damages resulting from a change in the grade of a street, the written report of the viewers is admissible to impeach their trial evidence.1 In respect to the time when such papers may be put in evidence, it is the orderly course for the cross-examining party to introduce them after he has opened his case, though they may be read in connection with the cross-examination of the witness sought to be impeached, but in either case they are a part of the evidence of the party who introduces them.3 (3) Proof of Former Testimony.-The proper foundation having been laid on the cross-examination, it is competent to impeach the witness by proving that his testimony differs materially from that given by him at another time, relative to the same matter;4 and his testimony at the former trial may be proved by any competent witness who heard the same and recollects it. If the former testimony is in the form of a deposition, regularly taken, signed and certified, it is undoubtedly the best evidence of what the testimony was and is admissible for the purpose of impeaching him.R But minutes of the testimony in the nature of a pri 1. Dawson v. Pittsburgh, 159 Pa. St. 317. 2. The Queen's Case, 2 Brod. & B. 288; 6 E. C. L. 149. 3. The Queen's Case, 2 Brod. & B. 288; 6 E. C. L. 149; Nichol v. Laumeister, 102 Cal. 658; Bernhein v. Lyon, 5 Tex. Civ. App. 716; Plyer v. German American Ins. Co. (Supreme Ct.), 1 N. Y. Supp. 395; Wilder v. Peabody, 21 Hun (N. Y.) 376. 4. Toplitz v. Hedden, 146 U. S. 252; U. S. v. Pagliano, 53 Fed. Rep. 1001; U. S. v. Smith, 47 Fed. Rep. 501; Elmer v. Fessenden, 154 Mass. 427; Tobin v. Jones, 143 Mass. 448; Cole v. State, 59 Ark. 50; People v. Bushton, So Cal. 160; Williams v. State, 69 Ga. 11; Brown v. State, 76 Ga. 623; Bennett v. Syndicate Ins. Co., 43 Minn. 45; Tisch v. Utz, 142 Pa. St. 186; Hibbard v. Zenor, 82 Iowa 505; Henry v. Sioux City, etc., R. Co., 75 Iowa 84; Birnbaum v. Lord (City Ct.), 27 N. Y. Supp. 135; Lustig v. New York, etc., R. Co., 65 Hun (N. Y.) 547; Wren v. Louisville, etc., R. Co. (Ky. 1892), 20 S. W. Rep. 215; Waterman v. Chicago, etc., R. Co., 82 Wis. 613; Sherard v. Richmond, etc., R. Co., 35 S. Car. 467; State v. Jones, 29 S. Car. 201; Galveston, etc., R. Co. v. Porfert, 1 Tex. Civ. App. 716; Jackson v. State (Tex. Crim. App. 1894), 26 S. W. Rep. 194; Rippey v. State, 29 Tex. App. 37; Clanton v. State, 13 Tex. App. 139; Scott v. State, 23 Tex. App. 521; Floyd v. State, 82 Ala. 16; Graham v. Myers, 67 Mich. 277; People v. Oblaser (Mich. 1895), 62 N. W. Rep. 732; New York, etc., R. Co. v. Kellan, 83 Va. 853. It matters not that the testimony was given by the witness in another suit. Tisch v. Utz, 142 Pa. St. 186. In laying the foundation for such impeachment, it is not necessary to produce the record in the former trial upon the cross-examination. Oderkirk v. Fargo, 61 Hun (N. Y.) 418. Such former testimony may be used to impeach the witness only when he is present to testify. Adams v. Thornton, 82 Ala. 260. 5. Brown v. State, 76 Ga. 626; Williams v. State, 69 Ga. 11; State v. McDonald, 65 Me. 466; Phares v. Barber, 61 Ill. 272. 6. Rex v. Oldroyd, R. & R. C. C. 88; Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481; Southern Kansas R. Co. t. Painter, 53 Kan. 414; People v. Devine, 44 Cal. 452; Stephens v. People, 19 N. Y. 549; Ecker v. McAllister, 45 Md. 291; Jarvis-Conklin Mortg. Trust Co. v. Harrell (Tex. Civ. App. 1894), 26 S. W. 447. Where the testimony before the coroner is taken in the form of a deposition and subscribed by the witness and certified by the coroner, the record should, if possible, be produced where it is sought to impeach the witness by proof of his testimony before the coroner. Cole v. State, 59 Ark. 50. And in such case the whole of the testimony should be produced; the wit vate memorandum, are not admissible to impeach the witness, although the person who made them may use them to refresh his memory when called to the witness stand to prove the former testimony.1 c. MATERIALITY OF THE EVIDENCE-(1) In General.