The first question arises on the meaning of •section 16 of the act relating to juries.
The section is as follows: “ That if either the clerk of 'the court, auditor, or recorder aforesaid, shall be interested in the cause, or sick or absent from the county, or related to either of the parties, or do not stand indifferent between them, then, in every such case, either one of the judges entitled to hold such court may, in term time or vacation, .appoint some judicious or disinterested person to take the place of such officers so disqualified, in selecting and striking the jury, and to do and perform all things required to be done by such officer when acting in that behalf.”
We do not concur with the counsel of the plaintiff in «error in the construction of this section. In expressing this opinion we do not wish to be understood as conceding that the action of the judge in passing upon, the qualifications of the officers to act in selecting the names of persons from whom the jury is to be made up, and in determining upon the selection of others to take their places, can be made the subject of review on error.
If either of the officers named does not stand indifferent between the parties, the judge is required to appoint some judicious and disinterested individual to take the place of ■such officer. It is contended that the same test is to be applied in determining the qualifications of the officer as is applied to a j uror.
But the duties of a juror and of the officer are wholly dissimilar. The juror is to decide the question at issue between the parties, while the officer is merely to select men qualified to insure the parties a fair trial.
*356If a jury should not be made up from the number returned, the sheriff is to fill the panel from the bystanders, or, on application, the court may select the persons to fill the panel.
If tbe formation or expression of an opinion as to the guilt or innocence of the defendant disqualified the clerk and auditor, it would seem that a like objection ought to be equally available against the sheriff or judge, and in case the objection existed against the latter, to disqualify him from filling the place of tbe audiior or clerk.
2. The second ground of error, which relates to the order in which evidence was introduced, is not well taken.
True,the statute prescribes the order of the introduction of evidence; but it also provides that the court may for good reasons, in furtherance of justice, permit evidence to-be given out of the prescribed order.
The claim made, that any departure from the regular order, is to be regarded as erroneous unless the record affirmatively shows sufficient reasons for such departure, is without foundation. The presumption is in favor of the correctness of the ruling of the court below.
The allowing of the introduction of evidence out of its order rests in the sound discretion of the court trying the-cause. The remedy for the abuse of such discretion is by a motion for a new trial. Criminal Code, sec. 192. And if reviewable on error at all, it is only, when taken in connection with all the evidence in the case, it is shown to have prevented the party from having a fair trial.
The remaining question is whether there was error in allowing the state to give evidence to sustain the reputation for truth of the witness, Hill.
The admissibility of this evidence is claimed by the state on two grounds.
The first ground is that evidence had been given on-behalf of the defendant to show that the witness had made material statements and admissions about the case when not a witness, which, when giving his testimony, he denied hav*357"ing made; and that he had sworn differently on a former trial fr6m what he did on the trial then on hand.
Whether the impeachment of the credit of a witness, by showing that he has made statements at other times contradictory of his testimony given on the trial, lays a sufficient foundation for sustaining him-by proof of his general reputation for truth, is a question which has given rise to great contrariety of decision.
Mr. Greenleaf, in his -work on evidence, seems to favor the affirmative of the proposition. 1 Greenl. Ev., sec. 469. Many of the cases bearing on the question are cited in a ■note to the section in the last edition of the work of Mr. May.
The rule in Vermont is to admit the evidence in such case—Paine v. Tilden, 20 Vt. 554. So also in Indiana—Harris v. The State, 30 Ind. 131; and in North Carolina— Isler v. Dewey, 71 N. C. 14. The same is true of several other states.
The contrary rule, however, prevails in Massachusetts—Russell v. Coffin, 8 Pick. 143 ; Brown v. Mooers, 6 Gray, 451; and in New York—The People v. Hulse, 3 Hill, 309; The People v. Gray, 3 Selden, 378; and in Pennsylvania—Wirtz v. May, 21 Penn.St. 274; and in Georgia—Stamper v. Griffin, 12 Ga. 450; and in some of the other states.
The practice in this state has not been uniform. The courts in some parts of the state exclude the evidence, while in others we understand it to be admitted.
Where the only impeachment of the witness consists of conduct or of statements made at other times inconsistent with his testimony, the better rule, in our opinion, is not to .allow proof of his general character or reputation for truth for the purpose of sustaining his credit.
If the impeaching evidence should appearfromthe conduct of the witness, or his contradictory statements made during his examination on the trial, it would not be claimed that the effect of such evidence ought to be allowed to be overcome by proof of the general reputation of the witness for *358truth. Yet the effect of the impeaching evidence in the-two cases would be substantially the same.
Resides, to be exactly just, if the impeached witness is-to be sustained by evidence of character, similar evidence-ought to be allowed to sustain the impeaching witnesses.
The evil that would result from multiplying collateral issues and in protracting the trial, by allowing such evidence,, would, in our opinion, more than counterbalance the good that would be derived from it.
2. The second ground on which the evidence is claimed to be admissible, is that the case attempted to be made-against the witness by the defendant’s evidence, was that the witness had committed the crime with which the defendant was charged, and that by false testimony, and by his management of the ease, and by improperly interfering-with the defendant’s witnesses, he was attempting to exculpate himself, and convict an innocent man.
The crime charged belongs to the class known as infamous, which includes every species of the crimen falsi, such as forgery, perjury, subornation of perjury, and offenses affecting the public administration of justice.
At common law, conviction of such a crime rendered the party infamous and wholly unworthy of credit. Now, by statute, the competency of the party as a witness is restored; but his conviction may still be shown for the purpose of' affecting his credibility. The effect of such conviction-is to impeach the character of the witness as a man of truth, and where the record of the conviction is used to impeach a witness, his reputation for truth may be proved to rebut its effect.
And while it is true, evidence can not be given to prove an infamous crime against a witness of which he has not been convicted, for the purpose of impeaching his credit, yet'where the question as to whether the witness is guilty of such crime becomes the legitimate subject of inquiry on the trial, we think his reputation for truth may be proved to rebut any imputation against his credit which the evidence of guilt makes against him.
Judgment affirmed.