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tion is supposed capable at all times of supporting it by proof; but he cannot be expected to come into court to prove every part of his conduct during a long life without any notice that it would be attacked.

The regular mode is to inquire of the witness under examination whether he knows the general character or reputation of the witness to be impeached as to truth and veracity,?? and if he knows it, what is his reputation. The additional question is put whether the witness would believe him upon oath.73 In answer to such evidence the other party may cross-examine the impeaching witnesses as to their modes of knowledge and the grounds of their opinions; or, he may attack their general character, and by fresh evidence support the character of his own witness.74

In order to know the character of another and his general reputation a man must be generally acquainted with those who know him, and the inquiry respecting him must be made where he is best known. A stranger going there making inquiry at the request of the party who impeaches the witness is not a person who knows the reputation.75

3231. A third mode of impeaching a witness is to show that he has made statements out of court contrary to those made under oath on the trial. In these cases, however, this objection is confined to such matters as are relevant to the issue; for in matters that are not so his answer is conclusive, the court not having the power to try such immaterial statements and the parties not coming there prepared for such a contest.76 Before the witness is contradicted, fairness and justice require that in the case of oral statements he should first be asked as to the time, place, and person involved in the supposed contradiction; because, if the question be put to him generally whether he said so and so, or whether he always told the same story, he may not recollect; and if his attention be called particularly to the time and place when and where the conversation took place, and the person with whom he had it, he may remember the circumstances and explain it."

72 A doubt has been raised, whether the inquiry ought to be confined to the witness' character for truth and veracity, or whether the question ought to be as to the general character of the witness impeached. In Kentucky, Hume v. Scott, 3 A. K. Marsh. Ky. 261; North Carolina, The State v. Boswell, 2 Dev. No. C. 209; in South Carolina, Anon. 1 Hill, So. C. 251, the rule seems to be that the inquiry extends to the whole character of the person impeached. The general rule, however, in the other states, is to inquire as to his character for truth and veracity. It may be laid down as a general rule that the question must first be asked as to the witness' character for truth and veracity. And the better opinion would seem to be that subsequent questions as to his general character must be such as are adapted to illustrate the answer to the first question. Teese v. Huntingdon, 23 How. 2; Pierce v. Newton, 13 Gray, Mass. 528.

73 The question, whether the witness under examination would believe the former witness, is frequently asked. This has been objected to for several reasons: first, that the witness, in giving his opinion, takes from the jury the right of forming an opinion for themselves; secondly, that it permits the introduction and indulgence of personal and party hostility in courts of justice. Phillips v. Kingfield, 19 Me. 375, 379. But, besides, the fact whether the witness would or would not believe the one whom it is sought to impeach must depend entirely on what he would say; if he testified to a probable story or to a known fact, he must be believed ; and if the most correct man testified to what is impossible, as that he saw a man shoot himself with a pistol which he held in his hand, and upon examination of the ball found in his body it was too large to enter into the pistol, he ought not to be believed.

2 Phillipps, Ev. 432; 1 Starkie, Ev. 182; 1 Greenleaf, Ev. & 461. 75 Douglass v. Tousey, 2 Wend. N. Y. 352; Boynton v. Kellog, 3 Mass. 192; Wike v. Lightener, 11 Serg. & Ř. Penn. 198; Kimmel' v. Kimmel, 3 Serg. & R. Penn. 337.

76 Blakey v. Blakey, 33 Ala. N. s. 611. 77 The Queen's Case, 2 Brod. & B. 313; Angus v. Smith, 1 Mood. & M. 473; 1 Starkie, Ev. 484; 1 Greenleaf, Ev. & 462, and the notes; Notes to Phillipps, Ev. by Cowen & Hill, note 533 to 1 Phil. 308; Valton v. National Ass. Co., 20 N. Y. 32; State v. Davis, 29 Mo. 391; Ketchingman v. State, 6 Wisc. 426.


A witness may also be contradicted by writings and facts. He may therefore be asked if he wrote a certain letter; but in this case, when the letter can be had, it ought to be handed to him, and he ought to be asked if he wrote it. If he acknowledges it, then the contents are evidence to contradict him, if the contents do in fact contradict what he has stated; if he denies it, then his hand writing may be proved by another witness for the purpose of impeaching his credit.78

When evidence is given of contrary statements made by a witness of a particular fact to impeach his veracity, his general character for truth is in some degree put in issue, and he may therefore support by general evidence that he is a man of strict integrity and that he has a scrupulous regard for truth.79

Having now treated of the rules of evidence generally and of their application in the trial of a cause, our next inquiries will lead us to the consideration of the several matters which occur in the course of a trial.



Phillipps & A. Ev. 932; The Queen's Case, 2 Brod. & B. 292.

Phillipps & A. Ev. 944; Burrell v. State, 18 Tex. 713; but see Chapman v. Cooley, 12 Rich. So. C. 654; Vance v. Vance, 2 Metc. Ky. 581.






3232-3237. Bills of exceptions.

