
    People v. Gay.
    
      Character of Witness. — Impeachment.
    Evidence of the good character of a witness is not admissible, unless his general character has been impeached, either in the direct or cross-examination.
    That a witness has been committed for trial, on a charge of perjury, will not warrant evidence to sustain him; until convicted, the presumption of innocence prevails.
    People v. Gay, 1 Park.308, affirmed.
    Appeal from the general term of the Supreme Court, in the third district, where a judgment of the Court of Oyer and Terminer of Columbia county, in a criminal case, had been affirmed on writ of error. (Reported below, 1 Park. 308.)
    The appellant, Newton Gay, in October 1851, was convicted of the crime of rape upon the person of one Sarah Pilling, in the Court of Oyer and Terminer of Columbia county, and sentenced to imprisonment in the state prison, at Sing Sing, for the term of ten years.
    On the trial, before Parker, J., one John W. Wood was sworn as a witness for the prisoner, and gave material evidence in his favor; on cross-examination, the witness admitted that he had been committed for trial on a charge of perjury, in an action in which the prisoner was plaintiff. The prisoner’s counsel then offered to prove the general good character of the witness, Wood, for truth and veracity; this, however, was rejected, on objection of the counsel for the prosecution, and exception taken.
    The prisoner, having been convicted, sued out a writ of error from the supreme court, where the judgment was affirmed; whereupon, he appealed to this court.
    
      Wheaton, for the appellant.
    
      Reynolds, for the People.
   * Jewett, J.

There is but a 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 genera] 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. & 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. People v. Rector, 19 Wend. 569, Carter v. People, 2 Hill 317, and People v. Hulse, 3 Id. 309, haye been cited as sustaining the proposition.

The case of Carter v. 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; on certiorari brought, the supreme court said, that upon the principle established in People v. Rector, the prisoner was entitled to the benefit of the proof offered, and ordered a new trial upon that ground. * 380 1 *"*"* canno* 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 there 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 People v. Redor 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 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. People, 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 People v. Hulse (3 Hill 309). That was a trial of an indictment against Hulsé for a rape; the defendant attempted to discredit the testimony of the complainant; first, by showing, on her cross-examination, that her evidence was *im- „ 7 r * 38i probable in itself; secondly, by disproving some L of the facts to which she testified; thirdly, by evidence that her conduct was inconsistent with the idea of the offence having been committed; and fourthly, 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 in 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’ 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 genera] character. There are several other well-considered cases which sustain the principle stated; among them are Russell v. Coffin (8 Pick. 143) and 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 People v. Rector and People v. Hulse, and by Mr. Justice Parker in delivering the judgment of the court below in this case. The judgment should be affirmed.

Welles, J.

{Dissenting). — The question in what cases evidence of the general good character of a witness may be received, or the principle upon which such evidence rests, notwithstanding the numerous decided cases, ánd^ the various speculations of elementary writers on the subject, does not seem to be yet entirely settled, or, at least, not generally understood.

In the case of People v. Rector (19 Wend. 569), it was held, that where the general moral character of a witness is impeached, whether by witnesses called for that purpose, * qoo i or on *^s own CT0SS'exam^na^0ni It is competent -1 for the party calling him, to adduce testimony in support of his character for truth and veracity, so that the jury may pass upon his credit. In that case, Gillespie, the witness in question, had testified upon his cross-examination to facts not material to the issue, and which were confessedly collateral to it, but which, nevertheless, had a tendency to affect his moral character and to discredit him with the jury. If they had been material and pertinent.to the issue, the court would have held, as I infer from the opinion of Justice Co wen, that general evidence of good character would not have been received. The. case of Carter v. People (2 Hill 317) was decided upon the same point, according to the principle of Rector’s case.

