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man who is made the subject of the objection; on this ground a juror may be objected to if he is related to the opposite party within the ninth degree, or is so connected by affinity; this is supposed to bias the juror's mind, and is a presumption of partiality.20 One who has expressed a wish as to the result of the trial,a or who has the smallest interest in the matter to be tried, may be challenged for this cause.
The third ground for challenging to the polls is propter delictum, or the incompetency of the juror on the
ground of infamy. 3044. Challenges to the polls for favor may be made when, although the juror is not so evidently partial that his supposed bias will be sufficient to authorize a principal challenge, yet there are reasonable grounds to suppose that he will act under some undue influence and prejudice. The causes for such challenges are manifestly very numerous, and depend on a variety of circumstances. The fact to be ascertained is whether the juryman is altogether indifferent as he stands unsworn, because, even unconsciously to himself, he may be swayed to one side. The line which separates the cause for principal challenges and for challenges to the favor is not distinctly marked.2
3045. After the jurors have been selected to the number of twelve, they are then to be sworn or affirmed. This is done by the clerk or prothonotary of the court, or one of his deputies, administering an oath or affirmation to each juror. The form of this oath or affirmation varies in different states according to the provisions contained in the statute, but it is generally “to try the issue joined between the parties, and a true verdict give according to the evidence.” This oath or affirmation, it must be observed, is one of those promissory obligations which are binding only on the conscience, and the violation of which cannot be punished as perjury.23
The pleadings should be all in and the issue joined before the jury is sworn.? In some states the practice prevails of swearing the jury at the beginning of the term to try all cases brought before them, and they are not sworn at the beginning of each case.
3046. The right of a party in opening the case and the manner of making the opening will be the next subject.
3047. By opening a case is meant the act of beginning or first addressing the jury and stating the facts of the case. The right of opening is of great importance, because the party who begins will, if his opponent give any evidence, have the general reply or last word to the jury, a privilege which powerful counsel can usually exercise with great advantage, The general rule is that the party who alleges the affirmative of any proposition or issue in fact should prove it, because a negative does not in general admit of the simple and direct proof of which an affirmative is capable; and therefore, the party who has to maintain or prove the only affirmative or all the affirmatives must begin to give the evidence, for until that is done the opposite party is not bound to answer.
Yet, cases may arise where it is more easy to prove the negative; as, if a defendant plead in abatement that another party contracted jointly with him and that he ought to have been joined, and the plaintiff reply that the contract was not so
20 Denn v. Clark, Coxe, N. J. 446 ; McLellan v. Crofton, 6 Me. 307 ; Bank v. Hart, 3 Day, Conn. 491; Schorn v. Williams, 6 Jones, No. C. 575; Martin v. Mitchell, 28 Ga. 382.
4 Hargr. St. Tr. 748; Bacon, Abr. Juries, E, 5; White v. Moses, 11 Cal. 68.
Coke, Litt. 147, 157, a; Bacon, Abr. Juries, E, 5; Bouvier, Law Dict. Challenge. Such a challenge may be made where the juror has set on a trial involving the same or a similar state of facts. But it seems that in this case the court cannot, before the case is tried, know that the facts are the same. Algier v. Maria, 14 Cal. 167.
Objections to the manner of swearing come too late on appeal. Looper v. Bell, 1 Head, Tenn. 373. 24 Cole v. Swan, 4 Greene, Iowa, 32; Hoot v. Spade, 20 Ind. 326. VOL. II.-Y
jointly made, he might be able to prove the negative by producing and proving the defendant's separate undertaking to pay. It is an established rule that when the onus probandi, or burden of the proof of all the issues, is on the defendant, he is entitled to begin.23
But when there is one affirmative issue for the plaintiff to prove and several other affirmative issues for the defendant to prove, then the plaintiff has the preference.28
3048. In order to open his case to the court and jury understandingly the counsel should be fully acquainted with the full extent of the plaintiff's claim and the circumstances under which it is made, and of its justice and reasonableness ; should know at least the outline of the evidence by which the case is to be supported; should be well acquainted with the legal grounds and authority in favor of the claim, or of the proposed evidence; and should anticipate the expected defence, when that can be done, and be able to state the grounds on which it is futile, either in law or justice, and the reason why it ought to fail.
