Moses v. Bradley , 3 Whart. 272 ( 1838 )


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  • The opinion of the Court was delivered by

    Huston, J.

    The only question argued here was one of practice ; or perhaps some will think, of a principle, which if adopted, will introduce new practice. Evidence may after, as well as before a jury is sworn, be given to the Court alone, e. g. to prove that regular notice was given of the time and place of taking a deposition which is offered in evidence, of the sickness or death of a witness, who lives near the Court, and does not attend, in order to let a party read a deposition of the witness which has been taken; and, generally, any evidence preparatory to other evidence. In such cases, generally, the jury have nothing to do with such evidence. But here the evidence of the record of the conviction, fine, and costs, was read expressly to the jury, and for their consideration. The plaintiff could not have read it. *274What effect would *be produced practically, by deciding that a should consider in the of view in which the counsel who offered it, told them he wished them to consider it, is not yet practically known, and perhaps never will be. It will probably be left as a subject of conjecture. The subject was before introduced to the consideration of this Court. In 3 Rawle 180, it is said, “ whenever a plaintiff introduces and makes the record of an action, and a recovery thereon against himself, the foundation of an action, or basis of a claim in an action by him against a third person, he is not at liberty to deny the principle on which it appears by the record it was decided, and the recovery had; or, in other words, not admitted to prove that the recovery against himself was wrong.” But I deny that the Court said it was conclusive. That after the record was produced by the defendant himself, “ it was no longer a matter of doubt that an assault had been committed,” is a strong expression, but not unusual, and not always error. Where facts are proved, and not contradicted and the defendant’s counsel only contends in mitigation, a judge often uses similar expressions to those used here, and there is no error. . Where the evidence on both sides proves the same thing, and the defence is on the ground that the facts are in a certain way, it is not error to say that what is proved and not disputed, is not to be made a matter of doubt; at least it is not always so. We would often do the greatest injustice if we took every expression put, not in the charge as delivered, but in a condensed abstract of it, in the sense which will make error, if we or the counsel can find- any plausible, ground for so considering it.

    In any view of the matter, there is not error. If testimony is introduced purposely, or comes out unexpectedly from a party’s witnesses, it is still testimony, and open to consideration in every point of view; and this record, introduced by the party for one purpose, became evidence for every purpose; and he who introduced it, could not say it was not true.

    Judgment affirmed.

    Cited bj the Court, 11 Harris, 432.

    See post 422

Document Info

Citation Numbers: 3 Whart. 272

Judges: Huston

Filed Date: 2/12/1838

Precedential Status: Precedential

Modified Date: 2/18/2022