Lavigne v. Lee

• Citation: 71 Vt. 167,42 A. 1093
• Court: Vermont Supreme Court
• Decision Date: 12 January 1899
• Parties: LAVIGNE v. LEE.

42 A. 1093

71 Vt. 167

LAVIGNE

v. LEE.

Supreme Court of Vermont. Chittenden.

Jan. 12, 1899.

Exceptions from Chittenden county court Trespass by Laura J. Lavigne against Patrick Lee. Judgment for defendant, and plaintiff excepts. Reversed.

C. J. Ferguson and R. E. Brown, for plaintiff.

H. F. Wolcott and V. A. Bullard, for defendant.

ROSS, C. J. The plaintiff testified, and gave other evidence tending to establish, that the defendant visited her on the evenings of May 23 and 29, 1897, and on the latter occasion made an assault upon her. The defendant testified to having made the visits on the dates named, but denied having made an assault. On cross-examination the defendant was asked if, up to the trial in the city court, he had not told various parties that he had been at the plaintiff's only once. He replied that he had told two persons, named by him, and perhaps others, that he visited her but once. He at first denied, and afterwards insisted that he did not think, he had so told all persons he talked with about it, up to the time of trial in the city court, but would not swear positively that he had not so claimed. The plaintiff's evidence tended to show that about the time of the trial in the city court the defendant learned that she could prove by witnesses other than herself that he was at her house on the evening of the alleged assault, and that until he learned this he had denied being there on that occasion, to various persons. This testimony, and the admissions drawn out of him on cross-examination, could serve no other purpose than to impeach the credibility of the defendant. It was not to obtain an admission to be used as direct evidence that he was not there on May 29th. That fact was not in controversy. In this portion of the testimony the defendant's counsel claimed the right, and was given it, at the peril of the defendant, against the exception of the plaintiff and the judgment of the trial judge, on re-examination, to draw out of the defendant that he told the sheriff and his counsel, immediately after the service of the writ upon him, and before the trial in the city court, that he was at the plaintiff's on both dates; that his counsel advised him to tell the truth about it. Against the like exception, he was allowed to show by the sheriff who served the writ that defendant then told him that he was there upon both dates. This was error. The general rule is that evidence that the witness has, on other occasions, made statements...