Gildersleeve v. Atkinson

• Court: New Mexico Supreme Court
• Writing for the Court: SEEDS, J.
• Citation: Gildersleeve v. Atkinson, 6 N.M. 250, 27 P. 477, 1891 -NMSC- 35 (N.M. 1891)
• Decision Date: 21 August 1891
• Parties: GILDERSLEEVE v. ATKINSON.

27 P. 477

6 N.M. 250, 1891 -NMSC- 035

GILDERSLEEVE v. ATKINSON.

Supreme Court of New Mexico

August 21, 1891

Error to district court, Santa Fe county; W. H. WHITEMAN, Judge.

Action by Charles H. Gildersleeve against Ada J. Atkinson administratrix of H. M. Atkinson, to recover the purchase money for lands sold deceased by plaintiff. The court directed a verdict for defendant, and plaintiff brings error. Affirmed.

H Burns and G. C. Preston, for plaintiff in error.

F. W Clancy, for defendant in error.

SEEDS J.

This was a suit begun before the probate court in and for Santa Fe county, at the September term, 1887, against the administratrix of the estate of H. M. Atkinson, deceased, in which the plaintiff, Gildersleeve, claimed the sum of $10,118.60, as due him from the estate, "on account of cash loaned," to-wit, $118.60, "and the sum of 10,000 dollars *** on account of a balance due your petitioner as a part of the purchase price or consideration of an interest in the Anton Chico grant deeded by your petitioner to said deceased in the early part of the year 1883." The administratrix admitted the claim for $118.60, but denied that for $10,000. The probate court found in favor of Gildersleeve for the whole amount, and gave judgment accordingly. Thereupon the administratrix appealed the case to the district court of Santa Fe county, where it was tried before a jury. When the plaintiff had closed his introduction of evidence, the defendant moved the court to instruct the jury to find a verdict for the plaintiff, Gildersleeve, for $118.60, the amount admitted to be due, and for no more. The motion was granted, and a verdict and judgment given in accordance therewith. The plaintiff then filed the usual motion for a new trial, which, being duly considered, was denied. The plaintiff then gave notice of and perfected his appeal to this court. By an agreement found in the record, the deposition of one S. S. Burdett, who was living in Washington, D. C., was taken for use in the trial in the probate court upon the part of the plaintiff; but by that agreement the defendant reserved the right to object to the introduction of the same upon the ground, among others, that there was no provision of law in this territory for using a deposition taken outside the territory in a probate court. The deposition in question was taken by a commissioner for this territory in the city of Washington, D. C. The district court took the view advanced by the defendant, and refused to allow the deposition to be read. The plaintiff in error makes the following assignment of errors: First, instructing the jury to find a verdict in his favor for only $118.60; second, refusing to submit plaintiff's claim for $10,000 to the jury; third, overruling his motion for a new trial; fourth, refusing to allow him to prove the value of his interest in the Anton Chico grant, and the value of the lands conveyed by him to H. M. Atkinson; fifth, refusing to allow him to read the deposition of S. S. Burdett to the jury. Under these assignments of error, there are but three questions important to be considered, and they are these: First. The plaintiff, under section 2082 of the Compiled Laws of 1884 of this territory, being precluded from obtaining a judgment unless his evidence is "corroborated by some other material evidence." As there such corroboration in this case as the statute requires? Second. Is there any provision, under the laws of this territory, for taking the deposition of a witness out of the territory for use in the probate court? And, third, was the court justified in this case in instructing the jury to find for the plaintiff for $118.60, or should it have submitted the whole case to them?

The plaintiff filed his claim before the probate court in the form of a petition. That petition, then, is the pleading upon which his case must rest. It is the same as a declaration in a common-law case in the district court, and limits and controls the evidence which he is allowed to offer. He cannot go outside the fair intendment of its allegations in the introduction of his evidence. His proof, in other words, must respond to his allegations, and tend to prove them. Unless it does thus tend to prove the allegations, and is confined to the point in issue, the evidence is clearly immaterial. This is elementary, and needs no elaborate citation of authorities to sustain it. 1 Greenl. Ev. (13th Ed.) § 51.

