Commonwealth v. Wickett , 20 Pa. Super. 350 ( 1902 )

Opinion by

Rice, P. J.,

The defendant was charged with the forgery of a promissory note purporting to have been signed by one Boyer. On the trial of the case Boyer was called as a witness by the commonwealth and testified that the note was signed by him. He admitted, however, that when first asked regarding the note, he asserted that the signature was not his, and that he had not given the note, but upon cross-examination claimed that he had subsequently notified the prosecutor by telegram and by letter that he was mistaken in his first declaration denying the execution of the note. The commonwealth then offered and was permitted to contradict the witness by proof of his statements made to the commonwealth’s attorney on the eve of the trial, to the effect that he had not signed the note. It is to be observed that this was after the sending of the letter and telegram above referred to. The question raised by the several assignments of error is as to the competency of this testimony.

The rule that a party calling a witness is not permitted to ask leading questions and is bound by his testimony, is liberally construed in modern practice (Gantt v. Cox, 199 Pa. 208), and while it is still the general rule that it is not competent for a party to prove that a witness whom he has called and whose testimony is unfavorable to his cause had previously stated the facts in a different manner, yet, exceptions to this general rule must be permitted to prevent a failure of justice, and accordingly such exceptions have been recognized in the adjudicated cases in Pennsylvania. In Cowden v. Reynolds, 12 S. & R. 281, Chief Justice Tilghman said, “andhard indeed, would be the case of one who calls a witness, expecting that he would swear the truth, if, upon finding himself deceived, he may not show that the witness had told a different story at another time.” So in Bank of the Northern Liberties v. Davis, 6 W. & S. 285, Rogers, J., said: “ That the court which tries the cause, should have the power to depart from the ordinary rule in certain cases, is absolutely necessary to prevent a failure of justice ; for frequently a party may, be compelled to call a witness known to be in the interest of the adverse party, or he may, by artifice and fraud, be entrapped into his examination. As for example, a witness tenders himself ready to prove a fact pertinent to the issue, and when placed on the stand proves directly the reverse, or prevaricates in such a manner as to give the whole advantage to the antagonist party, and this perhaps in concert and by the procurement of the adverse party. In such cases, and others of similar kind, the court before whom the cause is tried has always, in the exercise of a sound discretion, allowed the party calling him to prove that at different times and in the presence of other persons, he has held different language. This, however, is not substantive evidence of itself, but is permitted to neutralize the evidence given by the witness.” These and many other cases to the same effect are cited and reviewed in the concurring opinion filed by Mr. Justice Thompson in Steams v. Merchants’ Bank, 58 Pa. 490. It is urged, however, that under the rule adopted by the majority of the court in that case, the evidence under consideration in the present case should have been excluded. In this construction of the decision we cannot concur. There the evidence was rejected properly because it did not appear clearly that the party calling the witness had been misled. This sufficiently appears in the report of the facts of the case and is pointed out in the opinion of Thompson, J., at page 499. The device of calling a witness whom the party is not compelled to call for the purpose of getting before the jury his contradictory statements made on other occasions cannot be allowed to succeed: Smith v. Price, 8 W. 447. The case we have before us is not of that kind. Nor is it a case where the party calling the witness omitted to inform himself as to what his testimony would be. Although the witness did not in so many words say to the attorneys that he would testify on the trial that was about to take place that he did not sign the note, yet he must have known that he was being examined by them for the purpose of ascertaining what he would testify to and it is sufficiently clear that they put him on the stand in the reasonable belief that his testimony would be in accordance with the statements made to them. If the commonwealth had not called him the jury would naturally have drawn an inference unfavorable to the prosecution. But granting, that the commonwealth was under no legal compulsion to call him, yet, having called him in the reasonable belief that he would testify that he had not signed the note, such belief being founded upon his statements to her counsel, the interests of justice required that she should be permitted to neutralize the evidence given by the witness by proof of his contradictory statements. The admissibility of such evidence has been recognized in later cases.

The right of the party thus misled by a witness called by him is not confined to putting leading questions to him nor to a disproof by other evidence of the facts testified to by him. The precise question arose in our own case of Gray v. Hartman, 6 Pa. Superior Ct. 195, and was thus stated by our Brother Beaver : " Can a party who has called a witness lay the ground for contradicting him by a cross-examination and subsequently contradict him by other witnesses, when he has been misled as to what the witness will testify by a preliminary examination ? ” We there adopted the rule laid down in 1 Greenleaf on Evidence, sec. 444, where the learned author, after stating the arguments pro and con, says: “ But the weight of authority seems in favor of admitting the party to show that the evidence has taken him by surprise and is contrary to the examination of the witness preparatory to the trial or to what the party had reason to believe he would testify, or that the witness has recently been brought under the influence of the other party and has deceived the party calling him.” Judge Beaver said: “The authorities in Pennsylvania very clearly sustain the right of the party calling a witness under such circumstances to cross-examine him for the purpose of showing that he had made statements different from those to which he testifies on the stand on a previous occasion, not, it is true, for the purpose of making his previous statements substantive evidence of the facts therein stated but in order to neutralize the evidence given by the witness.” Applying these well settled principles to the case in hand, the learned trial judge committed no error in admitting the testimony and he correctly and adequately instructed the jury as to the sole purpose for which it was admitted. We must assume that they obeyed his instructions and did not give the testimony effect as substantive proof of the guilt of the defendant.

As to the fifth assignment of error it would be sufficient to say that a motion in arrest of judgment is not the proper mode to raise the question as to the sufficiency of the evidence. We remark, however, that there was sufficient competent evidence to sustain the conviction.

All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below to the end that the sentence be fully carried into effect; and to that end it is ordered that the defendant forthwith surrender himself to the court of quarter sessions of Bradford county, and that thereupon he be remanded to the jail of said county to serve out so much of the period of imprisonment prescribed by said sentence as had not expired on February 18,1902, the day the supersedeas on this appeal took effect.