149 Ind. 326 | Ind. | 1898
In the lower court two suits were instituted by the appellees, Edwin S. Dill and Calvin Dill; one against the appellant, Anna Collins, and one against the said Anna Collins and the appellant, Henry A. Miller. In each suit it was sought to cancel, as a forgery, a note, in the one suit for $500.00, claimed to have been made to and held by said Anna Collins; and in the other suit for $600.00, claimed to have been made to said Anna Collins, and by her transferred to said Miller. The two suits were consolidated, and tried together upon the issues of general denial of the complaints, counterclaims seeking to recover upon the notes, and answers to the counterclaim in sworn denials of the execution of the notes. The questions for decision arise upon the motion for a new trial and a motion for the apportionment of costs.
The first question presented upon the motion for a new trial relates to the sustaining of appellees’ objection to this question, asked of Calvin Dill upon cross-examination: .“Isn’t it a fact, Mr. Dill, that you yourself have heard Ed. say things affecting the chastity of Anna Collins during that summer?”
The relevancy of the question is urged upon the theory of the appellants that in the summer of 1891 the appellee Edwin S. Dill had been threatened by Anna Collins with a suit for slander, claimed to have been uttered by him in certain reflections upon her character for chastity, which threatened suit had been compromised by him by the execution of the notes in suit, said Calvin Dill executing them as surety for Edwin. The objection to the question, however, was that it was not a proper cross-examination, and this, we have no doubt, was correct. The examination in chief had not involved any inquiry as to the statements of Edwin concerning her character, nor as to any knowledge of the witness that her character had been questioned by Edwin.
Questions were asked upon the cross-examination of Calvin and of Edwin S. Dill as to when it was that Anna Collins and Harry Dill, a son of Calvin, “had some difficulty * * * with reference to a breach of promise suit.” The court excluded the questions as not pertinent to the examination in chief, and we think no error was committed thereby. It is further insisted, however, that the inquiry was proper to show an ill feeling between the Dills, and Anna Collins. It is not claimed that it had theretofore been inquired as to the state of feeling between them, and without this it cannot be proper to examine into the character of a difficulty claimed to have generated an ill feeling.
On the cross-examination of Edwin S. Dill it was asked if he then owned property, and if he had not conveyed property, held by him at the time of the alleged execution of the notes; to which questions the court sustained appellees’ objections. It is claimed that these questions would have elicited the information that the witness had conveyed property held by him at the time of the alleged execution of the notes, and that he had no property at the time of the examination. The inferences sought to be drawn were that the conveyance was fraudulent, having been intended
A witness for the appellants had testified that Edwin S. Dill, in the summer of 1891, repeated to the witness a statement which he claimed to have made to another concerning Anna Collins, which statement, if untrue, was slanderous. The witness was then asked if he had ever heard the statement before, and he answered that he had not, but the answer was stricken out by the court without an exception by the appellants. He was then asked if before that occasion he had heard talk of her condition, to which question the court sustained an objection. There was no error in the ruling. Whether that was or was not the first expression of the alleged slander which came to the witness would not aggravate the slander, and appellants were not to be benefited by mitigating it.
It was asked of a witnéss for the appellants if Edwin S. Dill at any place or time denied the execution of the notes. The court sustained the objection of the appellees, and appellants offered to prove that the witness and Dill had several times conversed about the notes, and that the latter had not denied their execution. Upon the rule that silence, when one is re
Complaint is made that an expert was not permitted to testify that a forger, in disguising and imitating handwritings,is more particular atthe beginning than at the closing of the effort. The question seems not to have been within the domain of expert testimony. It presented no question of science, and involved no rule -not subject to as many variations as there might be efforts at forging. The care of one man is not evidence of the care which may be exercised by another in an effort to commit a forgery, any more than is the skill of one man, in executing the imitation or disguise, evidence of the skill of another.
In numerous instances evidence was admitted, in rebuttal, over the objections of the appellants, which evidence the appellants, in their brief, have classified as “(1) Rumors and general rumors affecting the chastity of Anna Collins; (2) her general reputation for chastity in .the neighborhood where she lived in 1891; (3) evidence pretending to be of an expert character, with reference to her physical appearance, and opinions of witnesses as to whether or not she was pregnant in the summer of 1891.”
As to the first class, the inquiry, as far as our attention has been directed to the evidence, was not as to rumors simply, but was as to general rumors in the summer of 1891, to the effect that she was pregnant.
The third class, as given by the appellants, it will be observed, related to the physical appearance of Anna Collins, and to the opinions of witnesses that in the summer of 1891 she was pregnant. If evidence that she was pregnant was admissible, it cannot be seriously maintained that the descriptions of her physical appearance was a subject for expert testimony.
These classes of evidence resolve themselves into this inquiry: Was the fact that she was pregnant at the time of the alleged slander admissible? Was her appearance, as an indication of a condition of pregnancy, competent? And was the existence, at the time of the alleged slander, of general rumors in her neighborhood, to the effect that she was pregnant, admissible?
