Ordway v. Haynes

| N.H. | Dec 15, 1870

Sargent, J.

The engraving that was offered as a chalk, taken alone, was not objectionable. The witness may use, to illustrate his meaning, and the counsel to illustrate his case, any chalk, whether engraved or more roughly sketched, whether made with a pen, a pencil, a paint brush, a coal, or a piece of chalk. If the diagram alone were offered, and offered simply as a chalk, we see no objection to it. But when it was offered, as the case shows this was, “ as an engraving in a medical book,” that makes it at once improper as evidence, because that gives it an undue importance with the jury. The jury should not know that it was in a medical book, or a law book, or what the book was that contained it. In fact, if it was to go to the jury as a chalk, it should not be in any book, for that simple fact might lead the jury to attach an undue importance to it. If the jury are to be told that the engraving shown them is taken from a medical book, or was got up by some distinguished doctor or man of science, it might give it a weight, an authority with the jury, which no mere chalk was designed to have or would have. This is a matter that must be left to the discretion of the court. An engraving may be as good a chalk as anything, but it should not be attached to or contained in any book, nor should the jury be told from what book it was taken, or that it ever was in any book, and nothing should be said about it, only that it is to be used as a sketch or chalk to illustrate the case.

When it is offered as a part of a medical book, or as the work of some distinguished man, then the presiding judge should exclude it, as he did in this case very properly. But when separated from everything else, and offered by the counsel or a witness simply as a chalk, with nothing said as to where it came from or who made it, then we see no objection to it on the ground that it was engraved, or printed, or painted, unless there was something about it that the court could see was calculated to mislead the jury. We think this matter must and ought to be left to the presiding justice to decide, as one of the, matters in his discretion. In this case we see no reason why the discretion was not properly exercised.

Upon the second point, we think'the answer to the question proposed tended to test not only the memory of the witness, but also his truthfulness in making the statement he had just made, that the expression which he made use of on the former trial was “ a slip of the tongue.” Was this explanation that he gave true or false ? Was the statement which he made on the former trial, and about which there is no dispute, deliberately made, — made understandingly and intentionally ? or, was it a mere slip of the tongue, a mistake, a mere inadvertence ? When the witness stated that it was “ a slip of the tongue,” did he state truly ? We think the question asked him, and the answer to it, would tend to satisfy the jury one way or the other on that point. If the course which the question indicated was pursued at the former trial, then it would seem that his attention was called to the circtimstances of this statement at the time, in such a way as that if it had been a mistake, a mere “ slip of the tongue,” he must then have seen and known it, and that he would at once have corrected it so as to leave no wrong impression upon the minds of the jurors. We think the evidence offered had that tendency. How much weight it would have had with the jury if it had been admitted upon that question as ■well as on the question of memory, is not for us to say. We think the testimony competent, as bearing upon the question of truthfulness as well as that of memory, and, therefore, that it should have been admitted generally for all purposes, and not restricted to the single question of memory, as it was.

As the verdict must be set aside on this ground, it becomes unnecessary for the purposes of this case to consider the other point, the alleged misconduct of the officer in holding improper conversation with some of the jurors and otherwise. But although this case is not to be affected by that question, yet it is a subject of great consequence to the proper administration of justice. We have therefore ordered an investigation of these charges against the officer to be made in a separate proceeding. New trial granted.