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ingham Min. R. Co., 95 Ala. 397, 11
So. 341 ; Warrior Coal & Coke Co. v.
Mabel Min. Co., 112 Ala. 624, 20 So.
918; Innerarrityt'. Byrne, 8 Port. 176.

California. — Baum v. Roper, 132
Cal. 42, 64 Pac. 128.

Colorado. — Baldwin v. Central
Sav. Bank, 17 Colo. App. 7, 67 Pac.
179; John V. Farwell Co. v. Mc-
Graw, 13 Colo. App. 467, 59 Pac. 231.

Florida. — McLean v. Spratt, 20
Fla. 515.

Minnesota. — Nichols & Shepard
Co. V. Weidemann, 72 Minn. 344, 75
N. W. 208; Tillman v. International
Harv. Co., 93 Minn. 197, loi N. W.
71 ; State v. Scott, 41 Minn. 365, 43
N. W. 62; Warner v. Fischbach, 29
Minn. 262, 13 N. W. 47; McAlpine
V. Foley, 34 Minn. 251, 25 N. W.
452. .

Missouri. — Best v. Hoeffner, 39
Mo. App. 682 ; Lowman v. Maney,
65 Mo. App. 619.

New York. — Erdman v. Upham,
70 App. Div. 315, 75 N. Y. Supp. 241 ;
Blum V. Langfeld, 37 App. l3iv. 590,
56 N. Y. Supp. 298.

Pennsylvania. — Williams V. Wil-
liams, 34 Pa. St. 312.



Wisconsin. — Mechelke v. Bramer,
59 Wis. 57, 17 N. W. 682.

See also Haussknecht v. Cla^^)ool,
I Black (U. S.) 431; Florida R. R.
Co. V. Smith. 21 Wall. (U. S.) 255,
where the court said : " If the ex-
ception is to the refusal of an in-
terrogatory not objectionable in
form the record must show that the
answer related to a material matter
involved; or if no answer was given
the record must show the offer of
the party to prove by the witness par-
ticular facts to which the interroga-
tory related, and that such facts
were material."

An offer of evidence not containing
sufficient to show its materiality to
any of the issues or points in con-
troversy in the suit, but containing
substantive matter, irrelevant and
inapplicable to any of such issues
or points in controversy, was held
properly rejected. Davis v. Getchell,
32 Neb. 792, 49 N. W. 776.

42. United States. — IddAxo & Or-
egon Land Imp. Co. v. Bradbury,
132 U. S. 509. affirming 2 Idaho 239,
10 Pac. 620 ; Central Pac. R. Co. v.
California, 162 U. S. 91.

Alabama. — Thompson v. Drake,
32 Ala. 99; Shields v. Henry, 31 Ala.
53 ; Crenshaw v. Davenport, 6 Ala.
390; Ashley V. Robinson. 29 Ala. 112,
65 Am. Dec. 387; Abney v. Kings-
land, 10 Ala. 355, 44 Am. Dec. 491 ;
Floyd V. Hamilton, 33 Ala. 235.

California. — McGarrity v. Bying-
ton, 12 Cal. 426.

Colorado. — Holman v. Boston
Land & Sec. Co., 8 Colo. App. 282,
45 Pac. 519.

Dakota. — Cheatham v. Wilber. i
Dak. 335, 46 N. W. 580.

District Cobnnbia. — Clark v.
Read, 12 App. D. C. 343.

Georgia. — Greer v. Caldwell, 14
Ga. 207, 58 Am. Dec. 553.

Kentucky. — Winlock v. Hardy, 4
Litt. 272; Hudson z: Com., 24 Ky. L.
Rep. 785, 69 S. W. 1079.

Vol. IX



172



OFFER OF EVIDENCE.



lish the relevancy of evidence the facts themselves should be stated,



Louisiana. — Succession of Pas-
quier, 12 La. Ann. 758.

Massachusetts. — Fiske v. Cole,
152 Mass. 335, 25 N. E. 608.

Michigan. — Wyngert v. Norton,
4 Mich. 286.

Minnesota. — Rhodes v. Praj, 36
Minn. 392, 32 N. W. 86.

Missouri. — McAlHster v. Barnes,
35 Mo. App. 668; Fitzgerald v.
Barker, 96 Mo. 661, 10 S. W. 45, 9
Am. St. Rep. 375.

