
    Thurman vs. Virgin & Wife.
    Case 45.
    APPEAL FROM CRITTENDEN CIRCUIT.
    1. The right of a witness residing out of the county where he is to give testimony to have a tender or payment of his traveling expenses in going to and returning from the place where he is summoned to give testimony is not taken away by the Revised Statutes, and he still h .s the right to demand it, and is not guilty of a contempt in disobeying a summons until the law is complied with.
    2. A party is not entitled to a continuance of a suit on account of the absence of witnesses residing out of the county, unless he hascither mude the requisite payment or tender of the expenses of the witnesses summoned, uniese such payment was waived by the wit- „„„„ ness.
    3. In slander, that which amounts to justification cannot be given in evidence under the plea of not guilty. {Litt. Sel. Ca. 15t'; 1 B. Monroe, 1711) Bur, matter which falla short of justification may be proved in mitigation of damages. {Hart vs. Reed, i B. Mon. 170.)
    4. Evidence impeaching the credibility of a witness must be cot.fined to proof of general character for tiuth.and general moral chaiacter—whether worthy ot credit on oath; and it is not proper to speak of particular facts. {Greenleaf on Eo 599; 3 Marshall, Í6I.) Particular facts cannot be proved by general rumor.
    5. When the party on cross-examination inquires into particular (acts, the other party may pursue the inquiry; but the party introducing a witness to impeach the character of the witness of his adversary has no right, on the examination in chief, to inquire into particular facts or general reputation as to such facts.
    Cass Stated.
    This was an action for slander, brought by Virgin and wife against Thurman for the alleged slander of the wife. The defendant answered, in substance denying the speaking of the slanderous words charged. On the calling of the cause the defendant moved for a continuance of the case. His motion being overruled, a jury was sworn and a trial had, and a verdict for $500 damages; a motion made for a new trial and overruled, and the defendant has appealed; and questions the correctness of the decisions of the court. 1. In overruling his motion for a continuance. 2. In giving and refusing instructions. 3. In refusing a new trial.
    
      L. Lindsay and C. C. Cole, for appellant—-
    The appellant complains of the following as errors of the court below;
    First. The court improperly overruled the motion for a continuance.
    Second. The court permitted illegal questions to be put to and answered by the witness, Long.
    Third. The court permitted illegal and improper testimony to go to the jury.
    Fourth. The court excluded competent evidence offered by the defendant below.
    
      Fifth. Tire court improperly gave instructions aslsed for by the plaintiffs below. ' -
    Sixth. The court illegally refused to give instruct tions asked for by the defendant below.
    Seventh- The court gave erroneous and misleading instructions on its motion.
    Eighth. The court improperly overruled the motion for a new trial.
    
      Hughes Dallam, for appellees—
    The affidavit for a continuance is entirely founded upon the absence of witnesses who could only testify as to the character of plaintiff, Elizabeth. Some ol them had been summoned—some had not—all lived in Union county—none had'been tendered their expenses, or lees for attendance and travel; in fact, no offer had been made to any of them, of contributing in any degree to their expenses. By the Revised Statutes,'chap. \ 07, sec. 13, page 702,■ it is provided that a “ witness shall not be compelled to attend in a civil ‘ suit out of the county of his residence, unless his ‘traveling expenses going and 'returning are first * paid or tendered to him.” And further, that his deposition in such case máy be táken in a civil suit. Section 594 of the Civil Code of Practice does not change the rule about paying or tendering expenses. Jt only intimates that when they live in an adjoining county they can be compelled to attend; of course the compulsion must be according to law, and the law says their expenses must be first tendered or paidfc.' It follows clearly that sufficient diligence had not been used to procure the attendance or testimony of5 the absent witnesses. If their expenses had been paid or tendered, an attachment could go, unless they lived more than thirty miles from -the county seat of Crittenden county, (I he town of Marion,) about the distance the record is silent; but they certainly lived in a different county from that of the trial. Against; them no compulsory process could go, and if this affidavit and the diligence shown by it and the other tea» timonv offered on the point be considered sufficient, it follows logically, that a continuance could be had infinitum, unless indeed the wetnesses chose voluntarily to come. The rule is a wholesome one in itself, but surely must not be departed from in the case of witnesses to prove character only.
    
