
    The State against Eli Alexander and others.
    ¿'12for a riot against senot sufficient for th¿ccn0un SL oÜ'tkoí the indictment, with ¿¡,™™ withouttheassent oi the Attorney ®®“mightaZ!e ToTpeichth. credibility of a otpartiiSiarS °“>y c/general reputation.
    
      Eli Alexander, Abraham Alexander, William ry-, and Samuel JWJYair, were indicted and tried r * , /-< -r-v» for a not, at the last Court held for York trict, before Mr. Justice Cheves. After the dence on the part of the state was closed, the counsel for the defendants moved to strike the name of JVbMair out of the indictment, on the ground that no evidence had been given against ° ° ° him, with a view to make him a witness in their defence. It had appeared in evidence, that r x ' the prosecutor, Moble Bolden, was at work in the woods not far from the main road; that ' JVbMair came up the road, as if coming from the house of Obadiah Alexander, the father of two of the defendants, to the place where the prosecutor was labouring, and stayed and conversed with him for about half an hour; that, he then returned towards Obadiah Alexander’s, and in about half an hour afterwards came back, in company with the other defendants, to the place where the prosecutor was at work, continued with them at this place, where their conduct was riotous; accompanied them while they pursued the prosecutor to his own house, whither he fled; continued with them there during the whole of their riotous conduct, (which did not amount to actual personal violence to the prosecutor, but consisted of abuse, threats, and manifestations of an intention to commit acts of violence on the person of the prosecutor,) and went away with them: but he neither threatened or abused ' the prosecutor, nor gave any direct manifestations of an intention to aid the other defendants in their threatened attack. On being cross-examined to the point by the defendants’ counsel, the prosecutor declared his belief that accompanied the other defendants as a spy. The presiding Judge refused the motion, on the ground that there was some evidence, if not full and sufficient evidence, which ought to go to the Jury.
    The counsel for the defendants then gave evidence to impeach the character of the prosecutor, and evidence was given in reply to sustain it. The counsel for the defendants, also, gave m evidence, the declarations of the prosecutor, accusing some of the defendants of having dug a pit in the road for his wagon to fall into, and of having mutilated a sheep of his, which they proposed to show were unfounded accusations, and which they contended went to prove such malice in the prosecutor towards the defendants, as would affect the credibility of his testimony; and were proceeding to offer further testimony of these and, perhaps, other like facts, when they were restrained by the Court from doing so. The Jury acquitted M'-Mair. and found the other-defendants guilty.
    
      A motion for a new trial is now made, on the following grounds: viz.
    1st. That MJYair’s name should have been struck out of the indictment.
    2d. That the presiding Judge improperly rejected the evidence which was offered of the malice of the prosecutor towards the defendants.
   The opinion of the Court was delivered by

Mr. Justice Cheves.

The ground on which I refused to strike out the name of McNair at the trial, was, that evidence had been given, which, whether sufficient to authorize a conviction or not, ought to go to the Jury. There was certainly evidence bearing directly on the issue. If the Jury had found the defendant guilty, I should have been satisfied with the verdict. I think, therefore, the refusal to strike out M-Mairs name was correct, on this ground; if it be a correct ground on which to put the question. But I am of opinion it is not. I know such motions have been frequently made and granted by the Court; but Í think such a motion could only be legally granted by consent of the Attorney for the State, and by considering it as equivalent to a motion on his part for leave to enter a noli prosequi as to the particular defendant. If the Court has any power over such a case, it is probably by advising the Jury to find a verdict of acquittal as to such defendant.

1 think, too, the evidence which was offered to ^ ’ ’ impeach the credibility of the prosecutor’s testimony was properly rejected. The books point out kut iwo modes of impeaching the credibility of a witness by testimony; 1st, By showing his general character for veracity to be bad; and, 2d, By showing that he has at other times made declarations on the same subject contrary to what he swrears at the trial. (Peake, 126. Phillips, 212.) But a witness cannot be examined to matters irrelevant to the issue, for the purpose of contradicting his testimony on these matters, and thereby impeaching his testimony. (Phillips, 210.) Nor am I aware of any authority which authorizes the reception of particular facts irrelevant to the issue, though they may be calculated to afford an inference of malice in the witness, towards the party against whom he is called. A witness is not expected to be prepared to do more than support his general character for truth, and his consistency as to the particular facts to which he deposes. The testimony rejected had no relation to the general character of the witness, and was irrelevant to the issue, and therefore inadmissible. I am consequently of opinion a new trial ought not to be granted.

Bay, Mott, Colcock, and Gantt, J. concurred.  