McGahan v. Crawford

Mr. Chief Justice McIver,

dissenting. Being unable to concur in all the. conclusions reached by Mr. Justice Jones, in the opinion prepared by him, I propose to state as briefly as practicable, without elaborating the argument, the grounds of my dissent.

It seems to me that the first, second, and third exceptions are well taken, and that, upon the grounds there presented, the case should be remanded for a new trial. The first and second exceptions raise the question whether the objection to the introduction of certain record books of the office of the clerk of the court, was properly overruled. When these books were offered in evidence the following statement, as appears in the “Case,” was made: “No objections are made to the introduction of the record of these transfers or assignments upon the ground that the originals or copies of these records are not produced, but the defendant reserves the right to object upon any other ground.” This occurred when these record books were offered in evidence before the referee, who was appointed simply to take and report the. testimony — not to hear and determine the issues in the action. When this testimony was offered before the Circuit Judge at the hearing, defendants objected on the ground that the ten days notice required by the statute had not been given. The Circuit Judge held “that *584the notice was waived by the defendants when they allowed the books and papers introduced in lieu of the originals or certified copies.” The question is, whether there was error in so holding. In the first place, I do not understand from the statement made in the “Case” that defendants ever did allow the books to be offered in evidence. All that they did allow was that the books would not be objected to upon the ground that the originals (which the Circuit Judge said had been burned or lost) or certified copies were not produced. The admission or agreement, a copy of which is set out above, made when the testimony in question was offered before the referee, practically amounted to a declaration on the part of the defendants that they would not object to these books, when offered in evidence before the Court, on the ground that certified copies were the proper evidence, but the right to object upon any other ground was distinctly reserved. It seems to me that the admission, or agreement, or whatever it may be called, simply amounted to this- — that the books were to be regarded as certified copies of the papers which the plaintiffs desired to introduce. If, then, when these books, which were to be regarded as certified copies, were offered in evidence before the Circuit Judge, then certainly, under the express terms of the statute, the objection that the required notice had not been given was tenable, and the objection, which plaintiffs had been warned to expect, should have been sustained.

The third exception raises the question as to the admissibility of Mr. Dial’s testimony as to what the defendant, Dolly M. Crawford, said when she was examined as a witness de bene esse at some point in the previous progress of this case. It seems to me that such testimony was clearly inadmissible, upon two grounds: First, because, under the express terms of the act of 1883, the testimony, even as taken in writing by the referee appointed for that purpose, could not have been introduced, when it appeared, as it did, that Miss Crawford was still alive at the time of the trial, and living in Daurens County, within the reach of *585the process of the Court. For that statute provides that the testimony so taken shall not be used unless it appears to the Court that the personal attendance of the witness cannot be secured at the trial. See 18 Stat., at page 374, incorporated in sec. 2347 of the Rev. Stat. If, therefore, the testimony of a witness taken de bene esse and reduced to writing by the officer appointed for that purpose could not be used, unless personal attendance of the witness could not be secured at the trial, it seems to me it would be altogether anomalous to hold that a bystander, who happened to hear such testimony when it was taken, could be permitted to prove his recollections of such testimony. But the testimony was objectionable upon another ground. Admissions or confessions of a party to an action, whether criminal or civil, should never be received in evidence against such party, unless voluntarily made; and when a party is placed upon the stand and compelled to testify, under pain of being punished for contempt, such testimony cannot, with any propriety, be said to be voluntarily given. See State v. Senn, cited by Mr. Justice Jones in his opinion. I do not see why the rule there laid down should be confined to criminal cases. Sec. 391 of the Code provides that “a party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same measure and subject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission.” It seems to me that to allow the statements made by a party under such compulsion to be proved against such party would be a violation not only of the fundamental principles of evidence, but also of the principles of abstract justice. If the adverse party desires to obtain the testimony of the other party, let him put such party upon the stand as a witness, as provided for by the section of the Code above copied, but do not allow him to prove by a bystander what testimony such witness may have been “compelled” to give upon a former *586occasion. Get it proceed directly from the party, and do not receive such portions of it as may be reproduced by the uncertain memory of a bystander.

I think, therefore, the judgment should be reversed, and the case remanded for a new trial.

Remittitur stayed, by order of the Court, until November 25, 1896.