Hill v. Maxwell

• Decision Date: 02 July 1909
• Citation: 73 A. 501,77 N.J.L. 766
• Parties: HILL v. MAXWELL.
• Court: New Jersey Supreme Court

73 A. 501

77 N.J.L. 766

HILL

v. MAXWELL.

Court of Errors and Appeals of New Jersey.

July 2, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Ray D. Hill against Robert C. Maxwell. Judgment for plaintiff, and defendant brings error. Affirmed.

John H. Backes, for plaintiff in error. Scott Scammell, for defendant in error.

MINTURN, J. Upon the trial of a civil suit for assault and battery between these parties the attorney for the plaintiff put the following question upon cross-examination to the defendant: "Mr. Maxwell, you were indicted by the grand jury of this county for an assault and battery upon Hill, for the particular occurrence that is the subject-matter of this suit, were you not? and did you not on March 19, 1908, plead non vult to simple battery under that indictment?" The question was objected to, the objection was overruled, and the court stated: "My judgment is that the testimony is relevant in the suit, and that it is competent as being a declaration of the witness from which it may be argued that a statement has been made in contradiction to the one being testified to." The exception brought up by this writ of error is directed to the legality of that ruling. This court, in State v. Henson, 66 N. J. Law. 601, 50 Atl. 468, 616, held that a defendant on trial for a crime, who offers himself as a witness, may be asked on his cross-examination whether he has pleaded non vult contendere to an indictment for petit larceny for the purpose of affecting his credibility, and also that a conviction for assault and battery might be shown for the same purpose; and this result was reached after a most thorough review by Mr. Justice Van Syckle of the history of the evidence act in this state. The first section of that act as it now exists provides that: "No person offered as a witness in any action or proceeding of a civil or criminal nature, shall be excluded by reason of his having been convicted of crime; but such conviction may be shown on the cross-examination of the witness, or by the production of the record thereof, for the purpose of affecting his credit." P. L. 1900, p. 362, § 1. In the case at bar, "we consider the reasoning applied in the Henson Case equally cogent to admit asking the question in issue as affecting the defendant's credibility, and upon that ground we deem it admissible under the provisions of the evidence act.

Nor is it material from that point of view that the trial judge expressed an opinion that...