Holbert v. State.

done then, it was too late to raise it at some subsequent stage of the proceedings. We are therefore of opinion that there is no such error presented by the bill of exceptions as worked any injury to the rights of the defendant.

It may not be amiss, however, in view of the argument of counsel for the appellant, to say that, in our view of the authorities, the general rule as laid down by Mr. Greenleaf in his work on Evidence (vol. 1, § 461) is not sustained to the extent to which the author goes. He says that the regular mode of examining into the general reputation of a witness whose testimony it is sought to impeach is to inquire of the witness whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. He then says that in the English courts the course is further to inquire whether, from such knowledge, the witness would believe the prisoner upon his oath. The authorities, so far as examined, seem to support this statement as to the course pursued in the English courts. Phil. & Am. on Ev. 925; Manson v. Hartsink, 4 Esp. 104; 1 Stark. on Ev. 182; Carlos v. Brook, 10 Ves. 50. To this extent there seems to be but little controversy. The learned author, however, makes this further statement, following in immediate connection with what is said as to the rule in the Englsh courts, as quoted above. "In the American courts the same course has been pursued, but its propriety has of late been questioned, and perhaps the weight of authority is now against permitting the witness to testify as to his own opinion."

This latter expression, as to the propriety of the English rule having of late been questioned, and that perhaps the weight of authority is now against permitting the witness to testify as to his opinion, has itself been not only questioned as not a correct enunciation of the law, but in very many American courts the contrary course has been pursued. Notably in Texas is the case of Boone v. Weathered, 23 Tex. 675, determined by the Supreme Court of the State in 1859. In that case, whilst the position assumed by Mr. Greenleaf is not mentioned, quite a number of authorities are cited and reviewed, and the conclusion seems finally to be reached that in impeaching the character of a witness the inquiry must be directed to his general character for truth, and not to his general character in other respects, and that the English rule, which permits the im. peaching witness to be further interrogated whether he could or could not believe the one sought to be impeached on oath is in

Holbert v. State.

some form a proper one. We make the following quotation from the opinion: "When the impeaching witness is asked whether or not he could believe the other on oath, he is more likely to give an answer suggested by his personal knowledge, or prompted by his personal feelings, or his individual opinion, than when asked whether or not he is acquainted with the general reputation of the former witness for truth in the community where he lives. He may then properly be asked whether that general reputation is such as to entitle the witness to credit on oath; or any other form of words may be used which do not involve a violation of the cardinal principles that the inquiry must be restricted to the general reputation of the impeached witness for truth in the community where he lives or is best known, and that the impeaching witness must speak from general reputation or report, and not from his own private opinion. I think these conclusions are sound upon principle, and are supported by the most numerous and best considered authorities." We might rest our investigation with the case of Boone v. Weathered, as the leading case in Texas on the subject under consideration, and on Johnson v. Brown, 51 Tex. 65. But the authorities at hand lead us to conclude that the rule of Mr. Greenleaf as to the doctrine of American courts on the subject fails of the support the authorities generally give to his deductions. In Hamilton v. People, 29 Mich. 195, CAMPBELL, J., delivering the opinion of the court, says: "Until Mr. Greenleaf allowed a statement to creep into his work on Evidence, to the effect that the American authorities disfavored the English rule, it was never seriously questioned;" citing 1 Greenl. on Ev., § 461. Judge CAMPBELL proceeds: "It is a little remarkable, that of the cases referred to, to sustain this idea, not one contained more than a passing dictum, not in any way called for." He proceeds to review the case as to what was involved in each, and then says: "The jury, if they do not act from personal knowledge, cannot understand the matter at all without knowing the witness's opinion and the ground on which it is based. It is the same sort of difficulty which arises in regard to insanity, to disposition or temper, to distances and velocities, and many other subjects, when a witness is required to show his means of information, and then state his conclusions or belief based on those means. If six witnesses were merely allowed to state that a man's reputation is bad, and as many say it is good, without being questioned further, the jury cannot be said to know

Holbert v. State.

much about it. Nor would any cross-examination be worth much unless it aided them in finding out just how far each witness regarded it as tainted." In another paragraph of the opinion, the same judge further says: "So far as the reports show, the American decisions, instead of shaking the English doctrine, are very decidedly in favor of it, and have so held upon repeated and careful consideration; and we have not been referred to, nor have we found, any considerable conflict." He cites in New York, People v. Mather, 4 Wend. 229; 21 Am. Dec. 122; People v. Rector, 19 Wend. 569; People v. Davis, 15 id. 602. In New Hampshire, Titus v. Ash, 4 Fost. 319. In Pennsylvania, Bogle's Executors v. Kreitzer, 46 Penn. St. 465; Lyman v. Philadelphia, 56 id. 488; and other cases in Maryland, California, Illinois, Wisconsin, Georgia, Tennessee, Alabama, Kentucky, and in United States Circuit Reports—as, for instance, United States v. Van Sickle, 2 McLean, 219.

We have had access to a later decision of the same court, in which the opinion was by the same judge as in Hamilton's case (Keator v. People, 32 Mich. 484, decided in 1875), where the ruling in Hamilton's case seems to have been reaffirmed.

