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THE
OKLAHOMA
LAW JOURNAL

VOLUME IX

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o-

Edited and Published by
D, H, Fernandes Guthrie, Oklahoma

THE

OKLAHOMA LAW JOURNAL

EDITED AND PUBLISHED MONTHLY BY
D. H. FERNANDES, GUTHRIE, OKLAHOMA.

Vol. 9.

July, 1910.

No. 1.

MOTIVES AND MEMORY

IN CROSS-EXAMINATION.

As well known, the object of cross-examination is to sift the evidence and ascertain the credibility of the witness--the weight to be given his testimony from the means of his knowledge of the facts he testifies—the strength of his memory, his motives and interests in the matters in controversy. The majority of jurymen are not quick to believe that a witness will manufacture a. story and wilfully evade the truth unless they see some reason for it. So that, if possible, the cross-examiner ought to try and show, if he can, at the earliest opportunity that the witness is mistaken or fabricating. Two things are essential and all important to give weight and credibility to the testimony of a witness: correct perception and an accurate memory of what he has perceived. In ascertaining errors of perception it is necessary, says: Elliott, “to know the ability of the witness to observe what he testifies he saw or heard, and his apportunities of perceiving what he asserts he did perceive.” A man's experience, his hopes, desires and fears mingle in almost every perception that enters his mind. Very few trans. actions, indeed are seen in all their parts by witnesses to be precisely alike. If a man desires a thing to occur in a given way there is at work an influence that will go far toward making it seem to him as he desires it should be. Men who expect things to happen are deceived by things very slightly resembling the things they expect. Few, indeed are the preceptions which enter the human mind absolutely uncolored by the motives, or experience of the individual mind that receive them. It is therefor not surprising, that men so often err in respect to what they think they have seen and heard.

So that even with honest men cross-examination properly conducted brings out the truth when otherwise a false impression would have remained. So that the expert cross-examiner judiciously probes the mental condition of the witness at the time of the occurrence of which he speaks: Whether he was at the place for a specific purpose, what he expected, what he desired how he was engaged, what his attention was fixed upon, and for what reason it was so fixed. This course often gives the cross-examiner the opportunity to place before the jury points that will enable him to explain away much of the testimony of a witness, and sometimes to completly overthrow all that the witness has testified to. As well known, time, place and situation of the witness is of great importance to show his ability to perceive.

In a recent great work, ‘Moore on Facts,' p. 754, the author speaking on this subject, says: “When an observer is imbued before hand with a confident belief as to what the situation signifies or that such and facts are constituents in a transaction or event to which he directs his attention, there is a strong probability that information conveyed to him by any of his senses will be interpreted so as to conform to the belief preoccupying his mind. Where the facts reported by his senses are consistent with that belief, the observer must be self-possessed, sagacious, and wise if he refuses to be satisfied with a report which thus harmonizes with what is to him pre-existing knowledge. The effect of prepossession, was strikingly stated by Justice Grier, when he said: "Tell a man that a persons name with which he is acquainted has been forged,” said he, “and nine cases out of ten, he will be astute enough to fancy he discovers some marks of it." Turner vs. Hand, 3 Wall. 88.

An observer,s false preconceived conclusion may cause him to testify erroneously even to the identity of persons or objects that he has seen. Strong personal interest or partisan feeling seriously affects the memory, and it is apt to give a wrong turn to ones observations. It is not enough to take into account the natural disposition and characteristics of the witness; his environment, idiosyn. crasies, and opinions are of just as great importance. Dr. Gross, speaking of criminal cases says: Many persons even in the gravest emergencies allow themselves to be influenced, more or less, by their religious, political or social standing, by considerations of family, of profession, perhaps even of club or society, and that without the slightest intention of departing by a hair's breadth from the truth; these are many details which they wish neither to see nor to hear, or they see and hear them otherwise than the actual happening, so that a witness who would naturally be for the prosecution becomes one for the defense, and vice versa.

HOMER R. DODDER, et al. Plaintiff in Frror
V8.

No. 547 W. T. L. MOBERLY, Defendant in Error.

(Rendered July 12th, 1910.) Error from District Court of Custer County. Hon. Jas. R. Tolbert, Trial Judge.

Modified Where in an action by sureties to obtain indemnity against the debt or liability for which they are bound, before it is due, pursuant to Wilson's Statutes, Sec. 4472 an attachment is issued and levied on crops as the property of defendant, and the cause is tried on a theory involving the tacit concession that the property attached belongs to the defendant, they will not be permitted in this court to obtain a reversal of the judgment upon a theory involving a denial of that fact.

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