131 Minn. 432 | Minn. | 1915
The defendant was convicted of the crime of swindling. He made a motion for a new trial and appealed from the order denying his motion.
Coyle reported his loss at police headquarters; and spent some days going about the city in company with police detectives in an attempt to locate the place where he had been despoiled of his money and to identify the men who had victimized him. At the trial, he identified the defendant positively as the man to whom he gave the money. There is no other evidence connecting defendant with the transaction. Defendant sought to impeach Coyle’s testimony in this respect by presenting the testimony of police officers and newspaper reporters, to the effect that he had stated to them, shortly after the occurrence, that he had given the money to Dixson, then known to him under the name of Wood, and that he was unable to describe or identify any of the persons connected with the matter except Graham and Dixon or Wood. In rebuttal the prosecution called the sheriff and deputy sheriff, and they were per-jnitted to testify, over defendant’s objection, that Coyle had stated to them that he gave the money, not to Graham or Dixson, but to a man acting as cashier, and that he described this cashier. They were also permitted to state the description which he gave of the cashier; this description fitted the defendant, but did not fit either Graham or Dixson.
Defendant urges that the admission of this testimony was error, and his contention is supported by the great weight of authority. Where the adverse party, for the purpose of discrediting a witness, presents evidence that the witness has previously made statements inconsistent with his testimony, it is well settled that the party producing the witness cannot present other statements previously made by him, consistent with his testimony, to offset or overcome the discrediting effect of such contradictory statements. Ellicott v. Pearl, 10 Pet. 412, 9 L. ed. 475; Conrad v. Griffey, 11 How. 480, 13 L. ed. 779; McKelton v. State, 86 Ala. 594, 6 South. 301; Jones v. State, 107 Ala. 93, 18 South. 237; Burks v. State, 78 Ark. 271, 93 S. W. 983, 8 Ann. Cas. 476; People v. Doyell, 48 Cal. 85; Mason v. Vestal, 88 Cal. 396, 26 Pac. 213, 22 Am.
In an exhaustive note to Rogers v. State, 41 L.R.A.(N.S.) 857 [88 Ark. 451, 115 S. W. 156], the doctrine is traced from the seventeenth century to the present time, and the decisions of the English and American courts are collated and analyzed. It is there pointed out that so many of the courts which originally admitted such testimony have subsequently adopted the rule above stated that, at the present time, in the words of the commentator, “the rule is more than general * * * it is well nigh universal.”
There is one well established exception to this rule. If the adverse party attempts to show that the testimony is a late fabrication induced by some recent influence or motive, or made to meet exigencies which have recently arisen, the party producing the witness may refute such contention, by showing that the witness made statements consistent with his testimony before such influence or motive existed, or such exigency could have been foreseen.
It is clear, however, that the testimony under consideration falls within the rule and not within the exception; and, as it bore upon the vital issue, the affirmative of which was supported solely by the testimony of Coyle, its admission was prejudicial error for which a new trial must be granted.
Order reversed and a new trial granted.