53 Mich. 355 | Mich. | 1884
This action was brought for the conversion of certain live-stock, farming implements, and other farm property which defendant, as sheriff of the county of Washtenaw, had taken from the possession of the plaintiff by virtue of writs of execution against Harvey M. Wheeler, the father of the plaintiff, and on a claim that it was the property of said Harvey. It was conceded that the property had mostly belonged to said Harvey, but the plaintiff claimed to have
On the trial the defendant had judgment, and the plaintiff brings error. A large number of exceptions are taken, some of which relate to the manner in which the trial was conducted by the circuit judge, and others to his rulings on points of law raised by counsel. It is complained that the course of the circuit judge was such as to render it impossible for the plaintiff to have a fair trial, or the unbiased judgment of the jury upon the facts; and certain remarks of the judge in the cour.se of the trial, as well as the whole charge, are incorporated in the bill of exceptions, to show that such was the fact.
It is very unusual to have exception taken on writ of •error to the manner and deportment of the trial judge in the ■conduct of the trial, and under ordinary circumstances a court of review would not scrutinize very closely his methods when no error in his rulings was alleged. Still, it is possible for a judge to deprive a party of a fair trial, even without intending to do so, by the manner in which he conducts the case, and by a plain exhibition to the jury of his own opinions in respect to the parties, ; or to their case; and when it is apparent that a fair trial has not been had, a court of review should give relief as soon for that cause as for any
In this ease we are satisfied the plaintiff has not had a fair trial. In saying this it is not necessary to impute to the judge any purpose to be a partisan in the case, or otherwise unfair. It is not likely he intended to try the case with less than his customary urbanity and courtesy; and when he brings before the jury, as he does in his charge, the familiar figure of the goddess of justice, with her scales nicely weighing and scrutinizing the evidence, it is to be assumed that he meant to be as impartial himself as he directed the jury to be. It is, nevertheless, possible for a judge, however correct his motives, to be unconsciously so disturbed by circumstances that should not affect him, as to do and say, in the excitement of a trial, something, the effect of which he would not at the time realize, and thereby accomplish a mischief which was not designed. Possibly, such circumstances may have existed in this case.
The plaintiff took the stand as his own witness, and gave evidence of the lease and sale, and of what he did in respect to the property afterwards. The evidence is not given in full, and what appears does not fully explain itself. Among the questions asked was: “Did you know anything about the Doran judgment?” Ansioer. “No, sir.” Q. “You did not know anything about that?” A. “No, sir.” Q. “There was $400 or $500 levied on the property that you never heard of?” A. “I never knew anything of it.” The counsel for the plaintiff then said: “ That is not fair. He said he did not know of it in 1878, but he did in 1880.” To this the counsel for the defendant replied: “ He has sworn he did not know of it at all.” The plaintiff’s counsel responded : “ You get him to swear that by putting your question in such a way.” Here it is seen that the plaintiff’s counsel is insisting that the witness understood the question to relate to the time of the purchase, and that it was unfair for defendant’s counsel to put questions which the witness would so understand, intending thereby to obtain answers which might be understood to relate to a subsequent time.
While the plaintiff was still upon the stand the defendant offered in evidence three certain chattel mortgages made by Harvey M. Wheeler. Plaintiff’s counsel objected to their reception as not proper on cross-examination of the witness, and also because they were immaterial; upon which the judge remarked: “I cannot stop to give reasons. It is plain enough to me that, while they are collateral papers, when it becomes important or necessary.in any manner to cross-examine a witness, then the party against whom a witness is called has a right to put in his hands a letter or document, or any thing on which he wishes to cross-examine, so that it shows a general bearing upon his testimony.” To this counsel for the plaintiff replied: “ The papers which he puts in the hands of the witness are not papers he is a party to at all, and are transactions between third parties.” The judge responded : “I see the object and purpo.se, and might as well disclose it here. They are now seeking to convince the jury that this witness is not fair and honest when he says he did not know- anything about his father’s debts, and they put this paper in evidence, which shows a certain state of facts on the face of it, and then are going to ask whether he ever knew anything about it. It has nothing to do with the actual transaction between the parties, but only to show
Immediately following this was the following question by defendant’s counsel: “ At the time you gave your father, or sold your father back, as you call it, a portion of this property mentioned in this bill of sale, for the purpose of enabling him to give a chattel mortgage to Louis Wheeler, how much did you say he allowed you for. that property ?” Thereupon Mr. Kinne, as counsel for the plaintiff, said : “Now, your honor, you say you do not wish us to interrupt the cross-examination : is it proper for me — and if it is not I will not do it — to object to a question when it assumes that a witness has made a statement which, according to my recollection, is not true?” To which the court replied : “Why, Mr. Kinne, your memory is good for nothing, or else yon are getting insane. Don’t you recollect that ho has sworn to it ?” Mr. Kinne responded: “ Yes; but not that he gave it for the purpose of enabling him to give a chattel mortgage to Louis. I object for the reason that it assumes he made it for .that purpose, and I say it was for nothing of that kind.” The Court. “ He has either now or on some other occasion sworn to that.”
