Richardson v. Gage

• Decision Date: 11 December 1911
• Citation: 133 N.W. 692,28 S.D. 390
• Parties: RICHARDSON v. GAGE et al.
• Court: South Dakota Supreme Court

133 N.W. 692

28 S.D. 390

RICHARDSON v. GAGE et al.

Supreme Court of South Dakota

December 11, 1911

Appeal from Circuit Court, Lyman County; Frank B. Smith, Judge.

Action by George Richardson against Russel Gage and others. From a judgment for plaintiff and an order denying a new trial defendants appeal. Reversed, and new trial ordered.

James Brown and J. G. Bartine, for appellants.

J. E House, for respondent.

SMITH P. J.

Action in the circuit court of Lyman county for the conversion of five horses belonging to plaintiff through larceny thereof by the defendants from plaintiff. Verdict and judgment for plaintiff, from which, and an order overruling a motion for a new trial, defendants appeal.

This action was tried on the 15th day of January, 1906, and the judgment roll made up in the trial court on May 6, 1910. February 4, 1911, an order was entered denying appellants' motion for new trial, and on March 18, 1911 the record on appeal was filed in this court. At the trial one Andrew Nightpipe was sworn and testified as a witness on behalf of plaintiff. His evidence discloses that, some time after the alleged larceny of the horses, the witness himself was tried and convicted of stealing the same horses. At the time of this trial he was an inmate of the penitentiary at Sioux Falls. He testified, in substance, that at the time of the larceny he was at the residence of Joe Demarsh, one of the defendants, and that Joe Demarsh and the defendant Russel Gage went away from the house and shortly after came back driving the stolen horses, which were turned over to the witness Nightpipe; that shortly after Nightpipe and the other defendant, David Colomb, took charge of the horses and drove them some distance to the residence of Nightpipe's father; that the horses were thereafter used by the witness, and traded for other horses; that some time later the plaintiff, Richardson, learned the location of the horses and secured possession of two of them. The witness Nightpipe did not pretend innocence in the transaction at the time of this trial. At the criminal trial in which he was convicted of the larceny, he swore to an entirely different state of facts, testifying that he obtained the horses from one George Patterson, who was then deceased. On the witness stand all the defendants denied the entire transaction testified to by Nightpipe, and upon the issue of fact raised by this conflicting testimony the jury returned a verdict for plaintiff. The motion for a new trial contained 29 assignments of error which are re-assigned upon this appeal, and, in addition, error is alleged in denying the motion for a new trial.

Of these assignments, we shall notice only those discussed in appellants' brief. At the trial the plaintiff, Richardson, was sworn as a witness on his own behalf, and on cross-examination by appellants' counsel was asked: "You have been quite unfriendly toward Mr. Gage for some time past, haven't you?" Answer: "We are not on the best of terms; that is, I do not think he likes me." He was then asked: "Is not it a fact in the month of August last year, you made an assault on Mr. Gage with a revolver and was arrested and pleaded guilty?" This question was objected to by defendant as incompetent, irrelevant, immaterial, and not proper cross-examination. The objection was sustained, and this ruling is assigned as error. The question could have been competent for no other purpose than to show hostility or ill feeling on the part of plaintiff toward the defendant as affecting credibility. The extent to which cross-examination is permissible for the purpose of showing hostility or ill will affecting credibility is not clearly defined by the authorities.

In a general discussion of this subject, Wigmore, in his elaborate and learned work on Evidence (volume 2, § 943), says "The various qualities available for impeachment having been surveyed and their limitations marked out, the next problem (ante, § 876) concerns the admissible modes of evidencing those qualities. These sources of evidence will be chiefly, either the conduct of the witness, or external circumstances. The evidence will thus consist most commonly of particular acts of behavior or particular events. Thus the distinction already noted (ante, § 878) between extracting impeaching facts on cross-examination, and presenting them by other witnesses, becomes of vital importance. The first topic may most properly deal with those qualities for the evidencing of which this prohibition of extrinsic testimony does not apply, namely, the qualities of bias, corruption, and interest; all being varities of the single quality of emotional partiality (ante, § 940). Cross-examination will here be an important but not the exclusive mode of presentation." The learned author thereupon quotes the language of the court in McHugh v. State, 31 Ala. 320: "In considering the various modes by which the credit of a witness may be assailed, courts must observe the distinction between an attack upon his general credit, and an attack upon his credit in the particular case. Particular facts cannot be given in evidence to impeach his general (i. e., moral character) credit only, but may be to affect his particular credit; that is, his credit (due to bias or interest) in the particular cause. Thus the general credit of a witness for the prosecution may be unassailable; he may be hostile to the prisoner, and on cross-examination may deny that he is so; and in such case who can doubt the right of the prisoner to prove the hostility." The learned author also lays down the rule that the largest possible scope should be given to attempts to procure evidence in that way, and that the scope of such attempts by way of cross-examination should be left chiefly to the discretion of the trial court, though he is inclined to the view that, owing to its great efficacy, the right to elicit facts of this class upon cross-examination is one which may not be denied in the discretion of the trial court. Wigmore, vol. 2, § 1368. The author again says (section 945): "Three different kinds of emotion constituting untrustworthy partiality may be broadly distinguished-bias, interest, and corruption. Bias in common acceptance covers all varieties of hostility or prejudice against the opponent personally, or of favor to the proponent personally." It is also said that the doctrine of excluding facts offered by extrinsic testimony has never been applied where the question of bias as thus understood was under investigation, and that such facts may be offered either by extrinsic testimony or by cross-examination. If the views of this learned author are to be accepted as a correct statement of the law, it may be very much doubted whether the court in this case may not have erred in denying defendant's counsel the right of cross-examination to show bias or...