be called to contradict him;' and 'Where a witness gives evidence of a fact adverse to the party who calls him, other witnesses may be called to disprove the fact, if it be relevant to the issue in the cause.' See also Holdsworth v. Dartmouth, 2 Mood. & R. 153; Allay v. Hutchings, 2 Mood. & R. 358, note; Winter v. Butt, 2 Mood. & R. 357.

"This is the doctrine maintained by a long line of American cases, among them the following: Thompson v. Blanchard, 4 N. Y. 311; Pollock v. Pollock, 71 N. Y. 137; Coulter v. American Merchants U. Exp. Co. 56 N. Y. 588; Nichols v. White, 85 N. Y. 531; Gadsby v. Dyer, 91 N. C. 312; Becker v. Koch, 104 N. Y. 394; Cox v. Eayres, 55 Vt. 24; Bauskett v. Keitt, 22 S. C. 187; Burkhalter v. Edwards, 16 Ga. 593, 60 Am. Dec. 744; Bal timore & O. R. Co. v. State, 41 Md. 268; Bullard v. Pearsall, 53 N. Y. 230; Stearns v. Merchants Bank of Cleveland, 53 Pa. 490; Queen v. State, 5 Har. & J. 232; Adams v. Wheeler, 97 Mass. 67.

"Statutes, similar in their provisions to the English Common Law Procedure Act, have been adopted by Massachusetts, Kentucky, Georgia, and some of the other states. The enactment of such statutes is, itself, a recognition of the necessity of a resort to legislation to accomplish the change in the rule thereby effected, and has been so regarded by the courts of the states where they have been adopted."

Proof that a witness had made material false statements, which are relied on as proving him unworthy of credit, will not authorize the party calling him to introduce evidence of his general reputation for truth.

Ev. 160.

Crown v. Mooers, 6 Gray, 451; Roscoe, Crim.

A party may prove the previous contradictory declarations of a witness whom he has called to the stand, when it is established that he was surprised at his testimony, and was not guilty of collusion or bad faith, and that the witness was adverse to him (Hurlburt v. Bellows, 50 N. H. 105; Whitman v. Morey, 63 N. H. 448; Craig v. Grant, 6 Mich. 453; Campbell v. State, 23 Ala. 77; Com. v. Starkweather, 10 Cush. 60; Stearns v. Merchants Bank of Cleveland, supra; People v. Safford, 5 Denio, 112; Coulter v. American Merchants U. Exp. Co. supra; People v. Jacobs, 49 Cal. 384; Dunn v. Dunnaker, 87 Mo. 597; Hunt v. Fish, 4 Barb. 324; Burkhalter v. Edwards, supra) or where it

is shown to the satisfaction of the court that he has been deceived by the fraud or artifice of such witness; and even then the foundation must first be laid for such evidence by calling the attention of the witness to the time, place and person before whom such supposed contradictory declarations were made, and affording him opportunity for explanation. Dunlap v. Richardson, 63 Miss.

447.

§ 238. Party may Impeach a Witness he is Compelled to Call. There is quite an array of authority for the proposition that where a party is compelled to call a certain witness he may both contradict and discredit him. Shorey v. Hussey, 32 Me. 579; Cox v. Eayres, 55 Vt. 24.

But he cannot sustain his own witness by proving by an independent witness he made the same statement at a prior time or as to an independent fact testified to by such witness. Smith v. Stickney, 17 Barb. 489; People v. Finnegan, 1 Park. Crim. Rep. 147; Herrick v. Smith, 13 Hun, 448; People v. Rugg, 21 N. Y. Week. Dig. 85, 34 Hun, 632, mem.; affirmed without discussing that point in 98 N. Y. 537, 552, 3 N. Y. Crim. Rep. 172; Stolp v. Blair, 68 Ill. 541; Childs v. State, 55 Ala. 25; Snyder v. Com. 85 Pa. 519; Webb v. State, 29 Ohio St. 351.

The Kentucky statute on the subject is contained in section 660 of the Civil Code of Procedure, which is also made applicable to criminal cases. It provides that "the party producing a witness may contradict him by showing that he has made statements different from his testimony."

In the case of Champ v. Com. 2 Met. (Ky.) 17, it was said that prior to the adoption of the code, a party who was surprised by the testimony of his own witness, was allowed to contradict him, only by proving that the facts stated in evidence were different. By the code, as already shown, an additional means of contradiction is allowed-it may be shown that the witness has made statements different from his present testimony.'

In Brooks v. Weeks, 21 Mass. 433, Endicott, J., in commenting upon the Massachusetts statute says: "Before its passage the witness could not be directly contradicted. The object of the statute is simply to allow the party to impeach the credibility of his witness by showing in the manner pointed out, that he has made statements inconsistent with his testimony."

And in Ryerson v. Abington, 102 Mass. 526, Gray, J., after

quoting the statute proceeds as follows: "So great a change in the rules of evidence, giving so extensive a power to a party to introduce proof in contradiction and disparagement of a witness put upon the stand by himself, uncontrolled by the discretion of the judge before whom the trial is had, must be kept strictly within the bounds of the statute."

The mere failure on the part of a witness to testify as expected by the party calling him will not enable said party to show otherwise alleged statements made by the witness or others tending to prove the case. People v. Jacobs, 49 Cal. 384; 1 Roscoe, Crim. Ev. 159.

