ON Application nob Rehearing.
The opinion of the court was delivered by
Watkins, J.The defendants claim a rehearing upon one ground only, to-wit:
“The petition of Thomas Haley and Peter B. Oaulfield,- defendants in this cause, with respect, ask the court for a rehearing on the ground that they are advised the court erred in holding that where there is a direct contradiction in regard to facts material to the issue, between a witness for the prosecution and witnesses for the defendants, the State may call witnesses to prove the general reputation for truth and veracity of its witness.” ■
And counsel claim that our opinion, in this respect, is at variance with the principles of the common law; and that our statute provides, amongst other things, that “ the rules of evidence * * * shall be according to the common law.” R. S., Sec. 970.
More generally speaking, counsel’s proposition is that, “ a direct contradiction ” between two witnesses, “ in regard to facts material to the issue — said witnesses having testified for different sides of the controversy — does not authorize the introduction of testimony to sustain either by proof or character; and counsel complains that, over timely objection, the prosecution was allowed to call and examine eleven witnesses, “ not to corroborate Mr. Marshall, but to sustain him by proof of'character.”
Counsel say in their brief:
“We contend that it was error to allow witnesses to be called to sustain Mr. Marshall’s general character for truth, before his general character in that, or any other respect, had in any sort been put in issue.
“ In other and plainer words, we contend that under the English common law rules of evidence a contradicted witness, in regard *79to facts material to the issue, can not be sustained by evidence of his general good character.”
Counsel cite, in support of their objection, the following cases, viz.: Starks vs. The People, 5 Denio (N. Y.), 108; The People vs. Hulse, 3 Hill (N. Y.), 313; Harris vs. State, 30 Ind. 131.
All other cases to which counsel make reference are civil suits, the trial of which, in different jurisdictions, mainly depend upon local statutes, and not on the common law.
Counsel have, also, brought forward extracts from several text writers, and we reproduce. them, viz.:
“ The rule governing the introduction of sustaining testimony of this kind is stated as follows in 3 Starkie, Ev., par. 1757: ‘ And in all cases where the credit of a witness has been attacked, whether by general evidence or by particular questions on cross-examination, it seems that the party who called him is at liberty to support his testimony by general evidence of good character.’
“ So, if the character of the attesting witness to a deed or will be impeached on the ground of fraud, evidence of his general good character is admissible.
“ But the mere contrariety between the testimonies of adverse witnesses, without any direct imputation of fraud on the part of either, supplies no ground for admitting general evidence as to character. To the same effect is the rule as stated by Mr. Greenleaf in his work on Evidence, Yol. 1, par. 469. * * * ‘The rule thus laid down is well supported by the citation of decided cases. * * * Butwhen the character of the testimony given by a witness is attacked only by showing its improbability, or by other testimony conflicting with the testimony of the witness, sustaining testimony cannot be admitted. If admitted when there is only a conflict in the testimony of opposing witnesses, the opposing witnesses on both sides could be supported by sustaining testimony in regard to their standing and character by reputation as witnesses, and the trial would be prolonged indefinitely.’ * * *
“Russell on Crimes, Yol. 3, 9th Ed., pp. 564, 565, says:
“ ‘A party can not bring evidence to confirm the character of a witness before the credit of that witness has been impeached, either upon cross-examination or by the testimony of other witnesses. Thus, in a case where a witness for one party asserts one thing, and a witness for the other party asserts the' contrary, and direct fraud *80is not imputed to either, evidence of the good character of either witness is not admissible.”
“ On page 565, 3d Vol., Russell on Or., the author says: ‘ The better opinion seems to be that such evidence is not admissible, except in cases where the counsel on the other side impute a design to misrepresent from some motive of interest or relationship,’ etc.
“ Taylor on Ev., Vol. 2, p. 1262, sayst
“ ‘ But mere contradiction among witnesses examined in court supplies no ground for admitting general evidence as to their character,’ ” etc. •
Counsel quotes from the ruling of the trial judge the following exception, viz.:
“ The trial judge says (R. 137) : ‘ The two defendants, Haley, and 'Caulfield, taking the stand in their own behalf, denied and contradicted the statement as to any conversations or negotiations relating to the payment of a bribe as a consideration for the passage of the ordinance, but generally admitted the meetings. This narrowed the issue before the jury to a qnestion of veracity between the parties.’ ”
In our opinion we said, that, notwithstanding the insistence of defendant’s counsel, that there had not been imputed to the State’s witness, Charles Marshall, any fraud or recent fabrication, and that their contention was that he was under misapprehension as to the defendant’s statements to him, “ none the less, the testimony of the witnesses for the defendants sought to impeach the testimony of this witness. It could have no other effect; there was an irreconcilable conflict in the relation of facts between this witness and those of the defendants. There was, at least, direct, open contradiction in several important particulars.”
The court did not appear to have-viewed the testimony pro and con as a “ mere contradiction among the witnesses;” on the contrary, that the witness, Marshall, affirmed certain “conversations or negotiations” between the defendants and himself relative to a proposed bribe, and the defendants denied such “conversations or negotiations” altogether and m fofo. The necessary result of this evidence was a simple question of veracity for the jury to determine. Whose testimony was more veracious and worthy of belief?
By the emphatic denials defendants had made, the credit of Marshall had been indirectly attacked. Not by simply showing its improbability by the relation of circumstances and facts at variance *81with his statements, but by an emphatic denial of his statements altogether.
It seems most reasonable that, in this situation, the State should be permitted to sustain her witness’ credibility. If not within the letter such testimony clearly comes within the reason and spirit of the rule announced in the authority cited supra.
Greenleaf states a qualification to the general rule in these words, viz.:
“ Where evidence of contradictory statement by a witness, or of other particular facts, is offered by way of impeaching his veracity, his general character for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence that he is a man of strict integrity and scrupulous regard for truth.” 1 Green-leaf, Sec. 469.
That rule was cited approvingly by this court in State vs. Boyd, 38 An. 374.
Though defendants do not confess, but on the contrary disavow that such was their object in offering the testimony under consideration, yet we feel authorized to treat it as having that effect; and having that effect, general evidence of the veracity and integrity of Marshall was admissible.
State vs. Fruge, 44 An. 165, supports that view; but quite a different state of facts is presented in State vs. Cady, 46 An. 1346.
The contention insisted on is not borne out by the authorities.
Rehearing refused.