The appellant challenges the validity of the judgment and order appealed from on the following grounds only: (1) That court reiusing to permit the defendant to testify that she and the witness Charlotte Brooks had other difficulties than those testified to by her, until the witness was interrogated as to the matters-sought to be proved. (2) That it erred in its charge to the jury as to the effect to be given to the evidence of the good character of the defendant. (3) In not granting a new' trial because of the comments made by the district attorney as to the defendant, her race, and its love of money. The rule laid down by the court to the effect that a witness may, upon cross-examination, be asked any question tending to shovy bias or ill feeling towards an adverse party, and, if he denies the facts suggested, may be contradicted, but that he may not be contradicted unless the witness has first been examined on the subject, seems to be in accordance with the rule laid down by the text-writers. Starkie, Ev. 213; Whart. Ev. § 566; Steph. Dig. Ev. 186; Tayl. Ev. § 1440 et seq.; 1 Greenl. Ev. § 450. The cases are not in harmony upon this.subject. In some the doctrine stated-is held, (Queen's Case, 2 Brod. & B. 311; Edwards v. Sullivan, 8 Ired. 302;) while in others it is held that such proof may be given without a previous cross-examination, (New Portland v. Kingfield, 55 Me. 172; Martin v. Barnes, 7 Wis. 239; Day v. Stiekney, 14 Allen, 255, 258.) Although there are many cases where it has been held that evidence of this character is admissible, an examination discloses that in most of them the witness has been first interrogated upon the subject, and hence the question whether the witness must be first cross-examined has not been involved. There is, however, no doubt but that the rule applied by the court in the case at bar has been generally followed in practice. It may perhaps be inferred from some of the cases cited by the appellant that the rule in this state is that such proof may be given without first cross-examining the witness. Starks v. People, 5 Denio, 106; Schultz v. Railroad Co., 89 N. Y. 242; People v. Thompson, 41 N. Y. 6; Hotchkiss v. Insurance Co., 5 Hun, 90; Starr v. Cragin, 24 Hun, 177; Campbell v. Campbell, 54 N. Y. Super. Ct. 381. As it is always competent to show that a witness produced on the trial of an action is hostile in his feelings towards the party against whom he is called to testify, or that he entertains malice towards the party, (Schultz v. Railroad Co., supra,) it is difficult to perceive any good reason why he should be required either to prove that fact by the hostile witness, or first obtain a denial of the fact by him before proving it by other evidence. The reason assigned by the authorities maintaining that doctrine is that the witness should be first cross-examined on the subject so as to give him an opportunity for explanation. The logic of this doctrine is not apparent. We can see no good reason why a party should not be permitted to show the hostility and ill feeling of a witness by such proof as he may have, and, if the witness desires to explain, why he should not do so on the examination of the party calling him, rather than on the examination of the party to whom he is adverse. But, be that as it may, we do not think the rejection of the evidence offered constituted such an error as to require a reversal of the judgment. The difficulties that had occurred between the defendant and the witness were material only so far as they showed that the relations between them were unfriendly, and this was abundantly established by the evidence of the defendant as well as by the cross-examination of the witness.
Nor do we think that the exception to the charge of the court requires us to disturb the judgment. The court, in effect, charged that the proof of good character was not necessarily a bar to a conviction; that it created a presumption in favor of the prisoner, but that such presumption could be overcome by evidence of crime; and, as illustrative of that principle, said that positive evidence, if believed by the jury, would overcome the presumption arising from good character. The court had already, in substance, charged *366that the defendant was presumed to be innocent; that in case they had a reasonable doubt as to her guilt they should acquit, although the evidence and ■circumstances pointed to the guilt of the prisoner, and that good character might be sufficient to raise such a doubt. Taking the whole charge together, we are unable to see any error in it that was prejudicial to the appellant. People v. Sweeney, 13 N. Y. Supp. 25.
This leaves for consideration the question whether the court erred in refusing to set aside the verdict and grant a new trial on account of the remarks ■of the district attorney as to the defendant, and the race to which she belonged. While it may well be said that, if the district attorney made the remarks attributed to him, his course in that respect is not to be commended, still, as he in effect denies the making of the slatement as charged, and as no •objection or exception was taken by the defendant’s counsel, who was present at the time, we think we should not upon that ground disturb the order made by the learned county judge. As we find no errors that were prejudicial to the appellant, it follows that the judgment and order should be affirmed. Code ■Grim. Proc. § 542. Judgment and order affirmed.
Merwin, J., concurred in the result.