3232. Nature and origin of a bill of exceptions.
3233. In what cases a bill of exceptions may be had.
3234. When the exception must be made.
3235. When the bill must be signed.
3236. The form of the bill of exceptions.

3237. The effect of a bill of exceptions.
3238-3246, Demurrer to evidence.

3239. What is admitted by the demurrer.
3240. The relevancy of the evidence the only issue on demurrer.
3241. The demurrer must be to the whole evidence.
3242. What kind of evidence may be demurred to.

3246. Practice upon demurrers to evidence.
3247-3255. The arguments of counsel.

3247. General observations.
3248. The speech for the plaintiff.
3252. The speech for the defendant.

3255. The reply of the plaintiff.
3256, 3257. Charging the jury.

3256. The form of the charge.

3257. Exceptions to the charge. 3258-3271. The verdict.

3258. The considering of the verdict.

3259. The rendering of the verdict.
3260-3266. The kinds of verdicts.

3261. Privy verdicts.
3262. Public verdicts.
3263. General verdicts.

3264. Special verdicts.
3267–3270. The requisites of a verdict.

3268. The conformity of a verdict with the issue.
3270. The certainty of a verdict.
3271. The amendment of verdicts.


3232. We have seen that when evidence is offered, either written or oral, and there is any objection to its being received, the matter is referred to the court, and, after a full and fair examination, the judge's decision is in favor of its admission or against it. Frequently, indeed almost always, the case turns upon the correctness of this judgment; for if the evidence is admitted, the verdict will probably be in favor of the party offering it, and if rejected, it will be against him. This is always the case when the evidence is of vital importance to the action. Such power, unless subject to revision, would, in the hands of a fallible, a corrupt, an ignorant, or an arbitrary judge, be fraught with very dangerous consequences. Again, in his charge or directions to the jury, the judge is required to state to them the rules of law which are to guide them in



making up their verdict, and they are bound to take the law to be as he states it to them; if, through ignorance or corruption, the judge should misstate the law and the jury find their verdict accordingly, the party against whom this misstatement had been made would be without a remedy if the law had not provided one to correct these evils. This is effected by a bill of exceptions.

The bill of exceptions is the statement in writing of the objection made by a party in a cause to the decision of the court on a point of law, which is clearly stated therein, and which, in confirmation of its accuracy, is signed and sealed by the judge or court who made the decision. The object of the bill of exceptions is to put the question of law on record for the information of the court of error having cognizance of such cause.

The bill of exceptions is authorized by an English statute, the principles of which have been adopted in all the states of the Union. It is thereby enacted that “when one impleaded before any of the justices alleges an exception praying th will allow it, and if they will not, if he that alleges the exception writes the same and requires that the justices will put their seals, the justices shall do so, and if one will not, another shall; and if, upon complaint made of

, the justice, the king cause the record to come before him, and the exception be not found in the roll, and the plaintiff show the written exception with the seal of the justices thereto put, the justice shall be commanded to appear at a certain day either to confess or deny his seal, and if he cannot deny his seal, they shall proceed to judgment according to the exception, as it ought to be allowed or disallowed. The statute extends to both plaintiff and defendant.

The object of a bill of exceptions is to put upon the record all the facts touching the decisions of the court respecting questions of law which do not appear upon the record and which arise in the course of the trial, so that when the case is afterward removed to an appellate court by a writ of error, the bill of exceptions may be taken into consideration and there finally decided, by which the decision of the court below will be affirmed or reversed.

In the discussion of this subject it will be proper to inquire into the cases in which a bill of exceptions may be had, the time of making the exception, when the bill must be signed, the form of the bill, and its effect.

3233. In general, a bill of exceptions can be had only in a civil case. When in the course of trial of a cause the judge, either in his charge to the jury or in deciding an interlocutory question, mistakes the law, or is supposed by the counsel on either side to have mistaken the law, the counsel against whom the decision is made may tender an exception to his opinion and require him to seal a bill of exceptions; and exception may be taken even when the judge re


1 See Gibson v. Hunter, 2 H. Blackst. 87; Bulkley v. Butler, 2 Barnew. & C. 434; Appleton v. Sweetapple, Dougl. 137.

2 St. of Westm. 2, 13 Ed. I, c. 31.
3 The nature of this writ will be explained hereafter.

* See the whole course of proceeding on a bill of exceptions minutely stated in 3 Burr. 1692; Walton v. United States, 9 Wheat. 651; 4 Pet. 102; and Brown v. Clark, 4 How. 4.

