witness

The word is patently ambiguous: it can fairly be applied to anyone who gives testimony in a proceeding, although the proceeding immediately or potentially involves him as a party, or it may be restricted to the person who gives testimony in another's case.

One who gives oral testimony in a judicial proceeding. If his testimony be given by deposition, he is known as a "deponent;" if by affidavit, as an "affiant." One who is present at any transaction, particularly persons required by law to be present, by way of preappointed evidence. If the witness signs an instrument to denote that same was executed in his presence, he is called a "subscribing" or "attesting" witness.

n. In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, "witness" has acquired the sense of a person who is present at and observes a transaction. Sweet See State v. Desforges, 47 La. Ann. 1167, 17 South. 811; In re Lo-see's Will, 13 Misc. Rep. 298, 34 N. Y. Supp. 1120; Bliss v. Shuman, 47 Me. 248. A witness is a person whose declaration under oath (or affirmation) is received as evidence for any purpose, whether such declaration be made on oral examination or by deposition or affidavit. Code Civ. Proc. Cal. § 1878; Gen. St. Minn. 1878, c. 73, § 6. One who is called upon to be present at a transaction, as a wedding, or the making of a will, that he may thereafter,' if necessary, testify to the transaction. In conveyancing. One who sees the execution of an instrument, and subscribes it, for the purpose of confirming its authenticity by his testimony.

— Adverse witness. A witness whose mind discloses a bias hostile to the party examining him; not a witness whose evidence, being honestly given, is adverse to the case of the examinant. Brown; Greenough v. Eccles, 5 O. B. (N. S.) 801.

— Attesting witness. See Attestation.

— Competent witness. See Competent.

— Credible witness. See CaEDlBLE.

— Prosecuting witness. See that title.

— Subscribing witness. See that title.

— Swift witness. See that tide.

v. To subscribe one's name to a deed, will or other document, for the purpose of attesting its authenticity, and proving its execution, lf required, by bearing witness thereto.

A person who knows or ecution of an instrument, and firming its authenticity by his evidence to a judicial tribunal. nesses of sight and hearing, who of the modern jury. v. Compurgator;

