roneous, and no proper qualification pointed out as erroneous is, in and of itself, a particular qualification and limitation of language which, Propriety of instructions as to the significance of evidence concerning the defendant's good character as an element bearing upon the question of I. General principles and rules applied: § 1. Controlling principles of sub- § 2. Controlling rules of trial III. Summary showing effect of decisions § 46. Contents of subtitle, 102. In compiling this monograph the author has proceeded upon the assumption that the most serviceable arrangement of the materials is one which will enable a practitioner to ascertain readily the effect of the rulings in his own jurisdiction. The detailed review of the cases in subdivision II. is designed to facilitate research upon the lines thus indicated. A synopsis showing merely the general purport of the decisions with respect to each of the various types of instructions which have been judicially discussed will be found in subdivision III. The sections in this portion of the monograph may advantageously be consulted by those who desire to obtain at the outset of their investigations a conspectus of the state of the author 1In Cancemi v. People (1858) 16 N. Y. 501, it was stated that evidence of good character was formerly "admissible in capital cases only, but now it will be received in criminal cases generally." The court cites 1 MacNally, Ev. 320-323; Com. v. Hardy (1807) 2 Mass. 317; Felix v. State (1851) 18 Ala. 720; 2 Starkie, Ev. 303; 2 Bennett & H. Lead. Cas. 159, 160; Burrill, Circumstantial Ev. 530, 532. See also Russell, Crimes, 7th ed. p. 2117. For similar statements, see Daniels v. State (1901) 2 Penn. (Del.) 586, 54 L.R.A. 286, 48 Atl. 196; State v. Northrup (1878) 48 Iowa, 583, 30 Am. Rep. 408. 2 For cases in which the doctrine was affirmed that evidence relating to a period subsequent to the commission of the alleged crime is not competent, see Smith v. State (1916) 197 Ala. 193, 72 So. 316; White v. State (1895) 111 Ala. 92, 21 So. 330; State v. Kinley (1876) 43 Iowa, 294; White v. Crum (1882) 80 Ky. 480; State v. Sprague (1900) 64 N. J. L. 419, 45 Atl. 788; State v. Johnson (1863) 60 N. C. 151; State v. Barr (1895) 11 Wash. 481, 29 L.R.A. 154, 48 Am. St. Rep. 890, 39 Pac. 1080. 3 In Com. v. Webb (1916) 252 Pa. 187, 97 Atl. 189, where the trial judge had stated in his charge that "reputation is the repute in which a man is held by his neighbors, and is a different thing from character altogether, and a man may have a bad character at heart, and his associates may not actually have known the fact," the T ities in regard to some particular form of instruction. 1. General principles and rules applied. § 1. Controlling principles of substantive law. The principles of substantive law, with reference to which the propriety of instructions concerning the good character of the defendant is determinable, are as follows: (a) In all criminal actions 1 the defendant is entitled to introduce evidence to the effect that, up to the time when the crime with which he is charged was committed, he bore in the community in which he lived a good character [or reputation],3 provided the moral qualities with regard to which the evidence is given have a definite relation to the crime with which he is charged. * 4 following remarks were made: "While the language used is unnecessarily restrictive in so far as its general purpose and effect are concerned, we cannot say it warrants a reversal of the case. The word 'character' is frequently used interchangeably with the word 'reputation.' In a legal sense, it means reputation as distinguished from disposition. Character grows out of particular acts, but is not proved by them, inasmuch as a person may, under the stress of special circumstances, do a thing which is contrary to his ordinary disposition and practice. The method of proving character is by showing the general reputation of the person in the neighborhood in which he lives. What is proven, therefore, is not a person's real character, but his character as reputed among his neighbors, or what the consensus of opinion of the neighbors is as to his character. The trial judge did not, therefore, err in his general definition of the word 'reputation.'" As to the rule that the failure of the defendant to offer evidence regarding his good character raises no presumption unfavorable to him, see Ormsby v. People (1873) 53 N. Y. 472 (error to refuse instruction to this effect); State v. Donohoo (1883) 22 W. Va. 761. 4 As to this qualification of the general rule, see Russell, