Stevenson v. Gunning's Estate
| Decision Date | 25 August 1892 |
| Citation | 25 A. 697,64 Vt. 601 |
| Parties | ROBERT A. STEVENSON v. HUGH GUNNING'S ESTATE |
| Court | Vermont Supreme Court |
MAY TERM, 1892
Judgment reversed, cause remanded.
W.P Stafford and Bates & May, for the defendant.
1. The first contention is whether the County Court erred in excluding testimony offered in rebuttal, to show that the plaintiff's sister, who had been a material witness in his behalf, sustained a good reputation and character for truth and veracity. She had been cross-examined at great length and it was claimed by the defendant that her story was improbable, and unworthy of belief, that it was false and perjured. The defendant did not claim that she had made statements out of court different from her statements in court, nor was any foundation attempted to be laid by the cross-examination for such contradiction, nor did defendant introduce any evidence to discredit the witness, except to show that the facts were otherwise than as testified to by her. On the statement of the position of the witness, we think, the Court properly excluded sustaining testimony in regard to her character for truth and veracity. The rule governing the introduction of sustaining testimony of this kind is stated as follows, in 3 Starkie on Ev. 1757: To the same effect is the rule as stated by Mr. Greenleaf in his work on evidence, Vol. 1, s. 469. He says, "Where evidence of contradictory statements by a witness, or of other particular facts, as for example that he has been committed to the house of correction, is offered by way of impeaching his veracity, his general character for truth being thus in some sort, put in issue, it has been deemed reasonable to admit general evidence, that he is a man of strict integrity, and scrupulous regard for truth * * * but mere contradiction among witnesses examined in court, supplies no ground for admitting general evidence as to character." The rule thus laid down is well supported by citation of decided cases. Our decisions are to the same effect. State v. Roe, 12 Vt. 93; Paine v. Tilden, 20 Vt. 554; Sweet v. Sherman, 21 Vt. 23; Mosley v. Insurance Co., 55 Vt. 142. There is no discussion of the principle governing the decision in State v. Roe. It is made to rest on an unreported case, then recently decided. But in Paine v. Tilden, this language is used: "Whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence in support of the good character of the witness." It is observable that a distinction is taken between an attack upon the character of the witness as such for credibility, and the character of the testimony, given for belief. It is only when the character of the witness for credibility is directly attacked, by general evidence regarding his standing and character for truth and veracity, or by showing that he has made contradictory or inconsistent statements, either out of court, or in court, or that he has been convicted of some crime, or engaged in some act affecting his credibility likely
like suborning or attempting to suborn a witness, or suppress testimony in the case on trial, that sustaining evidence can be used. But when the character of the testimony given by a witness is attacked only by showing its improbability, or by other testimony conflicting with the testimony of the witness, sustaining testimony cannot be admitted. If admitted, when there is only a conflict in the testimony of opposing witnesses, the opposing witnesses on both sides could be supported by sustaining testimony in regard to their standing and character, by reputation as witnesses, and the trial would be prolonged indefinitely. Besides the character of the testimony given by witness, does not directly attack the character of the witness for credibility. The distinction between an attack upon the character of the witness, and the character of his testimony, is recognized in Sweet v. Sherman, 21 Vt. 23. The plaintiffs character for credibility was attacked, and sustaining evidence was held properly admitted. The testimony of two of the defendant's witnesses was attacked by opposing testimony. The defendant offered testimony to sustain these witnesses by showing they bore a good character for truth and veracity, which was excluded against the defendant's exception. The court affirmed the judgment without alluding to this exception which was in the case and argued in the defendant's brief. The facts are not given on which the question arose in Mosley v. Insurance Co. Some of the language of the opinion, may be rather broad and unguarded, but it states the rule correctly, and claims to, and no doubt, the facts would show if given, does follow, State v. Roe, Paine v. Tilden and Sweet v. Sherman, supra. This exception is not sustained.
2. The plaintiff, to raise a probability that the intestate would be willing to apply to him secretly, for money in the presence of his brother James, introduced testimony to show that the intestate's and James' relations were friendly. Whether this testimony was strictly admissible or not, its introduction laid the foundation for receiving counter testimony from the defendant. Its reception would not be legal error of which the plaintiff could complain, he, having raised this issue, even if the issue was not strictly involved in the trial of the case. Nor do we observe anything inadmissible on this issue in the testimony of Mrs. Craig. If the plaintiff desired the particular acts or sayings of the parties which the witness testified indicated that ill feeling existed between them, the plaintiff could have called them out.
3. Moses Gilfillan was allowed against exception to testify in regard to the lists given in by plaintiff and his father in 1858 and 1869. The plaintiff's testimony tended to show that he began to work for his father some ten years before, on an understanding that he was to have one hundred dollars a year for his work, and that his father before 1868 had accumulated some of the money which the plaintiff claimed he loaned to the intestate in 1886. The plaintiff did not claim that he settled with his father, so that this money would become his at the death of his father and mother, until 1879, and that his father died that year, and his mother ten years later. This witness' testimony and the grand lists of the town, which were allowed to be put in against the exception of the plaintiff, tended to show that neither the plaintiff nor his father gave in any personal property, but claimed they were owing. The Court also allowed this witness to testify that the plaintiff, though present when the father gave in his list, did not deny his father's statements. This was before the taxpayer was required to make an inventory of his taxable property under oath. The Court in the charge treated these lists as made up from inventories returned by the plaintiff and his father. While the father's list, and what he said at that time might be received as bearing upon whether he had laid by money, as claimed by the plaintiff, and the plaintiff's list might be received as bearing upon whether his father...
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