Husted v. Mead

• Decision Date: 14 January 1889
• Citation: 58 Conn. 55,19 A. 233
• Court: Connecticut Supreme Court
• Parties: HUSTED v. MEAD.

19 A. 233

58 Conn. 55

HUSTED

v. MEAD.

Supreme Court of Errors of Connecticut.

Jan. 14, 1889.

Appeal from superior court, Fairfield county; TORRANCE, Judge.

H. S. Sanford and H. W. R. Hoyt, for appellant. J. B. Curtis, for appellee.

PARK, C. J. This is a petition for a new trial for newly-discovered evidence. The defendant brought an action against the present plaintiff to the superior court in Fairfield county in 1879, charging him with burning three barns belonging to him in 1875, 1877, and 1879, and, after repeated trials, recovered judgment against him at the September term, 1883, for $5,000 damages and the costs of suit. The present suit was brought in April, 1885, and the superior court rendered judgment in it in favor of the plaintiff at its February term, 1888, granting him a new trial. From this judgment the defendant appeals to this court.

The ground on which the new trial was prayed for was the discovery, since the trial in 1883, of new evidence tending to impeach the veracity of two important witnesses who testified for the other party upon that trial. One of the witnesses, Ella Williams, had testified on all the trials that she saw the defendant in that suit standing in an old cellar, opposite the burning barn, soon after the fire began, and but a little distance from the barn, with his hands resting upon his hips, and gazing at the fire, and that she had no doubt that it was the defendant. The defendant, testifying for himself, contradicted her in direct terms. He denied being in the cellar, or at the fire at all, and said he was asleep at home, and knew nothing of the fire till the next morning. In addition to this, he called six witnesses who testified that a person could not be recognized in the cellar from the place where the witness was standing at the time; that they had tried the experiment, and found that it could not be done. The defendant had the full benefit of all this discrediting evidence, but failed to convince the jury upon the point, and now, after so long a time, seeks to obtain a new trial on the ground of having discovered evidence that the witness had made statements out of court with regard to the matter materially different from her testimony in court. If the defendant had sought to obtain a new trial on the ground of newly-discovered evidence that would impeach the general reputation of the witness for truth and veracity, the cases everywhere agree that it could not be done. In Tappin v. Clarke, 32 Conn. 367, the court say: "This court has never before been asked to grant a new trial on the ground of newly-discovered evidence to impeach the character of a witness sworn on a former trial. This cannot be owing to the fact that cases have not arisen in which the question could have been made, for scarcely has there been an important trial, with many witnesses, where diligent search would not have discovered evidence of this character against some witness on the trial; but it must be owing to the unbroken current of authority on the subject, early established elsewhere, that rendered it highly improbable that an attempt of this kind would be successful. Indeed, the only hope the petitioner seems to entertain of his case is based upon making it appear that it is an exception to the general rule, which he freely admits is adverse to his claim." It can as truly be said that there has hardly ever been a case tried, which involved an exciting personal controversy, in which persons could not afterwards have been found, by diligent search, who would have testified to statements made out of court, by some of the witnesses, varying materially from their testimony in court. Such testimony is generally very unreliable and dangerous. What Greenleaf, in his work on Evidence, (volume 1, § 200,) says of oral admissions of parties applies with equal force to this class of evidence. He says: "With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him." Judge Redfield, in his note to the twelfth edition of the work, says as follows: "In a somewhat extended experience of jury trials, we have been compelled to the conclusion that the most unreliable of all evidence is that of the oral admissions of the party, and especially where they purport to have been made during the pendency of the action, or after the parties were in a state of controversy. It is not uncommon for different witnesses of the, same conversation to give precisely opposite accounts of it. * * * When we reflect upon the inaccuracy of many witnesses in their original comprehension of a conversation, their extreme liability to mingle subsequent facts and occurrences with the original transactions, and the impossibility of recollecting the precise terms used by the party, or of translating them by exact equivalents, we must conclude there is no substantial reliance upon this class of testimony."

All this may be said with regard to statements of what a witness has said out of court about the matter as to which he has testified, and especially where the discovery as to what the witness is claimed to have said is made long after an exciting trial; but can it make any real difference in what way the credibility of a witness is impeached? However it is done, the result is the same. The witness is shown to be not worthy of belief, and the jury are to take his testimony with caution and distrust. Here is a witness whose character for veracity is bad in the community. Here is another who has made statements out of court which conflict with his statements in court. Do they not stand substantially on the same ground? In either case, the credibility of the witness is impaired. In both cases the testimony of the witness cannot be relied upon. If a new trial would not be granted for newly-discovered impeaching evidence in the one case, it would seem as if it ought not to be granted for newly-discovered discrediting evidence in the other. But, while the effect upon the credibility of the witness is substantially the same in both cases, there is a difference, which should perhaps be noticed, in respect to the diligence required, and the facilities for obtaining evidence. If character generally is attacked, it is a matter of common knowledge; and all that is necessary to be done in order to impeach or sustain character is to go into the the community in which the witness resides. One reason why new trials will not be granted for newly-discovered evidence affecting character, is that the jury may believe the witness notwithstanding the impeachment, while an independent fact tending to discredit a witness might have much more weight with the jury. In this respect the two cases differ. Another obvious difference is this: If a witness is liable to impeachment by a direct attack upon his character, the fact is known to many, and slight diligence will discover it, while contradictory or inconsistent statements made by a witness may be known by but one or a few persons, and cannot be discovered by the use of a much greater degree of diligence. In these respects, as well as in some others, the cases are unlike. Still testimony of this character is but another mode of impeaching a witness; and, aside from the danger of fabrications, misrepresentation, and forgetfulness, it is not very convincing in its nature.

These considerations apply with equal force to the case of the other witness, Henry Green. He testified on the trial to admissions of the defendant, made to him at different times, to the effect that he burned the plaintiff's barn. In the present suit for a new trial, it is alleged in the petition that the witness had at different times stated to sundry persons out of court that no such admissions were made. So far the case of this witness is similar in every respect to that of the other. But the newly-discovered evidence with regard to him includes that of his conviction at a former time of the crime of theft. But this fact would merely affect the crebibility of the witness. It does not debar him from testifying. By Gen. St; § 1098, it is provided that such a conviction shall not disqualify a witness, but that "such conviction may be shown for the purpose of affecting his credit." It operates, therefore, merely as an impeachment of his veracity, and comes under...