§ 239. Specific Acts of Immorality cannot be Shown.In Abbott's Trial Brief of Criminal Causes, $ 473, we find the following: "A witness who has testified to the good character of the accused may be asked, on cross-examination, if he has not heard of a specified charge against the accused,"-citing Ingram v. State, 67 Ala. 67, which was a murder case wherein it was held: "The shadings, as well as the brighter hues, are to be considered in making up the estimate of character and reputation, and, when a witness has testified that he knew the character of the accused, for peace and quietude, and that it was good, it is not error to allow him to be asked, on cross-examination, if he had not been informed that the defendant had 'killed a man in the state of Georgia,' and his answer was admissible in evidence." Reg. v. Wood, 5 Jur. 225, and Dearman v. State, 71 Ala. 351, are also cited by the author in support of this proposition.

In Reg. v. Wood, supra, the defendant put his character in issue, and a witness deposed to having known him for some years, gave him a good character, and stated that he had never heard anything against him. On cross-examination, the witness was asked if he had never heard that defendant was suspected of having committed a robbery in the neighborhood some years previous. The question was allowed, Parke, B., remarking that: "The question is not whether the prisoner was guilty of that robbery, but whether he was suspected of having been implicated in it. A man's character is made up of a number of small circumstances, of which his being suspected of misconduct is one." This case is cited approvingly in 1 Taylor on Evidence, § 352, and the author says: "But if, with the view of raising a presumption of innocence, witnesses to character are called for the defense, the counsel

for the Crown may then rebut this presumption by cross-examining the witnesses, either as to particular facts, or, if they deem it essential, as to the ground of their belief." Reg. v. Wood, is also cited approvingly in Best on Evidence, § 261, where the doctrine is also laid down that, when a defendant in a criminal prosecution puts his character in issue, the prosecutor may encounter his evidence either by cross-examination or by contrary testimony.

§ 240. An Examination of Authorities.-In People v. Crapo, 76 N. Y. 288, 32 Am. Rep. 302, the prisoner was on trial for burglary and larceny, and having taken the stand as a witness in his own behalf, was asked on cross-examination if he had been arrested on a charge of bigamy. The court held the question inadmissible, and stated the true rule to be that the disparaging questions must either be relevant to the issue, or such as clearly go to impeach the moral character and credibility of the witness. In People v. Brown, 72 N. Y. 571, 28 Am. Rep. 183, the question asked the party testifying in his own behalf was how many times he had been arrested, and it was held inadmissible. In Ryan v. People, 79 N. Y. 594, the witnesses were asked if they had been indicted. The court, recognizing the right to put questions to a witness as to specific facts which tend to discredit him or impeach his moral character, held that the fact of an indictment could not produce such result, since it was merely an accusation and innocence was presumed. In People v. Oyer & Terminer Ct. 83 N. Y. 460, the court said of this class of questions that its control over them was not absolute, and that, as a general rule, the range and extent of such an examination is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character; and to the same effect was People v. Casey, 72 N. Y. 393. This decision nearly restates the position taken by the old court of errors in 1823: "Evidence that a female is by reputation unchaste, is not competent by way of impeachment. Indeed a witness cannot be impeached by proof of any specific immorality. It must rest on general moral character, or character for truth. Bakeman v. Rose, 18 Wend. 146, and cases cited." Nor can "character" be proved by reputation.

In the case of Robinson v. State, 84 Ind. 452, the defendant had testified in his own behalf, and the state, for the purpose of

impeaching the defendant as a witness, called a witness and proved by the witness that he was acquainted with the defendant's general moral character; and that it was bad. The defendant's counsel cross-examined the witness, asking the question: "The defendant has the reputation of being a drinking, swearing man, has he not?" The witness answered: "He has." On re-examination, the state asked the witness, "What is the defendant's reputation for honesty?" The defendant objected, and the court overruled the objection, and the witness answered that it was bad. On appeal the court held that the evidence was improper, and that the court erred in admitting it. Drew v. State, 124 Ind. 9.

In Tennessee it has been long and well settled that in impeaching the credibility of a witness the inquiry is not, as in some of the states, restricted to the general reputation for veracity, but it involves his whole moral character. It has been regarded as essential to the ends of justice that both the court and jury should have full opportunity of knowing the entire moral character of the witness where credit is sought to be impeached. "In view of all of which," as was said by Judge McKinney in Gilliam v. State, 1 Head, 38, "It may be safely left to the jury to determine what degree of credit the witness is entitled to for truth, notwithstanding his other vices and immoralities of character, as his claim to veracity is the primary and important consideration."

According to the practice in that state, the proper inquiry is whether the witness knows the general character of the person whose credibility is in question, and whether, from such knowledge, the witness would believe him on oath. Ford v. Ford, 7 Humph. 92; Merriman v. State, 3 Lea, 394; Peck v. State, 86 Tenn. 259.

In a recent Arkansas case, the state having proved certain damaging facts, by the principle witness, the appellant seeking to vitiate this evidence, introduced an impeaching witness who testified that he knew the witness for the state, and had lived near her for seven years, and knew her general reputation for truth and morality in the neighborhood in which she lived, and that it was not good; he considered it bad. Appellant then asked him, if, taking such reputation as a basis, would he believe her on oath? The state objected to his answering the question; the court sustained the objection; and appellant excepted. According to pre