Christopher Goodhand vs. Vincent Benton, Jr., 6 G. & J. 481

Dorsey, J., delivered the opinion of the court. The question which arises on the second bill of exceptions is one which has been so long settled by the universal practice of courts of justice; is so deeply rooted in the plainest principles of reason, justice, and common sense, that it was a matter of some surprise to find it made the subject of grave discussion in this State, in the appellate tribunal of last resort.

It is, whether a witness who has given testimony of the occurrence of any event, at a particular period, the time of which is material, can be permitted to strengthen his evidence, by proving that it happened simultaneously with, or before, or after a particular epoch or transaction, the date of which can be proved with greater certainty. Of the legality and propriety of such proof, we cannot be induced to entertain the shadow of a doubt. In the refusal and instruction, therefore, given by the county court in the second bill of exceptions, we entirely concur.

The first bill of exceptions presents a very different enquiry. It has been contended by the appellant’s counsel, that whether the subject matter of a cross examination has any relevancy or bearing upon the issues made up in the cause, or has any immediate connection with, or pertinence to, any material testimony offered in relation to such issues, is wholly immaterial.

That in a cross examination for the purpose of impeaching the testimony of a witness, or involving him in contradictions, or shewing his ignorance, or the inaccuracy of his memory, he may be interrogated as to any thing and every thing, without reference to its relevancy to the issues, which by the pleadings in the cause have been submitted to the jury. To such an unreasonable, pernicious, and latiludinarian principle, this court can never yield its sanction.

The evidence offered under a cross examination, as well as an examination in chief, must be pertinent to the issue, or have some connection with and immediate influence on material testimony adduced on the trial. The unjust and mischievous consequences that would result from the opposite doctrine, are too apparent to be for a moment overlooked. Trials might be rendered almost interminable; a single witness might be compelled to endure a week’s examination, fie might not only be examined as to every thing he had ever seen, heard or thought of, but as to every thing that had entered the imagination of man.

Witnesses without number might be produced to sustain and impeach his testimony; and the jury, instead of trying the issues joined in the cause, might be required to determíne a thousand independent, unconnected issues, or matters of fact in which they might be involved by surprise, in the progress of the cause. The confusion and injustice, both to witnesses and parties, resulting from such a course of proceeding, are incalculable.

No witness, however fortified by purity of character and rectitude of intention, would willingly enter a court of justice, where he might be called upon to unfold to the public ear every transaction and thought of his life; and then leave his testimony impeached and discredited, by proof, of which he could have no previous knowledge or anticipation, and consequently had no means of explaining or refuting.

No suitor could go safely to trial, let the respectability of his witnesses for veracity and integrity be what it might — such being the imperfection of all knowledge of facts derived through the medium of our senses,— such the frailty of memory, that perhaps there lives not a human being who could pass through such an ordeal unscathed — ’whose statements upon some subject or other might not be contradicted, or assailed by the testimony of other witnesses.

The counsel for the appellant has insisted, in an argument of great length, that it is the province of the jury to judge of the credit due to the witnesses, by the degree of intelligence and accuracy of memory evinced by them in their examination; and that their means of forming such judgment are wholly inadequate, if the latitude of cross examination be less extensive than that for which he has contended.

The extent to which a jury are required to form an estimate of the intellects and memory of witnesses from their examination in court, is confined to a due appreciation of their testimony, elicited by interrogatories within the limits we have prescribed. If it be desirable further to enlighten the jury upon such subjects, it must be done by a resort to other means than a mere cross examination.

Having disposed of the question, as far as regards the abstract power of the appellant, in the cross examination of the witness, let us now apply the principles of our decision to test the accuracy of the court’s opinion in the first bill of exceptions. The witness, Thomas Thomas, in his examination in chief, had testified that he knew Rhoda, the mother of Bill, in 1817, when she lived with George B. Burgess ; that his father at the time of his death lived on the farm of Mary Burgess, who was a lunatic, and for whom George B. Burgess was trustee; that the witness, in December, 1817, went to the house of George B.

Burgess, who then resided in Church Hill, to settle with Burgess for the rent of the farm, and that while there, he was carried by Burgess into the kitchen, where he saw Rhoda’s child, then an infant, of but a few weeks old ; that he took out letters of administration on the estate of his father, James Thomas, in June 1817, and that he did not go to settle with Burgess until after he had taken out letters.

And the witness, on being cross examined, stated that he did not apply to Burgess to know the state of his father’s accounts before the date of his letters: that he knew the state of his accounts ; that his father was indebted to Burgess for a store account, and for the hire of a negro, and for a store; besides a balance of the rent. That the rent was not settled between him and Burgess ; they having differed, the subject was referred, and was before arbitrators two years or more; and that he had never charged his father’s estate for the rent, in any account passed by him with the Orphans court.

