People v. Jacobs

By the Court, Wallace, C. J.: The prisoner, indicted for the crime of burglary with intent to commit rape, etc., was found guilty, and judgment having been rendered upon the verdict, this appeal is taken from the judgment and an order denying the motion of the prisoner for a new trial.

Several points are made by the prisoner’s counsel in argument, but it will be necessary to notice only one of them.

The prosecution gave evidence tending to prove that the prisoner had, in the night-time, broken into a dwelling-house, where a girl named Mary Proctor resided, with the intent to commit a rape upon Mary. The District Attorney endeavored to show that the prisoner had previously made threats that he would commit this offense, and for that purpose he called as a witness one Kesterson,. and questioned him upon that point. The witness answered, detailing conversations he had had with the prisoner, with respect to the girl, but these, in their tone and character, though tending in a measure to inculpate the prisoner, did not amount to threats or expressed intention upon his part to do her a wrong by violence. The District Attorney then, upon suggestion that Kesterson was an unwilling witness, [385]was permitted by the Court, against the -objections of the prisoner, to put leading questions to him as to the supposed threats made by the prisoner in his presence, but the witness denied that he had heard the prisoner make them. He was then asked if he, the witness, had not, at a time and place suggested in the question, stated to one Dunton, a deputy sheriff, that the prisoner had made to him, the witness, the threat referred to. The witness answered that he had had a conversation with Dunton at the time and place referred to, but that he did not state to Dunton that the prisoner had made the threats inquired of.

The prosecution then called Dunton as a witness to contradict Kesterson, and, against the objection of the prisoner, Dunton testified that Kesterson had stated to him that the prisoner had, in the presence of him, Kesterson, made the threats which had been inquired of by the prosecution. There is, undoubtedly, some' confusion in the adjudged cases upon this and kindred questions concerning the limit to which a party may go in contradicting the evidence of his own witness, who unexpectedly testifies against him.. The rule most consonant to reason, I think, is that given in Greenleaf, Vol. 1, Sec. 444 a; Redfield’s edition: * * * “You may cross-examine your own witness if he testify contrary to what you had a right to expect, as to what he had stated in regard to the matter on former occasions, either in Court or otherwise, and thus refresh the memory of the witness, and give him full opportunity to set the matter right if he will; and, at all events, to set yourself right before the jury. But you cannot do this for the mere purpose of discrediting the witness; nor can you be allowed to prove the contradictory statements of the witness upon other occasions, but must be restricted to proving the facts otherwise by other evidence.”