19 Wend. 569 | N.Y. Sup. Ct. | 1838
After advisement, the following opinions were delivered :
The case presents, in all, a series of six exceptions, three of which we feel no difficulty in saying, can not be sustained. These respect the rejection of Henry Rector’s opinion, the refusal to recall Mr. McKown the witness, and the admission of the deposition of Radliif.
Henry Rector was not within the rule which receives the opinion of experts in matters of skill or science. Although a practical architect and engineer, there was nothing in the case put to him which had any connection with his professional business or observation, more than that of any other man. He might have gone through life without once having his attention called to the juncture of circumstances upon which his opinion was required. A farmer or merchant sitting as a juror would not, in common presumption, be at all behind him, in the capacity to draw a correct conclusion from the facts supposed. We think this office belonged exclusively to the jury. In Ramadge v. Ryan, 9 Bing. 333, Tindall, Ch. J. said, “ witnesses skilled in any “art or science, may-be called to say what, in their judg“ment, would be the result of certain facts submitted to “ their consideration; but not to give an opinion on things “ with which a jury may be supposed to be equally well
The question as to the propriety of re-calling Mr. M’Kown we think rested in the discretion of the court below. The witness had been fully examined and dismissed from the stand. It could not after this, be claimed as a matter of right that he should be re-examined even to a new fact, much less one in respect to which he had already answered-It may be, and many times is important that this should be done, and it is often allowed ; but the judges at the trial are more competent to declare when it shall be refused, than a ■ court of error can be. There are several satisfactory reasons for the refusal, apparent on the bill of exceptions in this case; one, that it is extremely difficult to detect any material difference between the testimony as stated by the court, and that claimed by the counsel; and another, that the subject having been before debated in the course of the summing up, the court had then pronounced the claim of counsel to be wrong, in which he acquiesced, without proposing any correction by the witness. But we prefer putting the case on a ground which shall supersede the neces
Mr. Cole was called and his testimony taken, in connection with the examination of Radliff, as signed and sworn to by him at the police office. The object was to show against the testimony of Mr. Wheaton and Mr. M’Kown, that he to whom they had imputed a contradiction between his oath, at the police office and the trial, was consistent. The examination was not received as conclusive, but barely competent. We are utterly at a loss to conceive any objection to its reception for such a purpose. It seems to have been the best imaginable resort of the prosecution. If, as the prisoner’s counsel are understood to insist, the*evidence altogether failed in its object, then, by weakening the pros
Among the other three points in the cause, the first is, that the court below erred in rejecting evidence to sustain Gillespie’s character for truth. In order to this, there is no doubt that the general character of the witness should first be impeached. Dodd v. Norris, 3 Campb. 519. This is usually done by calling witnesses who have known him, and who will take it upon them to say, that from their knowledge of his general character, they would not believe him under oath, or that they know his general character for truth, and from that would deem him unworthy of belief under oath. Roscoe’s Cr. Ev. 135, 6, Philad. ed. 1836, and the cases there cited. Gilchrist v. McKee, 4 Watts, 380 Per Story, J. in Gass v. Stimson, 2 Sumn. 610. In The People v. Mather, 4 Wendell, 257, 8, Mr. Justice Marcy recognizes the more general question which has always prevailed in England as a proper one, and this is doubtless correct : though, in consequence of what was said in Jackson, ex dem. Boyd, v. Lewis, 13 Johns. R. 504, the question has, I believe, more generally been addressed directly to character for truth. Thompson, Ch. J. there said, “ the inquiry should have been as to her character for truth and veracity ; at all events, this should have been the principal and first inquiry.” The proposition is repeated by Savage, Ch. J. in Bakeman v. Rose, 14 Wendell, 110. The object of both questions is the same. It is to convince the jury that the witness is unworthy of belief, from an habitual disregard to the law of truth, as collected by his neighbors from general report and his general conduct. Sharp v. Scoging, Holt’s N. P. R. 541. For this purpose, the more broad
But general proof is not the only means by which the character of a witness may be impeached. In Jackson, ex dem. Stephenson, v. Walker, 4 Esp. R. 50, one of the subscribing witnesses to a will, imputing fraud to the other two in procuring the will, they being dead, witnesses were called to their good character, in order to repel the imputation. This case shows, at least, that a particular act properly in evidence, may be so immoral as to shake the general character. Otherwise, why receive general evidence to support it ? The particular fact being pertinent to the issue, and not intended in its main purpose to affect character, but rather to show a fraud destroying the will, the counsel for the people may be right in saying that such general evidence would not have been allowed had the witness been alive. In that case the devisee must have called the wit
