Jones v. Duchow
Before: Foote, Thornton
Synopsis
Libel — Evidence — Des Gestas — Certificate of Character — Contradiction of Witness. — Where a libel is justified on the ground o£ its truth, and a witness for the defendant has testified that the plaintiff was denounced by himself and all good citizens at the place of his residence, on a certain date, a certificate of recommendation of the plaintiff for good and correct habits in business and social relations, signed by several prominent citizens of that place, at a date four months earlier, is not admissible as part of the res gestee, to contradict the statement of the witness, nor to prove the good character of the plaintiff.
Id.—Impeachment of Witness — Specific Acts — Battery.—A witness cannot be impeached by evidence of particular wrongful acts; nor is it proper to ask him, for the purpose of impeachment, whether he had been arrested, pleaded guilty, and paid a fine for heating, bruising, and battering a woman of the town.
Id. — Objection to Impeaching Evidence. — An objection to such question, on the ground that it did not tend to impeach the witness, and that the record was the best evidence, is specific enough to invoke the rule which does not permit a witness to he impeached by evidence of particular wrongful acts.
Opinion
The Court. Upon rehearing and further consideration of this case, we are satisfied that the court below did err in the particulars pointed out in the opinion filed herein February 28, 1890, and the same will stand as the opinion and order of the court on this appeal.
Beatty, C. J., and Fox, J., dissented.
Concurrence — Thornton
Thornton, J., concurring. I concur in the judgment of reversal herein, for the reason that the letter allowed in evidence to contradict the witness Gift was erroneously admitted. It was admitted on the offer of plaintiff to contradict a statement of Gift, brought out on cross-examination by plaintiff, which statement was collateral to the issue. The plaintiff was bound by Gift’s statement, and could not be allowed to contradict it.
The following is the opinion above referred to, rendered in Department Two on the 28th of February, 1890:—
Foote, C. This is an action for libel. The plaintiff, Jones, recovered, under the verdict of a jury, a judgment for two thousand five hundred dollars, from which, and an order refusing a new trial, the defendant appeals.
One of the grounds of the alleged libel was, that the defendant had published of the plaintiff that he had been compelled to leave his former place of residence between two days, in order to prevent a mob from riding him out of town on a rail.
The defendant admitted the publication of this matter, and justified it on the ground of its truth.
On the trial, Mr. Gift, a witness for the defendant, had testified, among other things, that he had denounced the character of the plaintiff, Jones, at Hollister, his former [112]place of residence, in this state, “ as any other good citizen used to, and did,” on account of divers acts of Jones at that place. The plaintiff then proposed to introduce in evidence before the jury a letter or certificate of good character for himself, signed by Judge Breen and others, who are admitted to be good citizens of Hollister.
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