
    [534] [*] VAUGHN against PERRINE.
    A witness need not answer a question tending to digrace himself
    
    This was an action brought by the father, for debauching his daughter and getting her with child, per quod, &c. It was tried at the Monmouth circuit, in October, 1804, before Pennington, J. The daughter was called as a witness, and swore to the seduction and getting her with child, and that the defendant was the father of the child, and no one else. On cross-examination, she said that others had visited her, but had not any criminal connection with her. She was then asked if she had ever any criminal connection with any other person before the defendant? To which she answered, that she had not. On this question being repeated to her, the judge stopped her, and told her that she was not bound to answer the question unless she chose to do it. Qn the counsel for the defendant manifesting a dissatisfaction at this opinion, the judge told them, that if they had any doubt of the propriety of the decision, they were at liberty [*] to argue the question. It was accordingly argued on both sides. The judge adhered to his opinion, and the witness claimed protection ; the question was not again put to her. Several witnesses belonging to the family of the family of the plaintiff, testified that the daughter was about eighteen years of age when the unfortunate affair happened; that the defendant was between thirty and forty years of age; that he visited the daughter as a suitor, sat up with her at night in the family room, in which there was no bed; that the family made much of him, and expected that he was courting the daughter to make [535] a wife of her. Others swore that the daughter bore a good character until this thing became public.
    The defense set up was, that the daughter was an unchaste girl, and had had connection with a number of young men in the neighborhood; two witnesses were called, one after the other, and asked by the defendant’s counsel if they had had criminal connection with the daughter ? ' They respectively declined answering the question, and claimed the protection of the court. David Mount was then called, and the same question put to him. He said he did not wish to answer the question. The following question was then put to him: Did you keep company with Mary Vaughn (the daughter) shortly before her impregnation, sitting up with her after the family were in bed at unseasonable hours of the night ? The witness asked the court whether he was obliged to answer the'question, alleging 'that it was in evidence that Mary Vaughn had had a bastard child, and that she was openly charged in court by the defendant’s counsel, from whom the question came, with being a notorious lewd woman ? The judge told him .that he was not bound to answer the question. This is the state of the case on the trial, as far as it is necessary to bring -up the point in controversy. The jury found a verdict for the plaintiff, and assessed the damages at $290, and the judge reported that he was not dissatisfied [*] with the verdict. A rule had been taken some terms ago, to show cause why a new trial should not be had on the ground of the judge’s improperly refusing to admit legal testimony, and was now argued.
    The counsel for the defendant contended that the damages had been increased by the improper rejection of testimony; that the rule was, that a witness shall not be compelled to answer a question, the answer to which, may subject him to debt, penalty, or punishment, nor to questions although the answer to which, will not subject the witness to penalty or punishment, yet will tend to his disgrace, unless connected with the issue to be tried; for which rule, they cited Swift’s Law of Evidence, 77. They insisted that simple fornication, where no bastard child was begotten, was not punishable by our law; that it was the uniform construction under the old law, and had been so decided by the Chief Justice Xinsey, since the new act; that the questions were connected with the issue, and therefore, even if the answers should tend to the disgrace of the witnesses, they were proper; that questions that tend to the disgrace of the witness, were distinguished between those that are connected with the issue to be tried, and those that are not, Swiff s Law of Evidence, 77. From this book they cited a case where a woman in [536] case of bastardy, after she had charged a person with being a father of a bastard child begotten on herself, was compelled by the court to answer whether she had not had criminal connection with other men about the time that she was gotten with child; that the question put to Mount could not be said even to tend to his disgrace, as it was common with young men to sit up with young women after the family were in bed; that if they had been permitted to pursue their questions they would have proved that the daughter was unchaste, and therefore could not have been seduced by the defendant; that at least they would have given such evidence as Avould have lessened the damages.
    [*] On the part of the plaintiff, it was said by his counsel, that the case was an aggravated one on the part of the defendant; that even if the rejection of the testimony was not strictly correct, yet if the court should be of opinion that substantial justice had been done, they would not set aside the verdict;. for which they cited 6 Bao. 663 ; Taylor’s Hep. 312 ; New York T. Ii. 90 ; 3 Johns. %lfi ; 3 Blao. Com. %91; that the judge who tried the cause was satisfied with the verdict; that the daughter Avas an inexperienced girl of eighteen, a perfect child, seduced by a man double her age, and the damages given inconsiderable; that there ought to be strong ground to induce the court to compel the unfortunate and injured father into another scene of distress, which a new trial must necessarily produce. But they contended that the judge did right in protecting the Avitnesses; that a witness is not bound to answer a question, the answer to which will, tend to stigmatize or disgrace him; that this principle is laid down in the same book which the gentlemen on the other side cited, Swiff s Law of Evidence, If), 79,116, and is a Avell established rule of evidence; 3 Bao. 765. That the distinction contended for by the counsel of the defendant, would destroy the rule itself; that no testimony was admissible unless connected with the issue; that the question put to Mount, tended to disgrace, in case the answer should be in the affirmative; that the answer of the daughter in the affirmative, Avould not only tend to disgrace her, but would subject her to an indictment; that our laAV did not punish fornication, unless followed by pregnancy, was not correct.
    