Whether the cross-examination of Gillespie in other particulars resulted per se in a case proper for the same evidence, must depend on Rex v. Clark and its kindred authorities. The trial there was for an assault upon Mrs. Webb, with intent to commit a rape. On cross-examination
Then was Gillespie's character impeached within the rule ? Laying out of view that he was contradicted by Radliff and Whitney as to the fact of the prisoner withdrawing without raising the door bar a second time, and before he had reached the side-walk; for I allow that mere contradiction upon particular facts does not raise a case for character, Bishop of Durham v. Beaumont, 1 Campb. 207, was his moral character impeached by his own account of himself? He had for some time led an idle and intemperate life, the inmate of porter houses at hours unseasonably late. He had for two years been wasting his means in a course of adulterous lewdness, alienated from his family, unjust to them and to his creditors. Contrast a man embarked in such vicious courses, not yet shown to be attended by one redeeming virtue, with any reputable citizen, on a contradiction of fact before a jury, could they hesitate between the two characters ? Yet these vices and more may abound in a character distinguished for an unyielding attachment to truth. Prima fade it is not so; but the contrary is so common, that some judges have inclined to adopt the general impeaching question to character for veracity alone, Gilchrist v. McKee, 4 Watts, 380; while others who allow the broad English impeaching question as eminently proper, yet receive character for veracity in reply. Noel v. Dickey, 3 Bibb, 268. In the case last cited, the plaintiff had called two witnesses to make out his case, and who did make it out, if they were to be credited. The defendant, in order to discredit them, introduced a witness who swore that their general character was bad, (a form of impeachment allowed by the cases in Kentucky.) Blue v. Kibby, 1 Monroe, 195. Hume v. Scott, 3 A. K. Marsh. 260. The plaintiff then ask
This elemental examination, by the court of appeals of Kentucky, if correct in its result, disposes of the whole question as to the evidence offered by way of sustaining Gillespie’s character. We thus see, that the principle upon which it was offered, accords entirely with the authorities to which we have had occasion to refer; and it follows, as I think, that the court below erred in rejecting the evidence ; unless, as was insisted by the counsel for the people, they had before done what was equivalent, through the testimony of Tallman. He was called to give general evidence against Gillespie. He knew him well; but answered that he knew nothing against his general character for truth: This failure is said to be equal to all the best sustaining witnesses who could have been brought. The great impropriety of our attempting such an estimate of quantities upon a bill of exceptions is sufficiently obvious. An unqualified admission of perfectly good character, might have been an answer; but no such admission was made. The case remained' still entirely open for asking the jury to infer that the man’s sense of all obligation to speak truth, was almost as slender as the tie which bound him to the virtue of continency.
The second point made by the prisoner’s counsel is, that the court should have received proof of the riotous breaking of the prisoner’s house the previous Saturday night; that the inmates had then been badly abused, and that the rioters threatened to return another night soon after, and break in if they were not admitted. This was offered to establish a reasonable ground for the prisoner’s apprehending the execution of a similar threat now repeated and attempted, according to some of the evidence, with great violence, and even persevered in after notice to depart. No doubt the deceased and his companions became trespassers by then
The fifth point complains of the refusal to charge that, if the mortal wound was given in an attempt to commit an offence less than felony, the prisoner should not have been convicted of murder. The reason assigned for the refusal is, that such a charge could have had no application to the case as made out in evidence. This again depended upon what the jury might say after turning the whole matter over in their minds. Looking at the instrument used, the testi
The object of the statute was to save one sort of constructive murder, and abolish another. By the 5th sec. p. 657, if a man be engaged with an immediate view to one felony, as a burglary, and death ensue, it is murder. But if his immediate object be a crime less than felony, as a riot, the death is but manslaughter in the first degree. The latter is the case provided for in the 6th sec. p. 550, sub. 1,2; and so it was understood in The People v. Enoch, though I admit the point was not decided there. The only way to avoid such a construction, is by saying that the blow cannot be a misdemeanor when it results in death, because the act is then a felony, to wit, manslaughter, ergo it is murder. The section is open to such a reading in the light of a severe criticism ; but it is such a criticism as must work a repeal of the section itself. It supposes that there can be no such
If it be said that death from such resistance, being merely accidental, would not have been murder at the common law, and is therefore not within the section cited, then I answer that this only magnifies the error. The .statute no where makes it murder; and it would be left to fall down to some homicide inferior to manslaughter in the first degree.
