State v. Sanborn

• Decision Date: 05 April 1921
• Parties: STATE v. SANBORN.
• Court: Maine Supreme Court

113 A. 54

STATE

v. SANBORN.

Supreme Judicial Court of Maine.

April 5, 1921.

Exceptions and Appeal from Superior Court, Cumberland County, at Law.

Arthur W. Sanborn was convicted of assault and battery. He excepts to certain instructions, and appeals from a ruling denying his motion for a new trial. Exceptions and motion both overruled.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Arthur Chapman and Charles E. Gurney, both of Portland, for appellant.

Carroll L. Beedy and Clement F. Robinson, both of Portland, for the State.

DUNN, J. In 1920, at the September term of the superior court in Cumberland county, a jury convicted the respondent of the commission of the crime of assault and battery. The case is now before this court, both on exceptions to certain instructions defined by the presiding justice to the jury and upon appeal from a ruling of that justice denying a motion for a new trial.

There are three exceptions. The first sets out that the state, in cross-examining the respondent himself, erroneously was permitted to impeach its own witness, one Jones, prejudicially to the prisoner's rights. Jones was present at the time and place of the alleged crime. The prosecution called him to the stand without previous interview. His version of what had happened differed essentially from that of earlier witnesses enjoying like means of knowledge. Had it been believed, his story would have tended to destruction of the state's contention.

That he who calls a witness may not by general evidence impeach his competency or credibility, if his testimony be disappointing, is a rule long since established. Morrell v. Kimball, 1 Greene. 322; Gooch v. Bryant, 13 Me. 386; State v. Knight, 43 Me. 11. But this rule never contemplated that the truth should be shut out and justice perverted. It does not prevent the showing by other witnesses, or by the direct or redirect examination, that the facts are otherwise than the witness testified to. Morrell v. Kimball, supra; Brown v. Osgood, 25 Me. 505; Hall v. Houghton. 37 Me. 411; State v. Knight, supra. Substantive law extends to every litigant an opportunity to make proof of the integrity of his cause. Quoting and acknowledging Mr. Justice Weston, writing in the first volume of our judicial reports, almost exactly a hundred years ago:

"There is no principle of law or of justice which prevents the party from availing himself of the truth of his case, although the credit of his own witness may thereby be impeached."

Broadly speaking, by introducing a witness, a party avouches his fitness and credible-ness. But it would be an inexpedient rule, aimed to strangle justice, which, if one called a witness without knowing him to be adverse, would deny him privilege, hostility discovered, of making that fact known; or which would prevent him pointing out, if the situation so developed, that the witness heard, not because he would not hear, or that he saw not because he would not see, or that from the same objective fact he had gathered subjective impression at variance in important particulars from those drawn by others, or that he heard but did not understand rightly, or that interest warped his judgment. The opposite side, within reasonable bounds, may hurl general evidence at the character of the witness on the subject of whether he be trustworthy of belief. His own side may not. The limitation of the rule goes no further. In this case the state undertook to show that, by bias or by interest, the witness Jones, whom it had produced, was partial to the respondent's side; that, after testifying, and during the night recess of the court, Jones and respondent engaged in conversation on the public street at considerable length. These things the state sought to do, not out of the mouth of Jones himself (as it might have done), but by interrogation of the respondent. The evidence...