Majority
p. 289Burvee, plaintiff in error, v. The People.
Headnote
Evidence, — impeaching witness.A witness, on cross-examination, was asked this question: " Have, witnesses been called to swear they would not believe you on oath?” Held (following Hannah v. MaKellip, 49 Barb. 343 ; and Bernes' v. Metnacht, 3 Sweeney, 583), improper, and the evidence offered inadmissible.
The plaintiff in error was indicted and convicted of a nuisance in defiling the waters of a spring used by the public for drinking and culinary purposes. Upon the trial Orlando Burvee was called and examined as a witness for the plaintiff in error.
On his cross-examination the district attorney asked this question:
“Have witnesses been called to swear they would not believe you on oath ?” This was objected to by the plaintiff in error as imma
p. 290
terial, illegal, not the proper way to impeach a witness and as hearsay. The objection was overruled and an exception was taken thereto.
George B. Jones, for plaintiff in error.
Lewis Bouton, district attorney, for the people.
In the case of Hannah v. McKellip, 49 Barb. 342 , this precise question was decided, and it was there held that the evidence offered was inadmissible, and for such error a new trial was granted.
That case has been since followed in Berner v. Mittnacht, 2 Sweeney, 582.
Being satisfied that the foregoing decisions are sound in principle and binding as authority, the judgment of conviction in this case' against the plaintiff in error must be set aside and a new trial granted.
Parker and J, Potter, JJ., concurred.
New trial granted.
Cases cited
- Hannah v. McKellip 49 Barb. 342 p. 290