The People v. . Gay

There is but a single question made in this case for determination; and that is, whether the decision of the court below, excluding the evidence offered by the defendant of the general good character of the witness Wood for truth and veracity was correct. This witness had been called by the defendant and examined and had given material evidence in the cause. He was then cross-examined in behalf of the people and testified that he had been prosecuted before a magistrate upon a charge of perjury and committed for trial upon the complaint of L. and G. Raymond; that the perjury alleged to have been committed was in a suit tried in September previously, in favor of the defendant against the two Raymonds. The general rule is that a party can only give evidence of the good character of his witness where his general character for truth has been first attacked, by witnesses who have spoken in regard to it, called on the other side. It is not pretended that there had been an attack in any form upon the general character of the witness Wood, by the evidence of any witness, or that any witness had spoken in any respect to it. But it is urged on the part of the defendant that the evidence given by Wood himself on his cross-examination, to which I have referred, impeached or tended to impeach his general character for truth and therefore laid the foundation for giving evidence to sustain it. The People v. Rector, 19 Wend. 569; Carter v. The People, 2 Hill, 317, and The People v. Hulse, 3Hill, 309, have been cited as sustaining the proposition. The case of Carter v. The People was this: Carter was indicted and tried and found guilty of perjury: at the trial a material witness for the defendant testified on his cross-examination by the prosecution that he had been complained of and bound over on a charge of passing counterfeit money; upon which the counsel for the defendant offered to give evidence of the good character of the witness for truth, which the court on objection rejected. Oncertiorari brought, the supreme court said that upon the principle established in The People v. Rector, the prisoner was entitled to the benefit of the proof offered, and ordered a new trial upon that ground.

It can not be denied, but that if the judgment in that case can be upheld, it fully sustains the defendant's proposition in this case, for the question then made is identical with the question made here.

It is proper to remark that the rule of evidence applicable in such cases was not at all discussed by the court in that case. It was decided on the argument, the court assuming, that the decision in The People v. Rector, established the principle contended for in behalf of the defendant in that case. But it seems to me that there is a wide difference in principle applicable to the two cases. In The People v. Rector it had been shown by the cross-examination that the witness was a man of grossly immoral habits and conduct, and the decision was that this evidence impeached his general moral character and laid the foundation for the party calling the witness to sustain him, by evidence in reply of general good character for truth.

It is not necessary on this occasion to express an opinion whether I should be able to agree with the court in that decision; that is, that the evidence could not on the cross-examination of the witness tend to impeach his general character, within the rule allowing replying evidence of general good character for truth. In the case of Carter v. ThePeople, the witness on his cross-examination did not admit or give evidence to any immoral conduct. All that he testified to in that respect was that he had been complained of and bound over on a charge of passing counterfeit money. The law presumed this witness innocent, and no guilt was proved by the evidence. The single fact that he had been complained of and held for trial for the commission of a crime did not affect his moral character.

I think that it was correctly said by Mr. Justice Parker in delivering the judgment of the court below in this case, that both of these decisions have in effect been overruled by the decision in The People v. Hulse (3 Hill, 309). That was a trial of an indictment against Hulse for a rape. The defendant attempted to discredit the testimony of the complainant; first, by showing on her cross-examination that her evidence was improbable in itself: second, by disproving some of the facts to which she testified: third, by evidence that her conduct was inconsistent with the idea of the offence having been committed; and fourth, by calling witnesses to show that the account which she had given of the matter out of court did not correspond with her statement under oath as a witness. It was held that this was not an attack on the general character of the witness, and consequently evidence of her general good character was not admissible in reply.

In my judgment the rule was correctly stated and sustained inThe People v. Hulse, and in the judgment of the court below in the case under consideration: that in general a party will not be permitted to give evidence of his witness's good character until it has been attacked on the other side, either by the evidence of witnesses called for such purpose or by the evidence of the witness on cross-examination going to impeach his general character. There are several other well considered cases which sustain the principle stated; among them are Russell v.Coffin (8 Pick. 143), Rogers v. Moore (10 Conn. 13). It is unnecessary to review them at this time; that was ably done by the late Mr. Justice Bronson in the cases of The People v.Rector and The People v. Hulse, and by Mr. Justice Parker in delivering the judgment of the court below in this case. Judgment should be affirmed.

GARDINER, JOHNSON, EDMONDS and WATSON, JJ., concurred in the opinion of Judge JEWETT.