4 Ind. 171 | Ind. | 1853
Replevin by Barkhurst against Travis for a bay mare. Pleas, the general issue, and property in the defendant. Issues of fact. Jury trial, and verdict for the plaintiff. Motion for a new trial overruled, and judgment on the verdict.
It is claimed that said judgment should be reversed:
1. Because of the refusal of the Circuit Court to grant a new trial on account of the defendant having been surprised by the testimony of certain of the plaintiff’s witnesses. As a general rule, such surprise is not a sufficient ground for a new trial; and we see nothing in the record satisfying us that the Court erred in the present case in this particular. See Graeter v. Fowler, 7 Blackf. 554;—Cummins v. Walden, 4 id. 307;—and 2 Swan’s Pr. 924, where the law can be found on this point.
2. Because of the refusal of the Circuit Court to permit the defendant to give certain evidence.
The mare replevied by the plaintiff, L. Barkhurst, got
Had it been proved that Bugher was acting in the trade as the agent of said L. Barkhurst, then his declarations “ at the very time of the contract,” would have been admissible in evidence as a part of the res gestae. Without such proof, his declarations would have been mere hearsay. Story on Agency, p. 153.—Caldwell v. Williams, 1 Ind. R. 405.—Bland v. The State, 2 id. 608. If a man steal a horse and sell it, his declarations, even while having the property in possession, cannot, certainly, be given in evidence in bar of the right of the real owner. See Collis v. Bowen, 8 Blackf. 262.
3, Because the Court gave an erroneous instruction to the jury.
The defendant introduced testimony, on the trial, to impeach one of the plaintiff’s witnesses, viz., Nathan Barkhurst. Several witnesses swore that his character was bad, and that they could not believe him on oath. The first one testifying to this effect, and whose testimony was given just before an adjournment of the Court, was Charles Vanhorn. He swore that he had “ known witness Barkhurst a long time; was acquainted with his character for truth and veracity; it was bad, and, from that character, he would not be willing to believe him on oath; but he had not lived near him for three or four years, and did not know what his character for truth and veracity was at that time, in the neighborhood where he was living.”
On the adjournment of the Court, said Barkhurst assaulted and beat witness Vanhorn, for giving the testimony above set out, and, in his closing address to the jury trying the cause, the counsel for the plaintiff was permitted to use the fact of such beating as an argument to show that said Barkurst was a credible witness; and, in charging the jury, the Court stated “ that what had been
The latter part of this instruction was impertinent and should not have been given. It was, also, calculated to influence and mislead the jury. It did not fairly represent the state of the case. It assumes, (for we must consider the instruction as applying to the present case), that Vanhorn had made a charge, and a false one, against Barkhurst, which justified him in inflicting personal violence upon the former, and left the impression on the minds of the jury that having done so, his testimony was entitled to credit, notwithstanding it had been impeached. But Vanhorn had made no specific charge against Barkhurst. He had testified to nothing but his general character in the community, and that, from that character, he could not believe him on oath; and we think the more reasonable inference from the fact of Barkhurst assaulting the first witness that thus testified is, that he was conscious of the truth of the testimony, and hoped, through the fear of personal violence, to deter others from confirming it.
The influence of instructions like the foregoing, would be pernicious, tending to turn courts of justice into scenes of violence; and they should never be given.
The judgment is reversed with costs. Cause remanded, &c.