Powell v. Martin

10 Iowa 568 | Iowa | 1860

Lowe, C. J.

Action of slander for words spoken affect- ' irig tbe character of plaintiff for yirtue and chastity. Tho defendant answered, denying tbe allegations of tbe petition^ and setting up tbe gossip of tbe neighborhood. This latter branch of tbe defense, upon motion, was stricken out. Trial, verdict of one hundred and eighty-five dollars for plaintiff. Exceptions to various rulings of tbe court, and an appeal by defendant.

• Believing that tbe court below ruled correctly upon all tbe points excepted to but one, we will limit our consideration -of this case to tbe point alone which, in our judgment, must reverse tbe case. The principal witness for tbe prosecution was a man by tbe name of Ralph Marshall. lie was asked if be. bad not an interest in this suit, and whether he bad not taken an active part in the prosecution of tbe same. He replied negatively to both these questions. He was then asked, if since the commencement of this suit he had not had a conversation in Wood’s Lane with one Joseph Dickey about this suit. He admitted that he had, and was then asked if at that time, place and conversation he did not tell Joseph Dickey, that unless he would come into court and swear that he failed to marry plaintiff on the account of said ilrej)o?'i” that she would be beaten in the suit, and (to use the language employed in the exceptions) “ he would law defendant to hell, and they would break defendant up,” &c. He denied any such conversation.

Afterwards, Dickey was called by the defense and interrogated, whether in Wood’s Lane, since the commencement of this suit, he had had a conversation with the witness Marshall. He answered affirmatively. He was then asked to state what Marshall said in that conversation, and thereupon the plaintiff objected, and defendant’s attorney stated that his object was to prove that Marshall had made declarations at that time and place showing malice and ill-feeling, and also that he had made use of the expressions which he had denied in his cross-examination, but the court sustained the objection and would not permit the witness to answer the question &e. Again, Marshall in his cross-examination in chief was asked if he did not, at the house of Mr. John Raker, in a conversation ho had with Mrs. Susannah Baker about a month before the trial, solicit Mrs. Baker not to swear in favor of defendant in this suit, but to swear in favor of plaintiff. Witness admitted a conversation at the time and place with Mrs. Baker, but denied the use of such language or that he made such solicitation. Mrs. Baker was afterwards called to prove what the witness Marshall denied, but upon objection being made by plaintiff, was not permitted to do so. The attention of the witness, Marshall, was challenged to other times, places and conversations with other persons, with a view of exhibiting the degree of hostility and ill feeling which he entertained towards the defendant; but the defense was not permitted by the court to prove the truth of what he denied.

This evidence was refused by tbe court, we suppose, under tbe well known rule that a witness shall not be cross-examined as to facts collateral and irrelevant to the issue, merely for tbe purpose of contradicting him by other evidence. And if tbe witness is so examined, bis answer can not be contradicted, but shall be conclusive against tbe party asking. But it must be remembered that it is not irrelevant to tbe issues to inquire of tbe witness whether be was not unfriendly and hostile to tbe party against whom be was testifying; whether be bad not bad a quarrel with tbe party and threatened to break him up at tbe law; and bad been actiye in preparing tbe cause for trial. These and similar facts are relevant and material, for tbe reason that they show the motive and temper of tbe witness in tbe particular transaction, and afford tbe jury an opportunity of properly weighing and estimating his testimony. Tbe authority for the introduction of such testimony will be found in 1 Greenl. Ev. section 450; 7 Conn. R. 66; Swift’s Ev. 148; 16 Mass. R. 185; 17 Mass. 160; 2 Camp. R. 630. In this case questions were asked tbe witness on cross-examination -which fairly conduced to show bis partiality for tbe plaintiff on tbe one band, and bis animosity- and bias towards tbe defendant on tbe other, which were denied by him; and although tbe way bad been opened under tbe rules of evidence for bis contradiction and impeachment, yet all inquiry on this subject was stifled by tbe court, which we conceive was error. And not knowing bow seriously the defendant may have been prejudiced by the rejection of this impeaching testimony, we must remand tbe cause for a second trial.

Judgment reversed.