New Hampshire. — Saucier v. New
Hampshire Spinning Mills, 72 N. H.
292, 56 Atl. 545.

New York. — Van Buren v. Wells,
19 Wend. 203.

Pennsylvania. — Hall v. Patterson,
51 Pa. St. 289; Davenport v. Wright,
51 Pa. St. 292; Hill z: Truby, 117,
Pa. St. 320, II Atl. 89.

Vermont. — Gregg v. Willis, 71 Vt.
313, .45 Atl. 229.

Wisconsin. — Atkinson v. Good-
rich Transp. Co., 69 Wis. 5, 31 N.
W. 164.

" It is certainly a fundamental
principle in the law of evidence that
it is always incumbent on the party
oflfering proof to show its relevancy
to the questions at issue. It often
happens, however, that proof wholly
irrelevant per se may be made rele-
vant and admissible by connecting it
with other evidence which is rele-
vant; and in such case it is the duty
of the party offering the evidence
not appearing of itself to be relevant
to accompany it with a proffer to fol-
low it with such other proof as will
make its relevancy appear; and if he
fails to do this he cannot complain
that his proof is rejected. Baker v.
Swan, 32 Md. 355.

In Boland v. Louisville & Nash-
ville R. Co., 106 Ala. 641, 18 So. 99,
an action against a railroad com-
pany to recover damages for per-
sonal injuries sustained while at-
tempting to couple cars, and alleged
to have been caused by the engineer
backing the engine with unnecessary
force, it was held that a question
calling for the rate of speed at which
cars ordinarily move in coupling was
held properly excluded because the
testimony was not prima facie rele-
vant; that before such question

Vol. IX



could be answered the party asking it
should have stated the connection
thereof with other facts of which he
proposed to make proof.

In Middle Georgia & A. R. Co. v.
Reynolds, 99 Ga. 638, 26 S. E. 61, a
personal injury action, it was held
that the rejection of evidence offered
by the defendant to show that cer-
tain bandages were removed from
a broken limb of the plaintiff a week
earlier than the attending physician
had directed was not error, the de-
fendant contending that if the band-
ages had remained another week
the pain and suffering would have
been materially lessened, but not
offering to prove affirmatively that
such would have been the result.

In State v. Spiers, 103 Iowa 711,
73 N. W. 343, a prosecution for un-
lawfully keeping and selling intox-
icating liquors, it was claimed that
the court erred in permitting objec-
tionable questions asked Mrs. Far-
rand to be answered. The state
sought to prove by her that she had
sent an agent to the place where the
defendants were doing what was
claimed to be an illegal business, and
that he procured something there for
her. What was thus procured, if
anything, was not shown, and the
court permitted questions of which
complaint was made to be asked and
answered only on condition that the
state should prove that whatever the
agent delivered to the witness was
obtained at the place kept by the de-
fendants ; and, when it became ap-
parent that the required fact would not
be shown, it was held that the evi-
dence in regard to the sending of the
agent to the place specified was prop-
erly stricken out.

In Chase v. Ainsworth, 135 Mich.
119, 97 N. W. 404, an action to re-
cover the balance claimed to be due
on the purchase price of personal
property, one of the defendants was
asked, " You may state to the jury
what is the meaning of the term ' he
to have advance for two weeks ' [a
phrase found in the memorandum of
purchase given by the defendant to
the plaintiff] in your business," but
it was held that becai^e there was no
showing or offer to show that the



OFFER OF EVIDENCE.



173



and not the conclusions or results from the evidence offered.*'
B. Documentary Evidence. — And the rule requiring a show-
ing of the relevancy of evidence applies not only to the oral testi-
mony of witnesses, but to written evidence as well.**

Voluminous Document or Documents. — Where a voluminous docu-
ment which upon its face is irrelevant is offered in evidence and its



expression in question had any def-
inite trade meaning the refusal to
permit the question to be answered
w?s proper.

