70 Vt. 155 | Vt. | 1897
The evidence of William S. Dewey, a witness in behalf of the petitioners, tended to show that he had known the petitionee intimately for about forty years; that for about seventeen years of that time, the petitionee had worked at Dewey’s Mills, where the witness lived, and
The petitioners offered to show by this witness that for many years his father suffered with paresis, that he lived with him and had opportunity for observation of the manifestations and progress of that disease, and that he had observed the same manifestations in Mr. McCabe, the petitionee.
The evidence offered was excluded. Before making this ruling, the court below had inquired of the petitioner’s-counsel whether he expected to offer this witness as an expert, or have him do any more than give an opinion on the facts stated by him, and was informed by counsel that he did not expect to offer him as an expert.
It is contended by the petitionee that the petitioners took no exception to the exclusion of the evidence offered. Giving the exception the most favorable construction for the petitioners, and assuming that the exception covered the offer, there was no error in its exclusion. The proposal to show that the father of the witness suffered with paresis for many years, and from which he finally died, presented an immaterial and collateral issue. If evidence tending to support this offer had been admitted, it opened the door for the admission of evidence on the part of the petitionee to show that the disease from which the father of the witness suffered was not paresis. If issues of this kind could be raised on the trial of cases, there would be no end to the length to which they might be extended, nor limit to the scope of the various fields of investigation upon which either party might enter. Such a course would tend to defeat rather than promote justice. Weeks v. Lyndon, 54 Vt. 638; Foster's Exrs. v. Dickerson, 64 Vt. 248. The circumstances under which, and the extent to which a non-expert witness may give his opinion in respect to the sanity or insanity of a person was so fully considered in Foster's
The testimony of Alfred E. Watson, a non-expert witness, called in behalf of the petitionee, tended to show that he had known the petitionee intimately for some years, that he considered him of sound mind, and that he had no reason to suspect by reason of anything he had seen or heard, that the petitionee was not of sound mind. On the cross-examination of this witness, he was asked the question, “Had you ever heard that Mr. McCabe had a shock?” andreplied, “Only by hearsay.”
Objection thereupon being made by the petitionee, counsel for petitioner said: “I wish to ask him this as bearing on the probability of whether he considered this man of sound mind, and also as bearing on the credibility of the evidence he has given as to whether he had heard this man had suffered a shock.” The court excluded further inquiry on this line, to which ruling the petitioners excepted.
It was not competent for the witness to give his opinion in respect to the sanity or insanity of the petitionee, except as it was based on facts and circumstances in respect to him, observed by the witness himself, and to which he had testified. It is apparent that this rule was adhered to by the court in the examination of non-expert witnesses on the question of the petitionee’s mental condition. It does not appear from the exceptions that when the witness testified “that he had no reason to suspect, by reason of anything he had seen or heard, that the petitionee was not of sound mind,” that he did not refer to what he had seen of, and heard from, the petitionee himself. The exceptions are susceptible of this construction, and it sustains the ruling of the county court! Error cannot be presumed, but must be shown affirmatively by the party alleging it. McNeish v. Hulless Oat Co., 57 Vt. 324.
Judgment affirmed.