The opinion of the court was delivered by
Veazey, J.
I. Bespondent’s counsel insist that it was error for the court to allow the counsel for the State to ask the jurors whether the fact, that a witness produced by the State who participated in the commission of the crime for which the respondent was on trial, would cause them to disregard such witness’ testimony.
[315]*315It is plain that if a juror had such a settled view of his duty that he would wholly disregard such a witness’ testimony on that account, he would not be a suitable man for a juror.' It being legal evidence in the case, the trier is bound to regard it. He is not bound to believe any witness. An accomplice’s testimony is to be weighed for what it is worth, like that of other .witnesses. It may not be believed, but it can not be wholly disregarded.
The propriety of such inquiry must rest largely in the discretion of the trial court. This case illustrates such necessity. It had been tried twice without an agreement; it was known that the State’s case depended on the testimony of an accomplice to such an extent that without his testimony a conviction would not be warranted; it is not uncommon to hear men say they would not believe an accomplice in any case. Should a court under such circumstances be powerless to find out whether the jurors were so mentally constituted that they could not try the case according to their oath? We think the ruling was clearly correct.
II. There was no error in the ruling in respect to peremptory challenges. The statute allows six peremptory challenges to the respondent in a criminal case and two to the State, but makes no provision as to the order in which they shall be exercised. In many states this is discretionary with the trial court. See cases in plaintiff’s brief. And I apprehend this is the rule to which ail courts must come when the order is not regulated by statute. Grave objections will occur to any arbitrary rule, either statutory or judicial. But until an arbitrary rule is made, the ruling must.rest in discretion. This is shown in this case. The court below made a rule for the order of challenges in the case, to which exception was taken. We hold there was no error. Why? Not because there is any settled rule regulating the matter pursuant to the order adopted, but because it was fair, and because a respondent can never justly complain of a rule as to the order of peremptory challenges which leaves him a satisfactory panel before his [316]*316peremptory challenges are exhausted. Strictly, this court only says that the County Court exercised sound judicial discretion, which is practically saying that the question rests in discretion. I should therefore say so in terms. I believe that the “ impartial jury,” which the Constitution of the State says the accused person is entitled to, is more likely to be obtained .under the rule of discretion than by any arbitrary rule as to 'the order of peremptory challenges which either the legislature or the courts can make. But this case does not necessarily call for a decision beyond the point that we find no error available to the respondent under this exception.
III. We hold that the ruling was correct under which proof was received as to the testimony of the witness Whitton on one of the former trials.
It is a well established rule that proof of declarations made by a witness out of. court in corroboration of testimony given by him at the trial is inadmissible. But with this rule there has come an exception which exactly applies to this case. It is stated in one form'by BitONSON, J., in Robb v. Hackley, 23 Wend. 50 : “If an attempt is made to discredit the witness, on the ground that his testimony is given under the influence of some motive prompting him to make a false and colored statement, the party calling him has been allowed to show, in reply, that the witness made similar 'declarations at a time when the imputed motive did not exist.” In Greenleaf on Evidence, sec. 469, the author states the rule thus: “But evidence that he has on other occasions made statements, similar to what he has testified to in the cause, is not admissible ; unless where a design to misrepresent is charged upon the witness, in consequence of his relation to the party, or to the cause-; in which case, it seems it may be proper to show that he made a similar statement before that relation existed.” See also Stephen’s Dig. Law of Ev. Art. 131, note and cases there cited; 2 Phil. Ev. 445; Bull. N. P. 294; 1 Stark, on Ev. 187, marg. p.; Conrad v. Griffey, 11 How (U. S.), 479, Bk. L. edi 779, note and cases therein cited. The attempted [317]*317impeachment here was based on the changed relation of the witness to the party.
IY. The objection to the testimony of Jones, Smith and Dunham, was that it did not appear that they had travelled over this route under the same circumstances and conditions as when travelled over by Blair and his accomplice, whom he charged to be this respondent.
