Sheppard v. Yocum

10 Or. 402

• Court: Oregon Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

By the Court,

Lord, J.:

This was an action of trover to' recover damages for the wrongful talcing, carrying away and conversion of the sum of $7,200, on the 6th day of November, 1877. The answer of the defendants denies each and every material allegation of the complaint, and as a further defense pleads the statute of limitations, alleging that more than two years had elapsed since the alleged taking, carrying away and conversion of the money named in the complaint, before the commencement of the action. The plaintiff replied, and the cause being at issue, a jury was empaneled to try the same; a verdict was found for the plaintiff, and judgment rendered thereon. At the trial, numerous exceptions were taken to rulings of the court on the admissibility of testimony, and to the instructions of the court to the jury, and the appeal from the judgment is brought before us upon the error alleged in the bill of exceptions.

The first exception presents the question, whether a diagram or map, after being shown by the evidence to be correct, can be used by a witness to explain the location of places designated on the map or diagram. It appears by the bill of exceptions that the court permitted the witness to refer to the map or diagram, and to point out thereon the objects and things thereon noted and named, giving their relative positions to, and distances from each other, and from the map or diagram to explain to the jury the exact location of the safe where1 the money was stolen, and the relative position thereto of the other objects, but the map or diagram was not offered in evidence, and did not go to the jury except for the purposes as above stated. In Clapp v. Norton, 106 Mass., 33, the court say: “The plan was not evidence afid it does not appear that it was admitted as such. As a means of enabling a witness to explain the position of different points, locations, walks and fences, as to which he testifies, such a sketch may be referred to and shown to the jury. It appears to have been used merely as such.” (Commonwealth v. Holliston, 107 Mass., 232; Paine v. Woods, 108 Mass., 168.)

It is claimed that the diagram was in the nature of a leading question, but to this it is replied, that it was first shown to be a correct representation of the several things represented upon it, and therefore, could not have prejudiced the defendants by its use, and second, in the exercise of a sound discretion, the court had the right to permit its use, even though it should be found to be a leading question. Our code provides that “on direct examination, leading questions are not allowed unless merely formal or preliminary, except in the sound discretion of the court, under special circumstances, making it appear that the interests of justice require it.” (Code, sec. 887.) But we are unable to concur in the view that the map or diagram was in the nature oí a leading question as claimed and argued by counsel for the defendants. The map was first shown without objection and without question to be correct. When this-was done, for the purposes of the trial, it stood on a similar footing as official maps. The presumption of the law in favor of the correctness of official maps originates in their official character, and although the same presumption does not exist in favor of unofficial maps or diagrams when their correctness is proven and unquestioned as in this case, they are admissible. (Vilas v. Reynolds, 6 Wis., 214.) We are, therefore, of the opinion there was no error in the ruling of the court in permitting the witness to use the map or diagram for the purpose as stated.

The next exception is that the court erred in sustaining the objection of counsel for the plaintiff to the testimony of James A. Yocum, a witness called by the defendants, to impeach the evidence of J. K. DeLashmutt, who had testified as a witness for the plaintiff for the purpose of showing that he (DeLashmutt) had made declarations out of court inconsistent with his evidence at the trial. The question propounded to the witness Yocum was as follows: “Did you. on tlie 1st day of November, 1881, at tlie residence of Filmore DeLashmutt, have a conversation with j. K. De-Lashmutt in which he said to you, ‘we want you to swear that Hathaway Yocum told you that he got away with the Jews and their money, and if you will do so you will not lose anything, and I will make by it?’ ” The plaintiff’s objection was, that the proper foundation had not been laid, by calling the attention of the witness DeLashmutt to the time, place, and circumstances of the conversation, and “persons present.” On cross-examination, this witness had been asked by counsel for the defendants this identical question, and as there was no objection, he answered, “I did not. I went there to Filmore’s to ask James A. Yocum if he had said that Hathaway Yocum got away with the Jews and their money, and did not ask him to swear that Hathaway Yocum said he got away with the Jews or their money, or that he would not lose anything, or that I would make by it.” This answer shows clearly that the witness, De-Lashmutt, had his attention called to the conversation sought to be proven, sufficiently for him to recognize the particular conversation referred to; for he admits having a conversation with James A. Yocum upon that day, at that place, upon that subject. But the particular objection made at the argument was that the “persons present” were not stated in the question, as required by sec. 831 of the code, p. 274, and as decided by this court in State of Oregon v. McDonald, 8 Or., 117. An examination, however, of that case will show that the objection was based on the ground that there was no time or place fixed in the impeaching question, and the particular question here involved was not ]. resented, or intended to be decided by the court. In delivering the opinion of the court in that case, Judge Prim said: “The code provides that ‘a witness may be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statement must be related to him, with the circumstances of time, places, and persons present; and he shall be asked whether he has made such statements, and if so, allowed to explain them.’ (Sec. 831.) This was the common law rule as laid down in Greenleaf and other works on evidence.” (1 Greenleaf on Ev., 462, note 1.) Now it is here decided that this section of our code is but declaratory, of the common law rule; and in California the same rule is applied and declared in respect to a provision of their code, identical in every particular with our own. (Code of Civil Procedure, sec. 2052; People v. Devine, 44 Cal., 457.)

