objection of the defendant, though he had once cross-examined the witness.14 In case, however, of the death of the witness after cross-examination by the accused, the testimony is, on the ground of necessity, admitted on any retrials of the case, notwithstanding the rule of confrontation.15 While it is sometimes said that the sickness of a witness is not sufficient reason to take a case out of the ordinary rule and authorize the use of the former testimony of the witness, it is now settled that such testimony so taken on a former trial is admissible upon showing that the witness is sick and physically unable to attend court.16 14. People v. Long, 44 Mich. 296. 15. In People v. Sligh, 48 Mich. 54, it is said: "While the authorities are very much in conflict concerning the right to prove on a second criminal trial the testimony given by a deceased witness on a former trial and with a good many dicta there are not many cases where the question can be said to have been decided by authority, yet we think that the prevailing opinion is that this constitutes one of the exceptions to the rule, requiring witnesses in such cases to be confronted with the prisoner before the trial jury." In People v. Dowdigan, 67 Mich. 95, it is said: "The witness being dead, the deposition was admissible if otherwise unobjectionable. This is a recognized exception to the rule requiring witnesses to be confronted with the prisoner before the trial jury." 16. In People v. Farrell, 146 Mich. 264, the court quoted with approval the rule laid down by Cooley's Constitutional Limitations: "If there were a former trial on which he was sworn it seems allowable to make use of his deposition or of the minutes of his examination if the witness has since deceased, or is insane, or sick and unable to testify or has been summoned but appears to have been kept away by the opposing party." As said by the Supreme Court of the United States in Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244: "The constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if the witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him but if he voluntarily keeps the witnesses away he cannot insist on his privilege. If, therefore, when absent by his procurement their evidence is supplied in some lawful way, he is in no condition to assert, that his constitutional rights have been violated." A certificate made by the custodian of an office in which a paper, document or record belongs that such paper cannot be found made in pursuance of the statute,17 is not admissible in evidence in a criminal case, because it violates the defendant's right of confrontation.18 17. Sec. 12510 Comp. Laws 1915. 18. People v. Goodrode, 132 Mich. 542. CHAPTER 20. CREDIBILITY, IMPEACHMENT, CONTRADICTION AND CORROBORATION OF WITNESSES. 289. Credibility, Impeachment, Etc., In General. 290. Falsus in Uno Falsus in Omnibus. 291. Corroboration of Unimpeached Witness. 292. Impeaching One's Own Witness. 293. Testing Reliability of Witness on Cross-Examination. 294. Discrediting and Disparaging Testimony by Cross-Examination. 295. Impeachment as to Character. 296. Discrediting and Disparaging Testimony of Defendant in Criminal Cases. 297. Character and Reputation, In General. 298. Reputation of Female Witness for Chastity. 299. Discrediting and Disparaging Testimony of Witness by Evidence of Particular Acts, Facts, and Traits of Character. 300. General Reputation for Truth and Veracity. 301. Discrediting by Showing Particular or Specific Acts and Facts. 302. Discrediting by Showing Charge and Conviction of Crime. 303. Impeachment by Conduct. 304. Cross-Examination for Impeachment. 305. Direct and Cross-Examination of Impeaching Witnesses as to Character and Reputation. 306. Evidence Sustaining Character. 307. Interest of Witness or Party to Show Bias or for Impeachment. 308. Interest in Result of Cause to Affect Credit of Witness. 309. Business and Contractual Relations to Party to Affect Credit. 310. Personal Relations-Friendliness or Unfriendliness to Affect Credibility. 311. Cross-Examination to Show Bias, Prejudice, and Interest. 312. Competency of Impeaching Evidence. 313. Rebuttal of Evidence of Bias or Prejudice. 314. Inconsistent Statements as Grounds of Impeachment. 315. Witnesses Who May be Impeached by Inconsistent Statements. 316. Testimony Subject to Impeachment. 317. Cross-Examination as to Inconsistent Statements. 318. Laying the Foundation for Proof of Inconsistent Statements. 319. Admission or Denial by Witness Making Inconsistent Statements. 320. Impeachment by Showing Former Inconsistent Testimony. 