It is not to be denied that, taking the proposition and the response of the court below literally, the exception may properly be overruled in another point of view. The charge proposed by counsel was that if the prisoner made but an attempt to commit a crime less than felony, the death would be only manslaughter. This the judge said, and said truly, was inapplicable. There was no mere attempt to commit a misdemeanor in the case; and no pretence of it. If there was any thing short of a felony, it was an actual misdemeanor, an actual assault and battery, and it should have been put forward under that branch of the clause in the statute which speaks of actual commission. Such a distinction has, however, occurred to no one in the whole course of the discussion to which this case has given rise. It has been conceded from the beginning to the end that the proposition should be viewed as having the same force as if it had been put in the alternative words of the statute : the actual commission, or an attempt to commit a crime less than felony. Indeed, I hardly understood the counsel for the people as denying that if the case was open for insisting that the prisoner intended merely to commit an assault and battery, such an intent would mitigate the crime to manslaughter in the first degree, and I can not consent that a case of life and death should go off on a verbal criticism, with which it is apparent no one ever intended it should be embarrassed.
On the whole I do not deny that a wanton excess in the use of a deadly instrument, or other circumstances of great ferocity or brutality, would warrant a judge in refusing to charge as requested on the ground stated, and in the case below, an answer might certainly arise from the imminently dangerous character of the act, to the evidence of which it would have been light for the judge to direct the attention of the jury. But I do not see any such decisive balance
There are several ways of impeaching the credit of a witness. The party against whom the witness is called may disprove the facts stated by him, or may examine other witnesses as to his general character for truth. In answer to evidence against character, the other party may cross-examine the witnesses as to their means of knowledge, may attack their general character, or by fresh evidence support the character of his own witness. The credit of a witness may be shaken, and perhaps entirely destroyed by his own cross-examination, or by disproving the fact to which he has deposed. But in neither of these cases can the witness be supported by proving his general good character as a man of truth. With only one or two exceptions at most, and those resting on special considerations not applicable to this case, such evidence is only admissible in answer to evidence of general character, first given by the other party.
In The Bishop of Durham v. Beaumont, 1 Camp. 207, Lord Ellenborough refused to admit evidence in support of the character of a witness who stood contradicted by another witness. In Russell v. Coffin, 8 Pick. 143, the deposition of the witness taken out of court was introduced for the purpose of contradicting his testimony on the stand; and yet the party who called him was not allowed to go into evidence of his general character. Parker, C. J. said, it never was decided, that if a witness was contradicted as to any fact of his testimony, either by his own declarations at other times, or by other witnesses, evidence might be admitted to prove his general good character. If this were
I have met with no adjudged case which sanctions more than two exceptions to the rule, that a party can only give evidence in support of the character of his own witness, in answer to evidence of general character coming from the other side. Indeed, where the witness has been produced and examined on the trial, there is only one exception to the rule, and that does not touch the case at bar.
In Doe v. Stephenson, 3 Esp. R. 248, the validity of a will was contested on the ground of fraud in procuring it. Two of the subscribing witnesses, being the attorney who prepared the will, and his clerk, were dead, and the third witness on being called testified to facts, impeaching the conduct of the deceased witnesses. Lord Eldon allowed the defendant, who claimed under the will, to prove that the deceased witnesses were persons of character, and not likely to procure such a will as was imputed to have been imposed on the testatrix. The same' will was again before the court, in Doe v. Walker, 4 Esp. R. 50, and Lord Kenyon admitted evidence of the good character of the deceased witnesses. Cases relating to the execution of wills, are in some respects governed by peculiar principles. But
When the witness has been produced and examined on the trial, the only exception to the general rule which has been mentioned, will be found in the case of Rex v. Clark, 2 Stark. R. 241. There the witness on cross-examination admitted that she had several years before been sent to the house of correction, on charges of having stolen money from her master. Holroyd J. admitted evidence to show that the conduct of the witness had been good since that time. Whether this single nisi prius decision should be followed or not, is a question which need not now be considered. The distinction between that case and the one at bar, is' apparent. There, the witness had admitted the commission of a crime years before, and the question was whether her character had not since been reformed; but here, the grossly immoral conduct of the witness, Gillespie, had continued for two years, and quite down to tne time of the trial. There was no space in which, by good conduct, he could have established a better character.
