Rathbun v. Ross

By the Court, Johnson, J. I do not discover any valid objection to the rulings of the judge upon the trial, except to that excluding evidence of the general character of the witness Walters, previous to 1859. The offer was to prove the general character of the witness when he resided in the town of Aurelius, by a person who knew him there from 1851 to 1859. The evidence was objected to on the ground that the witness sought to be impeached had had a fixed residence in another place, for the last three or four years, and that the evidence must be directed to his present character-, at the place of his present residence, about which the impeaching witness did not pretend to know any thing. The objection was sustained, and the defendant’s counsel excepted. The same question, substantially, was twice raised and the evidence excluded. The decision excluding this evidence was clearly erroneous. The precise point was adjudged in Sleeper v. Van Middlesworth, (4 Denio, 431.) That was the only point in the case, and the judgment was reversed upon the single ground that evidence of the bad character of the witness four years before, in the neighborhood where he 'then lived, was improperly excluded. The proof was offered to be made by his former neighbors, who knew nothing of his standing or character at the place of his then present residence, where he [138] had lived four years. That decision is entirely decisive of this case. The same thing substantially was decided in The People v. Abbot, (19 Wend. 192,) though in that case slight evidence of present bad character had been given. [Monroe General Term, June 4, 1866. But no evidence of present bad character had been given or offered in the case in 4 Denio, supra. In the present case, the witnesses had known the person sought to be impeached, up to within five years of the trial. The law does not presume that a person of mature age, whose general character has been notoriously bad up to within a period of five years, has reformed so as to have acquired an unimpeachable reputation since that time. Beformation may be shown in answer to the attack, but the law will not presume it in advance. The judge decided correctly in regard to the evidence offered, to prove by parol and by the witness himself that he had been convicted of a felony and sent to the state prison. This is settled in Newcomb v. Griswold, (24 N. Y. Rep. 298.) The record is the best evidence, in such a case. The evidence offered of other witnesses, to prove that the witness in question had been an inmate of the state prison for several years, was also properly excluded. This was not evidence of general character, but of some particular fact,- which can never be resorted to by a party attacking the credibility of a witness. He is confined to general character. There must, howevef, be a new trial, for the error before considered. Order refusing new trial reversed. Hew trial granted; costs to abide event. ■ Welles, JS. DamMn Smith and Johnson, Justices.]