3049. In making the statement of the plaintiff's claim the counsel should state all the facts which the form of the declaration has embraced, because if he omit some of them, besides the charge of unfairness to which such course might subject the counsel, it might mislead the judge, whose attention would not be particularly directed to such facts as had been omitted; but also it might subject the party to some inconvenience, as he would not be allowed to state a new claim or to prove it with a view to obtain a verdict for more than he originally claimed.27
3050. In stating the evidence which he expects to give the counsel ought to be very careful not to be too positive as to the proof which he will make; for although he may himself have examined the witnesses, perhaps on an examination in court there will be discrepancies between their statements to him and an examination under the more impressive obligation of an oath in open court. A contrary course will render him liable to the observations of the opposite counsel, who will not fail to point out such discrepancies. When, however, a piece of evidence is positively certain, as, where the same point will be supported by several respectable witnesses or by a written document, the opening counsel ought to press such evidence upon the court and jury. In doing this
25 In England there are some exceptions to this general rule, in actions for libel, slander, malicious prosecutions, and other actions for injuries to the person, in which cases the plaintiff has a right to begin and conclude, although there may be affirmative pleas. It is deemed but fair and reasonable that in such cases the plaintiff who brings an action should be heard first to state his complaint. Carter v. Jones, 6 Carr. & P. 64; 1 Mood. & R. 281. And in Arkansas, in an action on a penal bond the plaintiff has a right to open and close, although affirmative pleas have been filed. Sullivant v. Rearden, 5 Ark. 140.
The general rule which allows the party holding the affirmative to open and close is enforced in most of the states. Harvey v. Ellithorpe, 26 Ill. 418; Beatly v. Hatcher, 13 Ohio St. 115; Yingling v. Hesson, 16 Md. 112; Tipton v. Triplett, 1 Metc. Řy.570; Chesley v. Chesley, 37 N. 8. 229; Mason v. Croom, 24' Ga. 211.
In Missouri, Iowa, and Wisconsin, the rule is the same, but it rests in the discretion of the court, and a refusal to the party alleging the affirmative is no ground for error or reversal of judgment. Reichard v. Manhattan Ins. Co., 31 Mo. 518; Smith v. Coopers, 9 Iowa, 376; Marshall v. Wells, 7 Wisc. 1. In New York, for such refusal a new trial will be granted. Ayrault v. Chamberlain, 33 Barb, N. Y. 229. In Indiana, the code, & 326, gives this right to the party alleging the affirmative, and the court cannot take it away. Ashing v. Miles, 16 Ind. 329. In Missouri, a party contesting the validity of a will has the right to open, but not in Ohio. Farrell v. Brennan, 32 Mo. 328; Banning v. Banning, 12 Ohio, St. 437. On an application for a mandamus the party showing cause has this right. People v. Treasurer, 8 Mich. 392. 28 Jackson v. Hesketh, 2 Stark. 521; Cotton v. James, 1 Mood. & M. 279. » Patterson v. Zacheriah, 1 Stark. 72; Penson v. Lee, 2 Bos. & P. 332.
the counsel will abstain from making any comments on the evidence, and merely state that he will produce it for the consideration of the jury.
3051. In stating a point of law by anticipation the counsel will have to observe a great deal of caution, for he may inadvertently suggest to the court or to his opponent an objection against his case which did not occur to them, and he might betray a want of confidence in his case. But when the point must arise, the counsel may by way of anticipation induce the judge to take a favorable view of the point, and by a concise allusion, rather than by a regular argument, endeavor to satisfy the judge in favor of his client.
3052. The counsel should anticipate the course of defence which may probably be adopted by the opposite party; whether he will probably rely on some legal objection, either as to the law or the facts of the case, or whether, relying upon his speech to the jury, he will refrain from giving any evidence, and thereby entitle himself to the conclusion. The opening must therefore depend in a great measure on the circumstances of each case. If it is expected that the defendant will give no evidence and rely upon some legal objection, it is advisable for the plaintiff's counsel to anticipate, argue against, and condemn all such objections as being founded in neither law nor justice.
With regard to the facts it is unnecessary to anticipate what will be proved by the other side, because these may be stated before giving the rebutting testimony.
