No. 3227. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 2, art. 7, 8. No. 3228. tion. The party calling a witness, when he examines him, is bound to examine him in chief, and is not allowed to pursue the examination in any other way. The witness is turned over to the plaintiff for crossexamination, and, after such cross-examination, the defendant may again examine him as to the crossexamination, or as to any fact which it may have elicited. The defendant gives in all his evidence, verbal and documentary, as the plaintiff did to support his case, and having done so he closes. Art. 7.—Of rebutting evidence. 3227. If the defendant has given testimony in his defence respecting any new matter, the plaintiff has a right to give new evidence, which is called rebutting evidence. This kind of evidence is allowed, to explain, repel, counteract, or disprove facts given in evidence on the other side; (a) it may be by proving facts directly opposite to those sworn to, or by circumstances, which are sufficient to rebut the most positive testimony.(b) Art. 8.-Of impeaching witnesses. 3228. Every witness is liable to be impeached as to his character for truth. By impeachment of a witness, is meant an allegation, supported by proof, that a witness who has been examined, is unworthy of credit. Till impeached, every man's character is presumed to be good, and he who alleges it is not good, must, of course, be able to support his allegation by evidence. A witness' testimony may be impeached in three ways: 1, by disproving by other witnesses facts stated by him; 2, by general evidence of his want of character (a) Scott v. Woodward, 2 McCord, 161. No. 3229. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 2, art. 8. No. 3230. for truth and veracity; and, 3, by showing his selfcontradiction. 3229.-1. A witness' testimony may be impeached by disproving the facts stated by him, by the testimony of other witnesses; as, for example, if Titus, the witness, were to prove that the defendant had a conversation with the plaintiff, in the presence of Peter and Paul, and that both Peter and Paul made remarks to him at the time as to what then passed; and Peter and Paul should testify that they were not present at such conversation, and that they never remarked any thing to him upon the subject; it is clear, if they were worthy of credit, that Titus could not be believed. 3230.-2. Evidence may be given, generally, affecting a witness' credit as a man of veracity. It is his character which is attacked, not particular instances of his conduct. The examination of a witness, whose testimony attacks the general character of another, must be confined to his general reputation, and not be permitted to go into any particular facts. Every man of good reputation, is supposed capable at all times of supporting it by proof; but he cannot be expected to come into court to prove every part of his conduct during a long life, without any notice that it would be attacked. The regular mode is, to inquire of the witness under examination, whether he knows the general character or reputation of the witness to be impeached, as to truth and veracity; (a) and if he knows it, what is his reputation. The additional question is put, whether (a) A doubt has been raised, whether the inquiry ought to be confined to the witness' character for truth and veracity, or whether the question ought to be as to the general character of the witness impeached. În Kentucky, Hume v. Scott, 3 A. K. Marsh. 261; North Carolina, The State v. Boswell, 2 Dev. Law Rep. 209; in South Carolina, Anon. 1 Hill, So. Car. R. 251, the rule seems to be, that the inquiry extends to the whole character of the person impeached. The general rule, however, in the other states, is to inquire as to his character for truth and veracity. No. 3231. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 2, art. 8. No, 3231. the witness would believe him upon oath. (a) In answer to such evidence, the other party may crossexamine the impeaching witnesses, as to their modes of knowledge and the grounds of their opinions; or he may attack their general character, and by fresh evidence support the character of his own witness. (b) In order to know the character of another, and his general reputation, a man must be generally acquainted with those who know him, and the inquiry respecting him must be made where he is best known. A stranger going there making inquiry at the request of the party who impeaches the witness, is not such a person who knows the reputation.(c) 3231.