Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-03-02

rule are that justice requires that the
attention of the witness should be
first called to the subject, in order
that he may explain or deny the al
legged contradictory statements, and .
be given an opportunity upon re-
examination to explain the nature,
circumstances. meaning and design of
what he is proved elsewhere to have
said
1 Greenleaf on Evidence 9th
ed). sec. 1872
In excuse of the course pursued it
is said that it would have been vain
thing to have laid the foundation for
an impeachment after the judge had
refused to be sworn.
According to the great weight of au-
thority the rule was established for
the protection of witnesses whose !
veractity was assailed and it's enforce
ment is not a matter of form to be |
changed by the hardship of a partic-
ular case.
THE true principle of the rule"
said the Supreme Court of Kansas,
seems to be, that the witness, whose
Testimony is to be impeached, and the
party to be affected thereby, are of
right entitled to any explanation
which the former can give of the
statements imputed to him.
Greer " Higgins, 90 Kansas, 424.
Having reached the conclusion that
it was not error under the facts in
the court below to refuse to be sworn,
as witness. counsel for respondent
proceeds in his brief to the discussion
of other questions made in the state
ment upon motion for new trial. The
/ record shows that the new trial was
ordered for the reason that the de-
PENDANT was deprived of the teSti-
mony Of Judge Curler at the former
trial and such testimony may have
been MATERIAL Both counsel cOncede
that was the only ground considered
by Judge Talbot. who heard the mo-
zion for new trial. Under these cir
questions is it our duty to consider
questions raised by the statement on
motion for a new trial and not con-
.,idered by the Judge before whom the
motion was made?
If the grounds of action of the
lower court be not shown by the re-
cord" says Mr. Hayne. the Supreme
Court must presume in support OF
such action that it was upon some
ground upon which it can be sustain
ed Thus in Weddle ". Stark, 10
| Cal. 302, where motion for new trial
, was made upon two grounds, INSULT
cheney of the evidence and errors in
' law. and the record did not show upon
) what ground the motion was granted,
: the Supreme Court affirmed the Or
, der on the ground that the evidence
' was conflicting. and that the order
5 must be deemed to have been made on
, that ground. But it is be-
5 lieved that this rule should be applied
e only where the record shows general
r order or decision of the court below
l. without showing any Of the grounds
r on which it was based Where the or
d der expressly states that it was made
a on some one ground without mention
: ing the other grounds, it would seem
v that it should be construed to mean
l. that the order was made upon thai
V ground only, and that the Other
6 grounds were not considered.
d Again, Where the unnoticet
,, grounds involve questions of discre
A. ton it is believed (although no deci
p sion has been found upon the point,
$. that the Supreme Court should not I'm
p dertake to determine them for the
" first time, but if the case cannot bt
It disposed of upon other points, SHOULD
n send it back to the court below for thu
orderly disposition of the matter. Tn
d. less this is done the grossest injustice
;e may result. Suppose, for example
H. that a motion for new trial is mad
,e upon two grounds. viz, error in law
Of and insufficiency of the evidence; ant
A. that the court below erroneous
" grants the motion on the ground Q
B. error in law, but does not cOnside
to the other ground, and that there is
Y conflict Of evidence. If the Suprem
v Court should undertake to pass upo
to the question of the insuiticiency c
as the evidence, it would have to affirl
" the order OH the ground that there
conflict OF evidence, and that tn
.. discretion Of the court below in tn
J matter cannot be disturbed. But i
a the case supposed the court belo
If had never considered the evidenC
70 at all and had never exercised its di
or erection. The only ground upon whic
in it acted was erroneous, and it's actiC
de would be set aside were it not for til
IS fact that the Supreme Court by II
he dertaklng to pass upon a questlC
he which the record shows was not pas
I'D ed upon by the court below. create
on an obstacle to stumble over Is
ro not manifest here that justice is d
af- feated?'
rty Hayne on New Trial and Appe;
or. sec 2S4.
he We concur in this reasoning, al
re. think we should restrict our view
OK the ground upon which the order W
nst made.
we The order granting respondent
de- new trial should be reversed and t
ed cause rerlanded. 1t is SO ordere
he l concur: Massey, c. J.
tn FITZGERALD. j., Dissenting
IS" The statute plainly gives litiga
the the right to have the testimony OF t
, V. trial Judge in a case pending befc
csc said Judge. Comp. Laws, 1900, S
34S1 is as follows: The judge hi
i'm self. or any juror, may be called as
Du- witness by either party; but in ST
les. case it shall be in the discretion
was the court or judge to order the Il
,on- TO be postponed. or suspended. and
osi- take place before another judge
Dart jury
Prl.z e dow ,Tr,,,~