witness understand the line between knowledge and belief, we think they are not only unexceptionable in point of form, but are in terms most appropriate. It is a mistake to suppose they call for mere impressions, too indistinct to rest a conclusion on; true, they ask the witness to state impressions, yet these impressions must, in the nature of the subject, amount to belief or opinion. This proposition seems to us too plain to require illustration. But the defendant had previously asked equivalent questions — both his counsel and the court informing the witness of the character of the examination, and manner in which the answer might be made, and we cannot say that the refusal to permit a repetition of the inquiry, is an available error. Its allowance, or rejection, was a matter within the discretion of the circuit court, depending upon considerations of which it might be difficult to inform .us by the record, and which, if informed, we perhaps could not control.
In Ross v. Gould, 5 Greenl. Rep. 204, upon the trial of a writ of entry, the genuineness of a deed for the premises demanded, adduced by the tenant, was contested by the demandant, and evidence was offered by both parties, for and against it. Whereupon, the judge instructed the jury, that the tenant having introduced the evidence purporting to be a deed, and claiming under it, it was not the duty of the demandant to prove it to be a forgery; but it was the duty of the tenant to give them reasonable satisfaction that the deed was genuine. And if he had failed thus to satisfy them upon this point, they would return their verdict for the demand-ant. In the argument in the supreme court, it was insisted, that as the tenant proved the deed by one witness, and it was read to the jury as the deed of the demandant, the onus was cast on the demandant to show it was a forgery; and the evidence offered afterwards to this point being contradictory, the jury should have been instructed that it was the duty of the tenant to prove it a genuine deed. The court said, t! in the examination of the contested fact, the onus probandi may, in the course of a trial, be thrown from one party upon the other several times, according as the complexion of the proof may change. But when it is said, as was stated by the judge at the trial, that the onus probandi is on the party who offers a paper as a genuine deed, under which he claims, the plain, sound, common sense and legal meaning is, that it has reference to all the evidence in the cause respecting the alledged genuineness of the contested paper; or, in other words, it means that the party affirming the paper or instrument to be genuine, must furnish to the jury so much evidence, as to leave a balance of proof in favor of the genuineness of the instrument, after making all due allowance for the influence of the proof adduced on the other side to produce a different conviction in the minds of the jury.”
In Brooks et al. v. Barrett et al. 7 Pick. Rep. 94, the court said, the “shifting of the onus probandi is quite familiar in
In the Inhabitants of Attleborough v. the Inhabitants of Middleborough, 10 Pick. Rep. 378, the jury were instructed, that as the amount of the highway tax was not carried to the succeeding year, the presumption was, that it was paid ; but that this presumption might be repelled by evidence ,• that they would consider the evidence in relation to this point, and if the defendants had failed,- upon the whole, to satisfy them, beyond a reasonable doubt, that the tax was paid, they must find for the plaintiffs. It was contended, in the supreme court, that the instruction ought to have been, that the presumption was conclusive ; but the court said, “there was nothing in the statute, and certainly nothing in the circumstances of the case, to render this presumption conclusive. It was evidence, to be weighed and considered by the jury, and they might well consider it as fully counterbalanced by the express negative testimony of, the surveyor. The jury were also rightly instructed, that the burden of proof was on the defendants, and that if they doubted of the truth of the fact relied on, to wit, the payment of the tax, the verdict must be for the plaintiffs.” In Crail v. Crail, 6 Penn. State Rep. 480, it was adjudged not to be error to instruct the jury, that they should require clear and satisfactory evidence, to find a tenancy from parol declarations, when the alledged tenant had a legal title from the commonwealth, and it appeared an ancient agreement, for a sale by him to the landlord had been abandoned.
We may pass over the first charge, and direct our attention to the second; for if the latter can be supported, notwithstanding the stringency of the terms in which it is expressed, it must be conceded, that no objection will lie to the former. In the second charge, the courHinstructed the jury, “ that if the evidence, although it preponderated in favor of the receipt being genuine, still, if upon a fair and full examination of it, their minds were left in a state of doubt and uncertainty as to its being genuine, they should find in favor of the
The citation from 7th Pickering lays down no proposition in respect to the quantum of evidence, and furnishes no aid in the explication of the question before us. In the case in 10th Pickering, no objection appears to have been taken to the terms in which the charge to the jury was expressed, and the revising court did not consider that point — the only inquiry was, whether a presumption from a given fact was conclusive, or could be countervailed by evidence. The decisión, then, is worth but little as an authority, for any other purpose than to show what was the effect of the evidence be