To ascertain, then, the soundness of the objection under consideration, it becomes necessary to examine what the common law rule is, its purposes, and limitations. The general rule which governs in the production of verbal testimony to impeach the credit of a witness who has made statements, at other times, inconsistent with his present testimony, is deduced by the text writers and the courts from the opinion of the judges in the Queen’s case, 2 Brod. & Bing., 313-314, and Angus v. Smith, 1 Mood. & Malk., 474, in which last case Tindal, C. J., says: “I understand the rule to be that before you can contradict a witness, by showing that he has at some other time said something inconsistent with his present evidence, you must ask him as to the time, place and person wwolved in the supposed contradiction.” And subsequently in Crowley v. Page, 7 Carrington & Payne, 790, Parke, B., said: “Evidence of statements by witnesses on other occasions relevant to the matter at issue and inconsistent with the testimony given by them at the trial, is always admissible in order to impeach the value of-that testimony; but it is only such statements as are relevant that are admissible, and in order to lay the foundation for the admission of such contradictory statements, and to enable the witness to explain them, and, as I conceive, for that purpose only, the witness may be asked whether he ever said what is suggested to him, with the name of the person to whom, or in whose presence he is supposed to ha/oe said it, or some other circumstances sufficient to designate the particular occasion.” As a sound and correct exposition of the common law rule governing'in the production of evidence in such eases, these authorities have been approved and cited by Phillips, Greenleaf and Wharton in their text books on evidence, (2 Phillips on Ev., 959, 960; 1 Greenleaf on Ev., sec. 462 and note; 1 Wharton’s Law of Ev., secs. 551-555, and notes,) and a few illustrations and references to the decisions of the highest judicial tribunals of this country, will serve to show that the rule, as thus announced, has been approved and applied, and generally prevails in nearly ail the states of the union.

In People v. Devine, 44 Cal., 457, the court say: “It is a settled rule prevailing in this court, in the English courts, and in those of nearly all the states of the union, that where the credibility of a witness is to be assailed by proof of something he may have said elsewhere, contradictory of his testimony as given, the witness must first be inquired of concerning it, and the time, place, and person involved in the supposed contradiction must be called to his attention. When this has been done, a foundation for a contradiction of the witness is said, in legal parlen ce, to have been laid, for these inquiries are necessary in order to found a contradiction, and of course, when there has been an omission to do this, it may be objected that a proper foundation has not been laid.” In Spauntrorst v. Lent, 46 Mo., 199, the court say: “All that is necessary to contradict a witness, by showing that he has, at some other time, said something inconsistent with his present evidence, is to ask him as to the time, place, and person involved in the supposed contradiction.” And in Cole v. State, 6 Baxter, (Tenn.,) the court say: “Where it is intended to impeach the witness by proving that he made statements out of court contrary to what he has testified in court, the witness should be asked whether he said or declared that which it is proposed to prove -by the impeaching witness, that he did say, or declare, and the time and place and person to whom the declaration was made should also b.e stated in the question.” (See also Hill v. Gust, 55 Ind., 51; Pendleton v. The Empire Dressing Stone Co., 19 N. Y., 13; Sloan v. N. Y. Cen. R. R. Co., 45 id., 127; Nelson v. C. R. & R. Co., 38 Iowa, 565; Pittsburg v. Connellsville R. R. Co., 39 Md., 354; 1 Wharton’s Law of Ev., sec. 555, authorities cited in note.)

Now the question propounded, and to which objection was made and sustained by the court was definite as to the time when and place where, and the person to whom the declaration was made, and came clearly within the rule as laid down by the authorities. The object of the rule is simply for the protection of the witness, to give him an opportunity to recollect the facts, and con'ect the statements when immediately brought to his mind, and such only can be the object of the statute (sec. 831) which is but declai-atory of that rule. The answer of DeLashmutt on cross-examination showed clearly that he understood the particular conversation referred to, and the witness introduced to contradict and to confront him, was the witness to whom the declarations were made, and when the question asked specified time and place and the person involved in the supposed contradiction, it was within the rule. As the objection taken and argument made was confined to this point, it is the only aspect in which we have deemed it necessary to consider it, although proof of this matter was admissible on another ground. (1 Greenleaf on Ev., sec. 462; 2 Phil, on Ev., 435; Baker v. Joseph, 16 Cal., 178.) It is our judgment that the court erred in sustaining the objection.