43. In Howard v. Coshow. 33
Mo. 118, for the purpose of showing
that a certain trust debt was ficti-
tious, the plaintiff offered to prove
that in a conversation between the
witness and the alleged creditor a
day or two before making the deed
of trust, and in the absence of the
defendant debtor, the creditor stated
that the only money the defendant
owed him was a certain amount for
a certain debt. Objection was made
to the competency of the evidence, and
to obviate the objection the plaintiff
stated to the court that he expected
to show by the statements of the
creditor, and other testimony, but
without specifying what particular
facts were to be proved, except that
the creditor had said that the deed
was given without a legal consider-
ation, that it was made for the pur-
pose of defrauding the defendant's
creditors, and that the creditor m
question was a party to the fraud.
Thereupon the trial court admitted
the evidence against the renewed ob-
jection of the defendant. In holding
the action of the trial court to be
error the court said : "The question
is a question of practice rather than
of evidence. It cannot be affirmed
that the statements of Murdock are
evidence against Coshow, in the ab-
sence of proof tending to establish a
conspiracy between them to defraud
the creditors of Coshow; nor is it
denied by the defendant's counsel
that the statements are competent
if such a state of case be established.
The question is, where the declara-
tions of the supposed conspirator
are offered, in anticipation of proof
tending to establish the conspiracy,
whether it is enough for the party
offermg the declarations to state to
the court generally the conclusion or



result of the proof to be offered, as
in this case, or whether he ought to
disclose the particular facts or cir-
cumstances which he expects to
prove to establish the result. We
think the safer and better practice
would require the facts to be proved
first to be disclosed, so as to enable
the court to judge of their sufficien-
cy if proved; and if insufficient, to
relieve the case from any improper
influence of the impertinent matter.
If the opposite practice, however, was
adopted, this court would not for
that cause interfere with the judg-
ment of the lower court, except
where manifest injury had resulted
therefrom to the adverse party."

44. Willis V. Sanger, 15 Tex. Civ.
App. 655, 40 S. W. 229.

A paper that does not show upon
its face any connection with the case,
nor with any evidence already ad-
duced, is properly excluded unless
the partv offers to show its connec-
tion. Grover & B. S. M. Co. v.
Newby, 58 Ind. 570.

In Jones v. Stevens, 5 Mete.
(Mass.) 373, an action to recover for
work and labor wherein the defense
was that the work was done jointly
by the plaintiff and another, the de-
fendant offered various letters writ-
ten to him by the person claimed to
have been the plaintiff's partnei as
evidence tending to show a partner-
ship, but it was held that as the plain-
tiff was not a party to the corre-
spondence, and no evidence was of-
fered by the defendant to show that
the letters had been communicated
to him as they were received, their
exclusion was proper.

Whenever the offer in its descrip-
tion of a paper proposed to be given
in evidence differs from the paper,
the paper itself is to determiiije
whether it be admissible. Keedy v.
Newcomer, i Md. 241. See also
Hammond v. O'Hara, 2 Har. & G.
(Md.) III.

Vol. IX



174



OFFER OF EVIDENCE.



introduction objected to, it is the duty of the party offering it to
state the object or purpose of its introduction, or point out its rele-
vancy or materiaUty.*^

4. Separating Legal From Illegal Evidence. — Where an offer of
proof as made involves matters not proper, and a timely and suffi-
cient objection is interposed, it is the duty of the party to separate
the legal from the illegal evidence and make proper offer of the
former ; otherwise he is in no position to complain of the exclusion
of the whole.*® But the trial judge may separate the legal from the



45. In German Ins. Co. v. Fred-
erick, 58 Fed. 144. 7 C. C. A. 122,
the court said : " Under these cir-
cumstances it was not the duty of
the court to explore this vohiminous
document to ascertain whether it
might not be competent evidence for
some purpose. A mere offer to in-
troduce a voluminous record in evi-
dence, which upon its face has no
relation to the cause on trial, does
not impose on the court the obliga-
tion of examining such record and
a mass of previous evidence, for the
purpose of ascertaining whether such
record, or some part of it, is not
relevant and competent to prove some
direct or collateral issue in the case.
Over V. Schiffling, 102 Ind. 191, 26
N. E. 91 ; Railroad Co. v. Smith, 21
Wall. 255. Good faith to the court
and the opposing party requires, when
the admission of the document is
objected to and its competency is not
apparent, that the party offering it
shall state the purpose for which it
is offered."