The terminal points were known and the intervening country was described. Blair also testified to the circumstances of the crime and the delays in going and returning. The testimony tended to show the time of departure and return ; it was material to know whether the intervening time was adequate. An experiment showing that it was practicable to make the trip in the time would furnish some aid on the point. The distance was the same in both cases ; dissimilarity in other conditions would go to the weight of the evidence, but would not render it wholly irrelevant. If the distance had been so great that it could not be accomplished in the time given by Blair, the respondent clearly could have shown that fact by experiment, as it would have weakened, if not nullified, Blair’s testimony. Hence the State could show the converse. The exception is not well taken.
Y. Without the evidence objected to under the fifth exception the case of the State had this weakness : It could be well claimed, as it was in substance, that Blair’s testimony as to what the respondent said to him about making masks from black pieces of cloth in a trunk in his room was made up from information that came to him'from some late source, about the officers having found such cloth in a trunk in respondent’s room. This was the posture of the case upon the testimony of Blair, the accomplice. The State then proceeded to show that neither the discovery of the black cloth in the trunk, por anything relating to it, was communicated to Blair until after he gave his testimony in the court of examination.
Now in this attitude of the evidence and under this claim of the respondent, if the fact existed that Blair had knowledge [318]*318about this cloth, before or at the time of the examination before the justice, which was within a few days after the commission of the crime, it would be a potent circumstance tending to meet the respondent’s said claim. If Blair swore before the justice on this point the same as he swore at this trial, proof to that effect would tend very strongly to show the fact of such knowledge before he received the information upon which he might have made up the story told on this trial. In short, it would exactly meet the phase of the case which the respondent’s denial and claim presented. The evidence was admitted solely for this purpose, and, as we think, correctly. Such was the ruling in McAuley v. R. R. Co. 33 Vt. 311.
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The opinion of the court was delivered by
Veazey, J.
I. Bespondent’s counsel insist that it was error for the court to allow the counsel for the State to ask the jurors whether the fact, that a witness produced by the State who participated in the commission of the crime for which the respondent was on trial, would cause them to disregard such witness’ testimony.
[315]*315It is plain that if a juror had such a settled view of his duty that he would wholly disregard such a witness’ testimony on that account, he would not be a suitable man for a juror.' It being legal evidence in the case, the trier is bound to regard it. He is not bound to believe any witness. An accomplice’s testimony is to be weighed for what it is worth, like that of other .witnesses. It may not be believed, but it can not be wholly disregarded.
The propriety of such inquiry must rest largely in the discretion of the trial court. This case illustrates such necessity. It had been tried twice without an agreement; it was known that the State’s case depended on the testimony of an accomplice to such an extent that without his testimony a conviction would not be warranted; it is not uncommon to hear men say they would not believe an accomplice in any case. Should a court under such circumstances be powerless to find out whether the jurors were so mentally constituted that they could not try the case according to their oath? We think the ruling was clearly correct.
II. There was no error in the ruling in respect to peremptory challenges. The statute allows six peremptory challenges to the respondent in a criminal case and two to the State, but makes no provision as to the order in which they shall be exercised. In many states this is discretionary with the trial court. See cases in plaintiff’s brief. And I apprehend this is the rule to which ail courts must come when the order is not regulated by statute. Grave objections will occur to any arbitrary rule, either statutory or judicial. But until an arbitrary rule is made, the ruling must.rest in discretion. This is shown in this case. The court below made a rule for the order of challenges in the case, to which exception was taken. We hold there was no error. Why? Not because there is any settled rule regulating the matter pursuant to the order adopted, but because it was fair, and because a respondent can never justly complain of a rule as to the order of peremptory challenges which leaves him a satisfactory panel before his [316]*316peremptory challenges are exhausted. Strictly, this court only says that the County Court exercised sound judicial discretion, which is practically saying that the question rests in discretion. I should therefore say so in terms. I believe that the “ impartial jury,” which the Constitution of the State says the accused person is entitled to, is more likely to be obtained .under the rule of discretion than by any arbitrary rule as to 'the order of peremptory challenges which either the legislature or the courts can make. But this case does not necessarily call for a decision beyond the point that we find no error available to the respondent under this exception.
