Combs v. Winchester

Wheeler $ Faulkner, for the plaintiff.

Of the two cases cited for the defendant, the last, Martin v. Farnham, 25 N. H. 195, has no material bearing upon tbe question raised in this case. It was there held, that evidence, showing that a witness had made statements substantially different from those he now makes, and inconsistent with them in regard to material matters, is admissible to affect his credit; and that statements, made by a witness relative to his state of feeling towards a party, are regarded as material, and may be contradicted.

In the present case the question had no relation to any supposed bias or prejudice of the witness, or any friendship or hostility to either of the parties. The question here is, whether the testimony of the witness, that h& had not said that he knew the bolt had no nut on it, was material and relevant to the issue, or was a matter merely collateral. The fact that there was no nut upon the bolt was relevant and material. If the witness had stated, as a fact he knew, that there was no nut upon the bolt, it would have been competent to impeach him, by showing that he had said elsewhere that there was a nut on the bolt, or that he did not know whether there was or not. Such a statement might be proved by cross-examination of the witness, or by the testimony of others.

It may always, we think, be determined whether evidence in contradiction of a witness is admissible, by considering whether the question, the answer to which is proposed to be contradicted, would be admissible if proposed by the party calling him. Such a party has, of course, the right to propose to his own witness any question which is relevant and material to the issue, and all evidence which is so relevant and material may be impeached by showing that the witness has at another time given a substantially different and contradictory account of the same transaction. But if the question is admissible only on cross-examination, it is merely collateral, and cannot be contradicted. If the witness is asked to state what he has heretofore said upon any subject of inquiry, it would be open to objection, as immaterial and irrelevant, and might be properly rejected. The proper question is, What do you now state under oath ? What any person has stated at some other time, when not under oath, is not competent to be received as evidence, whether it is sworn to by a third person or by himself. In either form it is in effect but hearsay.

On a cross-examination, for the purpose of testing the memory or the honesty of the witness, questions may be asked relative to matters collateral to the issue, and the answers to which would be neither relevant nor material to the issue; but the party putting the questions must take the answers as they are given. He cannot introduce evidence to disprove them, nor to contradict the witness by his own previous statements.

This question is discussed very clearly and distinctly by Woods, J., in the case of Seavy v. Dearborn, 19 N. H. 355, which is directly in point, and decisive of this case. He there says, “ but what Hills (a witness) said on a former trial, or otherwise, was not a proper subject of inquiry, and the judge who tried the cause, properly, on that ground, rejected the evidence offered to prove it. On that precise ground it ought not to have been admitted at all.

“In the cross-examination of witnesses a great deal of latitude is allowed, for the purpose of testing the memory, the capacity or the honesty of the person under examination; and for that purpose inquiries may be pushed, even to matters not positively material to the issue. “But this license has various restrictions. In the first place, it does not extend, so far as to authorize a party to prove by a witness, on cross-examination, things positively improper to be proved at all; and secondly, he cannot, for the purpose of discrediting a witness, contradict, by other evidence, his statements that are improper and immaterial. In other words, he may, for the purposes before indicated, ask questions not strictly relevant to the issue, provided they do not tend to elicit testimony that is injurious or improper. But when a question of either kind has been put and answered, the party cannot introduce other evidence to contradict the witness, whether for the purpose of discrediting him, or for any other purpose.

“It is a very plain corollary to that rule, that a question, not otherwise material or proper, does not becomé so by force of any purpose of the examining party to make use of it to discredit the witness, by contradicting his answer to it. The reasons assigned by writers for these rules are that a contrary course of proceeding would introduce issues in interminable numbers, and perplex and harass litigants in questions which do not concern their cause.

“ A witness, therefore, shall not be interrogated on a subject not pertinent to the issue, for the mere purpose of contradicting him. If it was immaterial what Hills stated on a former occasion, it was still less germane to the matter, whether or not Bassett falsely testified to those irrelevant statements. The defendant had, therefore, no right to make the inquiry for such a purpose, and was improperly permitted to do so.”

These positions are fully sustained by the authorities cited by the plaintiff The question here is, what evidence is, in this view, to be deemed merely collateral, irrelevant or immaterial. In the case of Attorney-General v. Hitchcock, 1 Exch. 91, it was contended, on the authority of Starkie on Evidence, that the rule, excluding evidence in contradiction of the witness’ statements as to collateral or irrelevant matters, does not exclude the contradiction of the witness as to any facts immediately connected with the subject of the inquiry. And Pollock, C. B., in delivering his opinion, said, “ I think the expression, as to any matters connected with the subject, is far too vague and loose to’be the foundation of any judicial decision. I am not prepared to adopt the'proposition in those general terms, that a witness may be contradicted as to any thing he denies having said, provided it be in any way connected with the subject before the jury. It must be connected with the issue as a matter capable of being distinctly given in evidence, or it must be so far connected with it as to be a matter which, if answered in a particular way, would contradict the witness’ testimony; and if.it be neither of these, it is collateral to, though in some sense it may be considered connected with, the subject of inquiry.”

And he lays down substantially the rule we have before stated: “ The test whether the matter is collateral or not is this: If the answer of the witness is a matter which you would be allowed on your part to prove in evidence; if it had such a connection with the issue that you would be allowed to give it in evidence, then it is a matter on which you may contradict him.”

The other case relied on, Ware v. Ware, 8 Greenl. 42, was decided entirely on the authority of 1 Starkie’s Ev. 134, and upon that passage of his work, which is so distinctly disapproved by Pollock, C. B., in Attorney-General v. Hitchcock, as too vague and loose; and we find ourselves compelled to dissent from it.

We have found no case which seems to sustain this decision, but the recent case of Commonwealth v. Hunt, 4 Gray 421, where it is said, “ the rule which excludes all evidence tending to contradict the statements of a witness as to collateral matters, does not apply to any facts immediately and properly connected with the main subject of inquiry. Every thing which goes to affect the credit of the witness, as to the particular facts to which he is called to testify, is material and admissible. 1 Stark. Ev. 135; 19 Johns. 123.” This rule does not seem to improve the terms of Starkie, and the decision seems irreconcilable with Commonwealth v. Buzzell, 16 Pick. 157, and Harrington v. Lincoln, Gray 133. The last cases are in accordance with the authorities generally, and with the received text books.

The question in the case before us was properly disallowed, and there must be