Winters v. Null.
| Decision Date | 15 September 1888 |
| Citation | 31 W.Va. 450 |
| Court | West Virginia Supreme Court |
| Parties | Winters v. Null. |
1. Record Appeal Exceptions, Bill of. A paper purporting to be a bill of exceptions, and copied into
the record as such, will not be regarded or treated by the appellate
court as a part of the record, unless the record shows that it was
by some order or memorandum entered on the order-book of thetrial-court made a part of the record.
2. Record Instryuctions.
Instructions copied into the record, when there is no bill of exceptions or order of the court referring to them, will not be regarded as any part of the record.
W. W. Arnett for plaintiff in error.
J. B. Me Lure and Ewing, Mehrin and Riley for defendant in error.
Johnson, President:
This was an action of trespass on the case for malicious prosecution brought in July, 1886, in the Circuit Court of Marshall county. The defendants pleaded not guilty; and the issue was tried by a jury; and on the 30th day of October, 1886, a verdict was rendered for the defendants.
Two bills of exceptions are copied into the record, the first to the refusal of the court to permit the plaintiffs to prove certain facts. After a number of witnesses, who had been examined by the defendants, had testified to the bad character of the female plaintiff for honesty, they were asked on crossexamination, what had been said about the female plaintiff, which was the basis of her reputation; and the cross-examination elicited the fact, that it had been charged against the female plaintiff, that she had stolen articles from various persons; and the plaintiffs then asked to be permitted to put those persons, from whom it had been alleged the female plaintiff had stolen, on the stand, and prove that the charge * was, in fact, false; which evidence the court refused to permit to be introduced; and the plaintiffs excepted. The second bill of exceptions was to the refusal to set aside the verdict and grant a new trial. The motion for a new trial was based on the ground that the verdict was contrary to the law and evidence, because of the exclusion of evidence, and because of misdirection to the jury. Instructions were copied into the record, but it does not appear whether they were given or refused. To this judgment a writ of error was granted.
The first error assigned is that the court refused to allow the plaintiffs below to introduce evidence tending to show that the female plaintiff was not guilty of stealing the articles, which witnesses, wmo had testified to her bad reputation, had heard that she had stolen. It seems that the rumor, that she had stolen certain things, was the basis of her bad reputation. It certainly would have been a violation of the rules of evidence to have admitted such evidence. 1 Greenl. Ev. § 461. It was well said by the court in State v. Woodworth, 65 Iowa 141, 21 N. W. Rep. 490'," if the defendant" (here the plaintiffs)" could have been allowed to show, by cross-examination, the foundation of the bad reports, and then, by evidence in chief, show that he was not guilty of what he had been suspected, the State should have come prepared to rebut the evidence in chief; and, under such a rule, any trial might take the form of an indefinite number of criminal accusations and defences of witnesses. It was the defendant's right, by cross-examination, to limit and define the character of the bad reports against him, and by evidence in chief to directly rebut the State's...
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