III. We hold that the ruling was correct under which proof was received as to the testimony of the witness Whitton on one of the former trials.
It is a well established rule that proof of declarations made by a witness out of. court in corroboration of testimony given by him at the trial is inadmissible. But with this rule there has come an exception which exactly applies to this case. It is stated in one form'by BitONSON, J., in Robb v. Hackley, 23 Wend. 50 : “If an attempt is made to discredit the witness, on the ground that his testimony is given under the influence of some motive prompting him to make a false and colored statement, the party calling him has been allowed to show, in reply, that the witness made similar 'declarations at a time when the imputed motive did not exist.” In Greenleaf on Evidence, sec. 469, the author states the rule thus: “But evidence that he has on other occasions made statements, similar to what he has testified to in the cause, is not admissible ; unless where a design to misrepresent is charged upon the witness, in consequence of his relation to the party, or to the cause-; in which case, it seems it may be proper to show that he made a similar statement before that relation existed.” See also Stephen’s Dig. Law of Ev. Art. 131, note and cases there cited; 2 Phil. Ev. 445; Bull. N. P. 294; 1 Stark, on Ev. 187, marg. p.; Conrad v. Griffey, 11 How (U. S.), 479, Bk. L. edi 779, note and cases therein cited. The attempted [317]*317impeachment here was based on the changed relation of the witness to the party.
IY. The objection to the testimony of Jones, Smith and Dunham, was that it did not appear that they had travelled over this route under the same circumstances and conditions as when travelled over by Blair and his accomplice, whom he charged to be this respondent.
The terminal points were known and the intervening country was described. Blair also testified to the circumstances of the crime and the delays in going and returning. The testimony tended to show the time of departure and return ; it was material to know whether the intervening time was adequate. An experiment showing that it was practicable to make the trip in the time would furnish some aid on the point. The distance was the same in both cases ; dissimilarity in other conditions would go to the weight of the evidence, but would not render it wholly irrelevant. If the distance had been so great that it could not be accomplished in the time given by Blair, the respondent clearly could have shown that fact by experiment, as it would have weakened, if not nullified, Blair’s testimony. Hence the State could show the converse. The exception is not well taken.
Y. Without the evidence objected to under the fifth exception the case of the State had this weakness : It could be well claimed, as it was in substance, that Blair’s testimony as to what the respondent said to him about making masks from black pieces of cloth in a trunk in his room was made up from information that came to him'from some late source, about the officers having found such cloth in a trunk in respondent’s room. This was the posture of the case upon the testimony of Blair, the accomplice. The State then proceeded to show that neither the discovery of the black cloth in the trunk, por anything relating to it, was communicated to Blair until after he gave his testimony in the court of examination.
Now in this attitude of the evidence and under this claim of the respondent, if the fact existed that Blair had knowledge [318]*318about this cloth, before or at the time of the examination before the justice, which was within a few days after the commission of the crime, it would be a potent circumstance tending to meet the respondent’s said claim. If Blair swore before the justice on this point the same as he swore at this trial, proof to that effect would tend very strongly to show the fact of such knowledge before he received the information upon which he might have made up the story told on this trial. In short, it would exactly meet the phase of the case which the respondent’s denial and claim presented. The evidence was admitted solely for this purpose, and, as we think, correctly. Such was the ruling in McAuley v. R. R. Co. 33 Vt. 311. It was not admitted", and was not admissible, on the ground that the former testimony was consistent with the latter, and therefore corroborated the latter. It seems that this was once the law in England, where a witness stood discredited from any cause. Lutterell v. Reynell, 1 Mod. 282. But later, this doctrine was exploded. King v. Parker, 3 Doug. 242; 1 Phil. Ev. 307, note; 1 Stark. Ev. 149, n. And the present English rule has obtained in the American courts, except in some cases based on the early English cases which have since been overruled in England. See collection of same and remarks thereon in 1 Phil. Ev. (C. & H.) pp. 776-779. The admissibility of such evidence for corroboration is squarely denied in this State. Munson v. Hastings, 12 Vt. 346. But, as shown under point three, supra, the legal authors, Green-leaf, Phillips, Starkie, and others, agree that evidence of former sayings óf a witness may under special circumstances be admitted; and such are the decisions. Robb v. Hackley, supra, and cases there cited. Loosely speaking, such special circumstances constitute exceptions to the general rule; strictly speaking, this case is not an exception because the testimony was not admitted to confirm the witness, although it indirectly had that effect; but was admitted for the purpose above stated, and its admission was within the reason for the [319]*319admission of such evidence under special circumstances as stated by legal authors and in adjudged cases.
