I cannot concur in the views expressed by my brothers. It is I think a very dangerous rule to hold that verdicts in criminal cases may be set aside and new trials oidered on the affidavit of the convicted defendant that on a new trial he will be able to produce witnesses of his own good character to contradict witnesses, called on the trial to impeach his credibility by showing him to be a man of bad general character.
When the defendant made himself a witness on his own *556behalf he of course opened the door for the people to attack his credibility by showing his general bad reputation or character. This was a collateral issue and not one in my opinion within the intent and meaning of section 465 of the Code of Criminal Procedure. To so construe that section as to embrace it will be a most dangerous innovation in the law governing criminal trials and will virtually in every case where the defend,ant as a witness is impeached or his witnesses are impeached, require that a new trial be ordered on affidavits that witnesses to sustain his or their character can be produced on a new trial.
The new testimony on such a question is cumulative because it relates to a question on which an issue was necessarily presented and tried and on which witnesses were examined. The defendant was not surprised, for he had a witness in court on that very issue who for some unexplained reason was not called. The reason was doubtless a good one, as explanation would be likely to show. I have carefully read the learned recorder’s opinion on the motion and think the reasons he assigns for denying the motion to be correct and that they ought to be controlling.
I therefore dissent from the conclusions of my brethren and concur in those of the recorder.
Judgment of conviction and order denying a new trial reversed,, and. a new trial ordered.