Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-11-10
ately in the particular case. Wharf.
Law of Ev. section 545; McHugh VS..

State, 81 Ala. 3D.; Billiard VS.. Lam
bert, 40 Ala. 204 | Green Ev. section
$50; Blakey VS.. Blakey, SO Ala. Gil.
The circumstances which affect the
particular credit of the witness, are
generally incapable of proof save by
his acts or declarations, and it is but
just that the witness should have his
attention directed to them, and what
ever explanation can be given Of them
without entering into particulars,
should be received. 4 Phil. Ev. q C.
& Fl. notes. III. f the witness
should deny the relationship or bias,
it may be proved by other evidence
Declarations in the presence of third
persons, indicative of hostility, may be
called to the attention of the witness,
and he may be required to admit or
deny them; if he deny them the per-
sons hearing them, to whom the at
tention of the witness is directed, may
be called to contradict him. How far
the bias of the witness, from what
ever cause it arises, affects his credi-
bility, is a question for the consider
alton of the jury, and depends upon his
manner of testifying before them, the
consistency of his evidence with other
evidence in the. cause, and the prob
ability of it's truth or falsity when con-
sidered in connection with all the facts
and circumstances surrounding the
parties, and which are parts of the
transaction. The law does not dis
credit the witness because of the
bias-it is simply fact for the con-
ssideration, of the jury in determining
how far they can safely rely on his
testimony. A remote relation would
not usually lie under the same imputa-
ton on his credit as a nearer relation
whose sympathies and affections were
more deeply involved. A hostile feel
ing, generated by a sudden quarrel,
would not reflect the same discredit as
that which is shown to be malignant.
The extent of the hostility of the wit
ness is the subject of just inquiry. 1t
is not enough, and the door to further
cross examination is not closed, so
that it does not descend to the par
tioulars of the controversy between
the witness and the party, by the mere
statement of the witness that he is
hostile to the party against whom he
is testifying. The party has the right
to go further, and show that the
hostility is malignant and that the
witness has the inclination, and would
not scruple at the means or manner
of doing him the most grevious in
jury.'s 49,.
We think the language above quoted
correctly states the rule recognized
almost universally throughout this
country. This entire subject is very
ably and clearly discussed and ex-
planned by Prof. Wigmore in his late
work on evidence, under the general
head, Testimonial Impeachment"
Wigmore on Evidence, Vol. 2, Oh. 20,
ct seq. See particularly sections S79,
943, 949-952, 10O1-1O05.
The defendant had the absolute right
to show by cross examination that the
witness entertained hostile feelings
against the defendant or was in such
a position with respect to him as to
be under temptation to give false or
biased testimony. The bare fact that
i'll feeling existed or that there was
temptation to falsify would be of little
aid, in determining what effect, if any,
these facts should have on the weight
of the witness testimony. The un-
friendliness Or temptation might be so
slight as to render it altogether un-
likely that the witness would be in
fuenced by it; and, on the other hand,
the i'll will might be so bitter or the
temptation to falsify SO great as to
justify the gravest doubts as to the
"ibhSSot IL III lie
case on trial. 1t is plain, therefore.
that in order to intelligently determine
how much credit a witness subject to
such influence is entitled to it is neces-
sary to be informed of the cause,
nature and extent of the unfriendliness
Or temptation. 1t is, therefore, the
absolute right of the party attacking
the credibility OF such a witness to
elicit by cross examination the facts
and circumstances which tend to
prove the existence and extent of the
supposed improper motives. The ex-
tent to which examination into these
collateral facts, and circumstances
shall be permitted rests in the sound
discretion OF the trial court, and no
rule governing the exercise of such
discretion can be laid down more def
nitely than to say that only SO much
and no more OF the facts and circum-
stances should be admitted as are
necessary to give a fairly intelligent
understanding of the cause, nature and