¶1Howard had been examined as a witness on the trial of another indictment against the defendant. Upon that *425trial, the defendant attempted to impeach the witness, but apparently without success. He was one of the witnesses by whom the government expected to sustain the present indictment, and was in fact afterwards called and examined. The counsel for the defendant proposed to inquire of the jury if they had formed and expressed any opinion as to the credibility of Howard. The court declined to have the question put.
¶2The inquiry was novel, and, if competent, would certainly be a great relief to persons indicted, who are anxious not to be tried; for just in the degree that the character of the witnesses to be called was well known and respected, would the objection prevail. If the witness happened to be an individual known and revered by all his fellow citizens as a man without reproach, every member of the panel would have formed an opinion as to his credibility.
¶3The fact, that the defendant had unsuccessfully attempted to impeach the witness at a previous trial, does not help his case. We must presume he failed for want of sufficient evidence. And it by no means follows that, if he had more or better evidence at the second trial, he would not succeed. The fair and legal presumption is that he would.
¶4The defendant also offered to prove that some of the jurors had declared that they would believe Howard as a witness The presiding judge rightly excluded the evidence. If we understood that the jurors intended to state that they would believe the witness, however controlled or impeached by other witnesses, the question would be one of difficulty. But the case is only this: The witness had been examined, and his character tested before the jury, and they said they would believe him. If he was a witness to the material facts of the case, they said so by their verdict. The declaration was only a statement of the effect of the former trial, and contains no intimation of what might be the effect of the evidence produced upon the second
¶5Exceptions overruled.