Brown v. Berry

47 Ill. 175

• Court: Illinois Supreme Court
• Decided: January 15, 1868
• Status: Published

Opinion

Mr. Justice Walker

delivered the opinion of the Court:

While the admission of evidence on the trial of a cause is, to a large extent, regulated by general rules, still, to some extent, it is within the discretion of the court trying the case. As a general rule, the court conforms to the practice of requiring the party calling a witness, to examine him on every point to which the witness can speak, before he leaves the stand; but, if a new point arises, or a material question has been omitted, the court may, in its discretion, permit the wit- - ness to be again called and examined, affording to the other party the opportunity of cross-examination, and the right to call rebutting evidence. The general rule is one which has been adopted for convenience and the dispatch of business, and should not be lightly departed from; but as the object of all trials is the attainment of justice, this court will not reverse, unless it appears that the exercise of such a discretion may have worked injustice. We do not perceive that recalling the witness in this case could have produced such a result. This was but a reasonable exercise of discretion by the court. The exercise of such a discretion had been repeatedly held by this court not to be ground of reversal, unless injury has been occasioned. Russell v. Martin, 2 Scam., 492; Bloom v. Goodner, Breese, 63; Welch v. The People, 17 Ill., 339; Hunt v. Weir, 29 Ill., 83; Wilburn v. Odell, ib., 456.

It is insisted that there was a variance between the different-counts and the evidence. After a careful examination of the record, we do not see that this objection is well taken. The third count avers, in general terms, the purchase of a farm and thirty-five head of cattle, and forty hogs, together with a large quantity of other property on the farm, which is described under a videlicet. The payment of the contract price is averred, and a breach by the non-delivery of the cattle and hogs. The evidence does not- enumerate all the various articles specified under the videlicet. But the proof shows that the farm, the cattle, the hogs, and a quantity of other property, were purchased. This, we think, sustained the contract as averred in this count. The particular articles constituting the other property being laid under a videlicet, did not vary or change the substance of the previous positive averment, and was not material, and a failure to prove every item thus enumerated, did not vary from, but sustained the positive averment. The use of the videlicet is to avoid a variance and to avoid a positive averment which must be strictly proved. There being one count proved, it was sufficient to sustain the verdict, as the evidence applied to that as fully as to the other counts. We, therefore, deem it unnecessary to examine them.

It is also urged that the evidence does not support the verdict. It is conflicting, and in such cases, it is for the jury to weigh, and to give to every part its due weight. If irreconcilable, then they must give proper weight to such as they believe, and reject such portions as they think unworthy of belief. This, they have better facilities of doing than other persons, as they see the witnesses and hear them testify. If they had regarded the evidence for plaintiff in error alone, they would, no doubt, have found for him, but believing that on the part of defendant in error, they were warranted in finding for him. In'such a conflict, we could not reverse, because the weight of evidence may be slightly against the finding of the jury. The judgment of the court below is, therefore, affirmed.

Judgment affirmed.