Davis v. Byrd

• Decision Date: 16 April 1884
• Docket Number: 11,343
• Citation: 94 Ind. 525
• Parties: Davis v. Byrd
• Court: Indiana Supreme Court

94 Ind. 525

Davis v. Byrd

No. 11,343

Supreme Court of Indiana

April 16, 1884

From the Montgomery Circuit Court.

Judgment reversed.

J. R Courtney, for appellant.

M Thompson, W. H. Thompson and W. B. Herod, for appellee.

OPINION

Elliott J.

The trial court ordered the separation of witnesses, and Frank Pennington, a witness for the appellant, had notice of this order, although not in court at the time it was made; notwithstanding this notice, he came into the court room and remained while several witnesses were testifying. It does not appear that the appellant was in any manner responsible for the presence of the witness in the court room, nor that he did anything to bring it about, nor that he had any knowledge of the violation of the order of the court by the witness. On the motion of the appellee, the court refused to permit the witness to testify, and this ruling presents the only question in the case.

A witness who disobeys the order of the court excluding him from the court room should be punished, and severely punished, for his disobedience, but this punishment should fall on the guilty person, and not on an innocent party. It is difficult to imagine any principle of law which will justify the punishment of an innocent party for the contumacious behavior of a witness. A litigant has no authority over the witnesses subpoenaed by him, and is not answerable for their wrongful conduct, and he ought not to be denied a right because a wrong has been committed for which he is neither morally nor legally responsible. It may be a very serious punishment to be deprived of the testimony of a witness and if the party is himself free from fault, this punishment should not be visited on him; if, however, he is in fault, if he has directly or indirectly influenced the witness to disobey the order of the court, or if he has knowingly suffered it, then it is but just that he should pay the penalty of his wrongful act by the loss of the witness's testimony. We hold the true rule to be this: Where a party is without fault, and a witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury upon the question of his credibility. The modern authorities are overwhelmingly in favor of this doctrine. Mr. Bishop says: "On the other hand, if the party was without fault, the judge has no right to punish his innocence by depriving him of his evidence, and ruin him at the will of a witness. The testimony should be admitted, subject to observation to the jury. Such is the law in principle. * * * * Other judges, less mindful of these reasons, appear to deem it within their discretion in all cases of disobedience to the order to reject the witness." 1 Bishop Crim. Proc., sections 1191, 1192. An English author gives this statement of the rule: "But it seems to be now settled, that the judge has no right to reject the witness on this ground, however much his wilful disobedience of the order may lessen the value of his evidence." 2 Taylor Ev. 1210. The same doctrine is found in 2 ...