8 1, n. One who gives evidence in a cause before a court.' A most general term, including every person from whose lips testimony is extracted to be used in any judicial proceeding. i" An "affiant" or "deponent" is always a witness, but a witness is not necessarily an affiant or deponent.'" ' [Abbott's Law Diet. ' See People v. Judges of New York, 8 Cow. 130(1888), cases; Winsor v. The Queen, L. R., 1 Q. B. *a98-99 (1866J, cases; 3 Chitty, Pr. 917. a Pettit V. May, 34 Wis. 672 (1874). * Mc Donald v. Vinette, 58 Wis. 630 (1883). '91U. 3.377; 97 id. 637. ' 9 Mass. 456. 'Commonwealth u. Thompson, 3 Allen, 508 (1861), cases. * A. S., witnes, knowledge, testimony. See Wit; Suit, 1. 2, V. To bear testimony to; to have personal knowledge of the execution of an instrument. Adverse witness. A witness who is hostile toward, or who testifies strongly against, a party. Attesting witness. One who signs an instrument, certifying that it was execlited in his presence. At the time of attestation he must be " competent " to testify in court on the subject-matter.' See further Attest. Competent witness. A person who is legally qualified to give testimony. Opposed, incompetent witness. In some States w Uls devising land must be attested by competent witnesses, unless wholly written by the devisor, as, in Kentucky. In Pennsylvania the " competent witnesses " who are to prove a will need not be subscribing witnesses.'" In Virginia, by the code of 1873, c. 118, sec. 4, unless the will, about to be attested, be olograph, the witnesses must subscribe as witnesses, though that word need not be used." See further Competent. Credible witness. A witness who is deserving of confidence; a person who, being competent to testify, is worthy of belief. In some States a will is to be attested by *' credible witnesses. " It has been held that " credible " in this connection means " competent." * In a statute empowering an examined copy to be made and sworn to. by " credible witnesses," in the absence or inability of the clerk of a probate court, held to mean witnesses giving testimony under the sanction of an oath, and who could be cross-examined as to the existence of the record" and the accuracy of the copy. See further Credible, 3. Interested witness. A witness who is directly interested in the result of the suit, or in the record as evidence. The common-law rules disqualifying for interest have been generally abrogated, except as to personal communications with a dead paj-ty. See post. Subscribing witness. A person who, being present at the execution of an instrument, at that time and at the request of the 'Jenkins v. Dawes, 115 Mass. 601 (1874), Gray, C. J.; Haven v. Hilliard, 23 Pick. 17-18 (1839), cases. ' Frew V. Clarke, 80 Pa. 178-79 (187B). Peake v. Jenkins, 80 Va. 396 (1885). See Amory v. Fellowes, B Mass. *298 (1809); Sears v. Dillingham, 12 id. *361 (1815); Hawes v. Humphrey, 9 Pick. *356 (1830); Bacon v. Bacon, 17 id. 135 (1835); Haven v. Hilliard, 23 id. 17-18(1889); Hall u. HaU, 18 Ga. 44-45 (1855); Jones v. Larrabee, 47 Me. 476 (1860); Estep u Morris, 38 Me. 424 (1873). Contra, Windham V. Chetwynd, 1 Burr. 417 (1758), Ld. Mansfield, consid-, party, attaches his signature to it; or, a person who, though not so present, yet subsequently in the presence of the party, who acknowledges the signature and requests him to sign, afl&xes his signature.! At common law it subscribing witness was to be called to prove the execution of the instrument, but never as to a collateral matter; a party was not sufficient, except when the subscribing witness was incapacitated. He is not called when an opponent produces a writing on notice and claims an interest under the writing, nor when he refuses to produce the writing, nor where an acknowledgment makes a writing evidence. An attesting witness proves his own signature only. 2 Swift witness. A witness who is very eager to testify. Zealous witness. A witness who evinces partiality for the party who calls him. The tendency is to admit all persons to testify who _ can furnish relevant, material evidence, leaving the jury to judge of the credibility of each witness. ' In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried." ' That enactment was intended to admit the testimony of witnesses previously incompetent on account of interest or of being parties. It introduced a principle extensively adopted in the States.' " Provided, that in actions by or against executors, administrators, or guardiaps, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity, and admiralty." ' The purpose in preventing a party from testifying, where the adverse party is an executor or administrator, is to guard the estates of decedents against fraudulent defenses and claims, or unfounded causes of action." 1 Huston V. Ticknor, 99 Fa. 238 (1881), Paxson, J.; 1 Greenl. Ev. § S69 a, cases; Cussons v. Skinner, H M. & W. 168 (1843); Hollenback v. Fleming, 6 Hill, 304 (1844), cases. 2 1 Whart. Ev. §§.705-40, cases; 1 Greenl. Ev. §§ 273- 78, cases. 2 Act 2 July, 1864, § 3: E. S. § 8.58. 4 United States v. Ten Thousand Cigars, Woolw. 125 (1867); Eison v. Cribbs, 1 Dill. 184 (1870). Act3 March, 1865: R. S. § 858, cases. See also Eice V. Martin, 7 Saw. 338-40 (1881), cases. Roberts v. Briscoe, 44 Ohio St. 601 (1887); Dudley v. Steele, 71 Ala. 426 (1882). As to testifying to communi- In trials at common law a party to the record could not be a witness for or against himself or his adversary. The purpose of the statutes is to put the parties on a footing of equality with other witnesses, that is, to make all admissible to testify for themselves, and compellable to testify for others. The statutes are remedial, and to be construed accordingly.* See Interest, 1. The exception of executors, administrators, and guardians leaves other suitors, including the United States, under the operation of the common law.'* A wife is not given capacity to testify for (or against) her husband." In a criminal case the defendant, at his own request, shall be a competent witness. But failure to make himself a witness shall create no presumption against him.* Like remedial statutes have been enacted in all the States, Delaware and New Mexico excepted. In a few States persons charged with homicide may not testify in their own behalf. In civil suits a witness may demand prepayment of expenses." N on-attendance, after a subpoena has been duly served, is an offense against public justice, and a contempt of court, for which an attachment may issue and a fine, or a fine and imprisonment, be imposed. A writ of habeas corpxis will secure the attendance of an imprisoned witness. By common law in criminal cases, and by statutes in civil cases, a witness likely to disappear before trial may te required to give bail for his appearance.' On calling witnesses before either house of Congress or a committee thereof, see R. S. § 859, and Contempt, 3. See further Aged; Ancient, 3; Akbest, 3 (2, 3); Call, 1; Communication, Privileged, 1; Confront; Contempt, 1; Crime; Decision, Rules of; Deposition; Dumb; Examination, 9; Expert; Evidence; Falsus, In uno; Going; Husband; Impeach, 3; Infamy; Infant; In- SANiTT, 2 (1); Letters, 4, Rogatory; Oath; Opinion, 1; Party, 2; Question, 1; Refresh; Reputation; Slander, 1;' Suepcena, 3; Testify; Testimony; Testis; Turpitude: Vouch; When.

