Lewis Teese and Lewis Teese, Jun Plaintiffs In Errors v. Huntingdon and Mark Hopkins

• Citation: 64 U.S. 2,23 How. 2,16 L.Ed. 479
• Parties: LEWIS TEESE AND LEWIS TEESE, JUN., PLAINTIFFS IN ERRORS, v. C. P. HUNTINGDON AND MARK HOPKINS
• Decision Date: 01 December 1859
• Court: United States Supreme Court

64 U.S. 2

23 How. 2

16 L.Ed. 479

LEWIS TEESE AND LEWIS TEESE, JUN., PLAINTIFFS IN ERRORS, v. C. P. HUNTINGDON AND MARK HOPKINS.

December Term, 1859

THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of California.

The history of the trial in the court below is fully set forth in the opinion of this court.

It was argued by Mr. Phillips for the plaintiffs in error, and by Mr. Grifford for the defendants. The arguments of the counsel upon many of the points which occurred are omitted, and only the two following will be noticed.

With respect to impeaching the character of a witness, Mr. Phillips said:

Evidence was offered to impeach the character of one of defendants' witnesses, by showing his 'general reputation for moral character.' It was objected, that 'the inquiry should be limited to his general reputation for truth and veracity;' and the objection was sustained.

The authorities on this point are to be found carefully collated in 21 American Law Journal, N. S., p. 145, where it is said, that so far as the decisions in England are concerned, 'they are unanimous to the point that the true criterion of the credit of a witness is his general character and conduct, and not his general character for truth and veracity. The English books will be examined in vain for a single authoritative case which in any respect limits the examination upon this point to the character for truth and veracity.'

Upon examination, it will be found that this rule obtains in most of our States.

Other evidence was then offered to prove the reputation of the witness for 1850 to 1853 for truth and veracity. To which it was objected, that 'the dates named were too remote, and that the reputation of the witness at a period less remote from the time of trial could be alone put in issue.' This objection also was sustained.

The judgment was rendered on the 26th October, 1857, and the time covered by the inquiry was from 1850 to 1853, so that the intermediate period was less than four years.

This is certainly a short statute of limitations in favor of reputation. Whatever influence the question of time was entitled to, was for the jury to consider. The judge could not exclude the evidence as incompetent, for there is neither common-law rule nor statute to justify it.

The view which Mr. Gifford took of these points was the following:

The objection to the inquiry as to Jesse Morrill's reputation for 'moral character' was properly sustained.

1. It is not in any case proper to seek to impeach a witness, by proving what was his reputation for moral character. The inquiry should be as to his reputation for truth and veracity.

U. States v. Van Sickle, 2 McLean, 219.

Goss v. Stimpson, 2 Sumner, 610.

Gilbert v. Sheldon, 13 Barb., 623.

The People v. Rector, 19 Wend., 569.

Jackson v. Lewis, 13 John. R., 504.

The State v. Bruce, 24 Maine, 71, 72.

Phillips v. Ringfield, 1 Appl., 375.

Commonwealth v. Morse, 3 Pick., 194, 196.

Morse v. Pine, 4 Vermont R., 281.

State v. Smith, 7 Vermont R., 141.

State v. Forrest, 15 Vermont R., 435.

State v. Randolph, 24 Conn. Rep., 363.

State v. Howard, 9 N. Hampshire, 485.

Gilchrist v. McKee, 4 Watts, 380.

Chess v. Chess, 1 Penn. R., 32.

Uhl v. Commonwealth, 6 Grattan, 706.

Ward v. the State, 28 Alabama R., 53—court divided.

Ford v. Ford, 7 Humphrey, 92.

Jones v. the State, 13 Texas, 168.

Perkins v. Nobley, 4 Warden's Ohio State Rep., 668.

Taylor on Evidence, sec. 1083.

The testimony was properly excluded as to what was the reputation of Jesse Morrill in 1852 or 1853—about five years before the trial.

1. Because it does not appear that said Morrill was a witness called by the defendants. He is not named in the notices of special matter of defence as one of the defendants' witnesses, and he is not named in the lists of witnesses examined by the defendants.

It must appear by the record that he was called by the defendants, or this objection for that reason must fall.

The law requires that an authenticated transcript of the record and an assignment of errors shall be returned with the writ; and there can be no error cognizable by this court, unless it appear from the record.

