Spalding v. Lowe

• Court: Michigan Supreme Court
• Writing for the Court: [56 Mich. 368] CHAMPLIN, J.
• Citation: Spalding v. Lowe, 56 Mich. 366, 23 N.W. 46 (Mich. 1885)
• Decision Date: 15 April 1885
• Parties: SPALDING v. LOWE.

23 N.W. 46

56 Mich. 366

SPALDING v. LOWE.

Supreme Court of Michigan

April 15, 1885

Error to Lenawee.

C.A. Stacy, for plaintiff.

S. Bean and V.H. Lane, for defendant.

CHAMPLIN, J.

This is an action for malicious prosecution. The defendant made a complaint against plaintiff, charging him with having committed the crime of perjury. A warrant was issued on the fifth of February, 1880, on which the defendant was arrested and brought before a justice of the peace, and, after several adjournments on the application of the people, a hearing was had, and upon such examination the defendant was held to answer the charge in the circuit court. He entered into a recognizance for his appearance at the May term, 1880. Nothing further was done towards prosecuting him, and at the December term the prosecuting attorney obtained leave of court not to file an information. Plaintiff then brought this action for a malicious prosecution, and recovered. Defendant alleges error.

In the fall of 1878 plaintiff was engaged by one Jay J. Lowe, a son of defendant, to thresh his wheat with a machine. The son being sick, defendant was requested by him to look after the threshing, and he did so. Defendant, with an assistant, was taking care of the wheat as it came from the mill. He claimed that the machine was throwing the wheat over into the straw and wasting it, and he threw the belt from the straw-carrier to compel plaintiff to remedy the defect, which not being done, he claims that he directed Login Lowe, who was on the straw-stack at the end of the carrier, to stop it. This Login did by thrusting his pitchfork between the raddles of the carrier. The raddles were fastened to leather bands by rivets at the ends. Plaintiff claimed that the fork broke one or more raddles in two, and broke out twelve others by forcing the rivets through the leather. He sued the defendant in trespass before Justice MANLY, for the damage done to the carrier, and recovered $1.32 damages. In that suit the plaintiff was a witness in his own behalf, and afterwards defendant made complaint before S. HARVEY MERRILL, a justice of the peace against the plaintiff for the crime of perjury. He alleged in the complaint that Spalding testified that "he saw the man on the stack run his fork into the upper end of said straw-carrier and stop the machine, and by so doing he then and there broke out 14 raddle-sticks from the straw-carrier whereas, in truth and in fact, this complainant says there were not 14 raddle-sticks on said straw-carrier as aforesaid broken, nor any such number of raddle-sticks on said straw-carrier as aforesaid broken; but, instead, there was not to exceed one raddle-stick on said straw-carrier broken out as aforesaid." This is the only allegation of false swearing contained in the complaint, and is confined to the number of raddles broken out.

Upon the trial at the circuit of the present case the plaintiff produced NATHAN MANLY as a witness. He was the justice of the peace before whom the trespass suit was tried, and in which it was charged by defendant that plaintiff committed the crime of perjury. He testified: "I can't recollect all of Spalding's testimony with respect to what he swore to with regard to the injury to the machine the straw-carrier, and the raddles, at the time he was threshing for Jay J. Lowe. I have some portion of it minuted down; I have the memorandum here. The memorandum was made as the testimony was being delivered." Here the counsel for plaintiff asked the witness to read what he had upon the subject, to which the counsel for defendant objected, as incompetent and immaterial. The objection was overruled and exception taken. The witness then read from the memorandum as follows: "Spalding said that he did not see the injury done to the machine. He said: 'I never saw this defendant stop the machine. I never saw this defendant jab his fork in the straw-carrier. I did not see this defendant break any slats from the carrier.' " He further testified: "That was Spalding's testimony in his own behalf, and all my minutes show of it on that subject." And again: "The statements I had down there are correct. He made the statements I have down there at the time he was sworn as a witness."

The exception taken above was good when noted, but the error was removed by the subsequent testimony of the witness. Taking his evidence altogether, the case is brought directly within the decision of this court in Fisher v. Kyle, 27 Mich. 454. When it was shown that the memorandum was made at the time, and that it was correctly made, it was competent evidence to be read to the jury. But its weight was no greater than should be accorded to the evidence of the witness if he was swearing from his personal recollection of what Mr. Spalding testified to on the former trial. The memoranda were not conclusive of the facts therein stated. Whether it was correctly made, and what it proved or tended to prove, were questions for the jury to pass upon in the same manner as if the witness was testifying from present personal recollection. Such memoranda are not governed by the rules relating to written evidence. Their construction or meaning is not for the court to pass upon, but the jury, as well as the weight or convincing effect such testimony should have upon the minds of the jury. The learned judge who presided at the trial of this cause fell into an error when he gave the following instruction to the jury: "I say, gentlemen of the jury, if you believe from the evidence that Justice MANLY did make such a memorandum at the time, then such memorandum is stronger than, and better, and more weighty evidence in this case, than the independent recollection of the witnesses, on the same theory that a writing cannot lie."

The jury might fully believe that Justice MANLY made the memorandum, and still not be satisfied that the memorandum contained an accurate statement of what Spalding testified to before him. As a general rule, it is improper for the trial judge to instruct the jury that the evidence of one witness is deserving of more weight than that of another. In doing so he invades the province of the jury, whose function it is to determine from the evidence whether any fact in issue is sufficiently proved or not, except in those cases where the law has declared what shall be sufficient evidence of a fact and in those cases he simply declares the rule of law. He may, however, define the weight which the law attaches to a whole class of testimony,--for instance, that of accomplices,--but he may not single out certain testimony and tell the jury it is entitled to much or little weight. People v. Lyons, 49 Mich....