-In or der to impeach a witness by proof of contradictory statements made by him, it is essential that such statements have reference to some matter which is relevant and material to the issue on trial.2 Or, to state the rule in another form, the cross-examining party is concluded by the answer which a witness gives to a question concerning a collateral matter, and no contradiction will be allowed, even for the purpose of impeaching the witness.3 This ness has a right to the benefit of any explanations which may be contained in any part of it. Carden v. State, 84 Ala. 417; Kennedy v. State, 85 Ala. 326; Dunbar v. McGill, 69 Mich. 297. 1. State v. Adams, 78 Iowa 292; Phares v. Barber, 61 Ill. 272; People v. Considine (Mich. 1895), 63 N. W. Rep. 196. Minutes of evidence, taken before the grand jury or before a committing magistrate, are not admissible to impeach a witness who there testified, State v. Hayden, 45 Iowa 14; and it is not necessary to produce such minutes. The foundation may be laid by crossexamining the witness without the use of them. Sanders v. State (Ala. 1895), 16 So. Rep. 935. 2. Crowley v. Page, 7 C. & P. 789; 2 E. C. L. 737; U. S. v. Dickinson, 2 McLean (U.S.) 325; Marx v. Bell, 48 Ala. 497; Burney v. Torrey, 100 Ala. 157; Phoenix Ins. Co. v. Copeland, 86 Ala. 551; Hussey v. State, 87 Ala. 121; Washington v. State, 63 Ala. 189; Jones v. Malvern Lumber Co., 58 Ark. 125; Territory v. Clanton (Arizona, 1889), 20 Pac. Rep. 94; People v. Nonella, 99 Cal. 333; People v. Tiley, 84 Cal. 651; People v. Webb, 70 Cal. 120; People v. Furtado, 57 Cal. 345; Denver Tramway Co. v. Owens (Colo. 1894), 36 Pac. Rep. 848; Torris v. People, 19 Colo. 438; Futch v. State, 90 Ga. 472; Elkhart v. Witman, 122 Ind. 538; Robbins v. Spencer, 121 Ind. 594; Simons v. Busby, 119 Ind. 13; Fogleman v. State, 32 Ind. 145; Hoover v. Cary, 86 Iowa 494; Madden v. Koester, 52 Iowa 692; Swanson v. French (Iowa, 1894), 61 N. W. Rep. 407; State v. Blakesly, 43 Kan. 250; State v. Ray, 54 Kan. 160; Com. v. Hourigan, 89 Ky. 305; Randolph v. Com. (Ky. 1889), 11 S. W. Rep. 813; State v. Spencer, 45 La. Ann. 1; State v. Benner, 64 Me. 267; Davis v. Keyes, 112 Mass. 436; Kaler v. Builders Mut. F. Ins. Co., 120 Mass. 333; Com. v. Jones, 155 Mass. 170; Com. v. Schaffner, 146 Mass. 512; Alexander v. Kaiser, 149 Mass. 321; Wise v. Ackerman, 76 Md. 375; Langworthy v. Green Tp., 95 Mich. 93; People v. Hillhouse, 80 Mich. 580; Howard v. Patrick, 43 Mich. 121; Paddock v. Kappahan, 41 Minn. 528; State v. Staley, 14 Minn. 105; State v. Spaulding, 34 Minn. 361; Garman v. State, 66 Miss. 196; McFadin v. Catron, 120 Mo. 252; Goltz v. Gris wold, 113 Mo. 144; St. Louis Gas Light Co. v. American F. Ins. Co., 33 Mo. App. 348; Harper v. Indianapolis, etc., R. Co., 47 Mo. 567; 4 Am. Rep. 353; McDuffie v. Bentley, 27 Neb. 380; Morris v. Atlantic Ave. R. Co., 116 N. Y. 552; People v. Fleming (Supreme Ct.), 14 N. Y. Supp. 200; Schwabeland v. Holahan (C. Pl.), 30 N. Y. Supp. 910; Gandolfo v. Appleton, 40 N. Y. 533; Patterson v. Wilson, 101 N. Car. 594; Clinton v. State, 33 Ohio St. 27; Goodall v. State, 1 Oregon 333; Hill v. State, 91 Tenn. 521; Battaglia v. Thomas, 5 Tex. Civ. App. 563; Turner v. State (Tex. Crim. App. 1894), 25 S. W. Rep. 635; Sutor v. Wood, 76 Tex. 403; McCoy v. State, 27 Tex. App. 415; Johnson v. State, 27 Tex. App. 163; Henderson v. State, 1 Tex. App. 432; Brite v. State, 10 Tex. App. 368; Rogers v. Cook, 8 Utah 123; State v. Goodwin, 32 W. Va. 177. 3. Atty. Gen'l v. Hitchcock, 1 Exch. 91; Spenceley v. De Willott, 7 East 108; Rex v. Watson, 2 Stark. 116; 3 E. C. L. 341; Harris v. Tippett, 2 Campb. 