-3. A third mode of impeaching a witness, is to show that he has made statements out of court, contrary to those made under oath on the trial. In these cases, however, this objection is confined to such matters as are relevant to the issue; for, in matters that are not so, his answer is conclusive, the court not having the power to try such immaterial statements, and the parties not coming there prepared for such a contest. Before the witness is contradicted, fairness and justice require that, in the case of verbal statements, he should first be asked as to the time, place and person involved in the supposed contradiction; (a) The question, whether the witness under examination would believe the former witness, is frequently asked. This has been objected to for several reasons: first, that the witness, in giving his opinion, takes from the jury the right of forming an opinion for themselves; secondly, that it permits the introduction and indulgence of personal and party hostility in courts of justice. Phillips v. Kingfield, 1 Appl. R. 375, 379. But, besides, the fact whether the witness would or would not believe the one whom it is sought to impeach, must depend entirely on what he would say; if he testified to a probable story or to a known fact, he must be believed; and, if the most correct man testified to what is impossible, as that he saw a man shoot himself with a pistol which he held in his hand, and upon examination of the ball found in his body, it was too large to enter into the pistol, he ought not to be believed. (6) 2 Phil. Ev. 432; 1 Stark. Ev. 182; 1 Greenl. Ev. § 461. (c) Douglass v. Tousey, 2 Wend. 352; Boynton v. Kellog, 3 Mass. 192; Wike v. Lightener, 11 S. & R. 198; Kimmel v. Kimmel, 3 S. & R. 337. No. 3232. Book 4, tit. 8, chap. 11, sec. 3, § 4. No. 3232. because, if the question be put to him, generally, whether he said so and so, or whether he always told the same story, he may not recollect; and if his attention be called particularly to the time and place, when and where the conversation took place, and the person with whom he had it, he may remember the circumstances and explain it. (a) A witness may also be contradicted by writings and facts. He may therefore be asked if he wrote a certain letter, but in this case, when the letter can be had, it ought to be handed to him, and he ought to be asked if he wrote it. If he acknowledges it, then the contents are evidence to contradict him, if the contents do in fact contradict what he has stated; if he denies it, then his handwriting may be proved by another witness, for the purpose of impeaching his credit. (b) When evidence is given of contrary statements made by a witness, of a particular fact to impeach his veracity, his general character for truth is in some degree put in issue, and he may therefore support, by general evidence, that he is a man of strict integrity, and that he has a scrupulous regard for truth.(c) Having now treated of the rules of evidence generally, and of their application in the trial of a cause, our next inquiries will lead us to the consideration of the several matters which occur in the course of a trial. § 4. Of bills of exceptions. 3232. We have seen that when evidence is offered, either written or verbal, and there is any objection to its being received, the matter is referred to the court, (a) The Queen's case, 2 Br. & Bing. 313; Angus v. Smith, 1 M. & Malk. 473; 1 Stark. Ev. 484; 1 Greenl. Ev. § 462, and the notes; Notes to Phil. Ev. by Cowen & Hill, note 533 to 1 Phil. 308. (6) Phil. & Am. on Ev. 932; The Queen's case, 2 Br. & Bing. 292. (c) Phil. & Am. on Ev. 944. No. 3232. Book 4, tit. 8, chap. 11, sec. 3, § 4. No. 3232. and, after a full and fair examination, the judge's decision is in favor of its admission or against it. Frequently, indeed, almost always, the case turns upon the correctness of this judgment, for if the evidence is admitted, the verdict will probably be in favor of the party offering it, and if rejected, it will be against him. This is always the case when the evidence is of vital importance to the action. Such power, unless subject to revision, would, in the hands of a fallible, a corrupt, an ignorant or an arbitrary judge, be fraught with very dangerous consequences. Again, in his charge or directions to the jury, the judge is required to state to them the rules of law which are to guide them in making up their verdict, and they are bound to take the law to be as he states it to them; if, through ignorance or corruption, the judge should misstate the law, and the jury find their verdict accordingly, the party against whom this misstatement had been made would be without a remedy, if the law had not provided one to correct these evils. This is effected by a bill of exceptions.(a) This bill of exceptions is the statement in writing of the objection made by a party in a cause, to the decision of the court on a point of law, which is clearly stated therein, and which, in confirmation of its accuracy, is signed and sealed by the judge or court who made the decision. The object of the bill of exceptions is to put the question of law on record, for the information of the court of error having cognizance of such cause. The bill of exceptions is authorized by an English statute, (b) the principles of which have been adopted in all the states of the Union. It is thereby enacted that "when one impleaded before any of the justices, alleges an exception praying they will allow it, and if (a) See Gibson v. Hunter, 2 H. Bl. 87; Bulkley v. Butler, 2 Barn. & Cr. 434; Appleton v. Sweetapple, 3 Dougl. 137. (b) St. of Westm. 2, 13 Ed. I., c. 31. |