321. Rebuttal of Evidence of Inconsistent Statements. 322. Explanations and Effect of Inconsistent Statements. 323. Right to Contradict Testimony in General. 324. Right to Contradict Testimony of One's Own Witness. 326. Testimony Subject to Contradiction. § 289. Credibility, Impeachment, Etc., In General.-The credit of a witness may be impeached in various modes. (a) By exhibiting the improbabilities of his story on cross-examination; (b) or showing conduct inconsistent therewith; (c) by showing statements made by the witness inconsistent with his testimony; (d) and by testimony affecting his character for veracity. Where a girl testified she became pregnant as a result of intercourse under certain circumstances, and defendant admitted that intercourse and the occasion, a mistake of a month by her is not sufficient impeachment to warrant an instruction that the jury should, by reason of it, discredit her claim that the intercourse was consented to under promise of marriage. The credibility of witnesses is for the jury. If defendant sued under the civil damage act, produces a book which he testifies contains the date notice not to sell was served on him, it is competent to show on cross-examination. that later dates are entered earlier in the book.4 1. Michigan Pipe Co. v. North British & Mercantile Ins. Co., 97 Mich. 493; In Helwig v. Lascowski, 82 Mich. 619, 10 L. R. A. 378, it is said: "While it is competent on cross-examination to interrogate a witness fully as to his past life, so that the jury may know what manner of man the witness is and has been, still there must be a limit beyond which such inquiry should not go, and the trial judge must, in the exercise of a sound discretion, determine when that limit is reached. Only a clear abuse of that discretion will be reviewed on error." 2. Badder v. Keefer, 100 Mich. 272. 3. Knowles v. People, 15 Mich. 408; Fisher v. People, 20 Mich. 135. 4. Baker v. Mohl, 191 Mich. 516. § 290. Falsus in Uno Falsus in Omnibus.-There has never been any positive rule of law which excluded evidence from consideration entirely, on account of the willful falsehood of a witness as to some portions of his testimony,1 and a jury may give credit to such portions of the testimony of a witness, shown to have sworn falsely in some particulars, as they in fact believe is true.2 Although a jury has the right to disregard the entire testimony of the witness,3 the rule is not that the jury must disregard such person's testimony unless corroborated; but that they may disregard it. It is proper to charge that if the jury find that a witness is telling an untruth about any one point, they may disbelieve his entire testimony, unless corroborated by other testimony; the truth 1. In Knowles v. People, 15 Mich. 408, it is said: "There has never been any positive rule of law which excluded evidence from consideration entirely, on account of the willful falsehood of a witness as to some portions of his testimony. Such disregard of his oath is enough to justify the belief that the witness is capable of any amount of falsification, and to make it no more than prudent to regard all that he says with strong suspicion, and to place no reliance on his mere statements; but when testimony is once before the jury, the weight and credibility of every portion of it is for them and not for the court, to determine.. 2. Fisher v. People, 20 Mich. 135; In People v. O'Brien, 68 Mich. 468, it is said: "One who has generally a reputation as a liar, may, and often does, tell the truth. The truth is always the truth, no matter from what surce it may come; and if the jury are satisfied that a witness has given the truth in any portion of his testimony, they are permitted to receive and act upon it, though they are satisfied that other portions of his testimony are false, or that he has spoken differently out of court, and has a bad reputation for veracity among his neighbors generally. The testimony of such a man is to be regarded with suspicion, and closely scanned and considered, but, if believed by the jury, under all the other facts and circumstances in the case to be true, it is entitled then to the same weight as the truth would have, coming from any other source." In Hillman V. Schwenk, 68 Mich. 293, it is said: "The credibility of the witness, under such circumstances, is exclusively a question for the jury, and there is no rule of law which prevents their giving credit to such a witness as to such portions of his testimony as they believe to be true and credible." 3. O'Rourke V. O'Rourke, 43 Mich. 58. 4. Cole v. Lake Shore and M. S. Railway Co., 95 Mich. 77. |