State v. Hite.
| Decision Date | 03 April 1918 |
| Docket Number | No. 2093.,2093. |
| Citation | 24 N.M. 23,172 P. 419 |
| Parties | STATEv.HITE. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Under the provisions of section 2180, Code 1915, the state, when a witness proves adverse in the opinion of the trial court, may prove that the witness made at other times a statement inconsistent with his present testimony, providing the circumstances of the supposed statement sufficient to designate the particular occasion are mentioned to the witness, and he is asked whether or not he did in fact make such statement.
The mere fact that a witness has failed to testify as expected does not warrant impeaching him by proof of prior statements in conformity to what he was expected to testify; but proof of prior contradictory statements of a party's own witness is admissible only where the witness has given affirmative testimony hostile or prejudicial to the party by whom he was called; and in such case the proof must be confined to contradictions of the testimony of the witness which is injurious to the party seeking to impeach him.
Appeal from District Court, Chaves County; McClure, Judge.
T. Lonnie Hite was convicted of killing a calf belonging to another, and he appeals. Reversed, and cause remanded for new trial.
The appellant, T. Lonnie Hite, with two others, was tried at the November term, 1916, of the district court of Chaves county on an information charging them with killing a calf belonging to the C. C. Slaughter Cattle Company on July 4, 1916. The appellant was found guilty, and his codefendants were acquitted.
Under Code 1915, § 2180, proof of prior contradictory statements of party's own witness, must be confined to contradictions of injurious testimony.
O. O. Askren and J. C. Gilbert, both of Roswell, for appellant.
H. L. Patton, Atty. Gen., for the State.
There is but one assignment of error which we find it necessary to consider, which is that the court committed error in permitting the state to impeach its own witness Don Sullivan. Appellant in this connection assigns two grounds in support of his contention: First, that the witness had not given affirmative testimony injurious to the state; and, second, that the district attorney was not surprised by the unwillingness of the witness, having had previous notice that the witness would prove adverse. It appears from the record that the witness Sullivan had on two occasions made statements concerning the alleged crime, and had subsequently thereto gone before the grand jury as a witness, but when introduced by the state as a witness, he developed a disposition to deny all knowledge of the material facts concerning the alleged crime and to most of the questions addressed to him contented himself with the reply, “I don't remember.” A careful examination of the record does not disclose that he anywhere gave testimony favorable to the appellant or his codefendants. How far a party in civil litigation, or the state in criminal prosecutions, may go in attacking his or its own witness by proving prior statements of the witness to show contradiction of present testimony, is a matter which has given rise to a great variety of opinion on the part of the courts. The various forms of the different rules adopted by the courts are set out by Mr. Wigmore in his work on Evidence at section 904, and by Greenleaf in section 444.
In approaching a consideration of this matter it is first to be observed that the Legislature of New Mexico by an act of February 5, 1880, appearing as section 2180, Code 1915, legislated upon this subject in the following...
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State v. Gee
...of this court in State v. Corcoran, 7 Idaho 220, 61 P. 1034." (State v. Fowler, 13 Idaho 317, (322), 89 P. 757. See, also, State v. Hite, 24 N.M. 23, 172 P. 419.) conceding that one of the qualifications of the rule laid down by this statute may be that the evidence given by the witness "su......
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Crago v. State
...Ky. L. 2048, 72 S.W. 792; Williford v. State, 36 Tex. Crim. Rep. 139, 92 S.W. 1093; Willis v. State, 49 Tex. Crim. 139, 90 S.W. 1100; State v. Hite, supra; Champ v. Comm., Supra; also cases in the notes to which we have referred.) The witness, Carney, also denied having made a statement tha......
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Pomeroy v. People
...v. Brunet, 88 N.J.L. 414, 97 A. 39; State v. Bodoin, 153 La. 641, 96 So. 501; People v. Furlong, 392 Ill. 247, 64 N.E.2d 460; State v. Hite, 24 N.M. 23, 172 P. 419; State v. Swan, 25 Wash.2d 319, 171 P.2d Largin v. State, 37 Tex.Cr.R. 574, 40 S.W. 280. In the case last cited the court made ......
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State v. Lopez, 4653.
...question before the Court. The defense cites that case and respectfully adopts the reasoning therein, as its argument in this case. State v. Hite, 24 N.M. 26.” [6] No point is made, and no reference is made to the pages of the record where this testimony can be found. We held in the case of......