Snow et al. vs. Grace.

In the case of Woodman v. Churchill, 51 Me., 112, impeaching evidence of this kind from the neighborhood of the impeached witness had been received. The party who introduced the impeached witness was allowed to sustain his character by proving the character the witness bore in a town other than the one he resided in at the time of testifying, but where the impeached witness had lived many years.

In Quinsigamond Bank v. Hobb, 11 Gray (Mass.), 250, a witness had been impeached, and the party who introduced him was allowed to prove that his character for truth was good formerly, before he failed in business, although it had been bad since.

In the case of Aurora v. Cobb, 21 Ind., 492, it was held, that evidence designed to impeach the general character of a witness should relate to the time when he testifies, and his character at the place where he then resided amongst those who knew it there. To the same effect, substantially, is the decision in the case of Rogers v. Lewis, 19 Ind., 405.

The supreme court of the United States, in the case of Teese v. Huntingdon, 23 How., 2, held that it was in the discretion of the court, before which the trial was had, to reject evidence of former bad character, and determine whether the evidence offered was too remote. In that case the witness, being asked the question, answered: he had not known the witness sought to be impeached for five years. The court below having refused to let the impeaching witness testify further on the point, the supreme court of the United States refused to disturb the verdict on the ground that the admission or rejection of it was a matter within the discretion of the court below.

An instruction which confines the jury, in considering such impeaching evidence, to such statements as have been made by those among whom the impeached witness dwells, and to whom he is known, was held to be a misleading instruction by the supreme court of Kentucky. 2 Metc., 342.

Snow et al. vs. Grace.

In Vermont, it has been decided that evidence of former reputation is not admissible. Willard v. Goodenough, 30 Vt. (1 Shaw), 393.

To the same effect is Rucker v. Beatty, 3 Ind., 70. A witness testified that he knew a previous witness in the old country, and that said witness had resided in this country above five years. The question was then asked, whether he knew his character for truth in the old country. It was held improper. Webb v. Hawke, 4 Mich., 198.

The supreme court of Illinois held such evidence of former character in another place than that of residence at the time of testifying, admissible. Holmes v. Stoteler, 17 Ill., 453.

In Alabama, it was held that a witness was competent as an impeaching witness, who moved into a neighborhood the impeaching witness formerly lived in about the time he left, and could testify as to the reputation he left behind him there. Martin v. Martin, 25 Ala., 201. In Georgia, an impeaching witness testified that he had known the impeached witness eight or ten years in the county of Russell, Alabama, and that he had a reputation there. Held, that it was proper to ask the witness as to the reputation of the impeached witness in Alabama. Boswell v. Blackman, 12 Ga., 591.

It was held in Bates v. Barber, 4 Cush., 107, that the impeaching testimony of this kind was a question of fact to be tried by the jury, and the court could not, before admitting it, institute an inquiry as to the impeaching witness' means of knowing the reputation about which he testifies.

In the case of Morss v. Palmer, Morss v. Ayres, 15 Penn. St. (3 Harris), 51, it was held that, in support of an impeached witness' character he is not confined to the same neighborhood, or time spoken of by the impeaching witness; but he may prove his character years previously, and in a different county in which he had resided.

Snow et al. vs. Grace.

It will be thus seen that the authorities are in conflict on this question. It seems to us, however, that the reputation a witness has for truth is a mere circumstance, which the rules of law allow to be considered by the jury to aid them in determining the degree of credit to be given the witness, and is purely a question of fact. If so, does not reputation at some other time than that of testifying, and some other place than that of the then residence, equally tend to shed light upon the question of credit? The light may be dim and flickering, on account of remoteness, but is it not still light? The remoteness of time and place are also circumstances and facts to which, ordinarily, under proper instructions, the jury will give due weight. If this sort of testimony is to be admitted at all, it would be difficult to draw the line, and say where it the evidence of reputation-ceases to be fact and becomes a question of law.

Doubtless there are cases in which the testimony would be too remote as to time, and the court, in its discretion, might exclude it, as in the case cited from 23 How. Its exclusion, in that case, rested in the sound discretion of the court-so held. So likewise is its admission within the same discretion of the court, when remoteness is the only objection to it, and unless the circumstances of the case show a gross abuse of this discretion, we should not set aside the verdict, especially where no evidence of surprise is shown, and surprise being no part of the ground for new trial.

It seems reasonable that whenever witnesses of mature age, like those in this case, are proven to be men in 1863, engaged in the active business of life; who had lived at Pine Bluff for three or four years, in business there actively, had mingled with the people of the community; when, therefore, six or eight of the citizens of that city swear to their bad character for truth during that period, and not one of the two or

Bass vs. The State.

three thousand inhabitants of that city is heard to contradict, it would, under such circumstances, be going too far to say that this circumstance should not have been considered by the jury, because the witnesses impeached had been absent from Pine Bluff seven years, without any proof that they had another place of residence within that period long enough established and fixed, to enable them to have established a better reputation.

Affirmed.

Hon. W. M. HARRISON, J., did not sit in this case.

1. CRIMINAL PLEADING.

BASS VS. THE STATE.

Matters of defense, not appearing on the face of the indictment, are no ground of demurrer, but must be taken advantage of at the trial.

A coroner is authorized to have parties who are, by the inquest, impli. cated in the crime of murder, arrested and held for trial in the circuit court. And an officer in whose custody they are placed has no right to release them on the order of a justice of the peace who had, prior to the death, had them arrested for attempting to take the life of the deceased. The latter officer has no power to bail in such cases.

3. EVIDENCE: Coroner's minutes of an inquest.

The minutes kept by a coroner of an inquest held by him are not competent evidence. The facts contained in them should be proved by the testimony of the coroner.

APPEAL from Garland Circuit Court.

Hon. L. D. BELDIN, Circuit Judge.

S. R. Cockrell, for appellant.

Hughes, Attorney General, contra.

Bass vs. The State.

ENGLISH, C. J. The indictment in this case, founded on sec. 1487, Gantt's Dig., p. 362, is as follows:

"The grand jury of Garland county, etc., etc., accuse Thomas Bass of the crime of permitting and conniving at the escape of prisoners, committed as follows, viz: The said Thomas Bass, on the 14th day of March, A. D. 1873, in the county of Garland, state aforesaid, as constable of Hot Spring township, having in lawful custody William Brown and George Burrough, prisoners, by virtue of a warrant or process issued by a legal and proper officer, did then and there, willfully and unlawfully and voluntarily, suffer, permit and connive at the escape of the said William Brown and George Burrough, prisoners, from his custody, and permit them to go at large, against the peace and dignity of the state of Arkansas."

The appellant demurred to the indictment, not for any defect appearing on its face, but on the grounds, as stated in the demurrer, that he was an inferior officer of Justice Allard's court, who issued a warrant for the arrest of the prisoners, and after their arrest by defendant, ordered their release.

This, of course, was no ground of demurrer to the indictment, but if available at all, was matter of defense, to be introduced on the trial.

The court overruled the demurrer, the appellant pleaded not guilty, was tried and convicted. A motion for a new trial was overruled, and he took a bill of exceptions and appealed.

On the trial, the state introduced as a witness N. H. Cloys, who testified that he was coroner of Hot Spring county on the 14th day of March, 1873, by virtue of a commission from the governor. That on said day, Thomas Bass, constable of Hot Springs township, Hot Spring county [afterwards made part of Garland county], had in his custody four men, Hall and son and Brown and Burrough, for whom said Cloys, as