Howard v. Commonwealth

81 Va. 488, 1886 Va. LEXIS 116

• Court: Supreme Court of Virginia
• Decided: March 11, 1886
• Status: Published

Opinion

Lewis, P.,

after stating the case, delivered the opinion of the court.

The question is, did the court err in admitting evidence of the previous declarations of the witness, Page?

There is no doubt that proof of declarations made by a witness out of court in corroboration of his evidence in court, is, as a general rule, inadmissible. 1 Whart. Crim. Law, section 820; The King v. Parker, 3 Doug. 242; Oliver v. Commonwealth, 77 Va. 590. Hence, if the witnesses, Marshall and Mars, had been introduced for the purpose of confirming the testimony of Page given by him on the trial, the objection of the prisoner would be well founded; for in that view the evidence would have been hearsay, and, consequently, inadmissible. But such was not the case. Here the attempt by the defence was to discredit the witness by showing malice on his part, growing out of his arrest for larceny. And to repel the attack thus made, it was competent for the prosecution to prove that prior to his arrest, the witness gave the same account of the matter that he gave on the trial. The evidence was, therefore, not hearsay, but original, the point being not as to the truth or falsity of the previous declarations out of court, but whether they had been made. 1 Greenl. Ev., sec. 100, et seq.

In Robb v. Hackley, 23 Wend. 50, Bronson, J., states the rule thus: “If an attempt is made to discredit the witness on the ground that his testimony is given under the influence of some motive prompting him to make a false or colored statement, the party calling him has been allowed to show, in reply, that the witness made similar declarations at a time when the imputed motive did not exist.”

The evidence was, therefore, properly admitted by the county court, and the judgment is affirmed.

Judgment aeeirmed.