Berner v. Mittnacht — 32 N.Y. Super. Ct. 582

Majority

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GEORGE BERNER, Plaintiff and Respondent, v. G. M. MITTNACHT, Impleaded, etc., Defendant and Appellant.

[Decided December 3, 1871.]

Headnote

The examination of a party as a witness is subject to all the rules applicable to the examination of any other witness, and the testimony of a party can be impeached only in the several modes in which ordinary witnesses can be impeached.

Evidence of a particular fact is not admissible to impeach a witness. Hence proof of an accusation of a crime is not admissible as affecting the credibility of a witness. It is not only proof of a single fact, but is hostile to the presumption of innocence.

Where on proof that a witness had been -charged with having committed perjury, the court charged the jury that it was admissible as affecting the credit of the witness— held, the instruction was erroneous.

While disparaging questions may be put to a witness for the purpose of affecting his general credit, they must relate to his own acts or declarations, and not to the acts or declarations of others.

Before Monell, McCunn, and Spencer, JJ.

The action was upon a promissory note made by Eittig and indorsed by Mittnacht, and payable “ at Ho. 1 Tryon row, in the city of Hew York.” The complaint alleged presentment of the note for payment at the place named therein, and the non-payment thereof. And further, that Mittnacht, the indorser, was present at such presentment, and had actual knowledge of such non-payment, and waived formal notice thereof, and then and since has promised to pay the note. The answer of the indorser, Mittnacht, alleged that the note was not presented for payment to the maker, and denied notice of non-payment or waiver thereof, and also the alleged promise to pay.

The action was tried before Mr. Justice Jones and a jury.

The defendant (Mittnacht) moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action, which motion was denied. Evidence was then

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given in relation to the presentment of the note, the alleged knowledge of the defendant of such presentment, and of his promises to pay. In the course of the cross-examination of the defendant, who had been examined in his own behalf, he was asked, “ Have' you ever been arrested on a charge of perjury ? ” which question was objected to on the ground that the fact should be proved by the record, and the objection was sustained. Subsequently the deputy clerk of the Court of Sessions was called, and produced a bond which he testified had been given by the defendant Mittnacht, and which the plaintiff offered in evidence. It was objected to by the defendant, but the objection was overruled and the bond read in evidence. The defendant excepted.

The bond was dated the 12th day of April, 1369, and executed by defendant, and a surety for the appearance of the defendant before the Court of Sessions, on the first Monday in May, to answer any indictment that might be found against him upon a charge of perjury, made by one Gabriel M. Gernsheimer. The bond recited that the charge was made before William Dodge, police justice ; that such an offence had been committed; that there was probable cause to believe the defendant guilty thereof, and the offence being bailable, ordered the accused to find bail in the sum of $5,000 to appear before the Court of General Sessions to answer to any indictment.

In submitting the questions of fact to the jury, the court instructed them, amongst other matters, as follows:

“ There is one other remark that I wish to call attention to : it is in relation to the charge of perjury brought against the defendant ; a charge of this sort is admissible in evidence as affectmg the credibility of a witness against whom it is made, but it is, no doubt, open to explanation. A charge made, and allowed to go unexplained, might have considerable influence in affecting the credibility of a witness against whom it is made, but the force of it depends entirely upon the explanation given by the witness. The bare fact that some person in the community undertakes to make a charge against another is no guarantee of the truth of the charge ; it is only after investigation, it being denied, that it

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should at all weigh in affecting his character ; for otherwise it would be the easiest thing in the world to make a charge against a man, and thereby affect his testimony. In this case, it appears this charge was made by the party in a suit against him. The defendant in this suit, Mr. Mittnacht, had brought a proceeding, charging him with obtaining goods under fraudulent pretences. The party so proceeded against brought this charge of perjury. The defendant denied the charge, and has given a bond, in which bond it is asserted that there is probable cause for believing the charge true. He gives security to appear, before the court for trial, in case an indictment is found; an indictment has not been found. The bond states he is to appear on the first Monday of May ; it is now the 24th, and no indictment has yet been found; nor does it follow that if an indictment should be found, the defendant would not be acquitted. The case is exactly in the same condition as this suit. Here one man charges another with having given his indorsement to him as security-for an advance made to another, and the other party denies that, and the question is before you for determination. In the other case one man makes a charge against another for perjury, which is denied, and there is, as yet, no adjudication upon it. It is for you to say whether, under all the circumstances, this charge should affect the testimony of the defendant.”

The defendant excepted to the charge. The plaintiff had a verdict. The defendant appealed.

Mr. Christopher Fine for appellant.

The learned judge, before whom the cause was tried, erred in receiving in evidence a bond alleged to have been given by the defendant, Mittnacht, on an ex parte complaint of perjury, made against him to affect the defendant’s credibility.

It is a general principle that every man is considered innocent until he has been tried and convicted, and thus proved guilty.

There having been no trial or conviction, the defendant

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should have been presumed innocent of the base charge made against him, and the reception of. this bond in evidence was a violation of this principle.

It is a contradiction of terms and of principles to say that a man shall be presumed innocent until proven guilty, and at the same time allow a mere and an ex parte charge of perjury to be given in evidence, and taken as against his truth and veracity, for, surely, if he is innocent of the charge, it should not be allowed to affect his credibilty (The People v. Gray, 7 N. Y., 378 ; Lipe v. Eisenlord, 32 N. Y., 229 ).

