(dissenting):
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 ordered 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 behalf, 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 the 165th section of the Code of Criminal Procedure. To so construe that section as to embrace it, will be a most dangerous inovation in the law governing criminal trials, and will virtually, in eveiy case where the defendant, 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.
New trial ordered.