A person called before a court witness: a term Applied to old methods witnesses produced by the parties; as witnesses de visu et auditu or de The witnesses de visu et auditu (of to the fact itself, were transaction modern jury; the secta and the spoke to the plaintiff's or defendant's clesiastical causes the compurgators ciently might always be used instead of V. Purgation, Compurgatores, Wager of

A person who, being present before a court, magistrate, or examining officer, orally declares what he has seen or heard or done relative to a matter in question; also, a person who affixes his signature to an instrument in attestation of its genuineness, and in anticipation of being called to testify thereto. The deposition of a party to a suit may be taken under the rules governing the taking of the depositions of " witnesses." Abshire w. Mather, 27 Ind. 381. The expression " credible witnesses," means such persons as at the time of attestation are competent. Hawes v. Humphrey, 9 Pick. 350; Haven v. HUliard, 23 Id. 10. The word witnesses was held to include documentary evidence, in Mc Chesney v. Lansing, 18 Johns. 388. The phrase prosecuting witness, as used in a statute giving to him half the penalty recovered, means the person in whose name the suit is brought, though, owing to an agreed statement, he does not actually testify. Illinois, &c. R. R. Co. v. Herr, 54 III. 356.

one who, being sworn or affirmed according to law, deposes as to his knowledge of facts in issue between the parties ina cause. It OS is a general rule, that all persons may be witnesses. To this there are various exceptions. A witness ar may be incompetent, 1, for want of understanding; 2, on account of interest; 3, because his admission is. contrary to public policy; 4, for want of religious principles; and, 5, on account of infamy. § 1. Persons who want understanding, it is clear, cannot be witnesses, because they are to depose to facts which they know; and if they have no understanding, they cannot know the facts. There are two classes of persons of this kind. 1. Infants. A child of any age, capable of distinguishing between good and evil, may be examined as a witness; and, in all cases, the examination must be under oath or affirmation. 1 Phil. Ev.19; 1 Const. R. 354. This appears to be the ar rule in England; though formerly it was held by some Judges, that it was a presumption of law that the child was incompetent, when he was under seven years of age. Gilb. Ev. 144; 1 East, R. 422; 1 East, P. C. 448; 1 Leach, 199. When the child is under fourteen, he is presumed incapable until capacity is shown; 2 Tenn. R. 80; 19 Mass. R. 228; and see 18 John. R. 105; when he is over fourteen, he may be sworn without a previous examination. 2 South. R. 589. OO 2. Idiots and Lunatics. An idiot cannot be examined as a witness; interval, (q. v-), may be examined. A person in a state of intoxication cannot be admitted as a witness. 15 Serg. & Rawle, 25. § 2. Interest in the event of the suit excludes the witness f#om examination, unless under certain circumstances. See article Interest. The exceptions are, the cases of informers, (q- v.), when the statute makes them witnesses, although they may be entitled to a penalty; 1 Phil. Ev. 96; persons entitled to a reward, (q. ¥.), are sometimes competent; agents are also admitted in order to prove a contract made by them on the part of the principal. 1 Phil. Ev. 99; and see 1 John. Cas. 408; 2 John. Cas. 60; 2 John. R. 189; 13 Mass. R. 380; 11 Mass. R. 60; 2 Marsh. Ins. 706, b; 1 Dall. R. 7; 1 Caines’s R. 167. An interested witness's competency may be restored by a release. 1 Phil. Ev. 101. Vide, generally, 1 Day’s R. 266, 269; 1 Caines’s R. 276; 3 John. R. 518; 4 Mass. R. 488; 3 John. Cas. 82, 269; 1 Hayw. 2; 5 Halst. R. 297; 6 Binn. R. 319; 4 Binn. 83; 1 Dana’s R. 181; 1 Taylor’s R. 55. § 3. There are some persons who cannot be examined as witnesses, because it is inconsistent with public policy that they should testify against certain persons; these are, 1. Husband and wife. The reason for excluding them from giving evidence, either for or against each other is founded partly on their identity of interest, partly on a principle of public policy which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice. They cannot be witnesses for each other, because their interests are absolutely the same; they are marriage. Co. Litt, 6, b; 2 T. R- 265, 269; 6 Binn. 488. Thisisthe rule when either is a party toa civil suit or action. But where one them not being a party, is interested in the result, there is a distinction between the giving evidence for and against the other. It is an invariable rule that neither of them is a witness for the other who is interested in the result, and that where the husband is disqualified by his interest, the wife is also incompetent. 1 Ld. Raym. 744; 2 Str. 1095; 1 P. Wms. 610. On the other hand, where the interest of the husband consisting in a civil liability, would not have protected him from examination, it seems that the wife must also answer, although the effect may be to subject her husband to an action. This case differs very materially from those where the husband himself could not have been examined, either because he was a party or because he would criminate himself. The party to whom the testimony of the wife is essential, has a legal interest in her evidence; and as he might insist on examining the husband, it would, it seems, be straining the rule of policy too far to deprive him of the benefit of the wife’s testimony. In anaction for goods sold and delivered, it has been held that the wife of a third person 1s competent to prove that the credit was given to her husband. 1 Str. 504;