Doe ex dem. Ingram v. Watkns, 18 N.C. 442, 1 Dev. & Bat. 442 (1836)

June 1836 · Supreme Court of North Carolina
18 N.C. 442, 1 Dev. & Bat. 442


To impeach the credibility of witness by proving that he swore differently as to a particular fact on a former ■ trial, it is not necessary that the impeaching witness should be able to state all that the impeached witness then deposed. It is sufficient if he is able to prove the repugnancy as to the particular fact, with regard to which it is alleged to exist.

The fact of a witness’s being interested in the matter in dispute, must be shown only in the mode in which other controverted facts are to be proved. Therefore the declarations of the witness not on oath, nor in the presence of the party against whom they are offered, with respect to his interest in the subject-matter of the suit, cannot be given in evidence.

The reception of improper testimony will not be a ground for a new trial, if the only effect of such testimony can be to remove or weaken improper testimony introduced on the other side. A judgment will not be reversed for inadvertencies or mistakes which did not and could not affect the rights of him who complains of them.

This was an action of ejectment, on the trial of which, at Anson, on the last Circuit, before his Honor Judge Norwood, it became important to establish the boundary *443of the grant under which the plaintiff’s lessor claimed. The defendant had introduced the deposition of one Joseph Colson, who stated that his father, under whom the defendants set up title to the land in dispute, had claimed a certain house, as being upon his land, but bad never lived in it; and the plaintiff, to discredit this witness, proposed to show that on a former trial between the same parties, he had sworn that his father claimed and occupied the house in question. The defendant’s counsel objected to the testimony thus offered, unless the witness by whdm it was proposed to be given, could undertake to state in substance the whole of the evidence given in by the impeachéd witness on the former trial, which he admitted he was unable to do. The Court overruled the objection, and the witness was examined as to that point.

The plaintiff then introduced another witness, one John Hough, to prove the line claimed by him. For the purpose of assailing the credibility of this witness before the jury, the defendants produced several witnesses, who testified to declarations of Hough, that, if the plaintiff recovered, he was to have half the land. To explain this, the plaintiff recalled Hough, who stated that his declarations had reference to another tract of land, whiclt he had entered, and which the plaintiff had assisted him in surveying. And in order to strengthen this witness’s testimony upon this point, the plaintiff called one Edwin Ingram to prove another and distinct conversation between Hough and the witness Ingram, in which Hough stated that he had discovered vacant land; and that he and the plaintiff, in consideration of the plaintiff’s services, were to divide it equally between them. To this evidence of the declarations, the defendant objected, but the Court received it, upon the ground that the plaintiff had a right to give the declarations of Hough as to what he had stated at a different time on the same subject, before the bringing, of the suit. A verdict was returned for the plaintiff, and the defendant appealed.

Mendenhall, for the plaintiff.

No counsel appeared for the defendant.

*444Gaston, Judge.

— The errors assigned in this case, are both founded on the alleged reception of improper evidence. (His Honor here stated the facts upon which the first objection was founded, and proceeded.) The Court overruled the objection, and we are of opinion, overruled it properly.

Upon the death of a witness who has been examined in a judicial proceeding,, such examination is admissible as secondary evidence in a subsequent trial between the same parties. Here it is required that the secondary evidence shall be full, because it is offered as a substitute. The testimony of the deceased witness should be placed J 4 1 before the new, as the law required it to be placed before the former triers. Both are entitled not only to the truth, but to the whole truth. The copy must be ascertained to he faithful, before it is admitted as a representative of the original. Besides, to receive an avowedly imperfect ^ •/ t account of what had been formerly testified in lieu of the f°rmer testimony itself, would be to encourage the party to offer partial instead of full secondary evidence. He wooU be interested to seek'out such witnesses as remembered only those portions of the former testimony, as made in his favour. But in this case, it was the purpose of the plaintiff to bring the former testimony of the witness to the notice of the jury, not as evidence, not as a guide to truth, but as conflicting with the testimony given by him on the present trial, and thereby satisfy them that the witness was not a man of veracity, was undeserving of credit, and that his testimony should be disregarded. To impeach a witness’s credit, one clear and advised contradiction in this respect is sufficient, since it is the rule of law, as of good sense, that he who falsifies himself in one point, is undeserving of belief in all ;falsus in unofalsus in omnibus. No more, therefore, of the witness’s former declaration is necessary to be heard) than what is charged to be repugnant to his present statement. In all other respects, where a repugnance is not shown, the presumption .is, that the respective statements were consistent. It is proper to require of the impeaching witness, that he should know and state all that the impeached witness said in relation to the matter in which the repugnancy is alleged; but it seems *445to us, that no more can be reasonably demanded. . Even on an indictment for perjury, it is not necessary for the prosecution to prove all the evidence given by the defendant on the trial wherein he testified ; but it is sufficient to prove all the evidence given by the defendant in relation to the fact on which the perjury is assigned. Rex v. v. Rowley, Ry. & Moody’s Rep. 299; 21 Eng. Com. Law Rep. 444. It might be questioned in the case before us whether, giving entire faith to the impeaching testimony, it established the repugnancy which it was offered to show; but it was not so manifestly irrelevant for that purpose, as to justify its rejection. It was, therefore properly submitted to the jury.

As for the other exception which is relied on as a , „ . .... . , , , ground tor reversing this judgment, although we have no difficulty in saying, that a rejection of the testimony excepted to would not have been error, yet we are of opinion, that its admission is not an error of which the defendant has a right to complain. The whole inquiry as to the declarations of the witness Hough, whether he had or had not an interest in the matter in dispute, seems to us i i • , -r . „ . to have been irregular. It was, indeed, competent for the defendant to show, with the view of impairing the weight of that witness’s testimony, that he had an interest in the controversy; but this fact ought to have been shown by competent evidence. The fact of interest might have been established by the witness’s own oath — or by the testimony of other witnesses — or by the admission of the plaintiff; but it could be rightfully shown only in the mode in which other controverted facts between the litigant parties are allowed to be shown. The declarations of a third person, whether a witness, or not a witness, made not on oath, nor in the presence of the party against whom they are offered, cannot be brought forward by either plaintiff or defendant as evidence of the truth of the matters so declared. The first great safeguard which the law provides for the ascertainment of truth, consists in requiring all evidence of facts to be given in under the sanction of an oath. We find no exception, when the fact to be shown is the interest of a witness in the subject of *446dispute. Now this improper inquiry was commenced by the defendant, and the irregularity complained of, did not extend to nor affect any other inquiry. If the testimony to which he excepts had any weight with the jury, it could have operated only to remove or weaken the impression produced by the testimony which the defendant had given of the witness’s declarations. But this impression itself was altogether improper. The plaintiff might have required of the Court to instruct the jury to disregard those declarations altogether — to strike them out of the evidence. No injury was done to the defendant by the reception of the testimony excepted to; and a judgment will not be reversed for inadvertencies or mistakes which did not and could not affect the rights of him who complains of them. It is the opinion of this Court, that She judgment of the Superior Court should be affirmed*

Per Curiam. Judgment affirmed.