The State, in its opening, called Orson Sargent as a witness, to prove flight: The prisoners called him in defense, to prove innocence. On cross-examination, to impeach him, the State was allowed to ask him if he was not convicted in the United.States Circuit Court for selling liquor without a license, and he said he was not, that he settled it, but could not tell just how it was done. The State was also allowed, for the same purpose, to introduce a copy of the record of his conviction in 1883 for selling liquor contrary to law, and to prove by him that he was the person convicted.
Before said copy of record was offered and Sargent inquired of concerning it, the prisoners, on cross-examination of the State’s witness Armstrong, had shown by him without objection that he had been convicted at that term of selling liquor contrary to law. They had also offered in evidence a copy of the record of his conviction of a similar offense at Norwich, which was objected to but admitted.
It was competent for the prisoners to show by Armstrong, as they attempted to do, and nearly if not- quite did, as tending to show that he had a grudge against them, that he knew that they or one of them testified against him before the grand jury when he was indicted for selling liquor; and as no objection was made, they properly enough went
But the same cannot be said of the conviction at Norwich. That was objected to, and it does not appear that the prisoners or either of them had anything to do with procuring it, so evidence of it could have been offered and received only for the purpose of impeaching Armstrong because of the conviction. After this was done under objection, the principal question is, whether the prisoners can object to the State’s impeaching Sargent in the same way, provided it could impeach him at all.
They say that the State could not impeach him at all, save as allowed by statute, because it first called him, wherefore he was its witness throughout. This is the general rule, but the question is whether it is applicable to the State in a criminal case.
As reason is the soul of the law, the maxim is that when the reason of a law ceases the law itself ceases. Or, as Willes, C. J., puts it in Davies v. Powell, referred to in argument in Morgan v. The Earl of Abergaveny, 8 C. B. 786, “when the nature of things changes, the rules of law must change too.” Now the reason of the rule that a party cannot impeach his own witness is, that by calling him in proof of his case, he represents him to be worthy of belief, and that to attack his general character for truth after that, would be not only bad faith to the court,'but, in the language of Buller, would enable the party to destroy him if he spoke against him, and to make him a good witness if he spoke for him. But cases of what are called instrumental witnesses do not come within the rule, certainly not fully if at all, for there the reason of the rule fails, as the law compels the party to call such witness, and therefore they are the witnesses of the law rather than of the party, and
In Thornton's Executors v. Thornton's Heirs, 39 Vt. 122, where it was held that a party calling a subscribing witness to prove a will could impeach him by showing prior contradictory statements, as the law compelled the party to call him, the court said that many, but not all, of the reasons for permitting that kind of impeachment applied to an impeachment of a general nature, but that the authorities had in many instances made a clear distinction between permitting an impeachment of the general veracity of a witness, and an impeachment by showing declarations of the witness inconsistent with his testimony, but decline to express an opinion as to the soundness of the distinction, but says that the fairness of holding a party estopped by reason of an act concerning which he has no choice, or by an indorsement that he does not make of a witness whom the law calls and makes current whether the party indorses him or not, may well be questioned. This strongly tends against any such distinction as the court says some of the cases make; and we think no such distinction can logically be made, for the same reason that makes the rule inapplicable to one mode of impeachment makes it equally inapplicable to all modes, as the different modes are but different ways of doing the same thing, namely, discrediting the witness, and they are equal in degree and alike in essence. The reason of the rule does not fail in part and stand in part — fail as to one mode of impeachment and stand as to another mode — it is indivisible, and stands or falls as a whole.
This view is sustained by Williams v. Walker, 2 Rich.
As the public, in whose interest crimes are prosecuted, has as much interest that the innocent should be acquitted as that the guilty should be convicted, we hold it to be the duty ol the State to produce and use all witnesses within, reach of process, of whatever character, whose testimony will shed light upon the transaction under investigation and aid the jury in arriving at the truth, whether it makes for or against the accused, and that therefore the State is not to be prejudiced by the character of the witnesses it calls. State v. Magoon, 50 Vt. 333; State v. Harrison, 66 Vt. 523.
This doctrine, carried to its logical result, exempts the State in criminal cases from the operation of the rule in question, and places it in the position of a party calling an instrumental witness, and for the same reason.
We are aware that in many, if not most, jurisdictions the rule is applied to the State in criminal cases, but it is upon the ground that the State stands like any other party, and
We are the more satisfied with the conclusion here reached, because we think the State ought not to be hampered by such a rule. Prosecutions are carried on by the Government, through the agency of sworn officers elected for that purpose, who have no private interests to serve nor petty spites to gratify, but whose sole and only duty is, to faithfully execute their trust, and do equal right and justice to the State and to the accused. The course of public justice, thus directed, ought not to be obstructed by a rule without a reason. The ascertainment of the truth, which is the object of the prosecution, is of more consequence than the instrumentalities by which it is sought to be ascertained; and when an instrumentality becomes an obstruction to the course of justice, the State should be at liberty to remove it, and by trampling upon it if necessary.
But the prisoners further say that if the State was at liberty to impeach the witness, it could not do it by showing that he had been convicted of selling liquor, for that is not an infamous crime. But whether an infamous crime or-not, the prisoners, against objection, were allowed to impeach the State’s witness Armstrong in the same way, and therefore they cannot be heard to say that the State could not afterwards impeach in that way. This is a just application of the maxim that he is not to be heard who alleges, things contradictory to each other; or, as Lord Kenyon once said, a man cannot be permitted to “blow hot and cold” concerning the same transaction, nor to insist at different times upon the truth of each of two conflicting allegations, according to the promptings of his private interest. Broom’s Leg. Max., [*169]. Herman says that it has become axiomatic that a party must be consistent and not contradictory in the positions he takes, 2 Estop.
It was held in Morgan v. Couchman, 14 C. B. 100, not to be competent for counsel, after making a stand upon a point of law, to fall back upon the evidence, and afterwards say that the matter ought to have been submitted to the jury. So where on a former trial a party’s counsel, in his presence, put the case on ground wholly inconsistent with the party’s present testimony, it was held competent for the other party to show that fact. Nye v. Merriam, 35 Vt. 438. When a party introduces irrelevant testimony without objection, he cannot object to the other party’s meeting it, if it has a moral tendency to render a claimed fact more probable. Lytle v. Bond's Est., 40 Vt. 618. See also Gotleib v. Leach, Ib. 278.
So when a defendant pleads double, for the purpose of 'drawing on the plaintiff to demur, he cannot on demurrer, shift his position, and say that one of the matters pleaded as a defense is no defense. Wright v. Watts, 3 Q. B. 89.
A party who calls and uses a witness on his own behalf, admits his competency, and cannot object to him on that ground when called by the other party. Linsley v. Lovely, 26 Vt. 123, 133.
It does not comport with the propriety of things that parties should be allowed to occupy inconsistent positions in the trial of cases. Courts would soon become just objects of ridicule under such a practice.
This accords with Mr. Greenleaf’s idea, and is probably the correct view, though it must be admitted that it is very difficult to draw the line with such precision as to make it easy in all cases to apply the rule thus modified, for in the realm of judicial discretion there is necessarily more or less doubt, notwithstanding, as Lord Coke says, that discretion is supposed to follow the right line of the law and not the crooked cord of public opinion, which some call law.
Judgment that there is no error in the proceedings of the county court, and that the prisoners take nothing by their exceptions. Let sentence be imposed and execution done.