Opinion · Supreme Court of North Carolina

State v. . Boswell

13 N.C. 209

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1829-06-05
Topic: general

Toomer, Judge. One ¡node of impeaching the credit of a witness is, to introduce evidence, showing that lie is not worthy to be believed on oath. The credit of the witness may be impeached by general evidence, that he is not worthy to be believed upon his oath, (1 Star. Ev. 146.) The oíd rule of practice, laid down by Ld. Chief Baron Gilbert, confined the enquiry to the general character of the witness, as a man of veracity.

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Cited by: 10 opinions

STATEv. BOSWELL,13 N.C. 209(1829)

THE STATE v. EPHRAIM BOSWELL et al.

Supreme Court of North Carolina

(June Term, 1829.)

FROM WAYNE.

1. Proof may be offered of the bad moral character of a witness in order to discredit his testimony.

2. The discrediting witness should not express an opinion founded upon a knowledge of particular facts; nor upon the hearsay of strangers to the witness, whose testimony it is intended to discredit. But if his information is derived from proper sources, he may be asked whether he would believe the other upon his oath, or whether the other is worthy of credit upon oath.

The defendants were indicted for a riot, and on the trial before NORWOOD, J. on the last circuit, the defendants introduced witnesses for the purpose of discreiting the evidence offered by the State, and proposed to ask whether from their knowledge of the general character of the witnesses for the prosecution, they would believe them upon oath; and this before the discrediting witnesses had expressed any opinion respecting the general character of the witnesses for the prosecution as to truth and veracity, when testifying upon oath. The presiding judge was of opinion that the question was improper at that stage of the examination, as it would enable the discrediting witnesses to express opinions unfavorable to the credibility of the witnesses offered by the State, founded rather on the general moral character of the latter than on their character for truth and veracity when speaking upon oath; or their testimony might be founded upon particular facts, or private prejudices, orPage 134the malicious motives of injuring the reputation of the witnesses for the prosecution. By the directions of his Honor the witnesses introduced by the defendants were examined — first, as to the general character of the witnesses for the State for truth, when upon oath; secondly, (210) as to their general character for truth in common conversation; and thirdly, as to their general moral character. The defendants were convicted and appealed to this Court.

No counsel appeared for the defendants.

The cause was submitted, without argument, by theAttorney-General, for the State.

TOOMER, J.

One mode of impeaching the credit of a witness is to introduce evidence showing that he is not worthy to be believed on oath. The credit of the witness may be impeached by general evidence that he is not worthy to be believed upon his oath. 1 Starkie Ev., 146. The old rule of practice, laid down by Ld. Chief Baron Gilbert, confined the inquiry to the general character of the witness as a man of veracity. In the year 1804 it was decided, in this State, that to discredit a witness you might prove him to be of bad moral character; and the question was not confined to his character for veracity.S. v. Stallings,3 N.C. 300. This decision established a rule of practice which has prevailed since that period in our Courts and has governed their proceedings.

I perceive no necessity for any change in this rule; it enables juries, whose peculiar province it is to weigh the credit of witnesses to do it more correctly. A like practice has been adopted by the Courts of Kentucky. 3 March., 261. Should a witness, whose general character is proverbially bad as to licentiousness and lewdness, who is, in his habits regardless of the precepts of religion, and reckless of the consequences of vice, be entitled to the same credit as another, whose character is without stain, and whose whole life has been marked by piety, virtue and truth? And how could the jury know the character of the vicious and immoral without evidence? Witnesses in our country are frequently strangers to jurors. An unprincipled man, although grovelling in other vices, which he has long practiced, may, for selfish purposes, artfully conceal the weakness of his character on the score of (211) veracity. Should not such habits lessen the weight and impair the credit of a witness, although he may have established no general character bad as to truth? Should not a jury have access to such information when suspending the scales of evidence to weigh the credit of a witness?

This mode of examination tends to elicit truth, and thus advances the administration of justice; and, when the rule is known, can be productivePage 135of no evil or inconvenience, for the witness is not taken by surprise, but is presumed to come prepared to defend not only his general character for veracity, but also his general moral character.

A witness introduced to impeach the general character of another should not be permitted to give evidence of particular facts, nor repeat hearsay of strangers to the witness, whose testimony is intended to be discredited. He should only speak of the general moral character of the witness, as known among his neighbors and acquaintances. The discrediting witness should not express an opinion founded on his knowledge of particular facts, nor upon the heresay of strangers to the witness intended to be discredited. The discrediting witness may be asked, "whether he would believe the other upon his oath," or "whether the other was worthy of belief on oath." 1 Starkie Ev., 146;Watmore v.Dickinson, 2 Ves. Beam., 267. But the Court should first ascertain that the discrediting witness is acquainted with the general character of the other, and has derived his information from proper sources, before he should be permitted to express his opinion of the credit to which the assailed witness is entitled. If his opinion be formed upon a knowledge of particular facts, or on the hearsay of strangers, then the discrediting witness should not be asked whether the other, whose general character is intended to be impeached, "is worthy of belief on oath," or "whether he would believe him upon his oath." (212)

The previous questions to be settled are, whether the discrediting witness is acquainted with the general moral character of the other, and whether his knowledge has been derived from proper sources. The first question to be asked appears to be, are you acquainted with the general moral character of the witness, whose credit is to be impeached? 1 Phil. Evi., 212; 4 Esp., 102. He may then be interrogated as to the means of obtaining his knowledge. Swift's Ev., 143. It is true, that, in 1 Stark. Ev., 147, it is said, "when general evidence of this nature has been given to impeach the credit of a witness the opposite party may cross-examine as to the grounds upon which that belief is founded." But it is then too late to correct the error; the injury has been done. An impression has been made on the minds of the jury, which neither the charge of the Court nor the remarks of counsel can entirely remove. Thus may artifice gain an advantage to which honesty would disdain to stoop. A witness may be introduced, and express his opinion, when it may be known to the party offering him that his knowledge did not authorize its expression. Justice could be perverted and the rights of parties sacrificed by testimony which the rules of evidence were designed to exclude.

Let it not be said that the error can be corrected, and the injury redressed by granting a new trial, because of the introduction of improperPage 136evidence. Increased expense, delay and inconvenience, must be the consequence. The opinion of the witness is forbidden ground on which the Court should not tread until it be ascertained that it rests on a firm foundation.

PER CURIAM. No Error.Cited: Downey v. Murphy,18 N.C. 84;S. v. Parks,25 N.C. 297;Howell v. Howell,32 N.C. 83;S. v. Dove, Ib., 473;S. v. Efler,85 N.C. 588;S. v. Daniel, 87 N., 508;S. v. Garland,95 N.C. 672;S. v. Bullard,100 N.C. 488;S. v. Spurling,118 N.C. 1253;S. v. Castle,133 N.C. 776.Overruled: Hooper v. Moore,48 N.C. 430;Coxe v. Singleton,139 N.C. 362;S. v. Cloninger,149 N.C. 578.

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