The plaintiff then produced the letters of administration, dated June 1st, 1817. All this testimony, with the other proof set forth in the bill of exceptions, being before the jury, without objection by either party, the defendant offered to read in evidence the account passed by the witness, and the co-administratrix of his father, before the Orphans court in June, 1818, containing among other credits the following: “for cash due from said deceased to George B.

Burgess, trustee of Mary Burgess, and paid by these accountants, as per account proved, and receipt allowed §226 74:” declaring the object of the testimony then offered, to be, to contradict Thomas Thomas, and impeach the accuracy of his recollection in regard to the passing an account for rent, and as to the time expended in investigating the claim before arbitrators ; but the court refused to permit the said accounts being laid before the jury for the purpose for which the same was offered. As to the correctness of this refusal, we fully concur in opinion with the county court.

The testimony which had been offered on the cross examination, unless subsequently made competent by the production of the account for a legitimate purpose, was wholly irrelevant and immaterial to the issues in the cause.

If the purpose for which the account was offered, was effectuated — if the facts which it was designed to prove were established or admitted — the evidence given on the cross examination was still left wholly irrelevant, impertinent to the issues, and every material fact proved in relation to them ; and being so, no testimony contradictory thereof was admissible to impeach the credit of the witness, or shew the inaccuracy of his memory. For the purpose, then, for which the account was offered in evidence, we think it clearly inadmissible, and approve of its rejection as made by the county court.

As authorities bearing on some of the views we have expressed in reference to the first bill of exceptions, see Spencely, qui tam, &c. vs Dr. Willott. 7 East, 108. Odiorne vs. Winkley. 2 Gallis Rep. 51. 1 Stark. Ev. 134. 1 Phil. Ev. 227. 2 Stark. Ev. 380, 381. In the court’s rejection of the account, they do not declare it admissible evidence for no purpose, but simply that it was inadmissible for the purpose for which it was offered. It was still open to the appellant to offer it as evidence for any other purpose, for which it was legally .competent.

Had the defendant have offered the account in evidence generally, without,specifying his object, or had stated it to be to contradict, or discredit, the testimony of the witness given on his examination in chief, in relation to his statement of having seen Rhoda’s child, a few weeks old in December, 1817, upon the principles settled by this court in Davis, et al. vs. Barney. 2 Gill and Johns. 382. Davis vs. Davis, et al. 7 Harr. and Johns. 36; and Morris vs. Brickley and Caldwell, 1 Harr. and Gill, 107; there could not have been a doubt as to its legal admissibility.

Connecting it with the proof offered on the cross examination, it was testimony legally sufficient to have been submitted to the consideration of the jury. It did tend (in the judicial sense of the word) as used in Davis, et al. vs. Barney, to prove the issue, or in other words, did so contribute to prove it, as to warrant the jury, without ranging in the wide field of irrational conjectures or extravagant improbabilities, to have made it the basis of a verdict for the appellant.

The witness, on his examination in chief, had proved that in December, 1817, (after the granting of his letters of administration in the June preceding) he had called on George B. Burgess to settle the rent, and saw there Rhoda's child, Bill, (the negro in controversy) then but a few weeks old; and on his cross examination he deposed, that the rent was not settled between him and Burgess; but that having differed as to the rent, it was referred to arbitrators, and remained before them two years or more.

The account passed by the Orphans court is evidence, that the witness paid the rent anterior to the 18th of June, 1818. All the statements of the witness, therefore, cannot possibly be true. A part of the testimony elicited by the cross-examination was in direct collision with that given on the examination in chief-..both could not stand together. It could not be true, that the controversy about the rent was two or more years before the arbitrators, if the reference had been made as stated by the witness. Which statement was true, the jury only was competent to decide.

Should they have believed that the subject of the rent was before the arbitrators two or more years, it was within the scope of their powers to conclude that the reference, though continued afterwards, commenced in the life-time of James Thomas; and that the witness was mistaken in dating his visit to George B. Burgess’ house in December, 1817; that in truth it occurred in December, 1816; and such a conclusion is by no means irrational or improbable, when viewed as it must have been by the jury, in connection with all the evidence given in the cause.

Had the jury believed that the witness had fallen into such a mistake, his testimony, instead of sustaining the plaintiff below, would have strongly supported the defendant’s defence. Concurring in opinion with the county court, on both bills of exception, we affirm the judgment. JUDGMENT AFFIRMED.