§ 234. Impeachment of witnesses-General rule.-A party in whose behalf a witness is called to testify will not, as a general rule (to which, however, there are some exceptions), be permitted to impeach the veracity or credibility of the witness.

The law presumes that he is acquainted with the character of his own witness, and knows before he calls him whether he is a truthful man or the reverse. So, too, the party must or ought to be thoroughly aware whether or no his witness has any knowledge of the facts in issue, and if he calls him to prove any particular fact he is concluded by his testimony and cannot contra

dict him as to that fact. Hence, applying this rule to criminal prosecutions, it cannot be presumed that the state's attorney, in the performance of his duty to secure the punishment of criminals, will stoop to offer untruthful testimony for that purpose. Nor can we with justice suppose that the accused, whom the law presumes innocent until his guilt is proved beyond a reasonable doubt, contemplates or intends the willful introduction of perjured testimony. Hence, the mere calling of a witness by either side is, in law, an implied representation that the witness is worthy of belief.

The rule, as thus stated, is applicable to exclude direct impeachment alone. That is, the party cannot show that the reputation of his own witness for veracity is bad, nor prove that he made contradictory statements out of court, nor contradict him, solely for the purpose of impeachment. The party may be compelled by the exigencies of the case to impeach his witness incidentally and indirectly. He may have to do this or lose the opportunity of proving relevant facts which are vitally important in their bearing upon the guilt or innocence of the accused. The law does not forbid the proof of any relevant fact which may have a tendency to show the truth merely because the proof of that fact indirectly, though positively, contradicts, and thus, of necessity. discredits and impeaches the testimony of some other witness to that or some other relevant fact.1 Nor is it material that the result of such an incidental conflict of evidence is to show that one or the other of the witnesses is totally unworthy of credit.

§ 235. The impeachment of necessary witnesses and those unexpectedly hostile. If either party is, by law, under the circumstances of the case, compelled to call a particular person to prove any fact, the party calling him cannot be said to vouch for this witness that the law forces upon him. Accordingly, a party who is compelled to prove the execution of a writing by producing the subscribing witnesses under a statute requiring this proof is

1 United States V. Watkins, 3 Cranch C. C. 441, 28 Fed. Cas. 16649; Chism v. State, 70 Miss. 742, 12 So. 852; State v. Cummins, 76 Iowa 133, 40 N. W. 124; Dixon v. State, 86

Ga. 754, 13 S. E. 87; Reyes v. State, 48 Tex. Cr. 346, 88 S. W. 245. For a discussion of the double meaning of the word "impeach," see Underhill on Evidence, p. 500, § 347.

If the subscrib

not concluded by the answers of such witnesses. ing witnesses deny their signatures or their presence at the execution, the party who called them may directly contradict them by other witnesses, or their reputation for veracity may be impeached. Another exception to the rule forbidding a party to contradict his own witness occurs where the witness is treacherous and proves unexpectedly hostile in his testimony upon the stand. In such circumstances it would be most unfair to the accused, if the witness has been called in his behalf, to permit him to be convicted merely because a witness on whom he has depended for exculpation has betrayed him at a critical moment in his defense. The witness may have been, or may be when he testifies, in the secret employment or under the control of a prosecuting attorney who may have permitted professional zeal to overcome his sense of justice and right, or he may be a secret enemy of the prisoner, desirous of revenging himself in this underhand manner. On the other hand, the consciousness existing in the mind of the accused that he is guilty may, and no doubt frequently does, impel him to practice such an artifice by which the case against him will unexpectedly be broken down.

A man who deliberately engages in such an enterprise, with the purpose and intention of giving evidence when on the stand by which the party who calls him will be routed and confounded, may have stated the facts differently out of court for the express purpose of luring the party into calling him. If he then gives a widely variant version of relevant facts, to the surprise of the party in whose favor he was called, his extra-judicial declarations may be proved, but solely for the purpose of impeachment. 2a The party must first show that the evidence, as given, has taken him by surprise and that the witness is hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the statements being described to him in detail. But the fact that a witness, when

579,

Shorey v. Hussey, 32 Me. 581; Orser v. Orser, 24 N. Y. 51; Foster v. Dickerson, 64 Vt. 233, 24 Atl. 253, and cases cited in Underhill on Evidence, p. 502, § 348. Sylvester v. State, 46 Fla. 166,

35 So. 142.

3 Conway v. State, 118 Ind. 482, 488, 21 N. E. 285; Rhodes v. State, 128 Ind. 189, 192, 27 N. E. 866; Williams v. State, 25 Tex. App. 76, 90,

7 S. W. 661; Schuster v. State, 80 Wis. 107, 117, 49 N. W. 30; State v. Tall, 43 Minn. 273, 275, 45 N. W.

on the stand, seems ignorant of some or all the facts he was expected to know will not permit the examining party to prove that he made the desired statements out of court. In order that one's own witness may be contradicted, mere silence or ignorance on his part is not enough. The witness must testify expressly, and in terms to facts which are in direct contradiction to his prior extra-judicial statements."

