Crary v. Carradine , 4 Ark. 225 ( 1842 )

By the Court,

Lacy, J.

There is considerable conflict in the authorities, with regard to the kind of interest disqualifying the witness from testifying. We have looked into the different cases with some attention, and, although the rule varies, still we think the later and better authority is, that the interest to disqualify a vdtness must be legal and certain in the event of the suit, or in the record as an instrument of evidence. However, minute the interest may be, it will still disqualify. The legal interest-in the event of a suit, is contradistinguished from mere prejudice or bias, or any other of the numerous motives by which a witness is supposed to be governed, if the witness is really interested in the event of the suit, although he may presume he has no interest, he is disqualified. The reason given is, that it would be dangerous to violate a general rule because the witness mistakes his responsibility. If the witness supposes that he is under an honorary, though not a legal, engagement, he is still competent. The objection, in such a case, would go to his credit, and not to his competency. The reason why a person is incompetent from interest, is the supposed temptation to perjury. This, it is presumed, will create a bias on his mind, which may induce him to testify incorrect]jr, to benefit himself. In Vaness vs. Verhue, 3 J. Cases, 82, it is said, “ that, if a witness will not gain or lose by the event of a cause, or if the verdict cannot be given in evidence for or against him, in another suit, the objection goes to his credit only, and not to his competency. There are a great number and variety of cases which make the witness’s incompctency depend upon his fixed legal interest. 1 Stark. Ev. 102, and cases there cited. Long vs. Bayley, 4 Serg. & R. 327. Union Bank vs. Knapp, 3 Pick. 108. Pederson vs. Stoffles, 1 Camp. 145. 1 Str. 129. Doug. 134. 1 T. R. 163. Stewart vs. Hipp, 5 J. R. 256.

Where a witness thinks himself interested, there is the same reason to suspect a bias on his mind, as if his interest was real. Skillinger vs. Bolt, 6 Con. Rep. 147. Steneny vs. Overton, 4 Bibb, 445. 1 Plum vs. Whiting, 5 Mass. 518. Peter vs. Ball, 4 Har. & McHen. 314. And in the case of The Trustees of Lansingburgh vs. Willard, 8 J. R. 428, the court take this distinction. If the witness declares himself interested on the side of the party who calls him, and his interest is so situated that he cannot be released, in such case he ought not to be sworn, though, in strictness of law, he is not interested; but, if his interest be against the party calling him, and lie will run the risk of a. bias upon his mind, then he should be permitted to testily. Hut, in Gilpin vs. Vincent, 9 J. R. 220, where a witness had, in fact, no fixed legal interest in the event of the suit, but merely felt himself obligated, in honor, to share the loss or pay the debt, ¡hen he w/is considered competent, and permitted to be sworn. And so it is ruled in Moore, vs. Hitchcord, 2 Wend. 292.

• The principle here stated clearly shows, that the interest of the witness called is merely honorary; that his testimony, so far from lessening, his responsibility, would increase it. He liad no direct, fixed interest in the suit. The Court therefore erred in excluding his testb mony, as his interest was merely honorary; and, although his lesfimo ■ ny may not be sufficient to overthrow the other evidence, as appears of record, still we are unable to say wliat influence it might have had upon the minds of the jury, if received; and therefore the motion of the plaintiif in error for a new trial, ought to have been granted.

Reversed, and new trial a,Warded.