Pulliam v. Cantrell

• Citation: 77 Ga. 563
• Parties: Pulliam et al. vs. Cantrell.
• Decision Date: 31 October 1886
• Court: Georgia Supreme Court

77 Ga. 563

Pulliam et al. vs. Cantrell.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

Practice in Superior Court. Witness. Charge of Court. Attorney and Client. Notice. Torts. Fraud. Before Judge Fain. Gordon Superior Court. February Term, 1886.

Reported in the decision.

W. C. Glenn; O. N. Starr, for plaintiffs in error.

Dabney & Fouche'; McCutchen & Shumate, for defendant.

Jackson, Chief Justice.

Samuel Pulliam and Joab Lewis brought a rule against W. J. Cantrell, an attorney at law, for money he had collected for J. H. Arthur, whose receipt on Cantrell Pulliam held by delivery from Arthur, and in which, it was alleged, Lewis, by an understanding with Arthur, and at the instance of Pulliam, became also interested. Cantrell's defence was, that he paid all the money to Arthur with the consent of Pulliam, and that he knew nothing of Lewis's interest. The jury found for Cantrell, and the presiding judge, approving the verdict, refused a new trial, and that refusal, on the ground therein laid, is assigned as error.

1. On both issues of fact, to-wit, whether Pulliam assented to the payments to Arthur after the delivery of the receipt to him, within Cantreirs knowledge of possession of it by Pulliam, and whether Cantrell knew of Lewis's in. terest in it, the testimony is conflicting, but enough to uphold the verdict when endorsed by the presiding judge. Errors assigned upon the ruling of the court are, therefore, the only matters for the consideration of this court. These grounds are very numerous, but when analyzed may be much reduced. They are rulings as to evidence and as to the charge. But two points are made touching the evidence, one as to the admitting of it, and the other as to its rejection.

2. It is assigned as error that the court allowed trie wit ness, Cantrell (the defendant), to explain his testimonyon the preceding day, while remaining on the stand the next day. The latitude within which a witness may explain his testimony is very wide. There is scarcely any limit to the discretion of the presiding judge about it. Up to the very close of the examination of the witness it is always proper to allow explanation, unless a witness on the other side has been discharged and is gone, whose testimony, if he were present, would be necessary to contradict the explanation, or in other kindred case. Most assuredly the witness, while on the stand before his testimony is closed, though protracted a week, may be and should be permitted to explain his testimony or to correct it, to bring out the whole truth, even to contradict, if, on reflection, ho chooses to do so, as his refreshed memory may enable him. It is for the jury to note the correction and contradiction, and weigh it all as part of his manner and credibility on the stand. 14 Ga. 242, 251.

3. The complaint about the rejection of testimony is equally untenable as reason for a new trial. It is, that the court refused to allow the question by the plaintiff, when Arthur's character was sustained generally by the defendant, " lie was found a defaulter of public funds to the amount of about nine thousand dollars, wasn't it, Doctor?" And also this question, "Did you ever hear that Arthur had been found a defaulter to the amount of nine thousand dollars?"

The questions were properly disallowed because the effort was made to prove conviction of a crime by hearsay. The code lays down the rule in section 3874, " But the particular transactions or the opinions of single witnesses cannot be inquired of on either side, except upon cross-examination in seeking for the extent and foundation of the witness's knowledge." This was on cross-examination of the witness, but it was not to show the foundation or extent of his knowledge of the character of the witness impeached in a legal way. It was an effort to show the conviction of Arthur of the offence of embezzlement byhearsay. Conviction can be shown only by the record, and there it was in that court. Besides, it was to draw out by the last question that fact of conviction by having heard anybody say so, not many, but any one person. In addition to all this, his conviction was afterwards let in or it got in; for counsel again and again asked the sustaining witnesses question after question to know how it was possible they could say one had good character and could be believed when he had committed such a crime and been convicted of it. So that plaintiffs were not hurt. Everybody knew of the conviction, yet many sustained him upon the idea that intent to steal was not in the man, and that he was legally, but not in their opinions morally, guilty.

4. While exceptions to the charge are numerous, seemingly segments cut out of the entire charge, the counsel for plaintiff stressed but one point on which he really relied. That point is made as well in a refusal to charge as in the charge itself. And that point does not affect Pulliam, but only Lewis. In so far as it is sought to be made in the request, it is enough to say that it is not a written request before the charge, but oral during the charge. The point, however, is sufficiently made in exceptions to the charge, and we proceed to consider it. The receipt was handed by Arthur to Pulliam, delivered to him only. Afterwards, according to the version of the plaintiffs, Pulliam got sorry for Lewis, who was a surety for Arthur, the defaulting officer with Pulliam, and took him in as a sharer of this receipt as collateral to repay the two should they suffer as sureties. Thereupon Pulliam carried him to Arthur, and Arthur receiving the receipt—Cantrell's receipt as attorney—back, handed it to both. Pulliam, however, again received it, and continued in possession. All this is denied by Arthur, but it is the...