18 Ga. 495 | Ga. | 1855
By the Court.
delivering the opinion.
As a whole, we think the charge unexceptionable; and that it covers, substantially, all the requests which were made by the defendant.
Upon looking into the record, we are obliged to say, that while there was some evidence as to the points respecting which Counsel was addressing the Jury, yet, the facts were rather over-stated; not sufficiently so, however, to authorize a new trial on that ground.
There is, moreover, an inherent difficulty upon this subject, mnder the Act of 1850, which forbids a Judge, cither during the progress of the trial or in his charge to the Jury, to express or even to intimate his opinion as to what has or has not been proved. Suppose Counsel insists that such and such facts have been proved, how can the Court undertake to correct him without violating this Statute ?
Great latitude, after all, is allowed to Counsel, as well by the Common Law as by the Courts of this country, in forensic discussions. And it will not do to abridge liberty of speech too much; “ no pent up Utica” is the motto, certainly, in republican governments.
As the members of Congress are wisely protected by the Constitution of the United States, from being called to account for any thing said in debate, so Counsel, in their place,
Montgomery swears that McNabb rode hastily back to the river, seeming much disturbed, and communicated to him the loss of the packet, assigning as a reason for not going back the stables himself, that he had left the stage, with the •mail in it, with no one to take care of it. He begged the witness to notify Mr. Johnson of the occurrence, and ask him to make search for the money.
It is contended that to allow-this proof, is to permit the party to manufacture evidence for himself. But this is not .true. It is the evidence of circumstances attending the trans
No man would be the bearer of a packet of money without reward, and at the risk of reputation and property, if he were compelled to prove the theft or loss by eye-witnesses. It would be unreasonable to look for such proof.
The conduct of the party, in connection with what he says —in other words, concurrent acts and declarations, should be received in exculpation, for what they are worth. It can only be ascertained, from such circumstances, whether the bailee was, guilty of gross neglect or not. That nothing that a man says or does can be given in evidence to support his own cause, is a good general rule. It has, however, like all other general rules, exceptions; otherwise, better without the general rule.
In Sampley vs. Scott, (24 Miss. Rep. 528,) the Court say : “ It is certainly true, as a general rule, that statements or admissions made by a party interested in the result of a suit, cannot be given in evidence in his favor. Brit the rules of evidence are adopted for practical purposes in the administration of justice, and must be applied in such a way as to promote the ends for which they were designed. And the Courts' have, therefore, admitted many exceptions to the above rule. The instances in which the statements or admissions of a party have been received in his own favor, have been so frequent as to constitute it almost a rule rather than an exception, that they may be received in cases of extreme necessity, where, from the nature of the case, no better evidence can be reasonably expected.” (Citing Buller’s Nisi Prius, 289. 1 Stark. on Ev. 182.)
Judge Story says that the statements made by a mandatory, that the letter delivered to him with money in it, had been lost by accident or stolen from him, with the circumstances attending the transaction, ought to be deemed a part
We concur, fully, with the foregoing views, and think the testimony, upon this head, was improperly withheld from the Jury.
One of the grounds upon which the new trial was asked, and the not granting which is assigned as error is, in not permitting the defendant to show, by James G. Johnson, that it was with great reluctance that he (McNabb) took the mo:-ney; and that it was through the earnest persuasion of wit-mess that he did take it.
The record does not sustain this exception; on the contrary, it shows that the witness, Johnson, testified that the defendant at first declared, that he did not intend to carry any more money. Johnson told him he was sorry for it; .and upon farther conversation, he finally agreed to take it.
In Dibble vs. Brown & Haynes, (12 Ga. R. 217,) this Court held,, that the’evidence of the plaintiff in an action against a common carrier, for the loss of his trunk, was admissible to
Would the admission of McNabb be a further and dangerous innovation' upon that Common Law rule, that no person shall be a witness in his own case? The Mississippi Court,, in the case already cited, held that it would not, and allowed the defendant, in a case precisely similar in all respects, to-be sworn. And while I have concurred with my brethren in affirming the judgment of exclusion in the Court below, further reflection and examination have tended rather to weaken than confirm my first impressions. If a party, without benefit or reward, having undertaken to do a favor for a friend, and without any other evidence as to how the casualty arose, cannot be allowed to give evidence in his own favor, a failure of justice is inevitable. No prudent man should ever carry a, letter or packet for another. Suspicion will attach, and the most ujn’ight man will bo more than punished for any neglect of which he may have been guilty, by the mortification which he feels. Justice would seem to demand, that when the voluntary depository admits that, somehow, he did lose the money, that he should have the privilege of stating exactly the quo modo he lost it. His narrative is for the consideration of the Jury. Why exclude from them the only testimony that can shed a ray of light upon the transaction ?
Here is a bailee, without reward, seeking to defend himself against a presumption of gross negligence, or something-worse; and where the facts, which constitute his defence, could,, in the nature of things, be susceptible of no other proof than» his own statements ! My judgment refuses to acquiesce in. such a doctrine.
Upon tho whole, we think it best to remand this cause for a re-hearing. It is a mere matter of delay to the plaintiffs; If the defendant lost or embezzled their money. Rut if he be innocent, it is a great cruelty to make him liable for the casualty.