The authorities, both in Texas and elsewhere in America, seem clearly to support the position that on the subject of impeaching a witness the rule is the same, both in England and in America, and that the rule of the English courts is the true rule of the common law, both there and here.

All general rules are liable to exceptions, based upon peculiar circumstances. We are, however, of opinion the following general rules may be safely deduced from the authorities: When it is sought to impeach the character of a witness who has testified, by proving his general bad character by other witnesses, the course is to first interrogate the impeaching witness as to the former's general reputation for truth among his associates, or where he resides or is best known. Should he be conversant with that general character for truth, he may then be questioned as to whether it is good or bad, and the witness appearing to be sufficiently acquainted with the character of the witness it is proposed to impeach, to testify thereto, and stating that the general reputation for truth is bad, he may then be further interrogated whether the impeached witness is worthy of belief on oath, and not whether he would believe him; that impeaching witnesses may be cross-examined as other witnesses. and with the same latitude, and that the witness whose credibility

Roland v. State.

is thus attacked may have his general character strengthened by other evidence; that it is not competent in investigations of this character to inquire into the general character of the witness to be impeached, except as to his general reputation for truth. A witness must speak from knowledge derived from general reputation, and not from his individual knowledge.

Under a statute permitting husband and wife to testify against one another on a criminal prosecution for an offense committed by one against the other, the one may testify against the other on an indictment of the other for adultery. (See note, p. 744.)

ONVICTON of adultery. The opinion states the case.

CONVICTON

A. T. Burk, for appellant.

Thomas Ball, assistant attorney-general for State.

WINKLER, J. We have carefully considered the various questions of moment to be determined. It is shown by the record, that the defendant being on trial, charged with living in adultery with one George Willis, the State offered to prove by the husband the marriage of the defendant. When the trial was had (January 6, 1880) the Revised Codes had gone into effect, and so far as this question is concerned, being a matter of procedure, it must be determined thereby. The appellant invoked in the court below, and is entitled here to whatever benefits she may be entitled to under art. 735 of the Code of Procedure, as follows: "The husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other."

If to live in adultery be an offense against the matrimonial spouse,

Roland v. State.

then the State was entitled to the testimony, agreeably to the plain import of the language cited. That it is an offense against the husband for the wife to live in adultery with another man will hardly admit of question. That this identical question has been settled in this State against the views of the appellant, see Morrill v. State, 5 Tex. Ct. App. 447, decided under a statutory provision identical with that cited above. The court did not err in overruling the defendant's objection to the admissibility of the husband to testify against the wife when charged with living in adultery with another man. Finding no material error, the judgment is affirmed.

Judgment affirmed.

NOTE BY THE REPORTER. — The same doctrine was held under a precisely similar statuto in State v. Bennett, 31 Iowa, 25. The court said: "Is the adultery of the wife in such sense a crime committed against the husband as to render him under this section a competent witness against her in a criminal prosecution for the offense? This question is one of first impression. Although many similar cases have been before this court, in which the testimony of the husband or wife was admitted, the competency of such testimony was always tacitly conceded.

"The law so far regards the adultery of the wife as a crime against the husband, that if he should discover her flagrante delicto his homicide of her and her paramour would be lowered to the grade of manslaughter. The general sense of mankind, however, considers the crime of a moro aggravated character. The history of judicial proceedings in this country of late years fails to furnish an instance in which a jury has found the homicide of the paramour of the wife guilty of any crime at all. And while this tendency upon the part of jurors to override the law cannot receive judicial sanction, yet it furnishes convincing proof of the fact that the law does not punish the crime of adultery in a manner proportionate to the magnitude of the offense, and that a law not in accord with the common feelings and sympathies of humanity cannot be enforced. The Revision, § 4347, which provides that no prosecution for adultery can be commenced but on complaint of the husband or wife, leads to the inference that the offense is rather a crime against the partner to the marital relation than against society in general. So long as the injured husband or wife suffers the wrong in silence, society, notwithstanding the injury to public morals, is without redress. The prosecution can be commenced only on complaint of the husband or wife. The only mode of commencing the prosecution is by becoming a prosecuting witness before the grand jury, or by filing an information before a committing magistrate. When a preliminary information is laid before a magistrate he must examine the informant or prosecutor, and any witness he may produce, and take their affidavits in writing, and cause each affidavit to be subscribed and sworn to before him by the person making it. The affidavit must set forth the facts stated by the informant and his witnesses tending to establish the commission of the offense, and the guilt of the person charged therewith. Rev., §§ 4531, 4532. The informant assumes the attitude of a witness whether he institute the prosecution before the grand jury or before a committing magistrate. The argument which, under section 3983, would deny the right of the husband to testify in this case, would also deny his right to commence the prosecution either before a committing magistrate or the grand jury, and would prove too much. It has been held that an affidavit of a inarried woman might be read on an application to the Court of King's Bench for an information against her husband for attempt to take her away by force after articles of separation. In reference to this Mr. Justice BULLER said: 'It would be strange to permit her to be a witness to ground a prosecution, and not afterward to be a witness at the trial. 11 Bull. N. P. 287; 1 Phill, on Ev. 79. In our opinion the witness was improperly excluded."