felony in one of the United States did not render the convict incompetent as a witness in the courts of another state, though it might be shown to discredit him.123 3188. The removal of the disability may be effected in two ways: first, by pardon, and, second, by a reversal of the judgment of conviction. The effect of the pardon is to restore the witness to competency, when the disability is a consequence of the judgment, according to the principles of the common law; but when the disability is annexed by the express words of a statute, a pardon will not have this curative effect.124 The pardon must be proved by producing the charter under the great seal. The party convicted will, of course, be restored to competency by the reversal of the judgment, and when the record of the conviction has been produced, the reversal must be shown by the production of the record of reversal. 3189. The disability thus created is different as it operates upon the witness or upon third persons. Its effect upon the witness is not such as to deprive him of making an affidavit necessary for his exculpation or defence, for the law will not leave him entirely remediless; but he cannot be heard as a complainant.125 In regard to third persons, his testimony is universally excluded; and if he had attested any instrument previous to his conviction, his hand writing must be proved as if he were dead. 126 3190. As a general rule, one witness is sufficient to establish a fact, but to this there are exceptions both in civil and criminal cases. In cases of treason, though the crime was considered as sufficiently proved by one witness, yet, owing perhaps to the duty of allegiance which is due by every one to the government, which was considered as equal to the testimony of one witness, and probably to protect the accused from being too lightly convicted in times of excitement by the testimony of one witness, two witnesses became necessary by the provision of a statute the principles of which have been incorporated in the constitution of the United States in these words: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' 99 128 In order to prove the crime of perjury formerly two witnesses were requisite, because otherwise there would be oath against oath, that of the prisoner on the one side and of the witness on the other. In modern times this rule has been relaxed, but still there must be evidence besides the oath of the prosecutor or his witness to balance the weight of that of the prisoner and the presumption of his innocence; this may be shown by circumstances, which, if they are not tantamount to another witness, have the effect of destroying the oath of the prisoner so as to let the testimony of the witness who has been examined against him have its full weight without any contradiction.129 Upon the same principle that two witnesses, or one witness and sufficient circumstances to destroy the oath of the prisoner, are required in cases of perjury, two witnesses, or circumstances requisite to balance the oath of a respondent, are 123 Commonwealth v. Green, 17 Mass. 515; The State v. Candler, 3 Hawks, No. C. 393. But see State v. Ridgley, 2 Harr. & M'H. Md. 120; Cole's lessee v. Cole, 1 Harr. & J. Md. 572; Kirschner v. State, 9 Wisc. 140. 124 2 Hargr. Jur. Arg. 221, et seq.; 2 Russell, Cr. 595, 11 Am. Jur. 360; Foreman v. Baldwin, 24 Ill. 298. 125 Rex v. Gardiner, 2 Burr. 1117; Walker v. Kearney, 2 Strange, 1148; 2 Salk. 461. 126 Jones v. Mason, 2 Strange, 833. 127 5 & 6 Ed. VI, c. 11, more distinctly enacted by stat. 7 W. III, c. 3, s. 2. 128 U. S. Const. art. 3, 3. 129 Woodbeck v. Killer, 6 Cow. N. Y. 118; Champney's Case, 2 Lew. Cr. Cas. 258. required to disprove an answer in chancery when the answer is positively, clearly, and precisely responsive to any matter stated in the bill. By calling on the defendant to answer an allegation which he makes, the plaintiff admits the answer to be evidence, and before he can be entitled to a decree he must remove the effect of such answer and prove the fact by another witness. 130 When a usage of trade is to be proved, one witness will rarely be sufficient. A usage must be shown to be notorious, and consequently within the knowledge of many who might be called to testify. The testimony of one witness as to the usage contradicted by another would certainly fail to prove a well-known usage, though it might prove the practice of this particular witness. In this case, as a witness can only testify to what he knows, the jury are authorized to find against the usage. 131 130 Gresley, Ev. 4; 1 Greenleaf, Ev. ? 260. 181 Wood v. Hickok, 2 Wend. N. Y. 501; Parrott v. Thacher, 9 Pick. Mass. 426. CHAPTER XIII. EFFECT OF EVIDENCE, AND THE MANNER OF GIVING IT. 3191-3194. The effect of evidence. 3192. Foreign judgments. 3193. Foreign laws. 3194. Parul evidence. 3195-3231. The manner of giving evidence. 3203. The restoration of capacity of witnesses. 3206. Impertinent and useless questions not allowed. 3209. When papers may be read to refresh his memory. 3217. What things cannot be disclosed. 3221. The cross-examination. 3222. Calling witnesses and giving evidence. 3225. The opening for the defendant. 