Stevens v. Blake

5 Kan. App. 124 | Kan. Ct. App. | 1897

1,2 Refusal of orders relative to inspection and use of note sued on by opposite party not error, when.

Wells, J.

As to the first and second assignments of error, we think the court went to the full limit of its authority in relation to the note in controversy ; and that for it to have done as the defendants requested would have been not only an error, but a gross wrong. We know of no author- . . _ _ ity or reason for such an order as was J demanded. The third assignment of error is, that the court refused to strike out and exclude from the jury the evidence of F. E. Cornell. This witness testified that, about May, 1883, he was working for the plaintiff, when Henry Stevens was visiting there some three days; that, during said visit, witness came in from the barn and saw on the table a piece of paper and some money; that Stevens signed the paper, as did also Mr. Hickman and Mrs. Blake, and Mr. Stevens counted over the money and put it into his pocket; and that Mr. Blake picked up the paper, and had it in his hand when the witness went out. During his examination,. a paper was handed the witness which he said looked like the paper. Other witnesses afterward testified that the paper shown this witness was the note in controversy in this case. We think the evidence was proper.

The next alleged error is the court’s refusal to admit in evidence the letter of Emma Blake, dated June 23, 1889. There is no contention that this letter contains anything in relation to the subject in controversy in this case, but, on the contrary, the contention is that it should have been admitted for that very reason; — presumably as the foundation for an argument that, if such a note as the one in suit had been in existence, it would have been natural for the mothe r of the minor, the writer of the letter, to have said something about it when writing about her father to her mother and brother. We think the evidence was properly excluded.

The other allegations of error, except the last, are in relation to the admission of evidence in rebuttal of that offered by the defendants tending to impeach the reputation of Emma Blake for. truth and veracity. The plaintiff put upon the stand twelve witnesses who testified that they had known Emma Blake for different periods, ranging from seven to twenty-five years, and were acquainted with the people in her vicinity.. Seven of these witnesses testified -that they knew her reputation for truth and veracity and that it was good, and the remaining five testified, substantially, that it was good because they had never heard it questioned. On cross-examination, most of the witnesses admitted that they had never heard her reputation for truth and veracity talked about; and it is claimed that, for this reason, the evidence should have been excluded.

We do not think that, in rebutting the attempted impeachment of a witness, the same line of questions or strictness of rules should be insisted on as is required on the affirmative of the issue. If, out of a thousand acquaintances, ten should swear that the reputation of a witness was bad, and the remaining nine hundred and ninety should swear that, although intimately acquainted with her neighbors and associates, they had never heard the witness’s reputation questioned, we hardly think a jury would be authorized to ignore the latter evidence.' The difficuly in deciding this question is in properly comprehending what is involved in an attempt to impeach a witness. The question is not whether his reputation is good. This is presumed ; and the duty does not devolve upon those producing him to prove a good reputation. But when his reputation is questioned by an attempted impeachment, they may prove that he has not a bad reputation; and if he has no reputation at all upon that subject,- the attempt is as fully defeated as if a good one were proved. With this principle recognized, all is clear. The law presumes that witnesses are truthful and honest and worthy of belief; but if in the community where they reside they have established a reputation for untruthfulness, this fact may be shown in evidence to impeach their credibility. To defeat this attempted impeachment of a witness, it is only necessary to show that the impeaching testimony is not true; that he has not a bad reputation as to truth and veracity; and this can be proved as conclusively by showing that his reputation in this respect has never been questioned, as by proving that it is good. We see no reason why the principle applied by Chief Justice Horton, in The State v. Bryan (34 Kan. 72), to the question of a woman’s reputation for chastity, should not be applied to the question of reputation for truth and veracity. He says :

“A woman’s reputation for chastity ‘is what the people of her acquaintance generally say of her in this regard; that is, the general credit.for chastity which she bears among her neighbors and acquaintances.’ If a woman’s neighbors and acquaintances say nothing of her, or do not question her character for chastity, then her reputation in this regard should be considered good. ‘ The best character is generally that which is the least talked about.’ Therefore, the negative evidence of a witness ‘ that he never heard anything against the character of the woman for chastity,’ on whose behalf he had been called; that is, ‘ that he never heard her conduct criticised, condemned, or even talked about,’ is admissible upon the trial, where the reputation of the woman for chastity is in question, and is strong evidence of the woman’s good repute.”

3. Reputation for veracity , defended by evidence that it had not been questioned.

These witnesses each testified to an acquaintance, in the vicinity where the witness sought ° 0 to impeached resided, sufficient to enable them to know her reputation for truth. and veracity if she had established a bad reputation; and the evidence was properly admitted.

This leaves but the last assignment of error to be examined, -which, is the alleged misconduct of the attorney for the prevailing party in the closing argument of the case. The language imputed to him and complained of as improper was as follows :

“Any statement or admission made by George H. Blake, after the time the note sued on is claimed to have been given, to the effect that he did not think that the estate of Henry Stevens, deceased, owed anybody a dollar, and any statement made by George H. Blake that, ‘ I am sure it does not owe us anything,’ are not binding on the minor, and cannot affect the rights of the plaintiff in this.action.”

No objection was made to this language at the time, nor for several days afterward ; and while there may be cases of gross abuse of the privileges of an attorney which would warrant a court in setting aside a verdict, we do not think this is one. The statement may or may not have been strictly correct, but if the plaintiffs in error thought it was not so, and that it was prejudicial to them, they should have challenged it at the time. The State v. Nusbaum, 52 Kan. 52, and cases there cited.

The judgment is affirmed.