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

SUNDAY, MARCH 2, 1902.

Judge.
If | have not the right arbitrarily
to refuse to be sworn and give teStl-
mony in this case, it is a matter of
right that the demand OF one OF the
parties to this case that l shall testi |
fy be respected and granted as mat
ter of right that will be grounds for
reversal upon a matter OF law; and
neither party will suffer materially,
the case having proceeded thus far
by going on with the case to compile
ton and letting the error, ii any, be
corrected in Staement on motion for
new trial.
However, acting as the judge in
this case, if | absolutely refuse to be
sworn and testify, and it shall appear
that this testimony was discovered
too late to be used upon this trial. or
that it can't be used, because, acting
as judge, with the power in my own
hands OF refusing or conserving to be
sworn | refuse to testify; and II 1t
could be shown that it can thereafter
be produced upon trial OF the case.
or would be proper to be produced |
thereafter why the motion for a new
trial would be granted upon that
ground
In the majority opinion it is not de-
MED that a litigant has the right to
thetestimony of the judge presiding at
the trial of cause; but it is therein
said:
During the progress Oh the trial
and some time after the closing OF the
plaintiffs case the court allowed res
pondent to recall Mr.. Holesworth for
further cross-eXaminatiCn for the pur-
pose OF laying q foundation for I'M
parchment. In the meantime and be-
fore the witness had been recalled.
the Judge presiding at the trial and
by whose testimony HOleswOrth was
sought to be mpeached-after argu-
ment of counsel and due consideration
refused to be sworn and testify.
HOlesworth was recalled, but counsel
declined to further cross-eXamine. and
no foundation was laid for the i'm
peaching evidence
Then. in said opinion it is held that
because the technical foundation was
not laid for the impeaching evidence,
that such evidence was inadmisSahle
and immaterial. | cannot agree to
that. See what a position that was
in which respondents counsel found
himself The trial Judge had already
informed counsel that he would not
testify in the case; indeed, had form
and to said ruling respondent took eX-
ceptiOn.
l think counsel for respondent had
the right and it was his duty to ascer-
tain whether he had impeaching evil
dence before he attempted to lay the
foundation for such evidence. Then,
knowing he had no evidence with
which to impeach, why should he lay
or attempt to lay foundation for an
impeachment that he knew he had no
evidence to make? His position was
indeed an unhappy one. Under the
view taken of the case by the major
ity, if he did not lay his foundation he
could not impeach; and, ii he did at
tempt to lay said foundation, he ran
risk of great magnitude. 1t was
known to all that by the refusal of
the trial Judge to testify that impeach
ing evidence could not be obtained
Under such circums tances the witness
could have made slch answers as he
chose 70 the questions. laying the
foundation for impeachment, and
counsel for respondent would have
been helpless. l thing no one had
the righI to put counsel for respond
Ell, in sleh position; and that as he
could not get the iSnpeaching teStl
mony, and knew that The could not get
it, he was excused from attempting tC
make the foundation foJ. impea chment
Counsel lfar apps liant could have vel
argued to the jury the attempted i'm
parchment and its faijllre, thSis pre-
judicing the CASE. The law does moi
require vain thing TO be done" and
to lay the fOunfa ton for an inlIeach
ment under sucn circumstances would
have been wholly vain thing. Res
pondent under the statute had right
to the testimony OF the trial jndSe;
of this right he was deprived and
think without fault OF his, and there
Gore | think the trial court a~ted pro
perly El granting a new trial.
In Tgy Judgment there IS another OBJ
lection 20 the opinion Of the majority
in this case:
In his motion for a new ,ri:i y. s
pendent stated Severai grounds there
for The trial Judge passed upon but
one Of these grounds. to-wit: the enc
above discussed, and the same one de
cideI by the majority OF tbs court
The trial judge granted a now trial te
the respondent on this ground alone
and this court by the majority I'm
ion reverses the trial judges crdAl
granting a new trial, and not iii an.
respect passing upon the Other
grounds for q new trial urged by res
pondeu1 The effect of this orde: 0
reversal IS 10 deny respondent ne"
trial and the case ends adversely tt
him AMI he can never know Whcthc!
his Other c"o'm':s for a new trial Were
good or baa. Sore Ct the othe:
grounds Tor new Trial urged by respOn
deut cannot, in my opinion, be said Il
DC 50 destitute % merit as not to re
Guire consideration Of both the trist
cOurs and This court. One s shall mere
" mention. t0-wit: the insuf6ciency 0
The evidence 10 sustain The VeriiC. o
the iGgy. think the respondent wa
al least enFiIeI 10 the Judgment o
the trial I.fHGrL on this question Ht
did not get il; and now by ne opin
ion 81 he majority, as 1t Seems: L
ne, hc never can get It.
the case cSteu in the majority OPP
in,a ,.I in if.} hn trio