2 Mont. 314 | Mont. | 1875
The principal assignment of error in this case is the rejection, by the court, of the testimony of Worthington, who was called by the defendants for the purpose of impeaching-the witness for the Territory, McDougal.
Counsel for the defense introduced the witness, Worthington, and asked him the following questions:
1. “ Are you acquainted with the general reputation of the witness, McDougal, in the neighborhood where he lives, for truth and veracity ? ” Ans. “ I am.”
2. “ Is that reputation good or bad ? ”
This question was objected to by the prosecution, and the objection sustained.
3. “ From what you know of his general reputation for truth and veracity, in the neighborhood in which he lives, would you believe him under oath ? ”
This question was objected to by the prosecution, and the court sustained the objection, and the defendants excepted. When the first question was' answered, the prosecution claimed the privilege of cross-examining Worthington, for the purpose of showing that he did not have the knowledge sufficient of- the general character of McDougal, in the neighborhood where he lived, to entitle him to testify as to his general character for truth and veracity. This was granted, and upon this cross-examination the witness said: “ That there were about seventy-five people residing.in the vicinity of McDougal who would be competent to testify in any case; that he had never heard but thirteen out of that number even speak of the character of the witness for truth and veracity; that a Mr. Belcher was one of them; ” and “ that he said, in his own house, in July, 1872, that McDougal was a bad man, a drunkard and a thief.” “ This was when I had McDougal arrested for robbery.”
The court held that Worthington had not shown sufficient knowledge of the reputation of McDougal, for truth and veracity, to entitle him to testify concerning the same.
The general rule in the text-books, that treat upon the impeachment of a witness whose reputation for truth and veracity is in question, is this: The witness must be asked: “ Do you know the general reputation of the witness, for truth and veracity, in the neighborhood where he lives ? ” If the answer be in the affirmative to this question, and not otherwise, then the further question may be asked: “ What is that reputation ? ” The English textbooks say it is proper to ask the wifeless, if he says this reputation is bad: “ From what you know of this reputation, would you believe the witness under oath % ” Some American authorities sustain the same rule. Although the question does not seem to have been considered much, whether the party, whose witness is sought to be impeached, should have the right to cross-examine the impeaching witness, as to his knowledge of the general reputation of the witness whose character for truth and veracity is questioned, it would seem that the right to cross-examine an impeaching witness should be as completely recognized as the right to cross-examine any other witness. This has been the general practice of the courts in this Territory. Whether, if it should appear from the cross-examination of the impeaching witness that he has no knowledge of the general reputation, for truth and veracity, of a witness that is sought to be impeached, the court should have the power to exclude his evidence, is a question upon which I have seen no authority. Is the fact, as to whether a witness has sufficient knowledge of the general reputation of another witness, for truth and veracity, for the court or jury ? If a witness answers that he has no knowledge of the general reputation of another witness, for truth and veracity, it would be wrong to allow him to testify to what that reputation was, and the court
There are some analogies between the two classes of witnesses. When an expert is introduced, no one would contend that it was the province of the court to determine whether he had sufficient knowledge of the subject upon which he was called to testify to permit his evidence to go to the jury. If a physician should be called upon to testify to a medical point, it would not be the province of the court to determine whether he had sufficient knowledge of his profession to permit him to testify in regard thereto. The witness may be cross-examined as to his medical knowledge, and the jury must judge of his capacity to testify. If the witness should say that he was not a physician and never practiced that profession, he ought not to be allowed to testify to such a point.
We find the witness, Worthington, did say, “that he was acquainted with the general reputation of the witness, McDougal, for truth and veracity in the neighborhood where he lived, and that he had heard some thirteen persons, neighbors of the said McDougal, speak of his reputation for truth and veracity; that there were some seventyffive persons competent to testify in any case, who lived in the neighborhood of McDougal.” The court, having no power to determine whether a man has sufficient knowledge of a witness’ general reputation for truth and veracity where he has some, erred in excluding the testimony of Worth-
The second exception is to the following part of the judge’s charge to the jury: “ I further say to you, gentlemen, as a further matter of law for your application to the proof, that if you should find from the proof that although the defendant William Barnes did not, with the defendant Paul, kill the ox in question, but that he did join with A. W. McDougal in so doing, knowing the same was not the property of McDougal, and shall further find that Addison Myers was the owner thereof, then you should find the defendant Barnes guilty, although he may not have then known who was the real owner of the ox in question.” There can be no doubt that, taken by itself, this part of the charge is wrong. It leaves out of view the animus fura/ndi. To constitute larceny, the party committing the offense must have the view of converting the property to his own use permanently, or depriving the owner of his property permanently. The facts specified in the above charge require, in addition thereto, the felonious intent. Either Barnes or McDougal, of which Barnes had knowledge, must have intended to make this ox their property, or deprive the owner of the same permanently. It is true that in other parts of the charge the court sufficiently defines the crime of la/rcewy, and specifies the necessary ingredients thereof. But
The rest of the charge, save as to the verdict the jury might bring in, refers to the facts that appear against Paul and Barnes jointly. There was some evidence against Barnes that does not bear with equal force against Paul. "While admitting that a charge to a jury should be taken together, and, if it states the law correctly, there is no error, I hold that, as to the facts specified in this part of the charge, the charge taken together does not state the law, and hence, that here was an error committed by the court.
The last point I shall consider is the refusal of the court to admit the testimony of the wife of Paul on behalf of Barnes. A wife, where her husband and another are jointly indicted, cannot testify on behalf of the other party, if her testimony would have a tendency to influence the case against her husband. The statute has not changed this rule. It appears that Paul and Barnes were tried together, and that the testimony of Mrs. Paul would contradict an important point in the evidence of McDou-gal, and tend to discredit the testimony he had given against her husband, Paul, as well as that against Barnes. I find no error in the exclusion of this evidence on the part of the court.
The judgment is reversed.
Judgment reversed.