Counsel for the appellants attack the rulings of the trial court, in admitting the evidence, upon the ground that it was admitted “to smirch the character of Miss Collins,” and that when her character was not in issue. The pleadings did not put her character in issue, nor was the question of slander, introduced by the appellants, expressly in issue by the pleadings.
In favor of the genuineness of the notes, the appellants offered evidence, for the first time, that the appellee Edwin g. Dill had uttered a slander against Anna Collins by stating, in effect, that she was pregnant, and that, when threatened with a suit for such slander, he had executed the notes, and delivered them to her as genuine, in settlement of her supposed damages. guch evidence was of a corroborative character,
The appearance of pregnancy, and the fact of pregnancy, at the time of the alleged slander, if proper to . be considered in determining the influences inducing Edwin S. Dill to give or not to give notes for $1,100.00, it would seem proper also, for the same purpose, to consider the existence at the same time of a general rumor in the neighborhood where she resided that she was pregnant. While it may be true that in a suit for the slander such a rumor would have been admissible only in mitigation of damages, and not in proof or justification of the slander, that conclusion is not at variance with the holding that such general rumor was a proper element in the circumstances affecting the judgment of Edwin S. Dill, or as aiding to break the force, in his mind, of a liability so great that he must execute notes for $1,100.00 in settlement of such liability. When it is borne in mind that the appellants introduced the element of slander into the case to
Complaint is also made of the conduct of counsel for the appellees, while conducting the cross-examination of Anna Collins, in continuing to ask questions as to specific acts of dishonesty or immorality subsequent to the alleged slander, which acts the court had, from the beginning, ruled not to be proper subject of cross-examination.
In Randall v. State, 132 Ind. 539, it was held that persistence in such a course might, when it is carried to the extent of prejudicing the jury, be cause for a new trial. In any case the trial court, having the witness before it, and enabled to observe the effects of the examination, both as to the witness and as to the jury, is better able to judge of. the abuse than this court can ever be; and no doubt that court should interfere in time to prevent injustice. This case was tried without a jury, and we will not presume that the court permitted an improper examination' to continue, over objections sustained by it, until it was itself prejudiced in favor of the examining party. The experience of the trial judge is that, where such persistence has any influence, it tends to prejudice his mind against the party thus abusing the privileges of the occasion.
It is urged that the court erred in permitting two of the witnesses for the appellee to testify to the genuineness of the signature of Edwin ¡3. Dill to a series of eight bank checks, not papers in the case, and not admitted to be genuine; and to compare them with the signatures in dispute. Out of the protracted examination of these witnesses, concerning the checks, there
Complaint is made that the court permitted the appellees to introduce evidence tending to establish the forgery of the notes, out of its regular order. Such practice is always within the sound discretion of the trial court, and, unless made to appear as an abuse of discretion, is not error. Appellants do not show that they were harmed by the action of the court.
There was evidence that the note for $500.00 was offered, at a discount, to John D. Gougar by the appellant Anna Collins; that at the time she did so she was disguised with spectacles and a heavy veil; that he held the offer under advisement until a .time when she was to return; that when she did return, as understood, Gougar had had Calvin Dill to be at his (Cougar’s) office, and, as Miss Collins was upon the stairway leading to said office, she saw said Dill above her, and immediately retraced her steps and hastened into the street. The retreat from Dill tended to show guilty knowledge as to his interests, and the disguise tended to show guilty purpose as to the proposed transaction with Gougar. An additional circumstance added much strength to the guilty purpose to impose upon Gougar, and that was that a short time previous she had sold to him a forged note upon another, which note named a fictitious payee, and she had indorsed it in that name. This latter note was admitted in evidence over the objection and exception of the appellants, and the question is now made that it was inad
The sufficiency of the evidence to sustain the finding of the court has been questioned, and the discussion has been upon the theory that this court would weigh and pass upon the conflicts in the evidence.
This court, in considering the evidence, can only look to that most favorable to the decision of the trial court, and if that, standing alone, is sufficient, the judgment must be upheld. In this view of our duty it is necessary to consider but one line of the great mass of evidence in the record. It was the theory of the appellants that the notes were executed in the summer of 1891, and that date seems necessary to consist with
We do not pass upon all of the many questions discussed by the learned counsel for the appellants, for various reasons. Sometimes questions are urged where no exceptions were reserved; sometimes where no reference is made to the evidence questioned; sometimes where objections to evidence were general, and raised no specific question; and sometimes they were without such discussion as to indicate that they were deemed meritorious.
A general motion was made in the trial court to apportion the costs between the two cases, after consolidation, which motion was overruled. The order of the court, which was manifestly of advantage to all of the parties, was that the further proceedings be had under cause numbered 6,309, the cause in which Collins and Miller were joint defendants.
It is clear, as it must have been when the order was made, that the evidence in either case must be substantially the same as in the other, and the effect of the order was that the trial should be had in number 6,309, and that the finding therein should control the other cause. It is presumed that the order made was followed, and that none of the costs of the trial were made in cause numbered 6,425. The propriety of the order is not questioned by the appellants.
The court did not err in overruling the motion.
The judgment is affirmed.