637; U. S. v. White, 5 Cranch C. C. 38; Union Pac. R. Co. v. Reese, 56 Fed. Rep. 288; Rosenbaum v. State, 33 Ala. 354; Blakey v. Blakey, 33 Ala. 611; Seale v. Chambliss, 35 Ala. 19; rule, however, is confined to evidence drawn out on the cross- Haley v. State, 63 Ala. 83; Barkly v. People v. Ware, 92 N. Y.653; Morgan 1. State v. Sargent, 32 Me. 429. See 3. Law v. Fairfield, 46 Vt. 425; Pat- strictly to the question of credibility, and the court should so instruct the jury.1 Where the witness is also a party to the action, his admissions against interest are of course admissible as evidence in chief, but that affords no ground of objection to their reception for the purpose of impeaching him as a witness.2 (2) Interest, Bias, and Hostility.-Where a witness denies the making of statements or the existence of facts which show that he is interested in the event of the suit or is influenced by bias or hostility, the cross-examining party may call other witnesses to contradict him.3 Thus, it is competent to prove that he attempted to suborn another witness in the cause to give false testimony. Or attempted to dissuade him from attending the trial. So, also, it is competent, after laying the proper foundation, to prove that a witness proposed, for a certain consideration, to leave the jurisdiction, and not to testify in the case. Y. Supp. 328; Tyler v. Old Colony R. Co., 157 Mass. 336; Trauerman v. Lippincott, 39 Mo. App. 478; Catlin v. Michigan Cent. R. Co., 66 Mich. 358. 1. Law v. Fairfield, 46 Vt. 425; Hicks v. Stone, 13 Minn. 434; Davis v. Hardy, 76 Ind. 272; Seller v. Jenkins, 97 Ind. 430; Drake v. State, 25 Tex. App. 293. 2. Winchell v. Winchell, 100 N. Y. 159; Ankersmit v. Tuch, 114 N. Y. 51; Milligan v. Butcher, 23 Neb. 683. 3. McGuire v. McDonald, 99 Mass. 49; Long v. Lamkin, 9 Cush. (Mass.) 361; Tyler v. Pomeroy, 8 Allen (Mass.) 480; Emerson v. Stevens, 6 Allen (Mass.) 112; Polk v. State, 62 Ala. 237; Butler v. State, 34 Ark. 480; Cornelius v. State, 12 Ark. 782; Bishop v. State, 9 Ga. 121; Conyers v. Field, 61 Ga. 258; Patman v. State, 61 Ga. 379; Atwood v. Welton, 7 Conn. 66; Beardsley v. Wildman, 41 Conn. 515; Schultz v. Third Ave. R. Co., 89 N. Y. 249; Newton v. Harris, 6 N. Y. 345; Starks v. People, 5 Den. (N. Y.) 108; Teets v. Middletown, 106 N. Y. 651; Gale v. New York Cent., etc., R. Co., 76 N. Y. 594; Nation v. People, 6 Park. Cr. Rep. (N. Y.) 258; Eldridge v. State, 27 Fla. 162; Selph v. State, 22 Fla. 537; Lucas v. Flinn, 35 Iowa 14; Scott v. State, 64 Ind. 400; Robertson v. McPherson, 4 Ind. App. 595; Skinner v. State, 120 Ind. 127; Johnson v. Wiley, 74 Ind. 233; Stone v. State, 97 Ind. 345; Ford v. State, 112 Ind. 373; Staser v. Hogan, 120 Ind. 220; Phenix v. Castner, 108 Ill. 207; Titus v. Ash, 24 N. H. 319; Folsom v. Brawn, 25 N. H. 114; Drew v. Wood, 26 N. H. 363; Chelton v. State, 45 Md. 564; Hutchinson v. Wheeler, 35 Vt. 330; State v. Glynn, 51 Vt. 577; Langhorne v. Com., 76 Va. 1012; State v. Jones, 106 Mo. 311; Mc Farlin v. State, 41 Tex. 23; Blum v. Jones (Tex. Civ. App. 1893), 23 S. W. Rep. 844; Helwig v. Lascowski, 82 Mich. 619. To the same effect are Thomas v. David, 7 C. & P. 350; 32 E. C. L. 537; Tolbert v. Burke, 89 Mich. 132; Matter of Mason, 63 Hun (N. Y.) 627; 19 N. Y. Supp. 1006; Effray v. Masson, 28 Abb. N. Cas. (N. Y. C. Pl.) 207; Matter of Snelling's Will, 136 N. Y. 515; Day v. Stickney, 14 Allen (Mass.) 255; Tullis v. State, 39 Ohio St. 200; People v. Murray, 85 Cal. 350; Schuster v. State, 80 Wis. 107; Prince v. State, 100 Ala. 144; Haralson v. State, 82 Ala. 47; People v. Kilvington (Cal. 1894), 36 Pac. Rep. 13. In a criminal case, a witness for the prosecution may be contradicted on any fact which casts suspicion on him as the perpetrator of the crime. People v. Williams, 18 Cal. 187; Gaines v. Com., 50 Pa. St. 319. It is not, however, permissible to prove the cause of the enmity or unfriendliness of the witness, or the details of any particular quarrel between him and the party against whom he is called. Munden v. Bailey, 70 Ala. 63. 