I concur with the majority opinion that an effort on the part of a party to a suit to suppress testimony may be shown as a circumstance against such party. Wigmore on Evidence, vol. 1, p. 565; 22 C.J. 176. But I cannot agree with my associates in the conclusion that the error, if any, was harmful in this case. The record discloses considerable bitterness and hostility existing between Miss Whitehand and the daughters of W. S. Johnson — one of them in particular. It also discloses that the witness who claims to have been threatened was a cousin of Miss Whitehand; that she had sought to intercede as an arbitrator and induce Miss Whitehand to accept "a child's part" and not contest this suit, thus intervening to that extent in behalf of the appellants.
I think it is also clear from the record that the fact of a threat by Miss Whitehand against the witness was before the jury, and that the statement of the court "that we cannot go into controversies between them" referred only to the details or the character of the threat, and did not withdraw from the jury the fact that such threat had been made. Not only was Mrs. Fulton's testimony not material, but after the jury had been informed that Whitehand was charged with threatening her or seeking to dissuade her from testifying, she did, on the following day, testify fully in the case, and in response to inquiries from appellants' attorney stated: "As to whether I am afraid to testify in this case, I have been scared, but I went down *Page 43 and got something to settle my nerves and I am not afraid a bit in the world. I am not scared of her now."
This statement, which was not objected to, taken in connection with what had already transpired in the presence of the jury, brought clearly before them, I think, the fact of Miss Whitehand's attempt to suppress the immaterial testimony of the witness. In view of the enmity and hostility existing between Miss Whitehand and the appellants, a resentment against the attempted interference by her own kinswoman in behalf of her adversaries, in whose behalf she was offered as a witness, was but natural. With all these matters before the jury, the full testimony of the witness, her own statement that the threat made, of which the jury was bound to have known, did not affect her testimony, I am of the opinion that whatever error, if any, there was in refusing to permit appellants to go into the details of the difficulty between appellee and the witness was harmless, and that the verdict of the jury should be allowed to stand. I respectfully differ with my associates, and think that the trial court's Judgment should be affirmed.