622
The Green Bag
painfully attempting to manufacture reasons which can be shown to be ridic ulous or impossible. I recall one case where there was a contract which did not call for the delivery of stock with power of attorney attached. This con tract, which was an option for the pur chase of the controlling stock in a cor poration, was in fact delivered, together with the stock itself, with power of attorney executed in blank, to the plain tiff. Afterwards, one of the defend ants being bribed to sell his stock to another for a large price, got access to the stock by pretext, and destroyed the formal power of attorney and sold to the plaintiff's enemy the stock which he had agreed to sell plaintiff, carrying with it the control of the corporation. In cross-examining the plaintiff as to the delivery of the stock and power of attorney, the opposing attorney got the witness to say that it was delivered in accordance with the agreement. This admission was regarded by the trial judge as of great importance. The fact was that nothing was said as to the character of the delivery of the stock and the power of attorney, but they were delivered in order to protect the plaintiff in his option. This in cautious admission, however, lost the plaintiff his case. If he had been a shrewd and careful man, he would have answered in such a way as to show merely what the contract was; that after the contract was executed and delivered, one of the defendants had thereupon delivered to him the certifi cate of stock, together with a power of attorney executed in blank, and that at that time nothing was said as to why that was done. If pressed as to the reason why, he could either have de clined to give a reason, or he could have said that the delivery was made in order to assure to him the certain
exercise of the rights given by the contract. Like Stevenson's child, as a rule, the witness should only speak when he is spoken to. He should not volunteer anything except that when he is asked a question which with apparent inno cence could readily be answered "yes" or "no," he has a right to qualify a plain "yes" or "no." This, of course, happens most often in the case of experts. The "yes, but I will explain" and "no, but I will explain" of one of the distinguished expert witnesses for the Commonwealth in the case of Commonwealth v. Quay, which was tried before Judge Biddle in the Court of Quarter Sessions of Phila delphia County several years ago, still linger in the writer's memory. It is a mistaken notion that a witness . is bound to answer "yes" or "no." It is surprising that such should have ever been the received theory, but then, the hunting down of witches and the expounding of the doctrine of witch craft were regarded as proper judicial functions only a century or two ago. The theory as to a categorical reply was completely exploded by the gentleman who propounded the question "When are you going to stop beating your wife" and demanded a categorical answer. If the lawyer attempts to tell you that you must answer "yes" or "no," you have the right to say that the question is one which is not susceptible of a cate gorical answer. This should floor coun sel for the moment. Mannerly behavior on the part of witnesses includes keeping one's temper under almost all provocations. Crossexamination for the purpose of testing your memory is not intended to be and should not be regarded as insulting. It should, therefore, not be resented. If the cross-examination transcends all bounds and your patience is exhausted,
