| Conn. | Jul 15, 1833
The witness, in support of whose general character evidence was offered and rejected, was not a stranger; and no attempt had been made, on the trial, to impeach his general character for truth ; but an attempt had been made to impair the credit of his testimony in the case, as well by the manner of conducting his cross-examination, as by the testimony of other witnesses, and also by attempting to prove that he had been privy to a fraud in the deed under which the plaintiff claimed.
But all this was not sufficient to render admissible the evidence offered in support of the general character of the witness, so long as that general character had not been attacked. And it is believed, that this position is supported, by the uniform practice of the courts in this State. And to innovate now on a course of judicial practice, so well understood, and which has never produced inconvenience, might be attended with embarrassing consequences.
It would be desirable, indeed, if the real merits and motives of witnesses could be known ; but as this is impossible, courts can only adopt such rules of evidence, as will, probably, best tend to elicit the truth, consistently with the constitutional right of all suitors to have justice administered without delay.
To discredit the stories of witnesses, is a part of the business of almost every trial; and the methods to which the ingenuity of counsel will resort, to effect this, are various. Sometimes, it is done, by a critical cross-examination ; sometimes, by the contradictory testimony of others ; and frequently, by an impeachment of the general character of the witness. But if the credibility of a witness is impaired, otherwise than by an impeachment of his general character ; as if it be shewn, that he is
But two exceptions to the uniform practice on this subject, in this State, are recollected; and these are in prosecutions for rape, or for assaults with intent to ravish ; and where the witness stands in the situation of a stranger before the court. State v. De Wolf. 8 Con. Rep. 93.
It is said, however, that the practice of the English courts is at variance with ours. If this were so, it would constitute no good reason for a departure from our own usages, in which no evils have been discovered. It is true, that the course of enqui-ry to produce an impeachment, in the courts of some of our sister States and in England, differs, in some respects, from the practice of the courts of this State; and this may there render proper a greater latitude of enquiry in support of character. But it is doubted whether even in England a latitude as great as in this case is claimed by the plaintiff, would be permitted.
Starkie, in the 3d volume of his Treatise on Evidence, {page 1757.) says : “ In all cases, where the credit of a witness has been attacked, whether by general evidence, or by particular questions put upon cross-examination, it seems, that the party who called him, is at liberty to support his character, by general evidence of good character.” And in support of this conjecture, he cites the Nisi Prius case of Rex v. Clark, 2 Starkie’s Cas. 241. That was an indictment for an assault, with an intent to commit a rape, in which the character of the prosecutrix is always material, and from the peculiar character of the crime charged, may always be shewn, whether attacked or not. And in that case, it was the prose-cutrix, the subject of the assault, whose conduct and situation were permitted to be proved, to repel the inference derived from a fact admitted by her, upon her cross-examination, that before that time, she had committed a crime. The principle of that case, in this view of it, is precisely the same as that recognized by this Court, in the case of State v. De Wolf, 8 Con. Rep. 93. But even in the case of Rex v. Clarke, evidence was not offered to support the general character of the witness, but to
Again, it is claimed, that because an attempt was made, at the trial, to show, that the witness had participated in a fraud, in relation to the deed about which he testified, that this was such an impeachment, as called for the support of his general character. But this does not furnish an exception to the rule. The case of Doe d. Stephenson v. Walker, 4 Esp. Cas. 50. relied upon, by the plaintiff, as supporting this claim, falls far short of it. There, an attempt was made to impeach a will, on the ground of fraud in procuring it; and the fraud was imputed to the attesting witnesses, who were dead, and could not explain the transaction in court: and for this reason it was, that the court, in that case, admitted evidence of their general character, as an exception to what Lord Kenyon then said was the general rule on this subject. Bishop of Durham v. Beaumont, 1 Camp. 207. Peake's Ev. 6. Wright d. Clymer v. Littler, 3 Burr. 1244.
As to the second question presented by this motion, but a word need be said. The plaintiff claimed title under Benjamin Brown jr., now deceased ; and the defendant offered to prove Brown's declarations while he owned the land, as to facts claimed to be inconsistent with his claims of title; and these declarations were admitted to be proved.
The principle, that the declarations of a person deceased, while in possession of the premises, against his title, are admissible against all persons claiming under him, has been too recently settled in the case of Norton v. Pettibone, 7 Con. Rep. 319. and before that, in the case of Beers &. al. v. Hawley, 2 Con. Rep. 467., to be considered now open for discussion. Vid. also Davies v. Pierce & al. 2 Term Rep. 53. Waring v. Warren, 1 Johns. Rep. 340. Jackson d. Griswold v. Bard, 4 Johns. Rep. 230. Jackson d. McDonald v. McCall, 10 Johns. Rep. 377. Uncle v. Watson, 4 Taun. 16. 1 Stark. Ev. 70. 1 Phil. Ev. 25.
I think it very clear, therefore, that the superior court ruled correctly upon both points presented by this motion; and that a new trial ought not to be granted.
New trial not to be granted.