In the progress of the trial, two witnesses were called by the plaintiff, and testified to certain matters material to the issue, and a proper foundation having been laid therefor, the defendants called witnesses who testified that the said witnesses of plaintiff had at other times and places made statements inconsistent with their present testimony. The plaintiff, in rebuttal, was allowed by the court to introduce evidence to prove that the general reputation of his said witnesses for truth and veracity was good. To the introduction of this evidence the defendants objected that it was incompetent and immaterial, and this constitutes thehiext alleged ground of error. The identical question involved in this exception was decided by this court in Glaze v. Whitley, 5 Or., 166; but we have been earnestly pressed, in an able argument, to reconsider the ground upon which that decision rests. Mr. Green leaf, in his work on evidence, favors the admission of such evidence. (1 Greenl. on Ev., sec. 469, and is cited in Glaze v. Whitley, supra.) In our examination of this question, we find the rule to admit such evidence is sustained in Harris v. The State, 30 Ind., 131; Stratton v. The State, 55 id., 468; Burrill v. The State, 18 Texas, 713; Isler v. Dewey, 71 N. C., 14; Paine v. Tilden, 20 Ohio, 554; but that the contrary rule is held in Russell v. Coffin, 8 Pick., 143; Brown v. Morrs, 6 Gray, 451; Frost v. McCargar, 29 Barb., 617; The People v. Hulse, 3 Hill, 309; The People v. Gray, 3 Selden, 378; Weitz v. May, 21 Penn. St., 274; Webb v. State, 29 Ohio ; Stamper v. Griffin, 12 Ga., 450; Vance v. Vance, 2 Metc., [Ky.] 581; Chapman v. Cooley, 12 Rich., [S. C.,] 654; Ray v. Hamilton, 4 McLean, 512.) These authorities are sufficient to show that some contrariety of decision prevails upon the admission of such evidence, and that the rule laid down in Glaze v. Whitley, supra, ought not to be disturbed without due consideration. But we are convinced, after a careful examination of the reasons, pro and con, the better rule is to exclude such evidence — that it facilitates trials by avoiding a multiplicity of collateral issues, and the confusion ordinarily incident thereto — that it tends to secure the proper determination of the legal rights of parties by confining the evidence and the attention of the triers to the real issues sought to be litigated, and it is sustained by the weight of judicial authority. Besides, the reasons upon which the opposite rule is founded which allows the impeached witness to be sustained by such, evidence, applies with equal force to the impeaching witness, and, carried to its logical results, would and ought to include similar evidence to sustain him. In our judgment, it is a better practice to confine the trial to the issues of the action, and exclude such collateral matter, and thereby avoid the delay and tendency to mislead the jury from the more important questions of the case. It is proper, however, to say that this assignment of error would not have prevailed, if the record had not disclosed other matter which must reverse the case.