If the only question that could arise upon this colloquy were one of the proper courtesy to be observed between
A little further on the following question was put to the plaintiff: “Tour father didn’t get any advantage of you in that sale, did he ? He did not get it for less than it was worth?” II3s answer was : “No ; I don’t think he wanted to take any advantage of me.” On which the judge said to the witness: “No matter what he wanted to do; just answer the question whether you think he did or not, and stop there. The question was not as to what he did want, and don’t you make your answers any more so.” This was a very sharp reprimand to the witness, and there was nothing in what he had said to call for it. He might have restricted his answer to the simple negative, but there was nothing perverse in his adding what he did, and nothing even improper.
Soon after this episode counsel for the plaintiff objected to certain evidence offered for the defense, as being irrelevant, when the judge, in overruling the objection, said that “nobody but the attorneys in the case fail to see what use may be made, and what turn some testimony may take.” This was severe upon the attorneys, but the judge should have remembered that even if their deficiencies were as great as his remark supposed, their clients had intrusted to
Complaint is made of the judge’s charge that it was an argument against the plaintiff, and the complaint is not without justice. Twice in the course of it the judge read to the jury the following passage from an opinion of this Court: “ The jury are under no obligation to believe the plaintiff’s statement, and unless it convinces their reason, they are entirely at liberty to reject it altogether. They must take the evidence with all the surroundings; and often other things which go to characterize a transaction are more convincing than the evidence of any single witness, especially if an interested witness.” It was quite proper to read this, or to give the substance of it in his instructions, but the repetition seems well calculated to impress upon the minds of the jury a caution to be observed, not as to the testimony of the witnesses in general, but only as to the testimony of this plaintiff, and to indicate an opinion on the part of the judge that the plaintiff’s evidence was particularly suspicious. An anecdote of the judge’s early life was given to illustrate how a witness may, by an inadvertent word, demonstrate his own falsehood ; and after what had taken place between the judge and the plaintiff on the stand, it would not be an unnatural inference on the part of the jury that the anecdote was intended to' intimate to them that in this case the plaintiff had in like manner disclosed his want of truth.
These things make it necessary that the case should go-back for a new trial. A few other things may be mentioned. The judge spoke of the lease as reserving a support to the plaintiff’s father; and this was commented upon as a badge of fraud. But there was no such reservation. The lease provided for the board and lodging of the father and his family as rent; and there was nothing apparently fraudulent or suspicious in this. The judge instructed the jury that, if the transaction between the plaintiff and his father was fraudulent, the officer had a right to take not only the property transferred to the plaintiff, but all the increase. The
Before the trial of the case the officer had sold the property at public auction. On the question of damages the-defendant proved this sale to limit the plaintiff’s recovery in case he succeeded, and the plaintiff gave evidence tending to-show that the property did not bring its full value. Upon this the judge charged that, if the jury should find that through the plaintiff’s fault the property did not bring its full value, he ought not to come now and complain that the-property did not bring as much as it might — as much as it was actually worth at the time of the sale.' This was error. The plaintiff was in no manner responsible for the sale, and unless he actively interfered to prevent the property bringing a fair value, he was chargeable with no fault in respect to it.
The judgment must be reversed with costs, and a new trial ordered.