43 N.H. 65 | N.H. | 1861
What is a leading question, put to a witness under examination, has recently been considered and settled by this court in the case Page v. Parker, 40 N. H. 42, and the cases there cited.
It appears that in this case a leading question was put by the counsel of the plaintiff, under the permission of the court, to one of his own witnesses, and upon his direct examination, and against the objection of the defendant. The question is, whether the circumstances of this case were of that peculiar char’acter as to justify the court, for the purposes of justice, in making it the exception to the general rule, thereby allowing the question to be put.
Prof. Greenleaf (1 Greenl. on Ev., sec. 435) states the exceptions to the general rule, where leading questions are permitted to be put by the party calling a witness, and upon his direct examination, as follows: “ Where the witness appears to be hostile to the party producing him, or in the interest of the other party, or unwilling to give evidence, or where an omission in his testimony is evidently caused by want of recollection, which a suggestion may assist, or where the transaction involves numerous items or dates, or where, from the nature of the case, the mind of the witness can not be directed to the subject of inquiry without a particular specification of itand, after stating some other illustrations, closes the section with the general remark, “ That when and where and under what circumstances a leading question may be put, is a matter resting in the sound discretion of the court, and not a matter which can be assigned for error.”
In Nichols v. Dowling, 1 Stark. N. P. C. 81, Lord Ellenborough held, “ That a direct interrogatory might be put where it is clear that the mind of the witness should be directly brought into contact with the subject of inquiry.” So where the matter to which the witness is examined is merely introductory to that which is material, it is frequently desirable to lead the mind of the witness directly to the subject. 2 Stark, on Ev. 123, sec. 13.
In Moody v. Rowell, 17 Pick. 498, the court there say, that they “ have no doubt that it is within the discretion of a judge at the trial, under particular circumstances, to permit a leading question to be put to one’s own witness, as when he is manifestly reluctant to testify, and hostile to the interests of the party calling him, or where he
In the case before us, the plaintiff had called the attention of his witness to the matter material to the issue. The plaintiff' had alleged in his declaration that the defendant had said of him, “ that he was a thief and a liar, and he could prove it.” The witness had already repeated twice that he heard the defendant say, “ the plaintiff lied to him and stole from him,” or that he thought such was the language used by the defendant. Thus far the plaintiff had not sustained his declaration by the qualified language of his witness. Then the leading question was allowed by the court to be put to the witness by the plaintiff, and the desired answer was elicited, which was competent to sustain the declaration. It appears to us difficult to limit the discretion to be exercised by the judge who tried the case. Did the witness, by design or mistake, in his first and second efforts there, undertake to withhold the true language used by the defendant, and thereby give a false coloring to the transaction ? "Was he an unwilling witness ? or hostile to the interests of the plaintiff? or, being an honest and truthful witness, did his memory of the precise facts or language intended by him to be stated suddenly fail him, so that his recollection needed the prompting that was furnished ? If any of these reasons existed in behalf of the witness, then we do not see why the cause of justice was not subserved by permitting, the leading question to be put. On the other hand, if the witness evidently had a prevailing strong bias in favor of the plaintiff, and was ready to serve his cause, and willing to adopt and assert what might be suggested for his benefit; if such a witness staggers and falls into confusion, it is not essential to justice that he should be prompted or helped out by the party calling him. We think, therefore, with these views suggested, that it is safe to presume here that the judge who tried the cause exercised a sound discretion in permitting the question to be put, and that, for this cause, the verdict should not be disturbed.
Under the defendant’s plea in this case, in order to rebut the allegation that he had stolen certain bark, wood, and logs, of the defendant, it was proper for the plaintiff to show that he was in possession of the farm from which the personal property was taken, under such a contract or agreement to purchase as would wholly repei all presumption of a larceny of the property in question, as charged by the defendant. Hence, we see no reason why the plaintiff should not be allowed to explain the nature of his contract, the character of his occupation, and that, in doing what he did, he was acting under a claim of right, and without any wrong or sinister intent. We think, therefore, that in this case there should be
Judgment on the verdict.