Derrick v. Wallace

Merrell, J.: I think the judgment appealed from should be affirmed. The sole ground upon which a reversal is asked is the refusal of the trial court to receive the testimony of witnesses offered by plaintiff to sustain his general character and reputation. Upon his cross-examination plaintiff had admitted that some years prior to the trial he had been convicted of the crime of forgery and had served a term in Auburn State Prison therefor. Plaintiff contends that such proof presented the issue of his general reputation, and that to meet such issue he should have been permitted to introduce the testimony of witnesses to show that his general reputation at the time of the trial was good. I do not think that such testimony was competent. The fact admitted by plaintiff upon his cross-examination of a prior specific act of misconduct went to the weight of his testimony. By section 832 of the Code of Civil Procedure, [682] notwithstanding his prior conviction, he was a competent witness upon the trial. The defendant, being advised of the fact that some years prior to the trial plaintiff had been convicted, was permitted under said section “for the purpose of affecting the weight of his testimony, either by the record or by his cross-examination to prove that fact.” Defendant might have produced the record of plaintiff’s conviction, and, if incorrect, the plaintiff might have met the issue and disproven the same. But defendant adopted the second method provided by section 832, and inquired upon cross-examination of the plaintiff as to whether he had been convicted and had served his term in State prison. When plaintiff admitted such conviction and imprisonment, the fact was established in the case merely to affect the weight of his testimony. The issue of his general reputation was in nowise tendered by such proof. A party is not permitted to give evidence of his witness’ good character until it has been attacked on the other side. (People v. Gay, 7 N. Y. 378; Frost v. McCargar, 29 Barb. 617, 620; People v. Hulse, 3 Hill, 309.) As was said by Justice Bronson in People v. Hulse (supra): “The general rule is, that a party can only give evidence of the good character of his witness where impeaching witnesses have been first called on the other side. By impeaching witnesses I mean such as have spoken to general character, or character for truth, and not such as have merely given a different account of the facts, or proved that the witness has made declarations out of court inconsistent with his testimony on the trial. The question of character must be made by the opposite party, and not by the one who calls the witness.” Judge Hilton, in Varona v. Socarras (8 Abb. Pr. 302), thus defines the method by which a witness’ credibility may be attacked: “That a witness cannot, upon his cross examination or otherwise, be impeached in respect to his credibility, by proof of any single act of bad conduct, or any specific transaction which was criminally or morally wrong. * * * The rule, briefly stated, seems to be, that the credit of a witness may be impeached: 1st. By showing on cross examination such contradictions or improbabilities in his evidence as to render him unworthy of belief. 2d. Disproving the facts as [683] stated by him, by other witnesses. 3d. By general evidence affecting his character and credit for veracity; and, 4th. By proof of his having made statements out of court contrary to the evidence given by him at the trial.” The evidence adduced upon plaintiff’s cross-examination does not come within either of said classes, and it seems to me did not tender the issue of plaintiff’s general reputation. Greenleaf on Evidence (16th ed. § 469a) thus enunciates the rule: “ Since a witness’ character for veracity is assumed to be good, there is on principle no reason for proving his good character in his support until it has been affected by some of the opponent’s discrediting evidence. The question, then, is, When is a witness’ character disparaged by the opponent’s evidence? (1) A direct attack upon his general character (by reputation or personal opinion) of course presents such a situation. (2) Where, by evidence of particular misdeeds, brought out on cross-examination, or by proof of conviction for crime, the character is impeached, it is natural to suppose that good character should be received in rebuttal. But, after all, the evidence of good character explains nothing; if the misdeed is admitted on cross-examination or proved by record it remains as a fact, and a good reputation cannot take away this fact nor the inference from it.” The issue of general reputation was not tendered by the proof adduced on cross-examination of plaintiff of the prior conviction for forgery, and the admission of such conviction merely established a fact which the jury might consider when it came to weigh the credibility of his evidence. The only issue tendered by the proof was as to whether he had committed the crime of forgery and been imprisoned therefor. When he admitted it the fact became established. He. was at liberty to furnish such explanation with reference thereto as the facts warranted, and, indeed, he did testify regarding a pardon which he claims he would have received, except for the death of a relative who was to present his case to the Governor. Evidence of his good character at the time of the trial in no manner affected the fact which he had admitted of his early misconduct. I think I am fully sustained in the position which I now take [684] with reference to the competency of sustaining witnesses by Wigmóre on Evidence (§§ 1105, 1106), where that learned authority, in discussing the. question before us, says: “§ 1105. * A direct impeachment of moral character by opposing testimony (reputation or personal opinion) plainly satisfies the rule and opens the way for the opposite party to rehabilitate his witness by testimony to his good character. ISTo one has ever doubted this. “But the character of a witness may also be expressly impeached * ‘ * * not merely by his. reputation or by others’ personal opinion of his character, but by particular acts of misconduct indicating a-bad character. This may be done in two ways: (a) by extrinsic testimony of conviction of crime; (6) by answers on cross-examination of the witness himself as to instances of moral misconduct. These two modes are, therefore, also to be considered. “ § 1106. * * * At first sight there would seem to be here also no doubt about the propriety of rebutting by evidence of good character. The facts offered reflect directly upon the witness’ moral character, and an issue upon that character seems clearly to be opened. Such is the natural answer to this question: * * * Yet on strict principle this result is fallacious. The whole solution turns on the logical distinction between Explaining away and merely Denying. * * * Consider, first, questions, on cross-examination. The misconduct, by hypothesis,, being relevant and being proved by the witness’ own admission .on the stand, demonstrates the bad disposition behind it. If there had been any explanation of the act, the witness could give it. * * * But testimony to general good reputation explains away nothing; the damaging conduct is proved out of his own mouth. Testimony to his good reputation could only avail on the hypothesis that an attacking witness to bad reputation was speaking falsely and that the reputation was really good; but here it is by proved conduct and direct inference bad. Furthermore, - records of convictions of crime similarly exhibit the bad character directly, and cannot be explained away by testimony as to good repute. Such is the rule that best accords with the correct analysis of the situation.” [685] The foregoing, I believe, indicates that in this State the weight of authority is opposed to permitting character witnesses to be sworn when the only attack upon the witness sought to be sustained is by proof of specific acts of misconduct on his part. I, therefore, am of the opinion that the trial judge was correct in declining to permit the plaintiff to offer testimony of his general good character, and that the judgment appealed from should be affirmed, with costs. All concurred, Foote, J., in result only, except Kruse, P. J., and Lambert, J., who dissented in an opinion by Lambert, J.