State, ex rel. Steigerwald v. Thomas

• Decision Date: 20 September 1887
• Docket Number: 12,744
• Citation: 13 N.E. 35,111 Ind. 515
• Parties: The State, ex rel. Steigerwald, v. Thomas
• Court: Indiana Supreme Court

13 N.E. 35

111 Ind. 515

The State, ex rel. Steigerwald, v. Thomas

No. 12,744

Supreme Court of Indiana

September 20, 1887

From the Jefferson Circuit Court.

Judgment reversed.

C. A Korbly and W. O. Ford, for appellant.

E. G Leland and S. E. Leland, for appellee.

OPINION

Elliott, J.

The principal question in this case is thus presented by the record: "The plaintiff called William Johnson, a competent witness of full age, to the stand, who was thereupon duly sworn by the clerk. Thereupon the defendant asked the witness the following preliminary question 'Were you present in the court-room during the examination of the witnesses, and did you hear their testimony?' and the witness answered, 'Yes, but I did not know I was to be a witness.' The defendant thereupon objected to the examination of said witness on the following grounds: Because the court, at the commencement of the trial, ordered a separation of the witnesses on both sides, and sent them out of the room, and this witness was present and heard the evidence. Thereupon the plaintiff, by C. A. Korbly, stated to the court that the plaintiff did not know that said William Johnson was or would be a witness in the cause, or that he knew anything of the facts which the plaintiff would now propose to prove, until after the preceding witness, William Brown, had concluded his testimony, at which time he was informed by a member of the bar, not engaged in the cause, that William Johnson would be a good impeaching witness against David Francis, and that William Johnson was not present in disobedience of the order of the court."

It appears from the statement we have copied from the record that neither Johnson nor the relatrix was in fault, for it was not known to either when the order was made that he would be called as a witness.

As it is affirmatively shown that Johnson's presence was not by the procurement or connivance of the relatrix, nor attributable to any fault or neglect on her part or that of her counsel, the trial court erred in refusing to permit him to testify. It has been expressly decided in two recent cases, that where the party is entirely free from fault, the testimony of a witness who disobeys an order of the court can not be excluded. Davis v. Byrd, 94 Ind. 525; Burk v. Andis, 98 Ind. 59.

In the first of these cases the question was closely examined and many authorities cited. We there said: "We hold the true rule to be this: Where a party is without fault, and a witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury upon the question of his credibility." We quoted from eminent text-writers like expressions of the rule, and cited the decisions of many courts. Our conclusion on a second examination of the question is, that the English author there referred to was right in saying: "But it seems to be now settled, that the judge has no right to reject the witness on this ground, however much his wilful disobedience of the order may lessen the value of his evidence." 2 Taylor Ev. 1210.

In another text-book a very thorough review of the authorities was made, and it was said: "But it may now be considered as settled, that the circumstance of a witness having remained in court in...