11 Duer Super. Ct. Rep. 420

Leonori, Respondent, v. Bishop, Appellant.

Evidence, that the general character of a -witness for truth and veracity is good, is inadmissible, unless such general character has been attacked by witnesses examined in relation to it, or unless extrinsic facts have been proved which tend to impeach it. , -

If such evidence be received against the objection and exception of the adverse party, a new trial will be granted for that reason.

(Before Duer and Bosworth, J.J.)

March 13; March 24, 1855.

This action was brought to recover damages for the conversion, by the defendant, of personal property alleged to belong to the plaintiff. It was tried on the 10th of May, 1854, before Mr. Justice Duer and a jury. One Charles Lupton was examined on behalf of the plaintiff, and gave evidence tending to show that the property was owned by the plaintiff.

Evidence was given, which, if credited, would justify the inference that Lupton was inaccurate in respect to some material matters deposed to by him. It appeared that he executed a bill of sale of this and other property which stated it to be .free and clear of any incumbrance. This was executed while the plaintiff owned the property. When the defendant rested, one R. G-. Leonori, who had been examined as a witness for the plaintiff, was recalled by plaintiff’s counsel, who “asked the witness *421whether he was acquainted with the general character of Charles Lupton, or whether, from such his knowledge, he would believe him on oath.”

The defendant’s counsel objected to this inquiry and examination, on the ground that no witness had been called or examined by the defendant to attack the general character of the witness Lupton; that the bill of sale went to contradict the witness on a distinct fact sworn to by him, and did not authorize proof as to his general character; but the court overruled the objection, and permitted the inquiry, to which decision and ruling the defendant by his counsel excepted.

The witness thereupon testified that he was acquainted with the general character of Charles Lupton, and from his acquaintance with his general character, would believe him on oath in a court of justice.

Exceptions were also taken to portions of the charge to the jury, which it is deemed unnecessary to state. The jury found a verdict for the plaintiff, and from the judgment entered thereon, the defendant appealed to the General Term.

H. U. Huntington, for Appellant.

C. G. Egan, for Respondent.

Bosworth, J.

The admission of evidence, to prove that the general character of Lupton for truth and veracity was good, is an error, for which the judgment must be reversed.

A party is not allowed to give evidence that the general character-of his witness is good, unless it has been attacked by witnesses of the adverse party, or unless extrinsic facts have been elicited by his cross-examination, going to impeach his general character. (The People v. Hulse, 8 Hill, 309; Starks v. The People, 5 Denio, 106.)

Lupton’s general character had not been assailed by any evidence that had been given. At most, his accuracy as to some particular facts had been discredited by evidence which fell short of impeaching his general character. A new trial must be granted solely on the ground, that evidence in support of Lupton’s general character was admitted, against the objection of the defendant. *422"We think there was no error in any of the parts of the charge which were excepted to.

Duer, J.

Yielding to the weight of authority, I concur in granting a new trial — but I do so, I own, with great reluctance. In my opinion, the ruling on the trial is fully justified, not only by the reasoning óf Mr. J. Cowen, but by the decision of the court, in the People v. Rector, (19 Wend. 569,) which was followed in the People v. Carter, (2 Hill, 319.) But these cases,-1 am also of opinion, were in effect overruled by the subsequent decision of the same court, in the People v. Hulse, (3 Hill, 369,) and I find upon inquiry, that the rule laid down in this last case, namely, that evidence of the good character of a witness can only (be received when his character has been attacked by the adversé party, has been uniformly followed in this court. The question therefore, at least in this court, can no longer be considered as open '; but were it so, and could it now be determined by an appeal to reason and good sense, I should not hesitate to hold that evidence of the good character of a witness ought to be admitted, in every ease, in which the veracity of the witness, and not merely the truth of his testimony, is denied by the adverse party. An attack ujjon the moral character of a witness is permitted because when successful, it creates a probability that he has sworn falsely in the testimony that he has given; and it cannot be denied, that an opposite probability ⅛ created when the character, of the witness, as a man of integrity and truth, is fully established. It therefore seems to me, that the evidence is in its nature, corroborative, and as such, ought to be admitted in every case in which intentional falsehood, no matter upon what ground, is imputed to a witness. There is a fallacy in the assertion that when the general character of a witness has not been impeached -by the adverse party, it' is admitted to be good. All that is admitted is, that his character cannot be shown to be positively bad, but this is no reason for excluding evidence to show that it is positively good— nor is it difficult to see, that in many casés, the exclusion of such evidence may be a source of error and injustice. The relation given by a witness may be very improbable in itself, yet perfectly true, for experience attests the justness of the observation, that truth is not unfrequently stranger than fictionbut it is ob-*423vieras, tliat the improbability of tbe relation, may lead a jury to discredit a witness, whom, if it was clearly proved to them that he was a man distinguished for his probity and strict adherence to truth,, they would not hesitate to believe. It is obvious that the probability that he had sworn truly, arising from the moral excellence of his character, might very reasonably outweigh, in the minds of the jury, the opposite probability, arising from the nature of the facts to which he had testified.

In judging of the credit to be given to a narrative, where the facts are remarkable and unusual, we are all of us governed by the knowledge we have, or the estimate we have formed, of the moral character of the person from whom the narrative proceeds; and it is not easy to understand, why the evidence that determines the judgment of every reasonable person, in the ordinary transactions of life, should be withheld from the consideration of a j™7-

As it seems, however, that the law is otherwise settled, and that the evidence given on the trial of the good character of a witness, whose veracity was denied, was improperly admitted, there must be a new trial.*

Leonori v. Bishop
11 Duer Super. Ct. Rep. 420

Case Details

Leonori v. Bishop
Decision Date
Mar 24, 1855

11 Duer Super. Ct. Rep. 420

New York



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