8 Me. 42 | Me. | 1831
delivered the opinion of the Court, at the ensuring July-term, in Waldo.
In this case, after a long and laborious trial, the jury, by therr verdict, have' pronounced that the testator at the time of making his will, was of a sound and disposing mind. The issue having been thus found against the appellant, his counsel have reserved for the consideration and decision of the court, numerous questions arising out of the proceedings at the trial and the rulings and instructions of the presiding Judge ; all of which we propose to consider in the order in which they have been presented in the argument by the respective counsel.
The first objection is founded in the proceedings on the part of the Judge in empannelling the jury. It appears that according to the course of business in court, the cause was in order properly to be tried by the first jury ; the foreman of which having been excused on account of his having formed and expressed an opinion, there being but one supernumerary juror, he was called on to supply the place of the excused juror ; and being objected to by the appellee, and inquired of, though not on oath, he stated that he had formed no opinion. But as strong- objections were still urged against him by the appellee, he was set aside by the Judge, who expressed a desire to have the cause decided by an unobjectionable jury; and thereupon one of the socond jury was called to sit in the trial of the cause; the appellant at the same time insisting that the supernumerary ought to have formed one of the panel. It appears also that one of the jurors, when called, was objected to by the appellant, and he was also set aside ; no objection thereto having been made. Is the order of the Judge, setting aside the supernumerary in the circumstances above mentioned, a legal ground j^r setting aside the verdict? The 9 th section of the act of 1821, c£. 84, re
The second objection is that the order of the Judge was incorrect, ■by which the counsel for the appellant,were permitted to open and close the cause. The counsel admits'that the authorities are against him. They certainly are so; and we are satisfied the course of proceeding under the direction of the Judge was perfectly correct and proper in principle, as well as in accordance with the cas.es cited by the counsel for the appellee.
The third objection is that the ruling of the Judge was incorrect in permitting the questions to be answered, which were proposed to Doctor Greene and Doctor Bates; inasmuch as the answers only imported the expression of their opinions as to the capacity of the testator to make a will; and also in admitting testimony on the part of the appellee, contradicting those answers. — Starkie, in his learn
We have thus presented a summary of the law on the particular subject under consideration, and it now remains for us to inquire how far the facts on which the objection is founded bring it within the range and influence of the rule above stated. In the course of the trial all evidence of mere opinion as to the sanity of the testator was excluded, except that of the subscribing witnesses ; and therefore, it has been contended that as Doctor Greene and Doctor Bates
The fourth objection seems to be placed on an unstable foundation. The authorities cited clearly establish the principle that an impeached or contradicted witness cannot be supported by the party who called him, by proof of his declarations made at other times and to other persons, coinciding with his testimony. Such being the case, we do not in the present instance, see any reasons for coilsidoring it as removed from the influence of the general principle. Indeed it would seem objectionable on another ground, namely, that such declarations were mere expressions of the opinions of those witnesses as medical men; all which kind of evidence was exclu
The fifth objection is that the declarations of the appellant should not have been admitted. They were made two or three weeks before the testator’s death, and were distinctly expressive of his opinion of the testator’s sanity at that time; and, admitting that a witness cannot be allowed to testify his opinion upon a question of sanity, as contended, does it follow that a person may not express such an opinion in conversation and afterwards, when such person has become a party on record and a party in interest, his opinion, as before expressed, may not be proved against him ? And though his rights in a case like this, are not to be impaired or affected by the opinion of others, does it follow that those rights may not be impaired or affected by his own opinion ? By law the confessions of a party may always be given in evidence against him and his interest, though not thereby to defeat or impair the rights of others claiming 'under him. In the case before us, there are no such rights. The case of Phelps v. Hartwell is relied on. The facts of that case are very uncertain as to the declarations offered to be proved. It does not appear when they were made, or on what they were founded. They might have been made months before, or months after the death of the testator. Indeed the facts are so loosely reported that the case cannot be relied on. Besides, the court were divided in opinion, and that opinion was given in the hurry of a jury trial, without examination or time for any. On the whole we cannot sustain this objection.
The sixth objection is that certain books on medical subjects, mentioned in the report, and alleged to be of high reputation, when offered as evidence, were improperly excluded. It was admitted in argument that there seemed to be no authorities having any direct bearing on the point. The books mentioned in some of the authorities, as admissible in evidence, are of a totally different character ; and they are only exceptions from the general rule which is unquestioned. In the first place, those medical books contain only opinions or facts, stated by their respective authors. They do not come into court, as all other evidence must, either by consent or
The seventh objection is that John Jones’s letters were improperly excluded. This has been but little relied upon, and we do not perceive how they could have had any influence in deciding the question as to the testator’s sanity. They contained the more declarations of a crazy man.
The eighth objection is that the answer or declaration of Fletcher to Spaulding, while the appellee was with them in his store, ought to havo been admitted. Had the declaration in question been made by the appellee himself, it would have been admissible for the same reason which we have given in our answer to the fifth objection ; and it is contended that upon well known principles it should have been admitted, because spoken in the appellee’s presence. On this point there is some uncertainty in the facts reported. The appellee was present in the store; but whether he heard the excluded declaration is not certainly known to us. It is evident that he heard a part of Fletcher’s reply to Spaulding, because he echoed the
The ninth objection relates to the instruction of the Judge to the jury, so far as it had reference to the testimony of Doctor Greene. On examination of this, it appears that the only instruction given them was, that “ being in the case it would be taken into consideration by them, in connexion with the other testimony.” Surely
The tenth and last objection urged, is that the Judge erred in not giving to the jury the explicit instructions which were requested by the appellant’s counsel. The general answer to this objection reposes on the principle that the question of sanity is of such a character as to render it highly proper for the consideration and decision of that tribunal'; and such was the opinion of the appellant before the commencement of tho trial. By our statute on this subject, the
From the proceedings which we have witnessed since the cause was removed into this court for final decision, we are satisfied that there was a reasonable ground for prosecuting the appeal 5 and, in view of all the circumstances of the case, we do not allow costs to the appellee.