Mr. Starkie says, “ if the character of a witness has been impeached, although upon cross-examination only, evidence on the other side may be given to support the character of the witness, by general evidence of good conduct.” 1 Stark. Ev. 148. When he again adverts to this subject, he speaks with greater caution. His language is, that “ in all oases where the credit of a witness has been attacked, whether by general evidence, or by particular questions put upon cross-examination, it seems that the party who called him is at liberty to support his testimony by general evi
The case of The People v. Vane, 12 Wendell, 78, proves nothing on the question under consideration. The case at bar is much like that of Dodd v. Norris, 3 Camp. 519, which was an action for seducing the plaintiff’s daughter. She was a witness, and was cross-examined at considerable length to show that she had submitted herself to the defendant’s embraces under circumstances of extreme indelicacy, and had been guilty of great levity of conduct. On this ground, Harrow for the plaintiff proposed to call witnesses to the character of the daughter. But Lord Ellenborough ruled, “ that he was not at liberty to do so, as no evidence of her bad character had been given on the part of the defendant. The questions put to herself on cross-examination there was an ample opportunity of explaining as far as the truth would permit, when she came to be re-examined.” We have here an express adjudication, that evidence is not admissible to support a witness whose character has been impeached by the cross-examination only. It is said that the character of the daughter was a fact in issue. But the case was not put upon that ground by the judge. He held that the plaintiff could not go into general evidence to sustain the character of his witness, for the reason that “no evidence
Doe v. Harris, 7 Car. & Pay. 330, is another express adjudication against receiving evidence to sustain a witness who had been attacked on the cross-examination. This case was decided in 1836, and it proves most satisfactorily that the overdrawn commentaries of Starkie and Phillipps upon the case of Rex v. Clark, are not regarded as law at Westminster Hall. In this state, such evidence has never been held admissible. There is not only the want of any adjudged case to that effect, but in my limited experience I have never known or heard of the admission of such evidence at the circuit.
Why should such evidence be received, when the witness is on the stand to give any explanation of his conduct which the truth of the case will permit? Gillespie was not obliged to proclaim his own infamy. He did it voluntarily after having been informed by the court that he could not be required to speak. But aside from this consideration, if there was any thing to extenuate his conduct in abandoning his family and living in adultery, he was at liberty to state it. He stood there to make a picture of himself, and it is not to be presumed that he would draw it in darker colors than the truth of the case absolutely required. Neither the party who produces a witness nor the witness himself, has any right to complain. that compurgators are not allowed, when there has been no impeachment beyond the facts disclosed by the witness himself.
Upon what ground is it that the parties in an inquiry after truth concerning a particular transaction, are permitted to get up a collateral issue on the character of a witness ? It surely cannot be on the ground that the witness proves himself unworthy of credit. These collateral issues have always been regarded as an evil, and they are only permitted for the reason that the witness may apparently be entitled to credit, when in truth his character is such as to render him unworthy of belief. The party against whom he is called is therefore allowed to give evidence of his gen
Where shall we stop if we depart from this rule 1 The credit of a witness may not only be shaken but utterly overthrown by disproving the facts to which he testifies. If evidence of general character is not admissible where the witness has only been contradicted by others, may it be given where he contradicts himself by conflicting statements either in or out of court ? Or if the rule to be established is, that the witness may be supported whenever his moral character is assailed, how shall it be determined what amounts to an impeachment of moral character ? Disproving the facts to which a witness speaks may amount to such an impeachment; and so too of contradictory statements whether made in or out of court. Both the credit and character of a witness may be affected by a doubtful, hesitating or apparently disingenuous manner in giving his evidence. The jury may draw unfavorable conclusions against the credit of a witness upon appearances which can never be communicated to those who are not present at the time. Shall a party whenever he thinks the credit of his witness impaired, be allowed to give evidence of his general character for truth ? It is apparent that such a course will multiply collateral issues to an indefinite extent, and however plausible may be the argument that such a course is calculated to advance the ends of justice, I cannot doubt that it will have the contrary effect. The only plain and practical rule is that which allows" a party to give evidence in support of the character of his witness, in answer to evidence of general character coming from the other side, and in that case only. This is, I think, the rule of-the common law, and could a better one be devised, I should not feel myself at liberty to follow it.