3226. The examination of defendant's witnesses. 3227. Rebutting evidence. 3228. Impeaching witnesses. 3191. In the examination of the effect of evidence it will be necessary to inquire into the effect of foreign judgment, foreign laws, and parol evidence. 3192. In treating of foreign judgments a distinction is to be made between judgments in rem and judgments in personam. A foreign judgment is not conclusive in bar of a suit, but may be conclusive as evidence. Whether it is in rem or in personam, it is necessary to establish in the first instance that the court pronouncing the judgment had lawful jurisdiction in the premises.1 Judgments in rem in regard to land and other immovable property pronounced by the courts of the country in which the land is situated are conclusive as to all matters of title upon all persons. The same principle applies to other judgments in rem where the court had jurisdiction by possession of the subject matter, as cases in admiralty, whether of prize, forfeiture, salvage, or other similar cases. But it will not have this effect if it appears that the judgment has been obtained by fraud or without proper notice to the parties interested in the 1 There is no presumption of jurisdiction in favor of foreign judgments, Coit v. Haven, 30 Conn. 190; but this rule is variously modified when considering the judgment of the courts of one of the United States. It is held that a record of a judgment properly authenticated according to the law of congress (before, 3119) is prima facie evidence of jurisdiction, where the parties resided in the state where the judgment was rendered. Buffum v. Stimpson, 5 All. Mass. 591; Sim v. Frank, 25 Ill. 125. 2 Rose v. Himely, 4 Cranch, 241; Gelston v. Hoyt, 3 Wheat. 246. VOL. II.-2 H 257 subject.3 Similar rules are applied to judgments against property of foreigners in the hands of residents by the process of foreign attachment, garnishment, or trustee process. If in these cases the court has jurisdiction over the person and property, the judgment is conclusive upon both; but if it has jurisdiction only over the property, it will be conclusive as to the title, but not on the party. Marriages, and judgments confirming and annulling marriages, are conclusive, if they do not conflict with any provisions of the laws of the country where they are used in evidence. As regards foreign judgments in personam, all the cases agree that they are prima facie evidence of the facts decided. Some cases hold them to be conclusive evidence, but the weight of opinion is that they may be impeached and rebutted. How far they may be impeached is an open question. Fraud, want of jurisdiction, and want of notice to the parties may be shown without doubt. 3193. The effect of foreign laws, when proved, is properly referable to the court; the object of proof of foreign laws is to enable the court to instruct the jury what is, in point of law, the result of foreign laws to be applied to matters in controversy before them. The court is, therefore, to decide what is the proper evidence of the laws of a foreign country; and when the evidence is given as to those laws, the court is to judge of their application to the matter in issue. 3194. The effect of parol evidence is left wholly to the consideration of the jury in cases of jury trial, and of the court in other cases. When treating of the character of the witnesses' we were necessarily led to the consideration of the facts and circumstances which were calculated to give effect to their testimony, or to detract from it. 3195. Having discussed the nature, the object, the instruments, and the effect of the evidence, which are the subject of the first branch of our inquiries respecting evidence, we will next consider the manner of giving evidence in court in the course of a trial before a jury, and thus carry on the proceedings in the cause until we shall have arrived at the end. 3196. The party entitled to begin, (which, to prevent confusion, we will here suppose to be the plaintiff,) after having opened his case to the jury in the manner already pointed out, is now to proceed to give his evidence, which is called evidence in chief. This evidence should strictly follow and support the allegations and opening of the plaintiff, and it must be confined to such matters as the pleadings and opening warrant, for sometimes a departure from this rule will be highly inconvenient, if not fatal. Suppose, for example, that two assaults have been committed, one in January and the other in February, and the counsel opens as to one assault only, and he proves his cause of action to have been an assault in January, he cannot abandon that and afterward prove another committed in February, unless the pleadings and openings extend to both; because, after proving even in part one cause of action, the plaintiff cannot abandon it and proceed to prove another. 3 Bradstreet v. Neptune Ins. Co., 3 Sumn. C. C. 600. "If a seizure is made, and condemnation passed without allegation of any specific cause and without any public notice, the sentence is not so much a judicial sentence as an arbitrary sovereign edict. It has none of the elements of a judicial proceeding, and deserves not the respect of any foreign nation." By Story, J. *Gunn v. Howell, 35 Ala. N. s. 144. 