6 At common law, exceptions do not lie in criminal cases. People v. Holbrook, 13 Johns. N. Y. 90; United States v. Gibert, 2 Sumn. C. C. 19; Ex parte Barker, 7 Cow. N. Y. 143; and if sealed by the court below, will not be regarded in the court above. Middleton v. Commonwealth, 2 Watts, Penn. 285. Nor are exceptions to the proceedings of the sessions allowable in settlement cases. Newton v. Gloucester, 1 Halst. N. J. 405. But by statute they are allowed in criminal cases in several states. Commonwealth v. Hickerson, 2 Va. Cas. 60, and note; Hooker v. State, 4 Ohio, 348; Commonwealth v. Stephens, 14 Pick. Mass. 370; State v. Mayberry, 48 Me. 218; People v. McKinney, 10 Mich. 54; People v. Lee, 14 Cal. 510. In New York, by statute, exceptions may be taken in criminal cases, but they do not delay the execution of the judgment. Graham, Pract. 768, note. 6 3 Sharswood, Blackst. Comm. 372. VOL. II.—2 K




fuses to charge the jury when required as to a particular point of law, but not when the judge neglects to do so, he not being required. Nor will an excep

* tion lie to an opinion wholly abstract or out of the case so as not to affect it, though such charge may be erroneous; and if a bill be signed in such case, the court of error will not act upon it. An exception does not lie where there is a right of appeal,"° nor when the alleged error appears on record," nor to instructions on the facts,? nor for refusing to permit a witness to be re-examined as to what he had testified after a cause has been submitted to the jury, this being a matter of discretion in the court,13 nor for exercising a mere discretionary power.14

3234. When evidence is ruled adversely to a party it is usual to take an exception to the judge's opinion, and that is the proper time to do it; though it is unnecessary to stop the progress of the trial to allow time to prepare the bill of exceptions at the time; the judge merely makes a note that the exception has been taken, and the cause proceeds to the end; and when more than one exception is taken, the same proceeding takes place. It not unfrequently happens that exceptions are taken on both sides, of course not to the same decision 15

Sometimes the exception is not to the decision on a point of evidence offered, but to the opinion of the judge, either in general to his charge to the jury or to the answer which he has given on a point of law submitted to him for his decision by the counsel. Exceptions of this kind must be made, according to some decisions, before the jury have withdrawn ;16 buè according to others, if the exception be made after the jury have returned into court with their verdict, but before it is delivered, it is in time.!?

In some cases exceptions can be taken to the pleadings, but they must be taken at the trial in order that the adverse party may have an opportunity to amend.18

3235. The bill of exceptions must be signed by the judge who tried the cause. 19 In general, the bill must be signed at the term of the trial, and not at a subsequent term ; 20 but the practice does not appear to be uniform.21

The bill ought to be signed upon notice of the time and place when and

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Douglass v. McAllister, 3 Cranch, 300; Smith r. Carrington, 4 Cranch, 62; Fletcher v. Howard, 2 Aik. Vt. 115.

* Ex parte Baily, 2 Cow. N. Y. 479; Pennock v. Dialogue, 2 Pet. 15. Gardner v. Gooch, 48 Me. 487.

• Clarke v. Dutcher, 9 Cow. N. Y. 674; Hughes v. Parker, 10 Ala. 139; McDougal v. Fleming, 4 Ohio, 79; Hamilton v. Russell, 1 Cranch, 318; Sawyer v. Phaley, 33 Vt. 69.

10 Rathbone v. Rathbone, 4 Pick. Mass. 93; Piper v. Willard, 10 id. 34; 9 Mass. 228. 11 Macker v. Thomas, 7 Wheat, 532. 12 Brooke v. Young, 3 Rand. Va. 106; Gilbert v. Woodbury, 22 Me. 246. 13 Law v. Merrills, 6 Wend. N. Y. 277. 14 Clapp v. Balch, 3 Me. 219; Reynard v. Brecknell, 4 Pick. Mass. 302.

15 Liggett v. Bank of Pennsylvania, 7 Serg. & R. Penn. 219; Stewart v. Huntingdon Bank, 11 id. 267; Pool v. Fleeger, 11 Pet. 185; Powers v. Wright, 1 Ala. 66.

16 Life and Fire v. Mechanics' Ins. Co., 7 Wend. N. Y. 34; Cutler v. Welsh, 43 N. H. 197.

17 Jones v. Ins. Co. of N. A., 1 Binn. Penn. 38; 4 Dall. 249; Morris v. Buckley, 8 Serg. & R. Penn. 211; Lanuze v. Barker, 10 Johns. N. Y. 312; Doe v. Kennedy, 5 T. B. Monr. Ky. 177; Dock v. Hart, 7 Watts & S. Penn. 172.

18. Wall v. Provident Institution, 3 All. Mass. 96; Morrill v. Derby, 34 Vt. 440; Googinns v. Gilmore, 47 Me. 91.

19 Law v. Johnson, 8 Cow. N. Y. 746 ; Fellows v. Tait, 14 Wisc. 156.

20 Sikes v. Random, 6 Johns. N. Y. 279; Shipherd v. ite, 3 Cow. N. Y. 32; Agnew v. Campbell, 3 Harr. N. J. 291; Pomroy v. Selmes, 8 Miss. 727'; 1 Watts & S. Penn. 480; Kline v. Wynne, 10 Ohio, St. 223. 21 Nisbitt v. Dallam, 7 Gill & J. Md. 494 ; Howard v. Burke, 14 Ind. 35.

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