The next objection is to an instruction of the court, and an instruction refused as asked, but modified, which will be considered together. The court instructed the jury and said: “There has been some evidence introduced in this case tending to show that the defendant, Lindsey DeLashmufct, made some statements, or declarations concerning the taking of the money in controversy, both before and after the alleged taking, which implicated, or tended to implicate, defendant Yocum in the act. Any admissions made by DeLashmutt concerning the taking of the money are to be considered by you as evidence against him, but not against defendant, Yocum, unless you should believe from the evidence that the plan or design to take the money, if at all, was matured and formed by DeLashmutt and Yocum before the making of such statements, if made at all.” Just here it will be noted that the court was instructing the jury in reference to the declarations of Lindsey DeLashmutt, made before and after the alleged taking of the money wrhich tended to implicate his co-defendant Yocum, and while the court properly instructs that any admissions of DeLashmutt are evidence against him, but not against defendant Yocum, he proceeds to state the conditions, or limitations under which such declarations are admissible as evidence against Yocum, to the effect, that if the jury believe there was a plan or priority of design to take the money, formed and matured by the defendants, then the declarations of Lindsey DeLashmutt, concerning the taking of the money in controversy, both before and after the alleged talcing, are admissible as evidence against the defendant, Yocum. Or in other words, if the jury find from the evidence that the declarations of Lindsey DeLashmutt, which tended to implicate defendant Yocum, were made after a joint plan or design was formed and matured between the defendants, then the declarations of Lindsey DeLashmutt were admissible as evidence against Yocum, either before or after the alleged taking of the money, and were entitled to be considered by the jury in their deliberations. Whatever doubts might exist as to this being the proper construction, and effect of the instruction, they disappear by a consideration of the instruction refused as asked, but modified by the court, and the evidence disclosed by tbe bill of exceptions to which the instructions upon this point refer. To avoid any misconstruction, and to obviate what counsel for the defense conceived to be the error of this instruction, they asked the court to give the jury the following instruction: “If you find from the evidence that the statements and declarations of defendant DeLashmutt made after the alleged conversion of the money, were made at times when defendant Yocum was not present, and did not assent to such declarations or statements, then, in that case, you will not consider such declarations or statements as having any tendency to prove anything against defendant Yocum.” The court refused this instruction, but modified it by adding the following words: “Unless you believe that Yocum was a party to the conversion, and it was a joint aet of the defendants in pursuance of a joint plan.” This was in effect saying to the jury that the instruction he asked is true, unless you believe that Yocum was a party to the conversion, and the conversion was a joint act of the defendants, in pursuance of a joint plan, then it is not true, then the declarations of defendant DeLashmutt made after the conversion of the money, and at times when the defendant Yocum was not present, and did not assent to such declarations, are admissible as evidence against him, and are properly before you for consideration. This virtually reiterates the error complained of in the former instruction, and certainly tends to confirm the construction given to it. The rule of law is elementary that when the connection of the individuals in the unlawful enterprise is shown to exist, “every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object is, in contemplation of law', the act and declaration of them all, and is therefore original evidence against each of them.” (1 Greenl. on Ev., sec. 111; 2 Wharton’s Law of Ev., sec. 1192; 1 Phillips on Ev., p. 205; United States v. McKee, 3 Dillon, 560.) But “here also,” says Mr. Greenleaf, “care must be taken that the acts and declarations thus admitted, be those only which were made and done during the pendency of the criminal enterprise and in furtherance of its objects. If they took place at a subsequent period, and are, therefore, merely narrative of past occurences, they are as we have just seen, to be rejected.”

In Metcalfe v. Conner, Littell’s Select Cases, 497, (12 Am. Dec., 34,) Boyle, C. J., says: “Any declarations by one of the parties at the time of committing the unlawful act, are, no doubt, not only evidence against himself, but as being part of the res gesta, and tending to determine the quality of the act, are also evidence against the rest of the party, who are equally as responsible as if they themselves had done the act. But what one pa/rty may ham been heard to say at any other time, as to the shm'e which others had in the transaction, or as to the object of the conspiracy, cannot be admitted as evidence to affect them, for it has been solemnly decided that a confession is evidence only against the person himself who makes the confession and not against others.” (Phillips on Ev., 73-4; Lincoln v. Clafflin, 7 Wall., 139; Lynes v. The State, 36 Miss., 625; State v. Pike, 51 N. H., 105; Benns v. The State, 57 Md., 46; Berford v. Sanner, 40 Penn. St., 1; The People v. English, 52 Cal., 212.)

When it is considered that the bill of exceptions discloses that Wm. Eidgeway and J. IL DeLashmutt, both witnesses for the plaintiff, had testified in substance that after the safe robbery, and after the time when it is claimed that the money was stolen, that the defendant, Lindsey DeLashmutt, had stated to them “he had taken their money and the defendant, Hathaway Yocum, had assisted him,” the importance as well as the right of defendant Yocum to have the jury properly instructed as to the rule of law upon the questions presented by the instructions becomes apparent.

The next objection is that the court erred in refusing to instruct the jury that the action was barred by the statute of limitation. This objection is founded upon subdivision 1, sec. 8, of the code, but it is not tenable. . Actions of trespass, trover, deterim and replevin belong to the same class and are governed by strictly analogous principles, although the form of proceeding and the results are not the same. (See Wells on Replevin, sec. 44, and notes 1 and 2.) The statute of limitations begins to run against an action of trover from the time of the conversion, (Kelsey v. Griswold, 9 Barb., 441,) and the action must be commeneed within six years. (Code, sub. 4, sec. 6, p. 107; Wait’s Practice, vol. — p. 57; Kelsey v. Griswold, 6 Barb., 436.) These constitute all the objections we deem it necessary to notice, presented by the bill of exceptions. The judgment is reversed and a new trial ordered.

Judgment reversed.