Jones v. Jones

• Decision Date: 31 January 1879
• Citation: 80 N.C. 246
• Court: North Carolina Supreme Court
• Parties: LEWIS H. JONES v. SUSAN JONES.

80 N.C. 246

LEWIS H. JONES

v.SUSAN JONES.

Supreme Court of North Carolina.

January Term, 1879.

CIVIL

ACTION for Divorce a vinculo matrimonii tried at Fall Term, 1878, of WAKE Superior Court, before Seymour, J. The facts applicable to the point decided by this court are embodied in its opinion. Judgment for defendant, appeal by plaintiff.

Messrs. T. M. Argo and Armistead Jones, for plaintiff .

Messrs. Reade, Busbee & Busbee, for defendant .

SMITH, C. J.

The only issue submitted to the jury was in these words: “Did the defendant commit adultery with one Wm. Delaware in May, 1877?”

To prove the affirmative the plaintiff introduced one John Jones who testified that he went to the plaintiff's house to live some time in May, 1877, a day or two after the 7th of the month, as well as he could remember. To contradict this statement the defendant offered an affidavit of the witness made in January, 1878, to be used on the hearing of a motion in the cause, wherein the witness swears that he went to live with the plaintiff some time about the first of March, 1877. The plaintiff objected to the admission of the affidavit without assigning the grounds of his objection, and it was received by the court. The exception to the ruling is sustained in the argument before us, for that, the attention of the witness was not called to the proposed impeaching evidence on his examination, nor the writing itself produced. The exception rests upon a misapprehension of the rule. The testimony with which the affidavit conflicts, is pertinent and material to the pending enquiry whether the alleged criminal act was committed in the month of May, 1877. In such case no preliminary examination is required and the contradicting statement may be made to confront the witness without previous intimation to him of its existence or nature. If the matter, the details of which are extracted in the cross-examination, is collateral merely, the answer of the witness is conclusive and no proof to the contrary is allowed. When, however, the collateral matter consists in acts or declarations of the witness, indicating temper, bias, or prejudice, and affecting his credit, his answer may be disproved; and if it be intended to contradict him afterwards, it is necessary to remind him of the substance of the conversation, the time, place, and attending circumstances, as far as may be, in order to give him an opportunity to explain before the proof can be offered. These distinctions are recognized and settled in State v. Patterson, 2 Ire., 346; State v. McQueen, 1 Jones, 177; Clark v. Clark, 65 N. C., 655, and other cases.

Says GASTON, J., in Patterson's case: “With respect to the subject matter of the witness' evidence, he may be presumed to come prepared to testify with a freshened memory and carefully directed attention; but this presumption does not exist as to collateral matters remotely connected with that subject matter, and justice to the witness, and still more reverence for truth, requires that before he be subjected to the suspicion of perjury he shall have a chance of awakening such impressions in respect thereof as may then be dormant in his memory.” So in McQueen's case, BATTLE, J., giving his approval to the opinion of Judge GASTON adds: “A witness is never, and ought never to be asked as to any previous statements he has made, directly and immediately material to the issue, when contradictory to what he swore on the trial. Such statements are allowed to be proved at once to discredit him. It is only when testimony is introduced to prove his declarations or acts tending to show his bias, feeling, or partiality towards the party introducing him, that the question must be first put to him in relation to such declarations or acts, before the impeaching testimony is...