On an issue as to whether certain promissory notes, dated on a
particular day, were given for money lost at play and therefore
void, it is not allowable to prove that the party giving them was
intoxicated on the day of the date of the notes in suit, and that
when intoxicated he had a propensity to game.
Thompson sued Bowie, in the Supreme Court for the District of
Columbia, on three promissory notes for $1,000, all dated on the
1st January, 1857, and all drawn payable to and endorsed by one
Steer.
The defense was that the notes were given for a gaming
consideration, and were, therefore, void even in the hands of a
bona fide holder, under the statute of 9 Anne, ch. 14, §
1, in force in the district, [
Footnote 1] which statute makes such notes "utterly void,
frustrate, and of none effect, to all intents and purposes
whatsoever."
The defendant did not offer any direct evidence tending to
establish the defense; but resorted to and relied on proof of a
circumstantial sort, or such as he so regarded. It consisted of the
following facts, tending to prove which the court below allowed
evidence to be given.
1st. That Steer, the payee of the notes, was the keeper of a
gambling house in Washington City at the date of the notes.
2d. That at the time of the making of the notes, Steer
Page 71 U. S. 464
was not engaged in any other business than gambling, nor was he
the owner of any property.
3d. That another note of the defendant, of the same date
(January 1, 1857), as those sued on, of the same amount ($1,000),
as those sued on, was given, payable to the order of one Campbell,
who was not only a frequenter of the gaming house of Steer, but
also in his employment as a dealer of faro.
4th. That the body of all four of said notes was in the
handwriting of one J. R. James, who was a professional gambler, and
a frequenter, among other such places, of the gambling house of the
said Steer.
5th. That on the night of the 31st of December, 1856 (New Year's
eve), the defendant, being at a social entertainment, became
greatly intoxicated -- so much so that he was unfit to transact any
business; and that he was in that condition when with the witnesses
he left the place of the entertainment, between one and two o'clock
in the morning of the 1st of January, 1857, and was no more seen by
them that day.
6th. That whenever the defendant was under the influence or
excitement of wine or spirits, he had a propensity to gamble, and
was in the habit of going into gambling houses, faro banks &c.,
and there gambling, but not at other times; that in the knowledge
of the witness, he was always in this condition when he frequented
such places; that the witness was a great deal with the defendant
during the sessions of Congress; that he was in the witness' room
almost every night, and frequently, when in liquor, would leave the
witness to go with his friends to gambling houses, and request the
witness to go with him.
7th. That at the date of the notes the defendant was
wealthy.
On this testimony, and without the plaintiff endeavoring to
rebut this case, or to show in what manner he obtained possession
of the notes, the case was given to the jury, who rendered a
verdict in favor of the defendant.
On error here, one question among others, and the chief
Page 71 U. S. 465
question, was as to the admissibility of the evidence tending to
show that when the defendant was under the excitement of ardent
spirits he had a propensity to game, was in the habit of going into
gaming houses &c., and of there gaming, but not at other times;
and that, in the knowledge of the witness, he was always in this
condition when he frequented such places.
Page 71 U. S. 470
MR. JUSTICE DAVIS delivered the opinion of the Court.
Thompson brought suit in the court below to recover on three
promissory notes, purporting to be given on the first day of
January, 1857, by Bowie to Steer, and endorsed to him. Bowie sought
to avoid their payment on the ground that they were founded on a
gaming consideration, and therefore void, even in the hands of an
endorsee, without notice, because the statute of 9th Anne, avoiding
gambling contracts, was in force in the District of Columbia, where
they were executed. There was no direct evidence offered on the
trial to impeach the consideration of the notes; but what is called
circumstantial evidence, in contradistinction to direct evidence,
was relied on to prove the defense. A brother of the defendant was
called by him, and allowed to testify; that whenever his brother
was under the influence of liquor, he had a
propensity to
gamble, and it is contended, as he was drunk on the morning
the notes were given, and as they were in the handwriting of a
professional gambler, and payable to the keeper of a gaming house,
the inference
Page 71 U. S. 471
is fair and reasonable, that they were given for money won at
play.
Did the court err in admitting this evidence?
If it did err in this matter, then the judgment must be
reversed, for undoubtedly the jury, in the formation of their
verdict, must have been greatly influenced by testimony that the
general character or habit of Bowie was to gamble when
intoxicated.
All evidence must have relevancy to the question in issue and
tend to prove it. If not a link in the chain of proof, it is not
properly receivable. Could the habit of Bowie to gamble, when
drunk, legally tend to prove that he did gamble on the day the
notes were executed? The general character and habits of Bowie,
were not fit subjects of inquiry in this suit for any purpose. The
rules of law do not require the plaintiff to be prepared with
proofs to meet such evidence. That Bowie gambled at other times,
when in liquor, was surely no legal proof that because he was in
liquor on the 1st day of January, 1857, he gambled with Steer. It
is very rare that in civil suits the character of the party is
admissible in evidence, and it is never permitted, unless the
nature of the action involves or directly affects the general
character of the party. [
Footnote
2] Bowie was not charged with fraud, or with any action
involving moral turpitude. He was simply endeavoring to show that
his own negotiable paper was given for money lost at play, and to
allow him, as tending to prove this, to give in evidence his habit
to gamble when drunk, would overturn all the rules established for
the investigation of truth. When trying a prisoner on an indictment
for a particular crime, proof that he has a general disposition to
commit the crime is never permitted. [
Footnote 3] If a man charged with the larceny of a horse
was proved -- in connection with other evidence tending to show his
guilt -- to be drunk on the day the horse was stolen, would any
court allow the general evidence to go to the jury that,
Page 71 U. S. 472
when drunk, he always stole a horse? And yet the general rules
of evidence are the same in civil as in criminal cases. "There is
no difference," says Abbott, Justice, [
Footnote 4]
"as to the rules of evidence between criminal and civil cases;
what may be received in the one may be received in the other, and
what is rejected in the one ought to be rejected in the other."
