Conrad v. Griffey (57 U.S. 38)

THIS case was brought up by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

It was before this court at December term, 1850, and is reported in 11 Howard, 480.

In order to give a clear idea of the point now brought up for decision, it may be necessary to remind the reader of some of the circumstances of that case.

Griffey was a builder of steam-engines, in Cincinnati, and made a contract with Conrad, a sugar planter, in Louisiana, to put up an engine upon his plantation for a certain sum. Disputes having arisen upon the subject, Griffey brought his action against Conrad to recover the amount claimed to be due.

Upon the trial, in 1849, the testimony of Leonard N. Nutz, taken under a commission, was given in evidence. He was the engineer who was sent by Griffey to erect and work the machine. The deposition was taken on the 1st April, 1847. This evidence being in favor of Griffey, the counsel for Conrad offered the depositions of three persons to contradict the evidence of Nutz. Griffey then produced, as rebutting evidence, a letter written by Nutz to him, under date of April 3, 1846, which was admitted by the court below, and the propriety of which admission was the point brought before this court in 11 Howard. This court having decided that the letter ought not to have been received in evidence, the cause was remanded under an order to award a venire facias de novo.

Before the cause come on again for trial, Griffey took the testimony of Nutz again under a commission, on the 28th of June, 1852, when the following proceedings were had, and bill of exceptions taken.

Be it known, that on the trial of this cause, the plaintiff having read in evidence the deposition of Leonard N. Nutz, taken under commission on the 28th June, 1852, and filed on the 9th July, 1852, the defendant then offered in evidence a letter of Leonard N. Nutz, dated at New Albany, on the 3d April, 1846, with an affidavit annexed by said Nutz of the same date, all addressed to the plaintiff in this cause; and as preliminary proof to the introduction of said letter, the defendant adduced the bill of exceptions signed upon a former trial of this cause, and filed on the 23d February, 1849, and the indorsement of the clerk upon said letter of its being filed, showing that said letter had been produced by the plaintiff in said former trial, and read by his counsel in evidence as the letter of said Nutz in support of a former deposition of the same witness. And the said letter and affidavit were offered by said defendant to contradict and discredit the deposition of said witness taken on the said 28th of June, 1852; but upon objection of counsel for the plaintiff that the said witness had not been cross-examined in reference to the writing of said letter, or allowed an opportunity of explaining the same, and that upon the former trial the counsel for defendant had objected to the same document as evidence, (and the objection had been sustained by the Supreme Court of the United States,) the court sustained by said objections, and refused to allow the said letter and affidavit annexed to be read in evidence; to which ruling the defendant takes this bill of exceptions, and prays that the interrogatories and answers of said Nutz, taken on said 28th June, 1852, the said letter and affidavit annexed, of date the 3d April, 1846, with the indorsement of the clerk of filing the same, and the bill of exceptions filed on the 23d February, 1849, be all taken and deemed as a part of this bill of exceptions, and copied therewith accordingly.

THEO. H. McCALEB, U.S. Judge. [SEAL.]

Upon this exception, the case came up again to this court.

It was argued by Mr. Benjamin, for the plaintiff in error, and by Mr. Gilbert, for the defendant in error.

Mr. Benjamin, for plaintiff in error.

From this bill of exceptions, it appears that the defendant in error, who was plaintiff in the cause below, offered in support of his case the testimony of Leonard N. Nutz, taken in St. Louis, on the 18th June, 1852, under a commission issued by the Circuit Court on the 5th of the same month. This testimony is found at p. 14 of the record.

After the testimony of Nutz had been read, the defendant offered in evidence a letter of Nutz, dated 3d April, 1846, with his affidavit of the truth of the statements contained in the letter, in order, as stated in the bill of exceptions, 'to contradict and discredit his deposition taken on the 28th June, 1852.'

The evidence thus offered by defendant, was rejected on two grounds: 1st. That 'the witness had not been cross-examined in reference to the writing of said letter, or allowed an opportunity of explaining the same;' and 2d. That 'upon the former trial, the counsel for defendant had objected to the same document as evidence, and that the objection had been sustained by the Supreme Court of the United States.'

On the first ground, the objection to the evidence proceeds on a misapprehension of a rule of practice in relation to the cross-examination of a witness. The rule and its reason are so clearly set forth in 1 Greenleaf on Evidence, § 462, (6th ed.) and the authorities there cited, that comment on it is unnecessary. The witness was not under cross-examination; his testimony was not taken in court in the presence of the parties where it was possible to give him an opportunity of explanation. It was impossible for the defendant, in New Orleans, to know in advance what answers the witness would make in St. Louis to the questions propounded to him; and when those answers were read on the trial, it was perfectly legitimate to offer the former written and sworn statements of the witness on the subject-matter, to contradict and discredit his later statements.

On the second ground, it is sufficient to say that evidence is frequently admissible against a party that he is not allowed to offer in his own favor, that it is frequently admissible at one period of the trial, when not admissible at another; that it is frequently admissible for one purpose, when not admissible for another; and that the decision of the Supreme Court, in 11 Howard, did not determine that the evidence in question was totally inadmissible for any purpose by either party, at any time, but only that it was not admissible for the plaintiff in the cause for the purpose for which he offered it. An array of authorities in support of these elementary principles of the law of evidence, would be deemed disrepectful to the court.

Mr. Gilbert, for defendant in error, made the following points:

First. To authorize proof of previous acts or declarations of a witness, for the purpose of invalidating his testimony, the witness must, previous to the introduction of such evidence, be examined as to the matter. The attention of the witness, Nutz, not having been called to the letter offered in evidence, and no opportunity allowed to explain what he intended by it, such letter was inadmissible in evidence to discredit him.