      
       S. P. Saund. PI. and Ev. 954; í Ehü. Ed. $67. But this is a witness’s, not a party’s privilege. 7 Halst. 80.
      
    
   Kirkpatrick, C. J.

You need not take any trouble on that point; the court are all clearly of opinion, that whatever may have been the construction given to the former act, the late act for the punishment of crimes will not warrant such a distinction. >

In reply, the counsel for the defendant said, [537] that [*] as the court were against them on that point, they should not contend for it; but insisted that the question put to the daughter was proper, and relative to the issue, and that as she had voluntarily testified to her own disgrace, she ought to have been compelled to have told all the circumstances connected with it; and that the question put to Mount, was legal and proper, and important as it respected damages.

Kibkpatbick, C. J.

I am perfectly satisfied that the judge did right in both instances. The question put to the daughter tended to add to her disgrace, to compel her to testify to her own infamy, and if adopted as a rule, would lead to the most disgraceful and pernicious consequences. The doctrine laid down by Mr. Swift is not law; the distinction between what is connected with the issue, and what is not, is without foundation; circumstanced as the witness Mount was, the answer in the affirmative to the question put to him, would have tended to his disgrace.

Rosseel, J.

Was also of opinion, that the judge did right in protecting the witnesses; there could be no question as to the daughter ; the question put to Mount was intended to disgrace the daughter, and if to disgrace her, it would tend to disgrace himself.

Peeeibgtoe, J.

I never had any doubt with respect to the question put to the daughter. Those unhappy young women who have been so unfortunate as to be seduced, are brought into court under the most distressing circumstances, and from the necessity of the case are called upon to testify to their own shame. It is true, they may refuse to answer, but this would be to defeat the just pursuits of a father whom they have already offended. Under those circumstances, to compel them under the taunting questions put to them by the counsel for the defendant, to answer to every indiscretion of their lives, would not only militate against the benignant maxims of our laws, that no [*] one shall be compelled to accuse themselves, or answer to such questions, the answer to which would tend to stigmatize or dishonor them; but it would be against public policy, as having a tendency to discourage the action brought by the injured parent, and would often lead to perjury. Since the trial, however, I have had some doubt whether I did not go too far in the case of the witness Mount; not that I ever entertained any doubt of the principle of law, but whether it was correctly applied. The witness presented to my mind a very plausible case, to which I immediately yielded; and I am not yet altogether satisfied that the answer to the question in the affirmative, tended so much to disgrace the witness as entitle him to protection; but I incline to think [538] it did. But whether I was right or not, I am satisfied that an answer in the affirmative would not have diminished the damage a cent. In fact, the defendant, in my opinion, has no cause to complain of' the amount of damages. If I had been on the jury, I should have thought it my duty to have given twice as much. There was a transaction that took place at this trial, that is proper at this time to notice, which had very much the appearance of management; not that I suspect the counsel for the defendant had any share in it, as I believe them men of too much honor to countenance any thing of the kind. The defence was opened with a charge of public lewdness against the daughter, that she had been connected with a great many young men in the neighborhood. Three or four young men were then called in, one after the other, who were severally asked if they had had criminal connection with Mary Vaughn. The witness hesitates, seems unwilling to answer, and finally craves the protection of the court. At length one is introduced, and the same question put to him; when he answers promptly, that he had not. I charged the jury to disregard the whole [*] thing, but from the smallness of the damages, I am very apprehensive that it had some effect on their minds.

A new trial refused unanimously.

Cited in Fries v. Brugler, 7 Halst. 79.  