Hice v. Cox

• Citation: 34 N.C. 315,12 Ired. 315
• Court: North Carolina Supreme Court
• Decision Date: 31 August 1851
• Parties: DEN ON DEMISE OF JONES HICE v. AMOS COX et al.

12 Ired. 315

34 N.C. 315

DEN ON DEMISE OF JONES HICE

v.AMOS COX et al.

Supreme Court of North Carolina.

August Term, 1851.

On the trial of an ejectment, it became important to prove that the defendant was the tenant of A. To prove this the plaintiff called A., who proved the fact, and, on cross examination, produced a conveyance, dated more than seven years before the commencement of this suit, and swore that he had been continually in the peaceable and adverse possession. The counsel for the plaintiff was then about to urge to the jury that A's testimony, as to the time he obtained said deed, was false, and that the deed was antedated. The Court informed the counsel, that, as he had introduced A. as a witness, he could not discredit him before the jury; that he might have proved by other testimony, that the witness was mistaken, and that the facts were otherwise. The Court permitted the deed to be given to the jury for their inspection, that they might determine from the face of it, whether it was antedated or not. The Court then instructed the jury, that if they believed from an inspection of the deed, that it had not been in existence for seven years or more before the action was brought, they should find for the plaintiff; but it did not lie in the mouth of the plaintiff to say, that his witness, A., was unworthy of credit; and, particularly, as the plaintiff was not entitled to recover, unless that part of A's testimony, in relation to the possession, was believed. The plaintiff had no right to ask them to believe so much of A's testimony, as was in his favor, and to discredit him as to the balance.

Held, that the charge of a Judge should be taken as a whole--that all he says upon any one particular point should be taken together, and that, thus viewing it, the charge of the judge in this case was correct.

The party producing a witness shall not be allowed to prove him corrupt. He may prove that he is mistaken, or that the fact sworn to is other than is represented by him.

There is a distinction between discrediting a witness, and shewing that the facts are different from what he has represented them. In the latter case, the discrediting of the witness is incidental, not primary. The evidence may be discredited, and the integrity of the witness remain unimpeached.

PEARSON, J. dissented, as to the construction of the Judge's charge.

Appeal from the Superior Court of Law of Yancy County, Fall Term, 1850, his Honor Judge DICK, presiding.

The case is stated in the opinion of the Court.

J. W. Woodfin, for the plaintiff .

Avery and N. W. Woodfin, for the defendant .

NASH, J.

The only question presented by the case is, as to the charge of the Court below, and the remarks made to the Counsel. The case is: An execution was levied upon the land in question, as the property of one Joseph L. Ray, and at the sale the plaintiff became the purchaser. The action is brought against the tenant in possession, Amos Cox, the defendant; and it became important to the plaintiff to show, that he was the tenant of Ray. To prove this, Ray was himself called and proved the fact. Upon his cross examination, he stated, that, at the time of the sale, he had no legal title, but that he acquired it afterwards, and produced a conveyance, which bore date more than seven years before the commencement of this suit; and that he had been continually in the peaceable and adverse possession ever since.

The Counsel of the plaintiff then proposed to urge to the jury, that Ray's testimony, as to the time he obtained said deed, was false, and that the deed was antedated. The Court informed the counsel, that, as he had introduced Ray, as a witness, he could not discredit him before the jury; that he might have proved by other testimony, that the witness was mistaken, and that the facts were otherwise. The counsel then contended, that he was at liberty to show to the jury, from the face of the deed, that it was antedated; and the Court permitted him to give the deed to them for their inspection. His Honor then instructed the jury, that if they believed from an inspection of the deed, that it was antedated, and had not been in existence seven years o?? more before this action was brought, then they ought to find for the plaintiff. But, as the plaintiff had introduced the witness Ray, it did not lie in his mouth to say, he was unworthy of credit, and, particularly, as the plaintiff was not entitled to recover, unless that part of Ray's testimony, in relation to the possession, was believed. The plaintiff had no right to ask them to believe so much of Ray's testimony, as was in his favor, and to discredit him, as to the balance.

The charge is, in our opinion, correct, and sufficiently explicit to show the meaning of the Judge, and not to mislead the jury. The general rule of evidence on this subject is, that a party shall not be permitted to produce general evidence to discredit his own witness. He shall not, in that way, prove him to be of such bad character, as would render him unworthy of credit. It would be a fraud upon the administration of jusf??ice. But the rule does not extend to the exclusion of testimony to show, that the facts sworn to by the witness are otherwise, or to show by other testimony how the facts really are; for, such facts are evidence in the cause. The other witnesses, in such case, are not called to discredit the first, but the impeachment is incidental and consequential only; 2 St. N. P. 1785-6. The same doctrine is laid down by Justice BULLER, in his Nisi prius, 297. In the case of Holdsworth v. the Mayor of Dartmouth, 2 M. and Rob. 153, cited by Mr. Stephens, Baron PARK observes, that the party calling a witness cannot, if he give testimony unfavorable to him, prove that he has given a different account of the matter before; for, the object of the evidence is to discredit him; and he lays it down, “as a clear rule, that a party has no right to put a witness into the box, as a witness of credit, and when he gives unfavorable evidence, to call witnesses to discredit him.” To the same effect are the opinions of all the Judges in the case of Erner v Ambrose, 10 E. C. L. R, 220. All these authorities state, that the party calling the witness may prove by other testimony, that the facts are not such as he has sworn; and they advert to the difference of the rule, as to witnesses, whom the law makes such, and those which the party produced. The former the party is compelled to call, as in cases of wills. He, therefore, is under no responsibilty, as to their character, and he may impeach their evidence by proving they are not worthy of belief. The latter are witnesses of his own selection; and, in the language of some of the cases, he has the whole world to select from, and stands as their endorser, that they are worthy of credit. To me it is obvious, that the Judge intended, and, in substance, did lay the rule down to the jury, as sanctioned by the authorities above cited. The Counsel was stopt by the Court, assigning as his reason, that he could not discredit his own witness, but he proceeds and explains to the counsel, what he might have done--he might have proved that the witness was mistaken, and that the facts were otherwise. But his Honor leaves no doubt as to his meaning; for, upon the request of counsel, he suffers the deed to be handed to the jury for inspection, to ascertain from it how the fact was as to its date--a very important fact in the cause--and he directs them, that, if they believe from inspection, there being no other evidence, it had been antedated, to find for the plaintiff. In other words, to throw the deed aside, put it out of their view. Of this portion of the charge, the plaintiff certainly has no right to complain; and it plainly and fully shows the meaning of the Judge in his remark to the counsel. The latter part of the charge, however, it is said, is contradictory of the first. I do not think so; or, if it is, it is so in appearance only. Justice to his Honor requires, that the charge should be taken as a whole, that all he says upon any one particular point, should be taken together, and not as disjecta membra. It is true, the latter...