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The rule by which one's own witness, who unexpectedly proves hostile, may be impeached by proving contradictory statements made out of court has been confirmed by statute in some states. The rule applies to criminal as well as to civil cases. But such statutes, being somewhat in derogation of common-law principles, usually receive a strict construction. All the circumstances of time, place and person ought to be detailed to the witness. It is not enough merely to ask him if he made contradictory statements to a particular person, without stating where and when they were made.

449; People v. Sweeney, 55 Mich. 586, 591, 22 N. W. 50; People v. Jacobs, 49 Cal. 384; State v. Sortor, 52 Kan. 531, 34 Pac. 1036; McAlpine v. State, 117 Ala. 93, 23 So. 130; Barber v. State, 3 Ga. App. 598, 60 S. E. 285. For example, a witness for the state, proving hostile, may be asked if he did not make contradictory statements before the grand jury. People v. O'Neill, 107 Mich. 556, 65 N. W. 540. But see contra, the divided opinion of the court in Putnam v. United States, 162 U. S. 687, 40 L. ed. 1118, 16 Sup. Ct. 923.

ness what he would testify to it has been deceived and surprised. If the state's attorney relies solely for information as to the expected testimony of his witness upon what outside parties tell him the witness will say, and neglects to talk to his witness, he cannot plead surprise. Dunk v. State, 84 Miss. 452, 36 So. 609.

6

* State v. Sederstrom, 99 Minn. 234, 109 N. W. 113.

'Williams v. State, 25 Tex. App. 76, 7 S. W. 661; Blackburn v. Commonwealth, 12 Bush (Ky.) 181, 184, 185; Underhill on Evidence, p. 503. note 3.

8 Commonwealth V. Thyng, 134 Mass. 191; People v. Bushton, 80 Cal. 160, 22 Pac. 127, 549; Underhill on Evidence, § 342. A statute permitting a "person" introducing a witness, where he proves hostile, to impeach him, permits the state to do this in a criminal case. Brown v. State (Tex. Cr. 1908), 114 S. W. 820. The prosecution in the case of

The extent to which the impeachment of one's own witness may be carried is largely a matter of judicial discretion. It must appear that the witness is hostile and not merely reluctant to give testimony. Unless the testimony is actually prejudicial to the party calling the witness, he cannot be impeached.10

And in all cases the court ought to limit the impeaching testimony to the purpose for which it is introduced. Its purpose is not so much to break down the credibility of all the testimony of the hostile witness as to supply material facts which the hostile witness was expected but failed to prove. The credibility of the hostile witness is still for the jury.11

11

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§ 236. Impeachment of adverse witness by showing bad reputation for veracity-Belief under oath.-Independent evidence tending directly to show that a witness possesses a bad reputation for veracity is always admissible to impeach an adverse witness after he has been examined in chief by the party calling him.1 The same rule applies where a showing is made for an absent witness and received as evidence.13 The impeaching witness ought to be called from among those persons who are resident near the domicile of the witness to be impeached. He must first be asked if he knows the general reputation of the witness, and if he does not know it he is incompetent. If the court believes he knows the reputation of the witness for veracity he may then state what that reputation is.1 Evidence of reputation for truthfulness or the reverse is not admissible, unless it relates to the reputation of the witness which is prevalent in the locality where he resides.15 The reputation proved must be recent. The fact

an unexpectedly hostile witness may show that he had testified differently at the inquest. State v. Jennings, 48 Ore. 483, 87 Pac. 524.

So. 259. Contra, People v. Fembroke, 6 Cal. App. 588, 92 Pac. 668, where evidence taken on the preliminary examination was read at the

*Southworth v. State, 52 Tex. Cr. trial. 532, 109 S. W. 133.

10

State v. Johnson, 41 La. Ann.

Nathan v. State, 130 Ga. 48, 61 574, 7 So. 670; People v. Markham, S. E. 994. 64 Cal. 157, 30 Pac. 620, 49 Am. 700;

21

Sapp v. State (Tex. Cr. 1903), 77 Cole v. State, 59 Ark. 50, 26 S. W. S. W. 456. 377; Spies v. People, 122 Ill. 1, 12 N. "Hoge v. People, 117 Ill. 35, 6 N. E. 865, 17 N. E. 898, 3 Am. St. 320n. 15 Brown v. United States, 164 U.

E. 796.

13

Gregory v. State, 140 Ala. 16, 37 S. 221, 41 L. ed. 410, 17 S. Ct. 33;