YI. Under this exception the respondent’s counsel insists that a person’s knowledge of a crime at a particular time can not be established by evidence of its notoriety at that time.
To test the soundness of this proposition, as applied to this case, suppose the proof had been that this village was very small, that this crime had become so generally known on Saturday morning, and had created such an excitement, that the people were mostly in the streets in groups talking about it, and that the respondent had passed along by these groups and stopped and listened to their talk; — clearly, this would have •been legal evidence tending to show that he then heard of the crime. The thing therefore which the State started out to prove 'was legitimate. The failure of the attempt could not change the legal quality of the evidence; it would thereby, even if incompetent, become harmless error, rather than reversible error.
VII. This exception is waived.
Yin. This is but the ordinary attempt to corroborate the testimony of a witness by showing his former declarations. They were properly rejected. Munson v. Hastings, 12 Vt. 346. None of the elements exists which would bring this point within the special circumstances under which such evidence 'is admissible, as alluded to under points three and five above.
IN. As Yinton had'testified in his direct examination as a witness in behalf of the respondent, that when he bailed him he advised him to go away to escape civil suit for damages, and that he then believed he would come back, it could not, as we think, be legal error for the court to allow the inquiry on cross-examination as to what he thought about the respondent’s coming back after he, Yinton, had got a bench warrant for him. The materiality of the witness’ belief the one way or the other is not very apparent; but the subject was opened by the respondent, and he cannot be heard to complain that the court allowed an inquiry in the same line in cross-examination.
[320]*320X. there is much force in the reasons stated in some cases why an officer in charge of the jury during their deliberations on a case submitted to them should not be present in the room so as to hear what is said by the respective jurors, and so possibly by his presence impede or hinder a free and full expression of views ; and especially when the officer has been a witness on the trial. In Michigan (People v. Knapp, 42 Mich. 267), (s. c. 36 Am. R. 438), and in Kansas (State v. Snyder, 20 Kan. 306), such presence of an officer has been held, as matter of law, to be good ground for setting aside the verdict. But in this State, as well as some others, it has been held otherwise ; especially where it did not appear that any conversation concerning the case had been had by the officer with any of the jurors. State v. Hopkins, 56 Vt. 263; State v. Lockwood, 58 Vt. 378. The officer’s oath plainly contemplates his presence in the room with the jury. He swears not to speak to them about the matters submitted to their charge, except to ask them whether they are agreed, and that he will not disclose the verdict of the jury or any conversation they may have had respecting the cause they have in charge, etc. Moreover, we understand it has been the practice always in this State for the sworn officer having charge of the jury to be present with them more or less during their deliberations. It has the advantage of convenience and it is not understood that bad results have come from the practice.
While such presence of the officer can not, under our practice and decisions, be regarded as cause for setting aside a verdict, it should be regarded as an impropriety, when he stands in peculiar relations to the cause by reason of having been a witness, or for other reasons, and courts and officers of courts should be on their guard to prevent it. Officers for this service should be selected who are not thus obnoxious.
The judgment is that there is no error in the proceedings of the County Court, and that -the respondent takes nothing by his exceptions, and that he be sentenced upon the verdict.