Nash v. Doyle

40 Vt. 96 | Vt. | 1868

The opinion of the court was delivered by

Barrett, J.

The statement and affidavit, admitted to have been made by the plaintiff, were important matters of evidence-in-chief in behalf of the defendant, as well as in contradiction and impeachment of the plaintiff as a witness swearing that the defendant was the father of the child. Having been evoked by the defendant, for the purpose of using them. agaiDSt her on the trial, it was proper that she should have opportunity to state the history of the matter, so far as it bore upon, and resulted in her giving said affidavit, and making said statement. The proper force and effect to be given to them as evidence-in-chief for the defendant, as well as contradicting and impeaching her, would be affected by the circumstances and occasion of their being made, and by what was done and said in the interviews between her and others upon the subject, which led to and resulted in her making them. The proposition and solicitation to swear the child on White was first made to her by said Richard, the day before the child was born. The manner in which she responded to that proposition and solicitation when first made, would be very significant, as an incident in the course of means and events that entered into the history of that statement and affidavit. It was claimed in her behalf, and the evidence tended to show, that she was brought to that result, not as a volunteer, but by appliances and inducements addressed to Her by the friends, and by the professional adviser of the defendant. If she had received said proposition and solicitation with a ready assent, that fact would have given much greater force to her subsequent statement and affidavit, in their bearing against her, than if she met them with a prompt denial. As the matter was left on the cross-examination, it was to be taken that she had made said statement and affidavit of her own motion. It seems to us, that it was fully as material, and just as proper, to show by her the reply she made to Richard, as it- was to fhow that he made the proposition and solicitation, or that Dixon and the defendant called on her afterwards on the subject of the prosecution, and what was between them, or that Dixon and Hood called on her when the affidavit was procured, and what was said' between her and Dixon. The important point was, what did that affidavit signify, as bearing on her truth and credibility. That, in a large measure, would depend on how it came to pass ; how the idea of swearing the child on White originated ; how it was treated by her when it was first proposed ; how it was nursed and developed by those in the interest of the defendant, and finally assumed expression by her in her statement and affidavit.

What she said in the course of these events could not be proved as substantive' facts in her own behalf, either as tending to show that the defendant was the father of the child, or as tending to corroborate the testimony she had given to that effect. But, when the defendant availed himself of the affidavit as a means of impeaching her truthfulness, what she said as part of the interviews and events by which that affidavit was begotten and brought forth, is of the res gestee. It appertained to the affidavit, entei-ed into its creation, bore upon its quality, affected its force as evidence when used by the defendant. We think the offer should not have been rejected.

The only other ground of exception is, that the court held that there was no evidence in the case tending to show that the defendant had any agency in, or knowledge of, the attempts, by his brother Richard, or his attorney Dixon, to induce the plaintiff to swear the child on White.

It is true that there was no direct evidence to that effect. But we think that it cannot properly be held that there was no evidence. There was direct evidence that such an attempt was made by Richard and by Dixon. The relation which they sustained to the defendant and to the subject was shown, the one, a brother and bail; the other, an attorney of the defendant in this matter. It was shown that the defendant called on the plaintiff twice, after Richard’s first call and solicitation, on the subject of the prosecution, and denied the assertion that she made, that he was the father of the child ; that Dixon called with him both times; that on the first call nothing was said about White. It does not appear whether anything was said about him on the second call or not. It does appear that Dixon called twice afterwards, and the plaintiff testified that the last time he said if she would swear it on to White he would go and get $400. of him, and let her have part of it, and the defeudant have a part, &c., and wanted her to sign an affidavit that it was White’s, and she did so. On cross-examination she testified that Richard said when he came to see her, that he came on the part of his brother.

It is clear from the course of the trial, as shown by the bill of exceptions, that the defendant, after all the evidence was in, made use of the fact that the plaintiff had given such an affidavit, as a substantive ground and instrument of defence, as much so, and to the same intent and effect, as if he had produced and given the affidavit itself in evidence. What was elicited on cross-examination of the plaintiff supplied the fact and the matter of the affidavit, for all the purposes that the production and use of the affidavit itself could have served. So that, in legal effect, he used the affidavit as evidence in his own behalf, and against the plaintiff. Now it seems to us, that these facts so connected with the subject, so related to the affidavit, so involving the defendant in respect to his interest in the suit, and in his use of the affidavit, do constitute grounds for legitimate inferences by the jury, on the question whether or not the defendant had knowledge of, or participation in, the attempts which resulted in the procuring said affidavit. While it might, perhaps, be properly held that either of the facts alone, with none of the others connected or concurring, would be insignificant; yet, when taken in their order, and combination, they become significant and potent, to some extent, towards showing that the defendant had such knowledge or participation. If, after the evidence on the part of the plaintiff was all given, bearing on the ■ history of that affidavit, and the means by which it had been procured, the defendant had abandoned any use of the fact of its being so given, as evidence in his own favor, and against the plaintiff, the subject would have lacked an important element which it now possesses. When, in view of that evidence on the part of the plaintiff, he avails himself of the fact of the giving of said affidavit, for his own advantage on the trial, he must be held to take it cum onere, and, so far as the jury should find that his friends and attorney had, by improper and corrupt inducements, procured the making of it, be affected by the natural inferences, and legitimate results arising from an adoption, and implied ratification, of their damaging acts, as to his agency in, or knowledge of such acts.

The question is not whether this series and combination of facts conclusively show, but whether they tend to show, such knowledge or agency.

If there had been slight direct evidence of such knowledge, or agency, plainly the facts alluded to would be competent evidence to aid and strengthen such slight direct evidence. Yet its tendency is the same in both cases, viz: to show the alleged knowledge, or agency, of the defendant. It is circumstantial, but equally pertinent with direct evidence, either in aid of direct evidence, or to operate alone in the absence of direc.t evidence. It is for the jury, under proper instructions, to consider and weigh it, and to give it proper force and effect.

We think it was error to hold that there was no evidence tending to show that the defendant had any agency, or knowledge,-in respect to the attempts to procure said affidavit.

The judgment is reversed and the case remanded.