      2. The second ground upon which a reversal is .claimed is, that improper questions were asked, and improper testimony elicited from the wotness, Long. Upon a careful examination of his testimony as spread of record, it will be seen, w’e think, that no improper testimony has been given by him. He testifies altogether about the general character of the witness. Jennings, and not about her particular acts, and nothing he says about her can be considered irrelevant in deteimining what that general character wras, and from it, wdiat weight her testimony ought to have.
    But aside from this, we think clearly that the defendant cannot complain, for, as we conceive, the testimony of .the witness, Jennings, whom Long was called to discredit, was wholly improper and inadmissible, and ought not to have gone to the jury. Her testimony conduced only to show, not that Mrs. Virgin’s character wras bad, but that upon a certain occasion and time, she had been guilty of an act, of adultery. Surely there is nothing in sic. 151, Civil Code of Practice, that justifies the introduction of this sort of evidence. That section gives leave, to the defendant to set up in his answer the truth of his charges, and also mitigating circumstances, and gives him thereupon the easement of proving (he latter, wdiether he proves the former or not. This is all. Now, the testimony of Mrs. Jennings is not offered in justification, for firstly, justification in no sense is pleaded or in any manner in. issue—and secondly, the ‘testimony itself in no wfise conduces to support justi'fication. It was offered doubtless in mitigation, but if so, even if admissible for that purpose, it ought to have been pleaded, and the reason is apparent, viz: in order to apprize the plain'iffs of the charge, and enable them to prepare to disprove it. The section referred to (151) strengthens this view rather than weakens it.
    The third ground taken bjr appellants, is that the court misdirected the jury and refused to give the instructions asked for by defendant. We can only say as to the first proposition, that the instructions given by the court are eminently fair, well considered, and embrace the whole law of the case, as we conceive.
    Instruction No. 1, asked by defendant, besides being liable to the objections urged above to the testimony of Mrs. Jennings, (the only testimony upon which it is predicated,) is conceived in very misleading language. What idea can be formed by the ordinary mind, of the meaning of such an expression as “ a just suspicion” Is it possible to reconcile the ideas conveyed by the two words'as used? Can a charge be “;m.vZ,” and at the same time be a “suspicion?” Besides, the/court had already instructed the jury in instruction No. three given by the court, that if they believed Mrs. Virgin, from any cause founded on the evidence, was not a virtuous woman, they ought to mitigate the damages therefor.
    The evidence shows the case to Ire a very aggravated one, and the damages given are low enough, even though as the proof shows, the plaintiffs are in an humble and obscure walk of life.
    
      An affirmance, with damages, (the judg neat, is suspended by the execution of the. appeal bond—see record,) is respectfully asked.
    Feb. 1, 1858
   Judge Stites

delivered the opinion of the court.

The objections taken to this judgment are,

1. That the court erred in refusing to continue the cause on defendant’s motion.

2. That the witness, Long, who was called to impeach the character of Jennings, a witness for defendant, was improperly allowed to prove general rumor with regard to special charges of turpitude and bad conduct alleged against the witness; and

S. TJte riglifc of B witness residing our. of the county where he is to give testi uotiy to have a tender or paymeutofhU traveling expenses in going to and returning from the place where lie is summoned to give tesliino cy is not takon away by the Revised Statutes, and he still has the right to demand it. and is not guilty of a contempt in disobeying a summons until the law is complied with.

3. That erroneous instructions were given to, and proper instructions withheld from the jury.

•1. The Revised ¡Statutes provide that “a witness ‘ shall not be compelled to attend as such, in a civil ‘ suit out of the county of his residence, unless his ‘traveling expenses, going and returning, are first ‘ paid or tendered to him; nor except in a criminal ‘ prosecution, shall he be compelled to attend as a ‘witness at a place more than thirty miles from his * residence, but his deposition may, for that cause, be ‘ taken in any civil suit. (Rev. 8/at. 703.)

The Civil Code, sec. 594, declares, I hat “a witness ‘shall not be obliged to attend for examination on ‘the trial of1 a civil action, except in the county of ‘his residence or an adjoining county; nor to attend ‘ to give bis deposition out of the county where he ‘resides, or where he may be when the subpoena is ‘ served on him.” And section 614, which provides in what cases depositions may be used in the trial of any issue, enumerates among others, the following: “ Where the witness does not reside in the county or ‘in an adjoining county, or is absent from the state.”

These provisions of the Code do not divest witnesses residing out of the county in which the aclion may be pending, of the right conferred upon them by the Revised Statutes, supra, that is, to have the tender or payment of their traveling expenses going and returning to and irom the place to which they are summoned to attend, before they are compellable to attend. This right still exists. And such witnesses are. not guilty of contempt in disobeying a summons to attend as such in a civil action out of the county of their residence until after such tender or payment or a waiver on their part of the same, and, until such fact is made to appear, should not be proceeded against by wrrrant of arrest.

Neither ought a continuance tobe allowed a party applying on the ground of the absence of such witnesses, unless he shows that he has either made the requisite tender or payment, or that the witnesses have waived the same. Until such tender or payment, or waiver, it is at the option Qf the witnesses to attend or not, and a service of summons before or without the tender or payment or waiver, is of no more avail to compel attendance than the simple request of the party. The applicant should show that he has used all the means furnished him by the law, and taken the requisite steps to make such means available for the attendance of his witnesses.