A witness should always be allowed to explain what he has said or done concerning the matter under investigation, etherwise his reputation might suffer wrongfully. If his attention is not called, by cross-examination, to the supposed contradiction, he will have no opportunity to explain seeming contradictions, or errors, by making more full statements, or showing the connection of things, or defining his meaning of expressions and the terms he may have used. No man always conveys his ideas in the same language. Many, even of the most learned, fail to express themselves clearly and properly. In such case, a few explanatory words may reconcile seeming contradictions. It would be unjust that the party should suffer where he has no means of giving an explanation, which may be most ample; and cruel to a witness to discredit him, thereby injuring his character, without allowing him an opportunity to show that he has committed no fault. Hence the rule that contradictory statements and acts of an inconsistent character cannot be given in evidence, without preparing the way for its admission by cross-examining the witness as to the supposed contradictory statements.

Phillips on Evidence, p. 294, says: 'Thus it appears that a witness ought to be regularly cross-examined as to the contradictory statements supposed to have been made by him on a former occasion, before such contradictory statements can be admitted in evidence to impeach the credit of his testimony. And this rule has been extended not only to such contradictory statements, but also to other declarations of the witness, and acts done by him through the medium of declarations or words.'

Roscoe, Criminal Evidence, p. 182, says: 'But in order to let in this evidence, in contradiction, a ground must be laid for it in the cross-examination of the witness who is to be contradicted. When a witness has been examined as to particular transactions, if the other side were permitted to give in evidence declarations made by him respecting those transactions at variance with his testimony, without first calling the attention of the witness to those declarations, and refreshing his memory with regard to them, it would, as has been observed, have an unfair effect upon his credit.'

In the Queen's case, 2 Brod. & Bing. 312, (6 Com. Law Rep. 130, 131,) Abbott, C. J., said: 'If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary; and the witness has an opportunity of giving such reason, explanation, or exculpation of his conduct, if any there may be, as the particular transaction may happen to furnish.'

In Angus v. Smith, 1 Moody & Malkin, 473, (22 Com. Law Rep. 360,) Tindal, C. J., said: 'I understood the rule to be, that before you can contradict a witness by showing that he has at some other time said something inconsistent with his present evidence, you must ask him as to the time, place, and person involved in the supposed contradiction.' Cowen & Hill's Notes, 774, 775; Williams v. Turner, 7 Geo. 348; Doe v. Reagan, 5 Blackf. 217; Johnson v. Kinsey, 7 Geo. 428; ''Franklin Bank v. Steam Nav. Co. 11 Gill & J. 28; Palmer v. Haight,'' 2 Barbour, Sup. C. Rep. 210, 213; McKinney v. Neil, 1 McLean, R. 540; Moore v. Battis, 11 Humph. 67; The United States v. Dickinson, 2 McLean, R. 325; Chapin v. Siger, 4 McLean, R. 378, 381; Wienzorpflin v. The State, 7 Blackf. 186; Check v. Wheatley, 11 Humph. 556; Beebe v. DeBaun, 3 Eng. R. 510; McAteer v. McMulen, 2 Barb. 32; Clemontine v. The State, 14 Mo. 112; Regnier v. Cabot, 2 Gilman's R. 34; King v. Wicks, 20 Ohio, 87.

The rule is the same whether the evidence offered by way of contradiction rests in parol, or is in writing. In Roscoe's Criminal Evidence, p. 182, he says: 'So, what has been said or written by a witness at a previous time may be given in evidence to contradict what he has said on the trial, if it relate to the matter in issue.'. . . 'But in order to let in this evidence in contradiction, a ground must be laid for it in the cross-examination of the witness who is to be contradicted.'

3 Starkie's Evidence, 1740, 1741. 'Where the question is so connected with the point in issue that the witness may be contradicted by other evidence, if he deny the fact, the law itself requires that the question should be put to the witness, in order to afford him an opportunity for explanation, although the answer may involve him in consequences highly penal.' Same, p. 1753, 1754. The Queen's case, 2 Brod. & Bing. 284, (6 Com. Law Rep. 112,) proceeds throughout upon this principle.

Greenleaf, vol. 1, p. 579, in relation to laying a foundation by cross-examination, before offering contradictory evidence, says: 'This course of proceeding is considered indispensable, from a sense of justice to the witness; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to the subject he should have an opportunity to recollect the facts, and, if necessary, to correct the statement already given, as well as by a re examination to explain the nature, circumstances, meaning, and design of what he has proved elsewhere to have said. And this rule is extended, not only to contradictory statements by the witness, but to other declarations, and to acts done by him through the medium of verbal communications, or correspondence, which are offered with a view either to contradict his testimony in chief, or to prove him a corrupt witness himself, or to have been guilty of attempting to corrupt others.'

In Carpenter v. Wall, 11 Adol. & El. 803, (39 Com. Law Rep. 234,) Denman, C. J., the other judges concurring, said: 'When words are to be proved as having been uttered by a witness, it is always expected that he shall have an opportunity to explain.' Regina v. St. George, 9 Car. & Pa. 483, (38 Com. Law Rep. 198); Johnson v. Todd, 5 Beavan, 600, 602, cited 1 Greenleaf on Ev. p. 581; Conrad v. Griffev, 11 Howard, 480.

1 Greenleaf on Ev. p. 579, in note beginning at the bottom of the page, which it is said the rule in the Queen's case is adopted in the United States, except in Maine and Massachusetts, and cites 2 Cowen & Hill's Notes on Phil. Ev. p. 774.

Jenkins v. Eldridge, 2 Story's Rep. 181, 284, Story, J. says: 'If one party should keep back evidence which the other might explain, and thereby take him by surprise, the court will give no effect to such evidence, without first giving the party to be affected by it an opportunity of controverting it. This course may be a fit one in cases where otherwise gross injustice may be done.'