Pratt v. Rawson

40 Vt. 183 | Vt. | 1868

The opinion of the court was delivered by

Prout, J.

Upon the argument, but two exceptions taken to the dicisions of the county court ai*e relied upon by the defendant.

L it is claimed that the charge to the jury as to the testimony of the experts, introduced by the defendant, was erroneous. Three witnesses were called for the purpose of proving that certain papers produced on the trial, were in the handwriting of the prosecutrix. The opinion of one of them, called to testify to this point, is based upon his acquaintance with the prosecutrix, and his knowledge of her handwriting; of the other, upon his habit and experience, as cashier of a bank, in examining signatures for the purpose of detecting forgeries. It is said the truthfulness of these witnesses was ignored by the court, and that their opinion, with respect to the inquiry to which their evidence related, was submitted to be determined by the jury upon other evidence than their own testimony. We do not understand the charge in this sense, but only as relating to the reliance to be placed by the jury upon it. The judge expressly told the jury, that the law permitted the use of the evidence; that the opinion of the witnesses was to be considered by them in connection with the other evidence in the case, but that it was not conclusive.; and what is said in the subsequent part of the charge does not improperly qualify its legitimate force and effect. If the judge had gone further, aud told the jury, what to be sure is unusual, as expressed in an early case, that it was entitled to but little weight as proof of the disputed fact, but, after all, leaving it for them to weigh and consider, it would not have been an error.

II. The defendant insists that his impeaching testimony was improperly excluded. As to a party’s right to impeach the witness of his adversary, there is no doubt. The question in this case is, when, in the progress of the trial, should he avail himself of this right. There is a limit to all inquiry, as to material facts, in the ordinary course of a trial, and the party’s right is affected by long and well established rules of practice, which may, or may not be, applied and enforced, in the discretion of the court. The first step taken in this case, in the county court, was putting the prosecutrix on the stand. She testified, making out, as she deemed, a prima facie case. She was cross-examined by the defendant’s counsel in relation to facts, which, if established, discredited or impeached her. This was the effort on the cross-examination, and the object of it; and this was the tendency of the defendant’s evidence, introduced after she left the stand and rested her case, with the exception, possibly, of the evidence of the experts. Upon the'close of the defendant’s testimony, the prosecutrix' was recalled, in her own behalf, and testified only in relation to facts, circumstances and admissions made material by the defendant, whose evidence was of the character and tendency stated, but she testifying to no new matter or fact except what had been introduced into the case by the defendant, and to which he did not think proper to call the attention of the prosecutrix, or inquire about, when she was first under examination. In this state of the case, the defendant’s right to impeach the witness stands upon the same ground it would, had the witness been cross-examined and re-examined in her own behalf in relation to the facts, when she was first on the stand. If this had been the order of putting in the evidence, the defendant should have put in all his testimony in answer to the opening testimony of the prosecutrix. But as the case really proceeded, the prosecutrix had testified to the material facts directly relating to the issue, and upon the close of her evidence the defendant had ample opportunity of answering.it, and of introducing his impeaching testimony. In all cases, the court has, to a certain extent, a discretionary power, and may control the order in which the evidence shall be introduced, for the purpose of placing the parties upon an equal footing in respect to the trial, so that neither shall gain an “ unjust or undue advantage.” In. the exercise of this discretionary control, the court are guided by the facts and circumstances existing, relating to the trial, and if it is not so exercised as to deprive a party of a reasonable opportunity of availing himself of his evidence or of his legal right in this respect, no ground of exception exists. In this case the défendant’s offer was, we consider, addressed to the discretion of the court, and it appearing that he had the opportunity to introduce the evidence, as accorded under the rules of practice, no exception lies to the decision of the court refusing to admit it. Pingrey v. Washburn, 1 Aik.; Kent v. Lincoln, 32 Vt. 591.

The judgment of the county court is affirmed.