4. Stafford's Case, 7 How. St. Tr. 1400; The Queen's Case, 2 Brod. & B. 312; 6 E. C. L. 160; Williams v. Dickenson, 28 Fla. 108; Morgan v. Frees, 15 Barb. (N. Y.) 352; O'Connor v. National Ice Co., 56 N. Y. Super. Ct. 410; Bates v. Holladay, 31 Mo. App. 169. 5. Fitzpatrick v. Riley, 163 Pa. St. 65; State v. Hack, 118 Mo. 92. The contrary was ruled in Harris v. Such proposal is not a collateral matter; it goes directly to show that the witness is corrupt.1 (3) Matters of Opinion. The statement of a witness upon which he may be impeached must not only be relevant to the is sue, it must also be of a matter of fact, and not merely a former opinion of the witness in relation to the matter at issue, which is inconsistent with the conclusion which the facts he testifies to tend to establish,2 unless the matter in question be one upon which the opinion of the witness is admissible in evidence. that case the opinion is material to the matter at issue, and the witness may be contradicted by proof that he has expressed a contrary opinion out of court.3 In d. DEGREE OF CONTRADICTION.-It is the rule that the former statement of a witness, to be admissible for the purpose of impeaching him, must tend to contradict him in some material particular. But its admissibility does not depend on the degree of variance between it and the subsequent testimony; that is a matter for the consideration of the jury in estimating the weight of the impeaching evidence.5 4. Material Additions to Former Statement. Where a witness has made a previous statement of the transaction in regard to which he testifies, under such circumstances that he was called upon as a matter of duty or interest to state the whole truth as to the transaction, the court may, in its discretion, allow the introduction of Tippett, 2 Campb. 637, but it is a nisi prius decision, and does not seem to have had much consideration. It is criticised in Morgan v. Frees, 15 Barb. (N. Y.) 354, where the court said it was undoubtedly wrongly decided. 1. State v. Downs, 91 Mo. 19; Jenkins v. State (Tex. Crim. App. 1895), 29 S. W. Rep. 1078. The same is true of an agreement by the witness to suppress the testimony which he afterwards gives at the trial. Barkly v. Copeland, 86 Cal. 483. 2. Elton v. Larkins, 5 C. & P. 385; 24 E. C. L. 372; Com. v. Mooney, 110 Mass. 99; McFadin v. Catron, 120 Mo. 252; People v. Stackhouse, 49 Mich. 76; Drake v. State, 29 Tex. App. 265; Phipps v. State (Tex. Crim. App. 1895), 31 S. W. Rep. 657; Holmes v. Anderson, 18 Barb. (N. Y.) 422; Schell v. Plumb, 55 N. Y. 599; Rucker v. Beaty, 3 Ind. 70; City Bank v. Young, 43 N. H. 457; State v. Maxwell, 42 Iowa 208. Where the opinion is of such a nature as to show the hostility of the witness, and is offered for that purpose, it seems that it may be received. Dudley v. Satterlee (Čity Ct.), 28 N. Y. Supp. 741. Acts Showing a Contrary Opinion.-If a witness who is not called as an expert has testified to facts tending to show that a party to a contract was, at the time of making it, incompetent to contract by reason of mental imbecility, and his own opinion is not asked for or given in evidence, it is not competent to show, by way of contradiction of his testimony, that he has done acts indicating that he considered such party of sound mind. Hubbell v. Bissell, 2 Allen (Mass.) 196. 3. Sanderson v. Nashua, 44 N. H. 492; Lane v. Bryant, 9 Gray (Mass.) 247; 69 Am. Dec. 282; Cochran v. Amsden, 104 Ind. 282; Dalton's Appeal, 59 Mich. 352; Daniels v. Conrad, 4 Leigh (Va.) 401. Compare Ripon v. Bittel, 30 Wis. 619; Beaubien v. Cicotte, 12 Mich. 460. 4. Lamb v. Ward, 114 N. Car. 255; Hall v. Young, 37 N. H. 134; Martin v. Farnham, 25 N. H. 195; Seller v. Jenkins, 97 Ind. 430; Hall v. Simmons, 24 Tex. 227. 5. Elmer v. Fessenden, 154 Mass. 428; Seller v. Jenkins, 97 Ind. 430; Tinklepaugh v. Rounds, 24 Minn, 298; Craig v. Rohrer, 63 Ill. 325. |