Seip v. Storch

52 Pa. 210 | Pa. | 1867

The opinion of the court was delivered March 26th 1867, by

Read, J.

The defendant called the plaintiff, and he was examined and cross-examined. The plaintiff’s counsel then called the plaintiff as a witness on his own behalf; he was objected to, but was admitted to testify, and was examined and cross-examined, and this is assigned for error. ,

In England, when called as a witness by the defendant, he might on cross-examination have testified as to every and any fact material to the issue ; but in Pennsylvania, according to the rule in Ellmaker v. Buckley, 16 S. & R. 72, a party cannot, before he has opened his case, introduce it to the jury by cross-examining the witnesses of the adverse party. Accordingly, in Floyd v. Bovard, 6 W. & S. 75, the plaintiff called as a witness a co-defendant and examined him, and at a subsequent stage of the trial he was called and examined as a witness for the defendant. In this case the witness was both a party and directly interested. C. J. Gibson said (p. 77) : “ The plaintiff himself has called him to prove a part of his case, the witness consenting to be sworn; and had not this been done he certainly would have been incompetent to testify for his co-defendant, and why ? Because his interest raised a presumption unfavourable to his credibility, which would not have been rebutted. But did not the plaintiff rebut it, when he produced him as a witness worthy of credit, and had the benefit of his testimony ? or did he assert no more than that he was worthy of credit, only when he testified against his own interest. The man who is honest enough to declare the whole truth, when it makes against him, will be honest enough to declare no more than the truth in his own favour. It would give a party an unjust advantage to let him pick out particular parts of a witness’s testimony and reject the rest. But the matter does not rest on principle alone; for it is a familiar rule that a party cannot discredit its own witness or show his incompetency.” See also Stockton and Stokes v. Demuth, 7 Watts 41, per Sergeant, J., and Turner v. Waterson, 4 W. & S. 175, by the same learned judge, where the same doctrine is directly laid down.

In construing therefore, the remedial Act of 27th March 1865, P. L. 88, we must apply the well-established principle, that, if a party puts an incompetent witness on the stand, by exercising any power which he possesses over him, he makes him an entirely competent witness in the cause, to be used as such by either party. The learned judge was entirely right, and the judgment is affirmed.