The uniform habit of a party to loan money at usurious interest,
was not considered by the supreme court of New York a legal
foundation for a verdict establishing usury, although one usurious
loan had been proved between the parties to the suit, and it was
altogether probable, that the case under review was of that
description. [
Footnote 5] The
uniform habit of Bowie, when drunk, to gamble is not a legal
foundation for this verdict, although it is highly probable that
the notes in controversy were executed by him for a gaming
consideration.
There are other assignments of error, which it is unnecessary to
notice, as the decision of this question disposes of the case.
The judgment of the court below is reversed, and mandate
ordered, with instructions to award a venire de novo.
[
Footnote 1]
See Kilty's Report of Statutes, p. 248.
[
Footnote 2]
1 Greenleaf's Ev., § 4.
[
Footnote 3]
1 Phillips on Evidence p. 143;
The State v. Field, 14
Me. 249.
[
Footnote 4]
Rex v. Watson, 2 Starkie, 155;
Regina v.
Murphy, 8 Carrington & Payne 306.
[
Footnote 5]
Jackson ex dem. Norris v. Smith, 7 Cowen 719.
MR. JUSTICE GRIER dissenting:
I cannot give my assent to the reversal of this judgment for the
reason alleged in the opinion of the court, nor for any other.
The defense to the payment of these notes was that they were
obtained by fraud from the defendant when he was drunk, and were
without consideration and void.
Now fraud will not be presumed but must be proved as other
facts, either by direct proof or by circumstantial evidence which
will convince the mind of a jury that a fraud
Page 71 U. S. 473
was committed. It is seldom that a fraud or conspiracy to cheat
can be proved in any other way than by circumstantial evidence, as
knaves have usually sufficient cunning to have no witnesses present
who can testify directly to their fraudulent contrivances.
Circumstantial evidence is often as convincing to the mind as
direct testimony, and often more so. A number of concurrent facts,
like rays of the sun, all converging to the same center, may throw
not only a clear light but a burning conviction; a conviction of
truth more infallible than the testimony even of two witnesses
directly to a fact. A cord of sufficient strength to suspend a man
may be formed of threads, not one of which, alone, would support
the weight of a pound or even of an ounce.
When it becomes necessary for the purpose of justice to have
resort to circumstantial evidence, it is the usual course of
counsel to object to each thread because it will not support the
whole weight of the case. Thus, if the defense be that a note was
obtained by a combination of a band of gamblers and swindlers from
a drunken man, as but one fact or circumstance can be proved at a
time, the learned counsel will object to the offer to prove that
the payee kept a gambling house, and will gravely quote the
decision of some learned judge, that a plea of usury cannot be
substantiated by proof that the plaintiff had the character of
being a usurer; so also that he executed four other notes at the
same time to other notorious gamblers &c. No one of these facts
standing by itself would be received as evidence in defense. But
the court received evidence of the following facts:
The defendant gave evidence, by several witnesses, tending to
prove that Steer kept a gambling house in Washington City at the
time of the date of the said notes, and was not engaged in any
other business to the knowledge of the witnesses, and had no
property to their knowledge, and that the defendant was at a social
entertainment on the night of the 31st of December, 1856, and
became grossly intoxicated, so that, in the opinion of said
witnesses, he was unfit to transact business, and that he remained
in such condition
Page 71 U. S. 474
when he left the place of said entertainment with the other
guests who were there, and that he left in such condition between
one and two o'clock in the morning of the 1st of January, 1857, and
also that the body of said notes was written in the handwriting of
J. R. James, who not only frequented the gaming house of the said
Steer, but other gaming houses; and then gave evidence to prove
that said James was a gambler by profession. And the defendant then
offered to prove that a note dated on the 1st January, 1857, for
$1,000, was given by the defendant, payable to Campbell, and
endorsed by him, to one Johnson and that Campbell was a frequenter
of the said gaming house, and assisted in dealing for the said
Steer. And the plaintiff objected to the said note to Campbell
being admitted in evidence, but the court overruled the objection
and admitted the said note to be read in evidence. After the
reception of this testimony, of which this Court has found no
fault, the defendant proposed to add another fact, to-wit: "that
when the defendant was under the influence of liquor he had a
propensity to gamble."
This admission of evidence of a fact, of little consequence in
the decision of the case, has been seized upon here and treated as
the only fact in the case, and not a circumstance, which, unless
connected with others, of itself formed no defense. Now if it was
wholly irrelevant, it did no harm to either party. If it was a
fact, which might influence the mind of a jury, why should it be
withheld from them? In a charge of fraud courts have said, what is
evidence to affect the mind of a jury is often difficult to decide
or distinguish. But any fact, though in itself of slight
importance, will not be withheld. In such cases, it is not for the
court to treat the jury as persons without discernment where the
issue is one purely of fact. Now there is not a fact stated as
having been proved, taken by itself, as
per se a defense
to the action, which counsel might not with equal justice have
treated as absurd or ridiculous. But if the court below had
selected this fact from all the others as peculiarly liable to
objection, their judgment might have been liable to the same
charge.
