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

CCifi!On ny Oeikndp, y.
This action was brought to recover |
the value of building material fur
nished defendant and used in the con-
Structinn of his house and for which
he promised to pay its reasonable val
ue.
The answer denied that the mater !
ial was furnished defendant or that
he promised to pay therefor, and al
legged that it was sold to one Holes
worth.
Judgment was rendered for $1114.O4
The District Court granted a new
trial upon the ground of error in the
refusal of the District Judge to testi-
ty. The appeal is taken from this Or
der.
During the progress OF the trial and
sometime after the closing of plain
tiff's case, the Court allowed respond
ent to recall Mr.. HOlesworth fOr fur
Their Discrimination for the pur
pose Ct laying a foundation for in
peaChment. In the meantime. and be-
fore the witness had been recalled.
the Judge presiding at the trial and
by whose testimony HoeswOrth was
sought to be impeached-afte argyll
ment Of counsel and due consideration
Holesworth was recalled, but counsel
declined to further cross examine. and
no foundation was laid for the i'm
eachlEg .,uence.
The necessity of laying the fOun-
dation for an impeachment and the
reason upon which it is founded were
ably considered in the case of MattOX
VS.. U. s., 1856 U. s., 237. The Court
said The authorities. except in
some Of the New England states. are
almost unanimous to the effect that.
before a witness can be impeached by
proof that he has made statements
contradictory or differing from the
testimony given by him upon the
stand, a foundation must he laid by
interrogating the witness himself as
to whether he has ever made such
statements. Justice to the witness
himself requires, not only that he
should be asked whether he had ever
made such statements, but his atten
ton should be called to the particular
statement proposed to be proven, and
he should be asked whether. at such a
time and place he made that state
ment to the witness whose testimony
is about to be introduced. This meth
cd OF Impeachment was approved by
lHlS cOuTL Ill SOllIdu v. NIIlney, IL
How. a. wherein the rule is stated
to be founded upon common seLse
and is essential to protect the chara
cter of witness. His memory is re
freshed by the necessary inquiries
which enable him to explain the state
nents referred to, and show that the,
were made under mistake. or tina
there vas no discrepancy between
them and his testimony"
Of the rule as above announced
Prof Greenleaf says: "This cours
of proceeding is considered indiSpen
sable. from a sense of justice to til
witness. for as the direct tendency O
the evidence is to impeach his vere
city, common justice requires that. b
first calling his attention to the sui
ject, he should have an opportunity t
reco!lect the facts. and, if neceSsar!
to correct the statement already prov
en-, as we'll as by a re-eXamination t
explain the nature, circumstance
meaning and design of what is prov
en- elsewhere to have said"
Ceenleaf on evidence, Sec. 80
In Runyan V. Price, Is Ohio ST. r.
one OF the subscribing witnesses to
viii had died. The contestants o
fered n evidence his declarations Z
specting the capacity Of the testatt
to make will at the time the one
question purporting TO have been mac
for the purpose Of Impending his tie
timony. 1T seems to me- said tt
court that to allow the death OF II
witness to work an exception won
be to destroy the principles upC
which the rule rests and deny the pr
lection which it was designed to {
ford. *. In relieving one par
of a supposed hardship an equally Sc
ious one might be inflicted upon Il
other y. Without. therefor
the opportunity to the witness Of 6
PLANTATION or. to the party again
whom offered, of denomination, '
are OF opinion that the supposed
claratiOns lack the elements OF ere
Utility which they should possess
fore they can be used legitimately
destroy the testimony of the witness
The subject was considered by t
Supreme Court o. Colorado in Ryan
The People, 81 Colo, 125, in the
words:
AT the trial it was sought to
peach he evidence of the witness
lin by showing that a other tim
before and after his deposition v
taken, he had made statements c
traTy 10 those contained IN the dep(
ton. This offer of proof on the p
of the defendant was rejected by
court for the reason that the pro
foundation had not been laid for
the attention of the witness Dl
while upon the stand not having b.
called to these alleged contradict
statements, and he having had no
portunity to explain Orderly the sa
Counsel concede the general rule
be that a witness cannot be impea
ed by showing that he has N
statements at other times incOnsist
with his testimony, unless four
ton be first laid by interrogating
witness himself as to whether or
he has made such statements.
rule so falmost universal applicat
It is founded upon the soundest 2
ciples, and supported by the g