People v. Hulse (3 Hill 309) has been supposed to shake toe authority of the case of Rector; but it seems to me, this is a mistake. In the case of Ilulse, the cross-examination of the witness did not extend beyond matters pertinent to the issue, and in such a case, as the court sav, the public prosecutor was not at liberty to call witnesses to sustain the good character of the witness. Bronson, J., says: "In the People v. Rector, it was shown by the cross-examination, that the witness was a man of grossly immoral habits and conduct, and it was held, that evidence was admissible in reply, to show that the general character of the witness for truth was good.” He proceeds to say, that “the rule with us then seems to be this: where a party attacks the general character of a witness on the other side, either by calling impeaching witnesses, or by drawing out extrinsic facts, going to prove general character, on the cross-examination, sustaining evidence may be given in reply.”

A party may, upon the cross-examination of a witness, introduced by his adversary, ask him collateral questions, upon matters entirely disconnected with the issue, the answers to which may tend to degrade and discredit him, and the "witness may, in general, do as he pleases about answering them. If he does answer them, and his answers are of a character to degrade him, or to produce an unfavorable impression *upon the minds of the jury in regard to his character for truthful- ^ ness, he stands to some extent impeached and discredited. The facts so drawn out on cross-examination are entirely immaterial to the question at issue, and are only admissible, upon the ground, that as their usual, if not necessary, concomitant is a depraved moral standard, the evidence given by the witness, which is pertinent to the issue, is less reliable, and when weighed against other evidence in the case, the jury might be justified in disregarding it altogether; and this I understand to be the principle upon which evidence of reputation is received of the character of a witness. If a witness’ conduct has been such as to fix upon him the judgment of the community in which he resides, and where he is known, a particular character in any respect, that judgment is presumed to be correct, until the contrary is proved. If it be, that he is immoral or habitually guilty of conduct inconsistent with honesty or morality, and the judgment be true, it needs no argument to show that evidence derived from such a witness is not to be relied upon; the source is polluted. The only security for its truth is the chance, in the mind of the witness, of escape from detection, in case he swears falsely; it is bereft of the highest sanction and greatest safeguard — a good conscience and an honest purpose. In both cases, where the witness impeaches himself by admitting his own delinquencies on the stand, and where impeaching evidence is produced against him by evidence of general reputation, the result is this, his character is affected unfavorably;. in neither case, is the evidence conclusive; and I am not able to perceive, why his credit may not be repaired by the same kind of proof in the one case as in the other.

It is claimed, that the evidence of Wood, on his cross-examination, related to isolated facts and circumstances, and did not affect his general moral character, and, therefore, was not to be met by evidence of general good character. It seems to me, such a distinction is not warranted by the reason and good sense of the case. A reference to the cross-examination will show that Wood was * 384 1 n°* °n^ a susPec*e<^ *person, but that proceed- -* ings had been in several instances instituted, with a view to punish him for perjury. It is said, he was at liberty to explain the transactions and deny his guilt; but would that restore him to confidence ? And would it not, with propriety, be said, that his denial of guilt was to be expected as a matter of course ? His character would still labor under the odium occasioned by the prosecution, and all the explanations he could give would not wipe out the reproach.

The true distinction, I apprehend, is the one drawn by Justice Bronson in the case of People v. Hulse, between a case where the cross-examination is confined to topics pertinent to the issue upon trial, and where it is entirely collateral to the issue, and only tends to impair the credit of the witness. In the latter case, evidence of general reputation that his character for truth is good, or which goes to repair his character thus presumptively damaged, is admissible, while in the former, although the cross-examination may have incidentally impaired his credit, yet it is not to be restored by evidence of general reputation.

In the case now under consideration, the cross-examination had not the remotest relation to the issue, and its only possible object or effect was, to impeach the credit of the witness. It is in no wise distinguishable in principle from the cases of Rector and Carter before referred to; and I have shown, that neither the decision nor the reasoning of the court in the case of Hulse, conflict with the decisions in the two former cases. If the foregoing views be correct, it follows, that the judgment of the supreme court and that of the oyer and terminer should be reversed.

Btjggles, O. J., also dissented.

Judgment affirmed. 
      
       See People v. Crapo, 76 N. Y. 293.
     
      
       To the same effect, see Frost v. McCarger, 29 Barb. 617 ; Hannah v. McKellip, 49 Ibid. 342 ; Leonori v. Bishop, 4 Duer 420 ; Colt v. People, 1 Park. 611.
     