The mere assertion of facts in the assignment of errors to show error, cannot be substituted for the record.

Judiciary Act of 1789, sec. 22.

Conkling's Treatise, 3d ed., 689.

Stevens v. Gladding & Proud, 19 How., 64.

Parsons v. Beddford et al., 3 Peters, 433, 445.

All the information the record gives is, that this Morrill 'had, as a witness in said case, given material evidence for the defence on said trial.'

There is nothing more common than for a witness called by one party to give 'material evidence' for the other party. This is constantly done on cross-examinations, and often by the party opposed to the one calling the witness, making him his own witness as to certain facts.

A party cannot impeach a witness called by himself, by proving him unworthy of belief.

Graham and Waterman on New Trials, page 953.

The court below ruled out the evidence offered to impeach Morrill, and, except in so far as the record shows, this court has no means of knowing why. All presumptions are in favor of the correctness of the ruling. This court is bound to consider the determination of the court below to have been correct, on the common presumption that the judge exercised his jurisdiction soundly, until the facts are presented showing the contrary.

2 Graham and Waterman on New Trials, page 596 to 599, and cases.

2. Said testimony was properly excluded, because, if it had appeared that this Morrill was a witness in behalf of the defendants, an attempt to impeach him by proving what his reputation was four or five years before the trial, was not admissible.

There must be a limit of time, back of which a party cannot go to prove the reputation of a witness to impeach him; else to impeach a man on a trial to-day, it might be proved what his reputation was for truth and veracity fifty years ago.

There is no specific time fixed by law, and it must be left to the discretion of the judge at the trial.

There was no offer or suggestion in the present case, on the part of the plaintiffs, to add anything to the proof proposed.

They called one witness who, as appears from the record, did then know Morrill, and proposed to prove by him what Morrill's reputation was for moral character. This being ruled out as an improper form of question, they dropped that witness, and called another, who did not know Morrill, and had not known him for four or five years, and then varied the question, and put it as to his reputation for truth and veracity.

Why did they not put the question in that form to the first witness who had the information? Obviously for the reason that they dared not properly interrogate a witness having to requisite knowledge, but preferred rather to weave snares to suspend the case and bill of exceptions.

Mr. Justice CLIFFORD delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the northern district of California. According to the transcript, the declaration in this case was filed on the eighteenth day of March, 1856. It was an action of trespass on the case for an alleged infringement of certain letters patent purporting to have been duly issued to the plaintiffs for a new and useful improvement in a certain machine or implement called a sluice-fork, used for the purpose of removing stones from sluices and sluice-boxes in washing gold. As the foundation of the suit, the plaintiffs in their declaration set up the letters patent, alleging that they were the original and first inventors of the improvement therein described, and charged that the defendants, on the second day of July, 1855, and on divers other days and times between that day and the day of the commencement of the suit, unlawfully and without license vended and sold a large number of the improved forks made in imitation of their invention. To this charge the defendants pleaded the general issue, and in addition thereto, set up in their answer to the declaration two other grounds of defence. In the first place, they denied that the plaintiffs were the original and first inventors of the improvement described in the letters patent, averring that the supposed improvement was known and used by divers other persons in the United States long before the pretended invention of the plaintiffs. They also alleged that the improvement claimed by the plaintiffs, as their invention, was not the proper subject of a patent within the true intent and meaning of the patent law of the United States.

By the fifteenth section of the patent act of the fourth of July, 1836, the defendant, in actions claiming damages for making, using, or selling, the thing patented, is permitted to plead the general issue, and for certain defences, therein specified, to give that act and any special matter in evidence which is pertinent to the issue, and of which notice in writing may have been given to the plaintiff or his attorney thirty days before the trial. Within that provision, and subject to that condition, he may, under the general issue, give any special matter in evidence tending to prove that the patentee was not the original and first inventor or discoverer of the thing patented, or a substantial and material part thereof claimed as new, or that it had been described in some public work anterior to the supposed discovery by the patentee, or had been in public use, or on sale, with the consent and allowance of the patentee, before his application for a patent. But whenever the defendant relies in his defence on the fact of a previous invention or knowledge or use of the thing patented, he is required to 'state in his notice of special matter the names and places of residence of those whom he intends to prove to have possessed a prior knowledge of the thing, and...