46. Alabama. — Pike Co. v.
Hanchey, 119 Ala. 36, 24 So. 751;
Jeans v. Lawler, 33 Ala. 340; Barlow
V. Lambert, 28 Ala. 704, 65 Am. Dec.
374; Smith V. Wooding, 20 Ala. 324;
Melton V. Troutman, 15 Ala. 535;
West V. Kelly, 19 Ala. 353, 54 Am.
Dec. 192; Johnson v. Cunningham, i
Ala. 249.

Arkansas. — George v. Norris, 23
Ark. 121.

California. — Board of Education
V. Keenan, 55 Cal. 642; Bostwick v.
Mahoney, 73 Cal. 238, 14 Pac. 832.

Georgia. — Skellie z'. Central R. &
B. Co., 81 Ga. 56, 6 S. E. 811 ; Hern-
don V. Black, 97 Ga. 327, 22 S. E.

924- .

Illinois. — Cressey v. Kimmel, 78
111. App. 27.
Indiana. — Over v. SchifHing, 102

Vol. IX



Ind. T91, 26 N. E. 91 ; Sohn v. Jervis,
loi Ind. 578, I N. E. 73; Cuthrell v.
Cuthrell, loi Ind. 375; Terre Haute
V. Hudnut, 112 Ind. 542, 13 N. E.
686; Cincinnati. I. St. L. & C. R. Co.
V. Roesch, 126 Ind. 44S, 26 N. E. 171.
Maine. — Tibbetts v. Baker, 32 Me.

25-

Minnesota. — Reynolds v. Frank-
lin, 47 Minn. 145, 49 N. W. 648;
Beard v. First Nat. Bank of Minneap-
olis. 41 Minn. 153, 43 N. W. 7;
Steel V . Leonard, 20 Minn. 494 ;
Mueller z'. Jackson, 39 Minn. 431, 40
N. W. 565.

Montana. — Farleigh v. Kelley, 28
Mont. 421, 72 Fac. 756; Yoder v.
Reynolds, 28 Mont. 183, 72 Pac. 417.

Nezv York. — Hosley v. Black, 26
How. Pr. 97; Walmsley v. Darragh,
14 Misc. 566, 35 N. Y. Supp. 1075.

Pennsylvania. — Sennett v. John-
son, 9 Pa. St. 335 ; First Nat. Bank v.
Peltz, 176 Pa. St. 513, 35 Atl. 218,
53 Am. St. Rep. 686, 36 L. R. A.
832; Mease v. United Trac. Co., 208
Pa. St. 434. 57 Atl. 820; Wharton v.
Douglass, 76 Pa. St. 273.

South Dakota. — First Nat. Bank
V. North, 2 S. D. 480, SI N. W. 96.

Vermont. — Gregg v. Willis, 71
Vt. 313, 45 Atl. 229.

Wyoming. — Stickney v. Hughes,
12 Wyo. 397, 75 Pac. 945.

In Clark v. Ryan, 95 Ala. 406, il
So. 22, an action to recover damages
for breach of contract of employment,
it was held proper to exclude an of-
fer on the part of the defendant to
show that the plaintiff was addicted
to the excessive use of intoxicating
liquors and that he had been indicted
for the offense of public drunkenness;
that " offered as a whole as this tes-
timony was there was no error in the
ruling. The second clause was not
legal evidence, and it was not the
duty of the court to separate the legal



OPFBR OF EVIDBNCB.



175



illegal, if in the exercise of his discretion he sees fit so to do.*^ And
this rule requiring counsel offering evidence to separate the legal
from the illegal and offer the former applies with equal force to
written evidence.*^



from the illegal, and thus do for the
appellant what he should do for him-
self."

A party who mingles competent
with incompetent evidence has no just
reason to complain if the whole offer
be rejected. It is uniformly held
that a party must in offering evi-
dence separate the competent from
the incompetent and offer only the
former, for he has no right to im-
pose that duty upon the court. She-
waiter V. Bergman, 123 Ind. 155, 23
N. E. 686.

In Maryland the rule is that in the
case of evidence offered as a whole it
is not to be rejected simply because
some portion of the evidence em-
braced in the offer is not admissible.
Gorsuch V. Rutledge, 70 Md. 272, 17
Atl. 76; Percy v. Clary, 32 Md. 245.
See also Carroll v. Granite Mfg. Co.,
II Md. 399; Waters v. Dashiell, i
Md. 455.