The next exception, in the order in which they were presented by the prisoner’s counsel, is that which relates to the rejection of evidence to prove a riot in the prisoner’s house a week before the deceased received the fatal wound. It is important here to notice with accuracy what facts the prisoner proposed to prove, and the purpose for which the
But what is very material, there was no offer to prove that either of the three young men was of the party which had committed the riot, or had any connection or acquaintance whatever with the rioters. Nor was there any offer to show that the prisoner supposed or believed, or had any reason to suspect or believe, that either of these three men had any thing to do with the previous disturbance, or the threatened assault on his house. There was no suggestion that either the rioters or the young men were strangers to the prisoner. So far as the offer goes, he may have known very well that the deceased and his companions had nothing to do with the previous disturbance. Surely there is nothing in Meade's case to warrant the admission of such evidence, as the prisoner proposed to give.
It is not improbable that the prisoner knew the persons who had broken into his house, and abused the inmates a week before, especially as the case states that rioters had been admitted as guests in his house. But if he did not know their names, he might be" very well able to distinguish between them and the three young men. It was “ a clear moonlight night, very light,” when the deceased and his companions went to the house. The prisoner came to the window and held a conversation with them before he made the attack, in which there was no intimation that he regarded them as rioters, or that they had ever done any act to excite his apprehension. But aside from the probability that the prisoner knew the deceased and his companions had nothing to do with the previous assault, the offer did not go far enough to show any connection between the two transactions. Had the evidence been received, it would have furnished no just ground for the inference that the previous -riot was at all in the mind of the prisoner at the time he made the attack. It was a mere after-thought—an attempt to get up and distract the minds of the jury with a collateral question, utterly foreign to the point in issue.
The bill of exceptions states the purpose for which the evidence was offered. It was,to show that the prisoner
Another exception taken on the trial was to the refusal of the court below to give a particular instruction to the jury. The case states that the prisoner’s counsel called on the court to charge the jury, “ that if they came to the conclusion that the prisoner inflicted the mortal wound upon the deceased in, an attempt to commit an offence which of itself was less than a felony, then he should not be convicted of murder.” The circuit judge refused to give the instruction, saying “ it was inapplicable to this case.” It is then immediately added, that “ the circuit judge had previously in his charge to the jury stated the specific language of the revised statutes which defines the crimes of murder and of manslaughter in their several degrees.” The request obvi
There is no pretence that the prisoner, while engaged in a riot or other misdemeanor not amounting to felony, killed the deceased by misadventure. He was engaged in no other offence than that of illegally beating the deceased. That was what he intended to do; and whether he designed to kill or not, I think the judge was' right in holding that the desired instruction was “ inapplicable to this case.” Such a charge could only be proper where the accused was committing or attempting to commit some other offence than that of intentional violence upon the person killed.
I shall only refer to the evidence for the purpose of showing that the question of murder was fairly in the case. When the prisoner told Shepherd and his fellows that they could not come in, Wilson, who was somewhat intoxicated, uttered something like a threat that he would come in ; but immediately walked away down the street about fifteen or twenty feet to obey a call of nature. While he was there, the deceased and Whitney left the stoop and stood upon the side walk. There was no proof of any further knocking, nor any renewed manifestation of an intent to enter the house. At this time the prisoner, who had witnessed every thing by the bright moon light, left the window at which he had been standing and went to the door. After stopping
That one who kills another by an unlawful beating may be guilty of murder, although there was no intent to kill, is a proposition almost too plain for discussion. Whether it be murder or only manslaughter must depend on the attending circumstances : such as the violence of the attack and the weapon with which it was made. In this instance the prisoner used a dangerous weapon, and from the nature of the instrument and the violence of the assault, it was not improbable that death would be the consequence. If there can be any doubt on this point, it was a question of fact for the decision of the jury, and one which we cannot review. If a man assault another with intent to do him a bodily injury, and death ensue, malice sufficient to constitute murder will be presumed, if the act be of such a nature as plainly and in the ordinary course of events must put the life of the party in jeopardy. This doctrine will be found in every book which treats of the crime of homicide, and it is now a part of our statute law, though expressed in different words. The killing is murder, “ when perpetrated by an act imminently dangerous to others, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” 2 R. S. 657, § 5, sub. 2. We have already seen that the prisoner was engaged in no other act than that of unlawfully beat-jug the deceased. What rule of law then did the counsel ask the court to lay down for the guidance of the jury ? It was in effect neither more nor less than this: if you believe
Where ¡here is no intent to kill; the offence may be either murder or manslaughter ; the graduation of.the crime depending on the manner in which it was commitied and the other attending circumstances. When the act is done in committing, or attempting to commit a misdemeanor below the grade of felony, and the deceased is killed by misadventure ; and when the killing is in a heat of passion, but in a cruel or unusual manner, or by a dangerous weapon, the crime may be only manslaughter : 2 R. S. 661, § 6, 10, 12 ; but when perpetrated by an act imminently dangerous to others, and evincing a de.praved mind regardless of human life, it will be murder. Id. p. 657, § 5. It was for the jury to say, upon the evidence, whether the prisoner was guilty of the greater or the lesser offence, and the court was right in refusing to withdraw that question from their consideration.
