ON REHEARING.
Day, J.Within the time allowed by the rules of court a petition for rehearing was filed in this case, which has been examined with care.
It is claimed the court misstates the record in the statement of facts, in which it is said that Caroline M. Cochran filed a paper in the civil suit, withdrawing her claim against the defendant therein; and that the same misapprehension of the record occurs in the discussion-of the last point determined, in which it is said “ the proof shows that the civil suit was vol*552mitarily withdrawn by the plaintiff therein.” These statements were taken from the appellee’s amended abstract. A motion to strike out this amendment, as not justified by the transcript, was filed, but it was mislaid, and was not before the writer when the opinion was prepared, and it cannot now be found on the files of the court. Our attention having been called to the subject by the petition for rehearing, we have examined the transcript, and we'find that it purports to set forth only such portions of the testimony as wei-e objected to by defendant upon the trial, and that it does not contain the evidence above set out. This fact, however, is not material. The statement was made in the opinion in the discussion of the objection that the petition states no cause of action.
As stated in the foregoing opinion, the petition states that the suits have been dismissed and abandoned for want of "prosecution, and are ended, but does not show that the abandonment was voluntary.- The petition might have been vulnerable to a motion for a more specific statement, but no such motion having been made, it cannot be claimed that the petition is so defective that plaintiff cannot have "judgment, notwithstanding the fact that he may have fully proved his case.
The question under consideration in the foregoing opinion, in which it is claimed an error occurred in stating what proof was introduced, has reference to the sufficiency-of the petition. The statement was made merely as a part of the supposed history of the case. The sufficiency of a pleading does not depend upon the proof. Whilst we may have been led into error in accepting the appellee’s amended abstract, it was error which in no way affected the verdict.
II. The defendant in substance asked the court to instruct that plaintiff must prove defendant was the father of Caroline Cochran’s child, and, failing to do so, cannot recover. The instruction received such brief notice in the original argument of appellant, that we overlooked the point in the foregoing opinion. It is urged in the petition for rehearing that this instruction should have been given. We think it was properly refused. It is necessary to prove only the substance of *553the issue. The issue here is, did defendant enter into a conspiracy, to charge plaintiff with being the father of Caroline Cochran’s child? The allegation that the child was begotten by defendant, as plaintiff is informed, is wholly immaterial, and need not be proved. It forms no part of the real'issue.
7. evidence: impe“cheti°f structioii. ’ III. The defendant asked the court to instruct that “ the testimony of an impeached witness is to be taken with great care by the jury, and unless fully corroborated the jury will be justified in giving to it no weight whatever; and it is only on such points as such witness may be corroborated, that the witness is entitled to credence and weight with the jury.” Taken together, we think this instruction announces an incorrect rule, and that it was properly refused.
It is true, the jury, being the judges of the credibility of witnesses, might act upon such a rule. But it is not, we think, the law, that they must, or even should, in all cases adopt such a measure of credibility. It is to be observed that this rule requires full corroboration, and that the witness shall be credited only upon the points in which he is so corroborated. In other words, an impeached witness must not be believed, except upon those points in which his testimony is unnecessary; which amounts to saying that the testimony of an impeached witness can never have any value.
We think that an impeached witness may testify so consistently, and may deport himself in such a manner, and may be so corroborated as to material points, that the jury might feel justified in believing him upon some point in which he is not corroborated. The case discloses no error requiring a reversal. The petition for rehearing is
Overruled.
Seevers, Oh. J., having been of counsel, took no part in this determination.