244 P. 654 | Utah | 1926
The defendant was convicted of the offense of carnal knowledge of a female 17 years of age and appeals. She testified to the commission of the offense by the defendant. He denied it. She testified that the defendant and two other young men called at her mother's apartment in Ogden, and that she and they went riding in the evening in an automobile expecting to get other young girls to join them. They called on some girls, but they declined to go. She testified that after they drove around awhile the defendant and one of the other young men left the automobile, and that she had illicit relations with the other young man, who remained in the automobile. Thereafter the defendant and the other young men with him returned, when they all again went riding. Finally the three men, including the defendant, left the automobile pretending to go for water for the radiator and left her alone in the car, but in a few minutes the defendant returned alone and compelled her, so she testified, against her will to submit to illicit relations with him on the rear seat of the automobile. She testified that she was acquainted with the other young men, but not with the defendant until that evening, when he was introduced to her as "Trixie West." The defendant testified he was not with the party at all; that he was not even acquainted with and never had met the prosecutrix.
In its case in chief the state called a witness, one of the young girls who was asked to go out with the party but did not go, who testified that she was acquainted with the defendant, and that when the parties called on her she went out to the car where they were. Then she was asked if she *545 saw the defendant there, and answered she did not. On being further interrogated she stated who the parties were, except one whom she did not know and who was introduced to her as West, but that he was not the defendant. On cross-examination she testified she was acquainted with the defendant for about a year, but did not notice him in the automobile. Then on redirect she was asked by the state if she had not stated to several persons, naming them, that she was introduced to the defendant on that occasion as West, and, over objections on behalf of defendant, answered that she had not; that what she told them was that she was introduced to one of the young men as West, but that it was not the defendant.
The state called another witness, one of the young men with the party on the occasion in question, who, after testifying that he had taken the prosecutrix out on several automobile rides, was asked if on any of such occasions the defendant was with him, and the witness answered that he did not recall any such time or occasion. Then he was asked by the state if he had not stated to a deputy sheriff that on the occasion in question the defendant was with him, and, over objections of the defendant, the witness answered that he had not; that he told the officer of being out with the prosecutrix, but not that the defendant was with him. He further was asked if he did not tell the officer that he introduced the defendant to the prosecutrix as West, and, over objections of the defendant, he answered that he had not.
Still, as part of its case in chief, the state called the officer, and, on questions propounded to him by the district attorney, the officer, over objections of the defendant, answered that the witness made such statements to him. And as part of its case in chief the state also called the persons to whom it was claimed that the prior witness, the young girl, made the statements that when she went to the automobile she was introduced to the defendant as West, and that he was in the front seat of the automobile, and, over objections of defendant, testified that the young girl had made such statements to them. *546
These rulings present the principal questions for review.
As a general proposition we think it may be said that the weight of authority is that, in the absence of a statute, a party may not impeach his own witness, and, if surprised by the testimony of a witness called by him, may, within the sound discretion of the court, be permitted to cross-examine the witness, put leading questions to him, refresh his recollection, and may even interrogate him as to prior statements inconsistent with his present testimony; but if the witness denies having made such inconsistent statements ordinarily may not call witnesses to show that they were made. Jones' Comm. Ev. vol. 5, §§ 553 to 855; 2 Elliott, Ev. § 985; 7 Ency. Ev. p. 23; 28 R.C.L. 644; notes to Murphy v. State, Ann Cas. 1914B, 1120. The reasons therefor are generally stated to be: That a party ought not to be allowed to discredit his own witness; that after having placed him on the stand as a witness of credit he is estopped from showing that he is not entitled to credit; the danger that the jury will consider the contradictory evidence not merely as such, and as affecting the credibility, but as substantive evidence of the facts so prior stated or declared, and in a sense permit the jury to have before it and consider heresay testimony; 1
the danger of collusion; and irrelevancy. The reasons are perhaps best stated in Hurley v. State, 21 N.E. 645,
The case of State v. Scott, 188 P. 860,
Here it was not sufficiently shown that the district attorney was even taken by surprise — by what the law terms surprise. True, he at the time asserted that he was surprised by the testimony; but, as disclosed by the record, about all that amounted to was that the witnesses did not testify as he had hoped or expected, or, as may be inferred, as he had been informed they would testify. Where a witness, prior to being called, states one thing to a litigant or to his counsel, and when called by him testifies to the contrary, or prior *549 thereto gave testimony at a preliminary or other hearing or proceeding, or made statements in an affidavit or other writing seen by the litigant or his counsel, at variance with his present testimony, such litigant or counsel calling the witness may well assert surprise. But not anything of that kind is shown. Merely because a litigant or his counsel calling 2 a witness may have been informed that the witness if called would testify to certain matters and on being so called did not so testify does not furnish ground upon which to base a claim of surprise. No claim is here made that the district attorney, in calling the witnesses was misled or deceived, or entrapped, by them or by the defendant. Nor was there anything made to appear that the witnesses even were hostile. The district attorney no doubt was informed — but he even did not state or claim he was — that the witnesses called by him, if called, would testify that the defendant was with the party at the time in question, and that the prosecutrix was introduced to him as West, and of course expected that they would so testify, but they did not do so. That is about all there is to it; and not anything is made to appear that the witnesses in such particular misled or deceived the district attorney. He no doubt was disappointed in the testimony, but that is not enough.
So, under the circumstances, we think he was not justified, over the defendant's objections, to even interrogate the witnesses as to any prior variant or inconsistent statements made by them, much less not justified in putting in the contradictory evidence. For this let the judgment of the court below be reversed and the cause remanded for a new trial. Such is the order.
GIDEON, C.J., and THURMAN, FRICK, and CHERRY, JJ., concur. *550