2. A party is not entitled to a continuance of a suit on account of tlie absence of witnesses residing out of the county, unless lie has either made the requisite payment or tender of the expenses of the witnesses summoned, unless such payment was waived by the witness.

3. In slander, that which amounts to justification ran not be given in evidence under the plea of not guilty. (Lilt sel. at. 15(1; l B. Mon. 170 ) But matter which falls short of justification may be proved in mitigation of damages. (Hart vs. Heed, 1 B. Mon I7U)

Here, the absent witnesses all lived in another county, and it appeared from the defendant’s own showing, that he had not made the' requisite tender or payment, and that the witnesses had not waived the same.

The ground for a continuance was therefore insufficient, and the. motion properly overruled.

2. It is not certain that the evidence of Mrs. Jennings was strictly admissible under the issues presented by t[ie answer. It simply denies the utterance of the words as charged in the petition, and amounts to nothing more than a plea of not guilty.

It is well settled that matter which would sustain a plea of justification is inadmissible under a plea of not guilty. (Litt. Sel. Cases, 150; 1 B. Monroe, 170.) Here Ihe testimony of Mrs. Jennings rather tends to prove the truth of the words mentioned in the last paragraph of the petition, and in that view might have been questioned. But it seems to have been admitted, without objection, and was doubtless regarded as matter short of actual proof of justification or of a complete defense to the action had a justification been pleaded,” and, as such, admissible under the authority of Hart vs. Reed, 1 B. Monroe, 170.

Having therefore been admitted in mitigation, and that to without objection, the witness from whom it was elicited, as well as the party in whose behalf it was introduced, was entitled to the benefit of all the rules of evidence prescribing the mode in which a witness may be impeached.

4. Evidence impeaching the eredibility of iv Witness must be ébnfin’d to proof »i general char ncter for truth, and general moral character— whether worthy Of credit on oath; and it is Sot proper to jpeakof parti cu jar facts Green ieaf on Eo 5 -9; A Marshall, dhl Particular facts cannot be prov *d by general rumor.

5. Where the party on cross examination in quires into particular facts.the other party may pursue the in quiry; but the party introduc ing a witness to impeach the character of the witness of his adversary has no right, on the examination in chief, to inquire into particular facts or general reputation as to such facts.

One, and perhaps the most familiar of these rules is, that in impeaching the credit of a witness by general evidence affecting his character, the examination must be confined to his general reputation, and not be permitted, as to particular facts. (Greenleaf on Evidence, 599; 3 Mar. 261.) The reason is obvious. Every witness is supposed to be capable of at once supporting his general character, but is not presumed to be in readiness to meet particular charges or allegations. And unless it is his general reputation alone that is involved in the issue, he has no notice. (Ibid, 690.) An evil resulting from an inquiry into particular facts is the raising of collateral issues, and this is relied on as another reason in support of the rule.

Here the witness, Long, who was introduced to impe.acb the credit of Mrs. Jennings, was asked and permitted to state in chief, notwithstanding the objections of appellant, that “the character of the wit- ‘ ness was that oí a prostitute; that from general ru- ‘ mor she kept a house of ill fame;” “ that she and ‘ her husband had the general reputation of being ‘ hog stealers;” and “that their general reputation ‘ was that he would steal and she hide.”

This was obviously in violation of the rule referred to. It was not, it is true, permitting an inquiry as to particular facts by direct testimony; but it was allowing such facts t.o be proved by general rumor and reputation, which was much more objectionable than allowing direct, proof to the same elfect.

The extent, of the inquiry allowable on the examination in chief is as to tue general character of the witness, whether good or bad. His or her general character for truth and veracity, and whether worthy of credit on oath. The general moral character of the witness is also a fair subject of inquiry in chief. But not general character as to any particular act or acts of ignominy or turpitude. The particular facts can be inquired into on the other side, and such inquiry when begun, on cross exam ination, may be pursued by the party impeaching, but he has no right on the examination in chief to inquire into particular facts or general reputation as to such facts.

Our opinion, therefore, is that the second objection is well founded, and that the error of the court in permitting the mode of inquiry adopted may have been prejudicial to appellant, and must prove fatal to the judgment. '

3. The instructions given b}r the court contain the law of the case,, and are unobjectionable either in form or substance; and, in our opinion, no error was committed in refusing those, asked for by appellant. Those given embody fully the questions of law arising upon the facts and the others, had they been unobjectionable, were unnecessary.

For the error indicated, the judgment is reversed, and cause remanded for anew trial, and further proceedings not inconsistent with this opinion.  