112 N.E. 440 | NY | 1916
The plaintiff, called as a witness in his own behalf, on his cross-examination testified that on the 31st day of October, 1896, he had been convicted of the crime *522 of forgery in the second degree and sentenced to Auburn State Prison for a term of five years and eight months. He thereafter offered evidence of witnesses of his general reputation in the community in which he lived. This was objected to as incompetent on the ground that his reputation had not been impeached except by cross-examination, and was excluded subject to his exception.
Although opposite views have been taken of this question, we think that evidence of general good reputation should have been admitted. The authorities on both sides are collected by Professor Wigmore in his work on Evidence, § 1106, and the cases and text books supporting the rule are cited by BURFORD, Ch. J., in First National Bank of Bartlesville v. Blakeman ([1907]
The main question, therefore, remains an open one in this state. Against the admissibility of the evidence it is urged that as a practical proposition the calling of witnesses to general good reputation must be limited to cases where witnesses are first called to impeach the general character of the witness; otherwise the trial of the main issue would be obscured and delayed for the trial of collateral issues of character which would distract the attention of the jury. (Tedens v.Schumers,
It is futher urged that "records of convictions of crime exhibit the bad character directly, and cannot be explained away by testimony as to good repute." (Wigmore, § 1106.) In other words, the proof of conviction is proof of a particular circumstance and not of general bad character, and, therefore, it does not logically open the door to rebutting proof of general good character. But HOLMES, J., in Gertz v. Fitchburg R.R.Co. (
In general the credibility of a witness is not to be impeached by proof of a particular offense, such as the commission of a crime, except from the mouth of the witness himself on cross-examination (Jackson v. Wendell, 2 Wend. 555, 558;Sims v. Sims,
The judgment should be reversed and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and SEABURY, JJ., concur.
Judgment reversed, etc. *526