74 Ind. 233 | Ind. | 1881
The questions discussed in appellant’s brief all arise upon the ruling denying his motion for a new trial.
It is strenuously insisted by appellee’s counsel that the evidence is not all in the record, and that, therefore, none of the questions discussed are properly presented. The position of appellee, that, where the bill of exceptions affirmatively shows that all of the evidence is not incorporated, this court will not pass upon any question which requires for its full understanding and correct decision an examination of the entire evidence given upon the trial, is undoubtedly correct. This is so although the bill contains the usual statement that “this was all the evidence given upon the trial of the cause.” Powers v. Evans, 72 Ind. 23; Morrow v. The State, 48 Ind. 432; Miles v. Buchanan, 36 Ind. 490; Ward v. Bateman, 34 Ind. 110; The State, ex rel., v. Swarts, 9 Ind. 221. The record sustains the statement of counsel that the bill of exceptions does not contain all the evidence. In this condition of the record, we can not, under the settled rules of practice stated, consider any question which requires an examination of the entire evidence given in the cause.
There are questions arising upon a ruling denying a motion for a new trial which 'may be as well and fully considered without the entire evidence as with it. In such a case, the questions will receive consideration, although the bill of exceptions neither contains, nor professes to contain, all the evidence adduced upon the trial. The rule upon this subject is this: Where the questions may he determined as well with
It is very clear that, with two exceptions, all the questions discussed by counsel in the present case require for their intelligent understanding and just consideration a full knowledge of all the evidence given in the cause, and this knowledge the record does not supply. To the two questions which can be fairly understood without the entire evidence, we shall confine our discussion. While we are clear that there are not more than two questions properly before as, we are not so clear that the record does present more than one.. The first of these questions arises upon the ruling excluding-testimony offered by the appellant. The appellee argues that we can not, without all the evidence before us, consider the question whether testimony was or was not erroneously excluded. The broad proposition is made that it is, in all cases, improper to consider the correctness of a ruling excluding evidence, unless the entire body of the evidence is fully and properly in the record. This }3roposition declares, an erroneous doctrine. There are cases where the appellate court may rightfully review a ruling excluding testimony, without having all the evidence before it. That this is so, a few familiar illustrations will fully prove. Take, for illustration, an action upon a promissory note, where the sole defence was payment; would it need all the evidence to properly apprise the appellate court that the trial court erred.
In the case we are now considering, it does affirmatively . appear that the omitted evidence does not at all affect the ■ question whether there was or was not error in excluding the evidence offered by the appellant. The bill, as we have .seen, affirmatively recites that it contains all the evidence, but also shows that this recital is not correct. The character ■of the omitted evidence is very clearly shown, and we can ascertain from a bare inspection of the record that nothing is omitted which in any wise affects the question arising upon
Appellee had called and examined a witness, and the appellant, upon cross-examination, propounded an interrogatory as to what conversation had occurred at a time and place named in his examination-in-chief, and the court refused to permit the question to be answered. The' appellee had not asked the witness any question concerning the conversation called for by appellant’s cross-examination, and the witness had not stated it. The appellant had no right, therefore, to elicit that conversation upon cross-examination, for it was not a matter fought out upon the examination-in-chief. It is well settled that a cross-examination must be confined to the subject-matter of the original examination. The question we are now speaking of is presented in two instances by the appellant, but there is no reason for a separate consideration, for the principle governing both is the same. The court refused to permit the appellant to ask questions for the purpose, as was claimed, of laying the foundation for an impeachment. The question which the appellant stated was, “Did not Eletcher Pate say to you that you had better accept the will, and did you not reply that the Wileys had threatened that, if you did not come here and testify, they would bring a suit on the note?”- Time, place and person were properly designated in other interrogatories, and from the testimony previously given it very plainly appeared that the note referred to was that of the witness’ husband.
The question for our decision is, whether the subject-matter of the interrogatory is collateral to the issues in the case ; for if it is, then, under the very old and very familiar rule, that a collateral matter can not be inquired into for the purpose of impeaching a witness, the court did right in refusing
In the present case, the credibility of the witness might have been affected by an admission that she was testifying under the influence of fear, produced by threats to involve her husband in litigation. One testifying under the influence of fear, or acting under the influence of a desire to shield a near relative from pecuniary loss, is not so likely to impartially and correctly state #facts as the witness who goes upon the stand uninfluenced by any such motives, and whose only desire is to state fully the facts as he knows or believes them to exist. It is not, of course, for the trial court to decide to what extent such motives may influence the witness, nor to what extent, if at all, they may be deemed to affect the witness’ credibility; those questions are exclusively for the jury. There is some conflict upon the question whether an impeachment by proof of previous contradictory statements can be founded upon matters relating to the motives or feelings of a witness. The earlier English cases held that such matters were not collateral, and that it was proper to impeach the witness by evidence of previous contradictory statements, but many of the later cases declare a different doctrine. An English author, commenting upon these cases, says : “Such being the conflict of authorities, it is no easy matter to apply the rule with precision to any new combination of facts ; but probably a sensible lawyer, who was really anxious to promote the interests of truth and justice, would on most occasions feel inclined to follow the former, rather than the latter, class of cases. Indeed this view of the law is strongly confirmed by a case
The general principle here involved received the approval of this court in the case of Scott v. The State, 64 Ind. 400, in which it was held that where a witness on cross-examination denies having made a statement indicating hostility to the cross-examining party, he may be contradicted. It can make no difference whether the motives arise from hatred, interest or affection, the principle is the same. If it be proper to contradict a witness, by proving that statements have been made indicating hostility and enmity, it surely must be competent to prove statements showing that the impartiality of the witness is affected by motives arising from friendship, affection, fear or interest. The character of the motive can make no difference in the application of the legal principle which permits motives to be made the subject of inquiry. Evidence showing the motives of a witness can not be deemed to be collateral in such a sense as to require a denial of the right to impeach by evidence of previous contradictory statements.
The only other question properly in the record grows out of the refusal of the court to submit to the jury an interrogatory propounded by the appellant; but, as the judgment must be reversed because of the error in excluding evidence, it is unnecessary to consider the questions arising upon this ruling.
Judgment reversed, at costs of appellee.