What were the allegations in his petition? We quote from it those portions necessary to a correct understanding of this controversy: "That the estate *** is justify indebted to your petitioner in the sum of $10,118.60; that the sum of $118.60 is due on account of cash loaned, and the sum of $10,000 is due on account of a balance due your petitioner as a part of the purchase price or consideration of an interest in the Anton Chico grant deeded by your petitioner to said deceased in the early part of the year 1883." He then goes on to state that, at the time of the delivery of the deed for the grant to the deceased, they had an accounting and the deceased promised to pay the plaintiff the said sum of $10,000, and that the plaintiff was to be interested with the deceased in said grant, or sale thereof, to the extent of said $10,000. The defendant confessed the indebtedness of $118.60, but denied the other allegations of the petition. What, then, was the point at issue? Clearly, as to whether the Atkinson estate owed Gildersleeve $10,000 as a balance upon the purchase price or consideration for plaintiff's interest in the grant sold. Mr. Gildersleeve was a witness in his own behalf, and testified that he first made a contract in 1882 to sell his interest in the grant to Atkinson for about $12,000; that when the sale was finally consummated Atkinson agreed to pay him $10,000 in addition to the $12,000 when he (Atkinson) should sell the grant. Continuing, he said: "The $10,000 he was to pay me when he should realize," etc.," was to be regarded as a part of the consideration for the conveyance that I made to him, and payment of attorney's fees rendered by myself," etc. The evidence in regard to the attorney's fees, by his own statement, in no way enters into the consideration or interest in the grant; for he says that the $10,000 was for "part of the consideration," and for attorney's fees. What allegation is the evidence in regard to the attorney's fees responsive to, or does it in any manner tend to prove the issue here raised? It is certainly not responsive to the allegation set out in the petition, nor does it in any way tend to meet the issue raised. But, conceding that the whole of his evidence proves, at least in part, the issue offered by himself, yet, as he is testifying about transactions with a man whose lips are forever sealed, is his evidence corroborated as required by the statute? Section 2082, Comp. Laws 1884, provides that no verdict, judgment or decision shall be obtained on such evidence, unless it "is corroborated by some other material evidence." ^[1] What, then, is material corroborating evidence? The term "corroborating evidence," as found in the books, is used in two distinct senses,--the one general; the other special or technical. In the general sense, it is used when we say that in any case, and as to any evidence, it was or was not corroborated. In this sense the evidence has no other function than to aid other evidence of a like or different character in giving it additional weight. Such other evidence, so aided, may or may not be sufficient of itself: that is a question solely for the jury. General corroborating evidence may corroborate any material evidence already, in, whether that evidence goes directly to the issue or necessary legal elements in the case, or to giving solidity to a link merely in the chain of proof. In the special or technical sense of corroborating evidence, upon the other hand. We are dealing with a substantive quantum of evidence without which the case of the party who is compelled to produce it must inevitably fail. Its materiality goes to the very core of the case. The character of this species of evidence, too, is generally the creation of statute. We find special or technical corroborative evidence necessarily present in, atleast, three distinct classes of cases: First, in criminal cases where it is sought to convict an accused upon the testimony of an accomplice alone. In such cases the evidence of the accomplice must be corroborated as to its material facts; and the material facts which must be corroborated are not those alone which would tend to sustain the credibility of the accomplice simply, but they must have reference to the corpus delicti, or tend, to connect the defendant with actual participation in the offense charged. 1 Greenl. Ev. § 381, and note; 1 Bish. Crim. Proc. §§ 1169, 1170. Other facts testified to by the accomplice may be corroborated, but it simply goes in as general corroborative evidence, reaching merely to his credibility, and is not special corroborative proof. State v. Money, (Conn.) 6 A. Rep. 401, 403. The law in regard to corroborating accomplices exhibits in its evolution very strickingly the difference between general and special or technical corroboration. At common law, a jury was at liberty to find an accused guilty upon the uncorroborated testimony of an accomplice; though it was the custom of the judges to caution the juries against so doing, and urge upon them the necessity of requiring corroborating evidence, or acquitting. 1 Bish. Crim. Proc. § 1169; People v. Clough, 73 Cal. 348, 15 P. 5. The corroborating evidence, as thus used, was of the general class; for without it the jury could convict. But, the character of an accomplice's testimony being so evidently corrupt, many states...