People v. Cox

The declaration of Willie Cox to his mother was improperly received in evidence. It was mere hearsay. The counsel for the peope argues that it was competent by way of giving the whole of a conversation called out by the cross-examination of the people’s witness. Undoubtedly, when a statement forming part of a conversation is given in evidence, whatever was said by the same person, in the same conversation, that would in any way qualify or explain that statement, is also admissible. (Prince v. Samo, 1 Ad. & El., 621; Rouse v. Whited, 25 N. Y., 110.) But the rule is inapplicable here. The cross-examination had elicited no statement ; the only fact brought out was that Mrs. Taft had inquired of her son, who the person was that handed him the letter — a fact entirely immaterial, except as it tended to show that Mrs. Taft was not certain who the person was, and thus weakened the force of *51her positive testimony, that it was the defendant. There was nothing in the testimony which made the answer of Willie competent by way of qualification or explanation. But the proof of his answer, though incompetent, was calculated to operate against the '' defendant upon a vital issue, and we cannot say that she was npt prejudiced by its reception.

We also think the court erred in receiving the evidence of Mrs. Beman and Mrs. Shope, showing declarations of Mrs. Cox contradietory. of her testimony given on cross-examination, to the effect that she did not know and had not been told by Anna, that Anna had written a letter on the day the letter was delivered at Taft’s. It was undoubtedly competent for the prosecution to prove that Anna had written a letter on that day, if the fact was so, but when they undertook to prove it by the defendant’s witness, they made the witness their own for that purpose. And having failed to prove the fact by her testimony, it is difficult to see upon what principle they were authorized to show that she had asserted the fact on previous occasions, when she was not under oath. It is insisted by the counsel for the people, that as the contradictory statements of the witness related to a matter which was relevant to the issue, they 'were competent by way of impeaching her testimony. But the state- • ments did not contradict anything the witness had testified to on her direct examination. The fact to which they related, to wit, the writing of a letter by Anna on the day referred to, although pertinent to the issue, was new and independent matter, not touched upon in the direct examination of the witness, and the burden of proving it rested on the prosecution. The rule, as stated in the books, that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony, does not, by any means, imply that a witness may be cross-examined, for such purpose, as to every fact which is relevant to the issue. The right of cross-examination, for such propose, is limited to those matters which tend to contradict, discredit, vary, qualify, or explain the testimony given by the witness on direct examination. In the leading case of The Attorney-General v. Hitchcock (1 Exch., 91), the rule was stated as follows by Alderson, *52B.: “A witness may be asked any question wbicb, if answered, would qualify or contradict some previous part of that witness’s testimony, given on the trial of the issue; and if that question is so put to him and answered, the opposite party may then contradict him, and for this simple reason, that the contradiction qualifies or contradicts the previous part of the witness’s testimony, and so removes it.” The reported cases, so far as we are acquainted with them, are consistent with the rule, and the reason of it, stated by Baron Alderson. That 'Wharton, in his Law of Evidence (§ 552), cited by the counsel for the prosecution, did not intend to state a different or broader rule than this, is apparent, we think, from his language and the cases cited by him. In one of them (Hogan v. Cregon, 6 Robt., 138), the action was for seduction of the plaintiff’s daughter. The daughter wras called as a witness for the plaintiff, and on cross-examination she having denied certain alleged acts of intimacy with Campbell and Dougherty, the defendant was permitted to interrogate the latter persons as to those matters. Held, not error. The Commonwealth v. Bean (111 Mass., 438), was an indictment for an indecent assault upon A: B. A. B. having testified that defendant took indecent liberties with her person on a day when he took her to drive, and, upon cross-examination, that, on a subsequent day, she did not tell the defendant that she would kiss him if he would take her to drive, it was held that the defendant might show that she did so tell him. In each of these cases the fact to which the contradiction related tended to discredit the witness. So, in Thomas v. David (7 Carr. & Payne, 350, cited by Phillips in his Treatise on Evidence, vol. 2 [4th Am. Ed.], with Cow. & H. Notes, p. 971). The case of Greenfield v. People (13 Hun, 244), was not intended to be carried beyond the above authorities, some of which are therein cited. In State v. Patterson (2 Ired. L., 346), a witness on the part of the State on cross-examination was asked whether the prosecutor had not paid him for coming from another State to be a witness, and answered that he had not. Held, that it was incompetent for the defendant to introduce witnesses to prove his declaration that he had been so paid.

If Mrs. Cox had testified on direct examination that Anna did not write a letter on the day referred to, it would have been compe-

*53tent to contradict her, as the fact was material; but as the only testimony given by her on that subject was elicited on her cross-examination, and did not bear upon her previous testimony, it did not furnish a foundation for the introduction of proof that she had made contradictory statements.

The conviction should be reversed, and the proceedings remitted to the Erie sessions, with instructions for a new trial.

Talcott, P. J., and Hardin, J., concurred.

So ordered.