Frost v. McCargar

29 Barb. 617

• Court: New York Supreme Court
• Decided: September 6, 1859
• Status: Published

Opinion

By the Court, Johnson, J.

We think the settled rule in this state now is, that where the veracity of a witness is attacked, and he is sought to be impeached only by proof of contradictory statements made by him on other occasions, in respect to the same matter, or by proof of particular facts stated by such witness against himself on his examination, evidence of general good character, or of good character for truth and veracity in support of the witness, is incompetent. (The People v. Hulse, 3 Hill, 309. Starks v. The People, 5 Denio, 106. The People v. Gay, 1 Parker’s Cr. Rep. 310. Same case affirmed, 3 Selden 378. Smith v. Stickney, 17 Barb. 489.)

[Monroe General Teem, September 6, 1859.

T. R. Strong, Smith and Johnson, Justices.

It was said, in the court of appeals, in the case of The People v. Gay, by Jewett, J., and also by Parker, J., in the supreme court, that the decision in the case of The People v. Rector, (19 Wend. 569,) and also that in Garter v. The People, (2 Hill, 317,) had been in effect overruled by the decision in The People v. Hulse.

It is clear enough, we think, that the latter decision is entirely irreconcilable upon principle with the former, and must he held to have changed the rule. And besides, how does proof of good character tend to reconcile the contradictory statements of the witness, or to relieve him from the damaging effect of the facts stated hy him in regard to himself. The fact that the public had never before found out the true character of the witness, could legitimately afford no support to his credibility under such circumstances. The rule, as now established, rests upon sound reason, as well as authority.

The court was also right in charging the jury that if they should find that the defendant, under the false pretense of having been robbed, had converted the plaintiffs' money to his own use, they might find a verdict in the plaintiffs' favor, under either count in the complaint.

The judgment should therefore be affirmed.