There is no reason to suppose that the prisoner has suffered either by the misdirection of the court below, or by any omission to give the proper instruction to the jury on every question of law applicable to the case. T„he circuit judge charged the jury in relation to the crime of murder and that of manslaughter in its several degrees as defined by the revised statutes and we must believe that the charge was. free from objection, as the counsel has not thought proper to- set it forth and except.
The construction which I have given to the statute is supported by the opinion of the chancellor in delivering the unanimous judgment of the court for the correction of errors in the case of The People v. Enoch, 13 Wendell, 176. The chancellor remarks, that some cases of unintentional killing, by persons engaged in riots and other misdemeanors below the grade of felony, had before the revisions been improperly considered as cases of murder; but that they are now restored to that grade of homicide to which they properly belong. He then adds, “ all offences of that description are now placed in the class ot homicides committed without malice aforethought; except where the killing is perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life ; which circumstances now, as at the common law, are sufficient to authorize the jury to find the defendant guilty of killing with malice aforethought.” If I do not misapprehend the meaning of the learned chancellor, he intends to say, that in cases of
The other three questions presented by the bill of exceptions were not much pressed on the argument. I only deem it necessary to say, that after examining each of those exceptions, I fully concur in the opinion expressed by my brother Cowen, that they furnish no ground for disturbing the verdict.
I have purposely abstained from a discussion of the facts of the case, any further than they stand necessarily connected with the questions of law on the bill of exceptions, for the reason that it belonged to the jury to weigh and draw the proper conclusion from the evidence. Only a part of the testimony has been detailed in the case. But if all the evidence had been spread upon the record, and there were any reason to doubt that the verdict was warranted by the facts of the case, we should have no power to interfere on that ground.
On a careful and most anxious consideration of the whole case, I have not been able to bring my mind to the conclusion, that any error in matter of law was committed by the court below, and I am therefore of opinion that a new trial should be denied.
My brethren having arrived at different conclusions upon some of the material questions involved in this case, it becomes necessary that I should express my views, which I will proceed briefly to do.
The degree of credit to be given to a witness must chiefly depend upon his means of knowing the facts testified to: upon his general understanding and intelligence, together with the integrity and truth with which he is supposed to narrate them—the consideration of character becomes thereby involved. The two z first qualifications are necessarily disclosed in the progress of the examination, as his means of knowledge ' and general understanding there directly appear; and as every man is presumed to be innocent and honest till. the contrary is shown, the jury .are bound to acknowledge good character in the first instance. Hence the onus lies upon the party denying, to disprove it, affirmatively, and thereby overcome the charitable presumption of the law. There are various ways by which
Now, what is the ground and reason for allowing a party to introduce general evidence in reply to fortify and support a witness who has been impeached ? It surely is not because the impeachment has been effected by the testimony of witnesses, or by general evidence as to character, or in a particular way—all this of itself can be of no great importance—but it is because the impeachment, the effect of the proof, in whatever way introduced, tends directly to overcome the presumption of good character upon which the party had a right in the first instance to rely ; because a material part of his proof is struck at by shaking confidence in the integrity and truth of the witness upon whom it depends. For .this reason the presumption of good character
Regarding then the principle upon which testimony in reply to the impeachment of a witness is admitted, and the grounds and reasons upon which it rests, the court should rather look to the effect of the impeachment, than to the mode and manner in which it is brought about. It can be of little concern to a party whether the moral character of his witness is destroyed by the testimony of others called to speak to it, or by a cross-examination. The effect upon him, to the extent of the impeachment, is exactly the same : he loses the benefit of the evidence in both cases, and for the same cause—the discredit of his witness. If it be competent then to rebut the effect of the impeachment in the one case, and thereby reinstate the character and credit of the witness, I am incapable of comprehending the distinction that would deny the like indulgence to the other. This inconsistency in admitting evidence in reply, where character is impeached by general evidence, and denying it where the same effect is produced by the cross-examination, will more fully appear by recurring briefly to the case under consideration. 1 lay out of view the contradiction of the facts testified to by Gillespie, by other witnesses in behalf of the people—this lays no foundation for general evidence in reply ; it does net necessarily implicate character; it may turn upon a question of memory, and exist where all the witnesses are equally honest. I will also omit the contradictory relation of the transaction given by this witness out of court, when compared with that under oath—though that may well have tended to impeachment—and come to that part of the cross-examination, where evidence is drawn from him directly touching his moral character. Why was it called out ? The counsel could not but avow the object to be to invalidate his character for truth, and in that way destroy his
