Cal. 326, 56 Am. Dec. 339; Floyd v. Wallace, 31 Ga. 668; Shields v. Cunningham, 1 Blackf. 86; Lawrence v. Lanning, 4 Ind. 194; Galena & C. U. R. Co. v. Fay, 16 Ill. 558, 63 Am. Dec. 323; Foot v. Hunkins, 98 Mass. 523; New Orleans Draining Co. v. De Lizardi, 2 La. Ann. 281; Gerrish v. Pike, 36 N. H. 510; Charlton v. Unis, 4 Gratt. 58; Lamb v. Stewart, 2 Ohio, 230; Allen v. Harrison, 30 Vt. 219.

§ 231. When the Impeachment is Effected.-Most if not all of the American jurisdictions hold that the impeachment of a witness is effected if sufficient testimony is introduced showing that from what is known of the witness's reputation for truth and veracity in the neighborhood in which he lives his averments or statements of any fact under oath should be discredited. State v. Randolph, 24 Conn. 363; Bogle v. Kreitzer, 46 Pa. 465; Sergent v. Wilson, 59 N. H. 396; United States v. Vansickle, 2 McLean, 219; Warner v. Lockerby, 31 Minn. 421; Amidon v. Hosley, 54 Vt. 25; Quinsigamond Bank v. Hobbs, 11 Gray, 250; Hillis v. Wylie, 26 Ohio St. 574; Laclede Lank v. Keeler, 109 Ill. 385; Shaw v. Emery, 42 Me. 59; Atwood v. Impson, 20 N. J. Eq. 150; Lenox v. Fuller, 39 Mich. 268; Teese v. Huntingdon, 64 U. S. 23 How. 2, 16 L. ed. 479.

In Indiana and Iowa and Missouri the impeachment is effected by showing the general moral character of the witness to be bad. Walton v. State, 88 Ind. 9; State v. Egan, 59 Iowa, 636; State v. Grant, 79 Mo. 113, 49° Am. Rep. 218. California substantially follows New York. People v. Markham, 64 Cal. 157, 49 Am. Rep. 700. In Illinois, where it is shown that the general character of the witness among his neighbors for truthfulness is bad, it is erroneous to let the impeaching witness answer, whether he would believe such witness upon oath. Eason v. Chapman, 21 Ill. 33. The knowledge of a witness's character must be derived from his general reputation.

§ 232. Importance of Impeaching Testimony.-When a witness gives material evidence it is always important to ascertain and discover how much weight, or reliance, can be placed upon his testimony. Whatever may weaken or tend to discredit his evidence is important and material and necessarily affects the determination of the issue. Shepard v. Parker, 36 N. Y. 517.

If the testimony of the witness is unassailed by any discrediting circumstances, then it will obviously be attended with greater

effect in the determination of the controversy, than it would be, if he should be shown to be a person unworthy of full credit. Whatever may tend to sustain or support a witness, is, therefore, material to the issue, so far as it may increase the confidence to be placed in his statement. And, likewise, whatever may tend to discredit him, and in that manner to reduce the confidence his evidence may deserve, will materially affect the determination of the issue in controversy. No special degree of materiality to create the crime of perjury has been defined or required, but all that can be insisted upon, is that the evidence itself shall appear to have had some material bearing in the determination of the case, and whatever may tend to the discredit of the witness, giving material evidence, must be regarded as within this rule. In Reg. v. Overton, 2 Moody, C. C. 263, it was held that everything was material that affects the credit of the witness, and that every question on cross-examination that goes to the credit of the witness is material. In Com. v. Bonner, 97 Mass. 587, the same conclusion was reached.

§ 233. Partial Review of the Decisions.-The Tennessee supreme court held in Story v. Saunders, 8 Humph. 666, that “a witness cannot be confirmed by proof that he has given the same account before, even though it has been proved that he has given a different account in order to impeach his veracity, for his mere declaration of the fact is not evidence;" although exceptions to this rule have been admitted.

The question again came before this court in Possett v. Miller, 3 Sneed, 76, where error was assigned to the ruling of the court below, which ruling was as follows: "Where the credit of a witness is attacked, upon the ground that he had made statements inconsistent with the statements he had made in court, testimony may be heard to show that at other times and on other occasions the witness had made statements consistent with his testimony given in court."

It will be observed that this is a broad statement of the rule, and is in conflict with the rule stated in Story v. Saunders, supra, unless the facts of the case brought it within the exceptions of "special circumstances," but the facts are not given, and we cannot see whether the "special circumstances" existed. In passing upon this ruling at the circuit court, Judge Caruthers said: "Upon this question there is a very great conflict in the authorities. In

1 Greenleaf on Evidence, § 469, such evidence is declared to be inadmissible unless where a design to misrepresent is charged upon the witness in consequence of his relation to the party or to the cause, in which case it seems it may be proper to show that he made a similar statement before that relation existed." This is a statement of the "special circumstances" which would take the case out of the general rule as stated by Judge McKinney in Story v. Saunders, supra.

· Continuing, the court said: "We think the case put by Mr. Greenleaf above is a proper one for the admission of previous consistent confirmatory statements, but would also allow it in all cases where the evidence given in court is impeached by proving former contradictory statements." He then holds that there was no error in the ruling of the court below.