47. Smith v. Arsenal Bank, 104
Pa. St. 518; Citizens & Miners Sav.
Bank v. Gillespie, 115 Pa. St. 564, 9
Atl. yz ; Stickney v. Hughes, 12 Wj'O.
397. 75 Pac. 945-

In Mundis v. Emig, 171 Pa. St. 417,
32 Atl. 1135, it was held that while
the general rule is that when an offer
is made as a whole of evidence partly
admissible and partly inadmissible the
judge may reject it all and is not
bound to separate the good from the
bad, yet he may do so ; and that
where an offer is clearly competent
in substance and the objection goes
only to a small or unimportant part
it may be the duty of the judge to
point out. or at least call upon the
party objecting to specify, the parts
objected to.

48. Alabama. — Pritchett v. Mun-
roe, 22 Ala. 501 ; Crutcher v. Mem-
phis & C. R. Co.. 38 Ala. 579.

Arkansas. — St. Louis, I. M. & S.
R. Co. V. Faisst. 68 Ark. 587, 61 S.
W. 374; Nicks V. Rector, 4 Ark. 251.

Connecticut. — Dunham v. Boyd,
64 Conn. 397, 30 Atl. 62.

Georgia. — Burch v. Swift, I18 Ga.
931, 45 S. E. 698.



Iowa. — Hidy v. Murray, loi Iowa
6s, 69 N. W. 1 138.

Maine. — Stewart v. Norton, 71
Me. 128.

New York. — Duchess Co. v.
Harding, 49 N. Y. 321 ; Gardner v.
Barden, 34 N. Y. 433.

Vermont. — Willard v. Pike, 59
Vt. 202, 9 Atl. 907.

The rejection of written evidence
on the ground of its voluminous
character and that it contains a large
amount of matter not relevant is not
error where the party offering it
does not designate the parts relevant
and which he desires to have read
to the jury. McGrew v. Missouri
Pac. R. Co., 109 Mo. 582, 19 S. W. 53.

Counsel cannot throw upon the
court the duty of inspecting files of
papers or manuscript volumes of-
fered in bulk to see whether there
is anything in them which is prop-
erly admissible, nor complain if,
when thus offered, they are excluded.
It is the duty of counsel to select
the parts of such documents which
they claim to be admissible, and
point them out to the opposite coun-
sel, and to the court, so that it may
be known in the first place whether
the opposite party will object, and, if
he does, that the court may pass
upon the objection without waste of
time in ascertaining whether in a
mass of irrelevant matter there may
be something that might have a bear-
ing upon the case. A different prac-
tice would tend more to confuse than
enlighten the jury, and if counsel
were at liberty to offer evidence of
this description in gross and take
their chance of having it admitted
without objection, or sustaining ex-
ceptions if it turned out that there
was something in it that might be
deemed admissible, we should ex-
pect to see it always so presented as
to afford the greatest scope for vehe-
ment assertion as to what appeared
by it. assertion that it would be
difficult for the opposing counsel or
the jury either to verify or disprove
in any reasonable time, and which

Vol. IX



176



OFFER OF EVIDENCB.



5. Offer of Portion of Document. — A party offering a document
need offer only such portion thereof as he may deem pertinent and
material to his case,'*'' subject, of course, to the right of his adversary



accordingly true or false, ought to
have no influence in the determina-
tion of the case, but might or might
not have such influence according to
the prejudices of the jury touching
the veracity of counsel. Virgie v.
Stetson, 73 Me. 452.

In Hamberg v. St. Paul F. & M.
Ins. Co., 68 Minn. 335, 71 N. W.
388, an action on a fire insurance pol-
icy, defendant off^ered in evidence
the two written examinations of
plaintiff, each taken after the loss at
the instance of defendant, pursuant
to provisions in the policy, and
signed by the plaintiff before a no-
tary public. The court, on plaintiff's
objection, rejected the offer. Then
defendant offered each written ex-
amination separately, and, this being
refused, proceeded to offer separately
each question and answer in each
docifment. These offers were also
refused, and all of these rulings were
assigned as error. In holding the
action of the trial judge to be proper,
the court said : " The examinations
in question were very long, and the
statements taken thereon are largely
a mere repetition of the evidence
which plaintiff had already given on
the trial. There are a number of dis-
crepancies and contradictions between
some of plaintiff's evidence as given
on the trial and some of his state-
ments made on these examinations,
and defendant was entitled to intro-
duce in evidence these particular
statements, not merely for the pur-
pose of impeachment, but as original
evidence, for these statements are
material admissions made by the
plaintiff himself, which tended to
contradict his evidence given on the
trial. It was the duty of defendant,
not of the court, to pick these state-
ments out of the large amount of
immaterial matter offered, and de-
fendant could not evade that duty by
offering separately each question and
answer."