“ In impeaching the credit of a witness the examination must he confined to his general reputation, and not be permitted as to particular facts; for every man is supposed to be capable of supporting the one, but it is not likely that he should he prepared to answer the other, without notice, and unless his general character and behavior be in issue he has no notice ” (1 Greenleaf on Evid., § 461; Swift’s Evid., 143; 2 Phil. Evid., 954, 5th Amer. ed.; In rex v. Rockwood, 4 St. Tr., 681).

In this case the original complaint for perjury, said to have been made against the defendant, was not produced, but a bond, said to have been signed by the defendant (but no proof of signature), and in which the contents of the written charge or complaint is given, and the opinion of the committing magistrate that there was probable cause to believe the defendant guilty thereof, was received in evidence; which bond, if signed by the defendant at all, was signed under the coercion of imprisonment.

Mr. James M. Smith for respondent.

The admission of the evidence was proper (see Shepard v. Parker, 36 N. Y., pp. 617-18-19; G. W. Turnpike Co. v. Loomis, 32 N. Y., p. 127: see Le Beau v. The People, 34 N. Y. R., p. 223; see 32 N. Y., Lipe v. Eisenlord, 229).

These last cited are the latest cases, and fully sustain the ruling of the court in admitting the evidence. In the language

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of the opinion in the ease in the 32d N. Y., above cited: “ There is no case which holds it is error to exclude evidence immaterial to the issue offered upon cross-examination for the purpose of discrediting the witness,” * * * but there is no case where a judgment has been reversed or a new trial granted for the exclusion or admission of such evidence, until the case of The People v. Blakely (4 Park., Criminal Reports). (In this case the General Term reversed the decision below because disparaging questions were not admitted.)

In the case under consideration an act of the witness was offered in evidence on cross-examination to impair his evidence. He was permitted to give an explanation of the matter and so to reheve himself from the damaging effect of his own act.

By the Court :

The evidence introduced in this case, and which the learned justice charged the jury was admissible as affecting the credibility of the witness, was of a single charge. A complaint of perjury had been made against him, and he was bound over to answer any indictment which might be found.

This evidence was not followed by any proof of a trial and conviction. But the witness was allowed to make such explanation in respect to the charge as he was able, and the jury were instructed to say whether “ under all the circumstances the charge should affect the testimony of the witness.” »

It is well understood that evidence of particular facts are not admissible to affect the credibility of a witness (2 Phil. on Ev., 291), and the latitude which is allowed to the discretion of a judge upon the cross-examination of a witness does not permit of a departure from the established rules of evidence..

It is not necessary to determine whether proof of conviction for an offence would be admissible to impeach a witness. It would

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be evidence of a particular fact, and probably therefore inadmissible. The proof in this case was of an accusation of crime, which was not only proof of a single fact, but the effect it was allowed to have with the jury was in direct hostility to the presumption of innocence which every accused person is entitled to.

A leading case in support of this position is Jackson v. Osborn ( 2 Wend., 555 ). For the purpose of impeaching a witness, it was offered to prove that he had been indicted for perjury. The evidence was excluded. "Upon exceptions it was held that the evidence was properly rejected. The court say the credibility of a witness is not to be impeached by proof of a particular offence.

In Hannah v. McKellip ( 49 Barb., 342 ) the defendant was ¿xamined as a witness on his own behalf, and on his cross-examination he was asked, “ Have you ever been charged with swearing falsely?” which was objected to on the ground that it was not admissible to impeach him. The objection was overruled. A new trial was granted for error in overruling the objection.

The principle is also sustained by the case of The People v. Gay (7 N. Y. R., 378), where it is said that the law presumes an accused person to be innocent, and the single fact that he has been complained of and held for trial for the commission of a crime does not affect his moral character.

In Lipe v. Eisenlord (32 N. Y. R., 229) a witness testified on cross-examination that he was under indictment for murder, and the judge was requested to charge the jury that such fact affected the credibility of the witness. But he declined so to charge. The court, in sustaining the refusal, said it had no power to try the issue upon the indictment, and until the witness was found guilty by the petit jury the law presumes him to have been innocent.

"While, however, it is true that proof of charges preferred against the accused are not proper for the purpose of impeaching him, yet a judge, in the exercise of his discretion, may admit disparaging qnestions, when put for the purpose of impairing his general credit. But the rule is confined to the acts or declara

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tions of the witness, and does not extend to the acts or declarations of others. Thus it might have been within the discretion of the judge to have allowed the inquiry of the witness whether he had not sdorn falsely on some occasion, but not whether others had accused him of having sworn falsely.

It is presumed that the learned justice gave his instruction to the jury under the belief that the bond was so far the act of the witness as to commit him to its contents, and hold him responsible for its recitals. He had signed it, and it recited that he had been charged with having committed perjury, and that there was probable cause to believe him guilty.

Even if the recital could be construed into an admission by the witness that there was probable cause to believe him guilty, it would not be sufficient to rebut the presumption of innocence. It will not be contended, I think, that upon the traverse of an indictment for the offence charged, the recital would be sufficient to convict, and thus cast the burden upon the accused of proving his innocence. It would not, I apprehend, be any evidence whatever against the witness, and I am not willing to give it any consequence whatever.

I am, therefore, of the opinion that the evidence was improper • and the instruction to the jury erroneous.

The judgment should be set aside and a new trial ordered, with costs to the appellant to abide the event.