5 Duvall v. Fearson, 18 Md. 502; Jones v. Jamison, 15 La. Ann. 35; Milne v. Van Buskirk, 9 Iowa, 558. 6 Story, Confl. Laws, ? 638. 7 Before, 3158. 8 Stante v. Pricket, 1 Campb. 473. 3197. In laying the evidence before the jury it is usual to adduce, first, formal proofs; second, documentary evidence; third, examination of witnesses under interrogatories; and, fourth, the parol evidence of living witnesses. But it is not possible to lay down any positive rule on the subject, as this course must vary according to circumstances. The order of proof is entirely within the wise discretion of the counsel. It is a rule that when a witness has once left the box the party cannot recall him to any point he may have omitted, unless by leave of the judge, which is seldom refused. 3198. When the plaintiff calls a witness, before he can examine him he must be sworn or affirmed. This is done by the clerk of the court, or by some officer lawfully authorized for the purpose. The form of the oath is various, to suit the religious opinions of the several witnesses and bind their consciences. 3199. The most usual form of an oath is that upon the Gospel.10 In this case the witness lays his right hand upon the Gospel, and the clerk then asks, or repeats, "You do swear that the evidence you shall give in this case, wherein Peter is plaintiff and Paul defendant, shall be the truth, the whole truth, and nothing but the truth, so help you God," and the witness then gives his assent and kisses the book. The beginning of this oath is made by the witness taking hold of the book, after being required by the officer so to do, and ends with the words "so help you God." The form of this oath may be traced to the Roman law," and the kissing of the book is said to be an imitation of 9 The order is sometimes material, as some of the evidence may be admissible only after other preliminary proof. But the court may allow evidence to be put in de bene esse, that is, on condition that it shall be shown to be material and connected with the case by evidence to be afterward adduced. This is entirely in the discretion of the court. Liverpool Wharf v. Prescott, 4 All. Mass. 22; see Goings v. Chapman, 18 Ind. 194; Lynd v. Picket, 7 Minn. 184; Rutledge v. Evans, 11 Iowa, 287; United States v. Flowery, 1 Sprague, Dist. Ct. 109; Tilton v. Tilton, 41 N. H. 479. 10 To trace the history of oaths would be instructive, and show the inefficiency of any system which has been adopted to keep men from betraying the truth. It is said that Discord invented oaths. In the investigation of facts, it was found that some persons who related what they said they knew had made false statements; to prevent a recurrence of this inconvenience, it was thought that men should make a promise to tell the truth; to make this more binding on their consciences, they were required to make such declaration in the presence of what they thought most dear; this was called an oath. The Persians, who were followed by the Greeks and Romans, swore by the sun; the Scythians by air and their scimitars; the Greeks and Romans also swore by their gods, especially Fides and Fidius; they also swore by their Genii; their women, by Juno; their laborers, by Ceres; Vestals, by Vesta, etc. In the Middle Age, oaths were taken upon the missal and the cross, with the hands placed upon the altar; upon the book and cross, at the door of the church; upon the ring or knocker of the church; coram altare, i. e. with one hand upon the altar, the other prepared for the oath; with the head inclined upon the altar, and this oath was considered as of great sanctity; the Gospels were touched upon the altar, and touched by the hand. Inspectis Sacrosanctis, i. e. in their sight, not touched like bishops and priests, who were not allowed to swear, super sacra. Sub testamento Dei, the Gospel being placed upon their heads. Upon the relics and tombs of the saints, which oath they sometimes required upon many relics which they touched. In the place called Sanctum, the cross being placed upon the head, a formula common to religious persons if accused of any crimes. The above oaths were called Juramenta Corporalia, because the Gospel, cross, or relics being touched, they were made with the hand elevated or extended, that they might be distinguished from oaths which were made by an instrument, that is, by writing, for such oaths had equal validity. Many oaths were borrowed from the heathens, as oaths upon the head of a beast, or idols; upon arms, the usual oath of Northern nations; upon bracelets; upon the arms, the hair, or the eyes of a mistress; by confirmation or joining hands; by laying hold of the hem of a garment; upon the sepulchre of a debtor. Jews swore by holding a chain fastened to the door of their synagogue. Matthew Paris says, that priests took oaths with their hand upon the bosom, and laymen by touching the book, as now. See Puffendorff, lib. 4, c. 2; Fosbroke, Encycl. of Antiquities, verbo Oaths, vol. i. 432. 11 Nov. 8, c. 3; Nov. 74, c. 5; Nov. 124, c. 1. |