2 Barb. 210 | N.Y. Sup. Ct. | 1848
The defendant, for the purpose of sustaining his first plea of justification, which was that the plaintiff had in fact stolen the cattle, proved that the cattle had been driven from the town of Hunter, some thirty miles into the county of Delaware. The evidence was, probably, pertinent, and tended to sustain the plea. If it was pertinent, then it was clearly competent to show the circumstances under which the cattle were driven away, and the contract under which they wére left with Oakley, in Delaware. All the circumstances connected with the transaction were proper evidence to be presented to the jury to enable them to decide whether the cattle had been taken away with a felonious intent. The plaintiff’s act, in taking the cattle to Oakley’s, had been proved by the defendant. It was a part of the same transaction that the cattle were left with Oakley under a contract to keep them until the bark-peeling season commenced. The court were right therefore in receiving the evidence.
Nor can I doubt the correctness of the decision of the court below in rejecting the evidence offered by the defendant to show that the plaintiff had committed perjury upon the application for a search warrant. Although the declaration stated various slanderous charges made by the defendant, some of which, if proved, would have rendered the evidence offered by the defendant proper, yet upon the trial the plaintiff thought fit to confine his proof to a single charge, which was, that the plaintiff had peijured himself before the grand jury. Of course the justification should also be confined to the same charge, A specific charge is proved. It is, that the plaintiff, in giving testimony before the grand jury on a certain occasion, had peijured himself. Suppose it were true, as the defendant offered to prove, that on a different occasion, when an application was made to a justice of the peace for a search warrant, the plaintiff had committed peijury. How could that fact avail the defendant as a justification of the charge of commit? ting peijury before the grand jury 1 The plaintiff proved that he had been charged by the defendant with a specific offence; peijury before the grand jury. The defendant must be con?
With a view to discredit the plaintiff’s witness, the defendant offered to prove that he had said “ that the plaintiff swore before the grand jury that he never signed any receipt to return the cattle,” &c. As a foundation for this evidence, the plaintiff’s witness had been asked whether he had ever, in the presence of any body, told the defendant that “ the plaintiff had sworn that he did not sign any receipt at all.” The evidence offered was not admissible, under the well settled rule .adopted at the circuit. The uniform practice in such cases is, to afford the witness, sought to be impeached, an opportunity, in the first instance, to explain what he may have said before, .and, for that purpose, his attention must be called to the time ¡and place when and where, and the person to whom, the alleged .•declarations, inconsistent with his testimony, were made. (Kimball v. Davis, 19 Wend. 437.) The rule is founded in justice, and was properly applied in this case. The judgment ¡of the court beloyr must be affirmed.