Letters When Offered as a Whole,
a part of which are irrelevant, are
properly excluded in mass. Robin-
son V. Stuart, 72 Tex. 267, 11 S. W.
275-

Vol. IX



Offering Two Instruments in Con-
nection With Each Other cannot
have the effect of removing the ob-
jections to the inadmissible one, but
necessarily has the effect of render-
ing the other inadmissible also, al-
though it may be clearly admissible
if offered disconnected from, and in-
dependent of, the inadmissible instru-
ment. Hill V. Taylor, 77 Tex. 295, 14
S. W. 366. But where two documents
offered in evidence are not joint, one
having no connection with the other,
and not being offered at the same
time, it is error upon the part of
the court to exclude both because one
of them, is not admissible. St. Louis,
I. M. & S. R. Co. z>. Faisst, 68 Ark.
587, 61 S. W. 374-

In Warshauer v. Jones, 117 Mass.
345, a writ of entry to recover land,
it was held that a deed offered by
the tenant should have been received
notwithstanding it contained recitals
wliich did not affect the demandant;
that that fact did not warrant its ex-
clusion altogether, and that " any im-
proper influence from those recitals
should have been guarded against by
suitable directions as to the use to be
made of the deed."

49. Slingloff V. Bruner, 174 111.
561, 51 N. E. 772; Thayer v. Hoff-
man, 53 Kan. 723, 37 Pac. 125; Im-
perial Hotel Co. V. H. B. Claflin Co.,
55 111. App. 337-

Contra First Nat. Bank v. Talia-
ferro, 72 Md. 164, 19 Atl. 364, where
it is held that in the case of an offer
of the printed part of a document,
thus implying that there is some other
part in writing, the offer is properly
rejected; it should embrace the entire
document. " If admissible at all it
was only admissible in its entirety."
And the same principle was applied
in Haddaway v. Post, 35 Mo. App.
278, in the case of an offer of the
written portion.

But a Fragment of a Letter from
which alone it cannot be determined
just wliat it means and what weight
should be given to it may properly be
excluded where there is no offer to
show the contents of the whole of
the letter. Anderson v. Anderson,



OFFER OF EVIDENCE.



177



to offer and read the remainder so far as may be pertinent and
material.^'' But in offering a part of a writing it is at least neces-
sary to point out definitely the part offered. ^^



13 Tex. Civ. App. 527, 36 S. W. 816.
50. Glover v. Stevenson, 126 Ind.
532, 26 N. E. 486; Thayer v. Hoff-
man, 53 Kan. 723, 2)7 Pac. 125; Noble
V. Fragnant, 162 Mass. 275, 38 N. E.

507.

Where a part of a record in a suit
which was compromised is offered
to prove the judicial admission of
one of the parties thereto, it is com-
petent for the other party to offer the
compromise in evidence to show the
final disposition of the suit and the
matters settled by the compromise
and which were at issue in the litiga-
tion. Moniotte v. Lieux, 41 La. Ann.
528, 6 So. 817.

In Wilkerson v. Eilers, 114 Mo.
245. 21 So. 514, plaintiff's counsel
was permitted on cross-examination
of defendant's witnesses to call their
attention to statements made by them
in certain depositions, and to ask
them if they had not at that time
made certain statements in apparent
conflict with those testified to by them
on the trial, whereupon defendant
offered and asked permission of the
court to read the whole of the depo-
sition, which was refused. In hold-
ing this to be error the court said :
" When a witness has been examined
in regard to the contents of any pa-
per writing, written or signed by
himself, then, as a matter of justice
and fairness to him, the entire paper
should be read, or at least as much
of it as has any bearing upon the



questions in regard to which he has
been interrogated. The witness



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