Indeed, it has not been denied, that the evidence in reply is relevant, and might be effectual in sustaining the credit of the witness; but it is urged that, as the witness is upon the stand, he may be examined himself in explanation of the impeaching facts. The obvious answer to this is, that the character of the witness for truth in the given case is proposed to be .sustained by the evidence in reply, notwithstanding the existence of the facts called out on the cross-examination. The case supposes explanation impossible, but that still his character for truth may be upheld by his neighbors and acquaintances.
If then I am right in the view above taken of the law in respect to the point in question, it follows that the court below erred in the rejection of the evidence, and that a new trial must be granted. General proof of good moral character was allowed, but that for truth which was rejected, as we have seen, was most especially pertinent, and legal.
With respect to the exclusion of the evidence offered on behalf of the prisoner, of a riotous assault upon his dwelling on the night of the previous Saturday, (seven days previvious,) and of the threat to return and repeat it, it may be proper to say a word. This proof was offered with a view to show that the prisoner had some ground for the apprehension of violence upon his dwelling and inmates, when the deceased and his companions first appeared and commenced beating at the door; and that under the influence of it, a degree of resistance was excusable, which might otherwise be considered disproportioned to the actual danger. That the law regards this sort of palliation for an excess of resistance in case of an unlawful assault upon the person or property of the citizen, is not denied ; the only question here is, whether the proposed proof brought the •case within it. If I had been sitting upon the trial, I would have admitted the evidence, though I cannot but see, look- » >ing at the whole case, that it could not possibly have had much if any influence upon the minds of the jury. If the new trial turned upon it, I might hesitate before granting it. It has already appeared that some of these rioters were subsequently admitted as guests in the house, a fact that goes far to satisfy the mind that nó well founded apprehen
After the submission of the case to the jury, the counsel requested the court to add to the charge, that if they came to the conclusion that the prisoner inflicted the mortal wound upon the deceased in an attempt to commit [in the act of committing] an offence which, of itself, was less than a felony, then he should not be convicted of murder: which was refused, the presiding judge saying that it was inapplicable to the case. He had, as the case discloses previously, in his charge stated the specific language of the revised statutes, which defined the crimes of murder and of manslaughter in their several degrees. By this, I understand, that the court had already placed the case before the jury in the aspect of murder and manslaughter, accompanied with such an exposition of the rules of law as was called for, together with their application to the evidence; and that all this was done in a way satisfactory to the counsel for the prisoner, as no exception was taken. We are to assume, therefore, that the jury had already been properly instructed, under what view of the facts disclosed their verdict should be that the prisoner was guilty of manslaughter, as well as the view which might warrant the higher conviction for murder• The proposition then which the court were requested to submit, at this stage of the trial, seems to go the length of withdrawing from the jury the consideration of the higher offence ; for it assumes, that if they believed the prisoner was attempting to commit or was in the act of committing an offence less than a felony, then upon no view of the facts of the case would they be warranted in finding him guilty of murder. These are not only the terms, but it is the fair import of the request.
The statute, 2 R. S. 657, $ 5, sub. 2, makes the killing murder, “ when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Within this provision, the offence may be committed when the actual intent at the time may be to commit an offence under the
Upon the whole, I concur in the conclusion, principally on the first point considered, that the conviction must be set aside and a new trial granted. The proceedings to be remitted to the court of oyer and terminer, in and for the county of Albany, with directions to award a venire de novo, and the prisoner to be remanded.
Ordered accordingly.