THE NATURE AND OBJECT OF EVIDENCE
3053. Preliminary observations.
3057. Primary evidence.
3061. Positive evidence.
3065. Conclusive presumptions of law.
3068. Natural presumptions or presumptions of fact.
3070. The res gesta.
3071. Evidence in questions of pedigree.
3072. Matters of public interest.
3076. Testimony of witnesses subsequently dead, absent, or disqualified.
3078. When admissible in evidence.
3084, a. The effect of admissions.
3086. Direct confessions.
3088. Relevant and irrelevant evidence.
3090. The substance of the issue must be proved.
3053. The court and jury being in possession of the statement of the facts and of the law of the plaintiff's case, supposing him to be entitled to the opening, the next step is to prove it according to the rules established for ascertaining the truth of the facts or by evidence. It is not within the compass of a work like the present to enter into all the niceties and distinctions of the law of evidence, or what may be submitted to the jury in order to establish the truth; a mere synopsis of the law upon this subject will be attempted.
Various definitions have been given of evidence. It is that which makes clear or ascertains the very fact or point in issue,' or it is whatever is lawfully
13 Sharswood, Blackst. Comm. 367.
exhibited to a court and jury, by which any matter of fact, the truth of which is submitted to investigation, is established or disproved.?
This word, and the words proof, testimony, and witness are sometimes used indifferently, or as synonymous ; but they are very different, and will not be used in the same sense by any who are not guilty of negligence or carelessness. By evidence is meant what establishes the truth; proof is the effect of evidence; testimony is the statement of a witness made under oath or affirmation; and witness is a person who testifies or gives evidence of facts known to him. By the word truth, which is to be established by the evidence, is meant the actual state of things at the time spoken of.
By competent evidence is meant that which the law authorizes, and the very nature of the thing to be proved requires. Credible evidence is that which may be believed and which has the appearance of being a statement of the truth; by incredible evidence is meant what is lawfully produced as evidence, but which is not deserving of credit or belief; as, if a man were to swear he saw a horse flying, in this case he must be supposed to want to impose upon the court and jury, or that there was some delusion in his mind. Satisfactory evidence is what is sufficient to induce a belief that the thing is true; in other words, it is credible evidence. Cumulative evidence is that which goes to prove the same point which has been established by some other evidence; as, if an attempt be made to prove a fact by the admission of the party, evidence of another verbal admission of the same fact is cumulative; but evidence of other circumstances tending to establish the fact is not. Direct evidence is that which proves precisely the fact in question ; indirect evidence is that which does not prove the fact in question, but proves another, the certainty of which may lead to discover the truth of the one sought. This induction may be necessary and infallible; for example, a question arises whether the defendant signed a certain paper or performed a certain act upon such a day in Philadelphia ; if it be strictly proved beyond a doubt that upon that day he was in England, the evidence, although indirect, will be conclusive. But on the other hand, the induction which arises from indirect proof may be only probable, and then only a stronger or weaker presumption will be the result.
3054. The object of all inquiry is truth, and the intention of the law is to adopt the best means of terminating disputes among the people, and to base their happiness on law and justice; it seeks the best means of discovering the truth, and for this purpose it has established certain rules to guide the magistrate in its discovery.
With regard to things which pass or happen out of our observation which can become the object of a legal inquiry, we can have no certain knowledge; we have no conscious certainty of their existence, and we must have recourse to others in order to acquire any idea of them. These means are the senses; the testimony of men, whether in writing or not; and analogy or induction, which are so useful in jurisprudence.
But all these means may deceive us, and often do so; still, when they are directed by a right reason, although they do not bear the infallible mark or characteristic of truth, yet they often lead us to its discovery. They sometimes produce convictions as strong as consciousness; and for this reason this strong persuasion has been called moral evidence in opposition to demonstration, which has been denominated mathematical evidence.
However deceptive these means of ascertaining truth may be, we cannot do
Bacon, Abr. Evidence, in pr.; 1 Greenleaf, Ev. &1; 1 Phillipps, Ev. 1; Wills, Cir. Ev. 2; 1 Starkie, Ev. 8; 8 Toullier, Dr. Civ. Fr. n. 2; Domat, 1, 3, t. 6, in pr. s Parker v. Hardy, 24 Pick, Mass. 246.