In Queener v. Morrow, 1 Coldw. 134, Judge McKinney, after stating the rule as given by Greenleaf, says: "The case of Dossett v. Miller sanctions the principle that evidence of previous consistent statements is admissible in all cases where the testimony of the witness, given in court, is sought to be impeached by proof of contradictory statements." He then says: "The abstract principle announced we are not disposed to disturb," and proceeds to dispose of the case on that basis, but limits the consistent statements of those made antecedent to the impeaching statements which they are intended to meet.

In Third Nat. Bank v. Robinson, 1 Baxt. 484, Judge McFarland quotes from and approves the cases of Dossett v. Miller and Queener v. Morrow, and approves the act of the court below in admitting proof of the consistent statements of the witness, although the facts did not bring the case within the exception of "special circumstances."

In Hayes v. Cheatham, 6 Lea, 10, Judge Cooper refers to the cases of Dossett v. Miller, Queener v. Morrow, and Third Nat. Bank v. Robinson, supra, and says the rule is that where it "is sought to destroy the credit of a witness by proof of contradictory representations, evidence of his having given the same account of the matters, at a time when no motive existed to misrepresent the facts, ought to be received, because it naturally tends to inspire in the sworn statement." The facts of that case brought it clearly within the exception of "special circumstances."

In Glass v. Bennett, 89 Tenn. 481, Chief Justice Turney quoted

the rule as stated in Hayes v. Cheatham, supra, and held that proof of consistent statements was properly admitted. It did not appear in that case that the facts brought it within the exception of "special circumstances," but it came within the broad rule laid down in Dossett v. Miller, supra, and reaffirmed in Queener v. Morrow and Third Nat. Bank v. Robinson, supra. His conclusion was that, "whatever may be the rule in other states, and whatever might be our view of the question as an original question, the rule in this state is, that previous consistent confirmatory statements, made before the impeaching statement, are admissible in all cases where the evidence given in court is impeached by proving former contradictory statements."

In Bounds v. Schwab, 5 Sneed, 594, the impeaching statement was made under oath in an oral examination in another case, but in reference to the same transaction. Afterwards the deposition of the witness was taken, and his testimony did not agree with his previous testimony in the other case; but his attention was not called to his previous testimony so as to give him an opportunity to explain it. It was then sought to impeach his deposition by proving his previous contradictory testimony. It was held that this could not be done, because his attention had not been called to the previous testimony so as to give him an opportunity to explain it.

In Nelson v. State, 2 Swan, 259, the impeaching statement was contained in the testimony of the witness given before the committing magistrate, and signed by the witness. It was held that this impeaching statement was not admissible to contradict the witness unless his attention had been called to it, and opportunity given him to explain it.

In Hammond v. Dike, 42 Minn. 273, 18 Am. St. Rep. 506, the impeaching statement was contained in a deposition, and the same rule was applied in the Tennessee cases and a similar reasoning supports the rule that the minutes of the evidence given by witnesses on a preliminary examination cannot be used on the trial of the defendant to impeach such witnesses. State v. Adams, 78 Iowa, 292. Nor can a witness be corroborated by proving that on other occasions he made statements conforming to his testimony, for such statements are but hearsay; nor can one who introduces a witness directly attack his credibility by proving facts irrelevant to the issue. Madden v. State, 65 Miss. 176.

A defendant who testifies on his own behalf, on the trial of a criminal case, may be impeached in the same manner as any other witness; but the jury should be instructed to consider impeaching testimony as affecting only his credibility as a witness, and not as impairing the presumption of his innocence. Peck v. State, 86

Tenn. 259.

Judge Grover in Real v. People, 42 N. Y. 280, says: "A witness introduced by the accused, and who gave material testimony in his favor, was asked by the district attorney upon crossexamination, whether he had not been in the penitentiary, and how long he had been there. These questions were objected to by the counsel for the accused without a specific statement, calling attention to the fact of their being record evidence. The objection was overruled, and the counsel excepted. The witness answered that he had, and stated the time, adding, that he was innocent of the crime. Waiving the question whether the ground was sufficiently stated, there can be no doubt that this testimony was material, and tended to prejudice the accused by impairing the credit of the witness, and if incompetent, the judgment should be reversed. The counsel now insists, that this point was decided in favor of the accused in Newcomb v. Griswold, 24 N. Y. 298, by this court. It was held in that case, that it was error to overrule the objection of the opposite party to a question proposed upon the cross-examination of a witness, with a view to impair his credit, whether he had not been convicted of petit larceny, and the judgment was reversed upon this ground, the court holding, that if the fact was at all admissible, it could only be proved by the record. The same rule is laid down in volume 1 of Greenleaf on Evidence, § 457, where it is further added, that if the inquiry is confined in terms to the fact of his having been subjected to an ignominious punishment, or to imprisonment alone, it is made not for the purpose of showing that he was an innocent sufferer, but that he was guilty, and the only competent proof of his guilt is the record of his conviction. If the rule thus laid down by this author is correct, it is manifest that the exception in the present case was well taken. But I think that such is not the rule. It is well settled, that for the purpose of impairing the credit of a witness, by evidence introduced by the opposite party, such evidence must go to his general character. That proof of specific acts of immorality is not competent, see authorities cited in 1 Greenl. Ev.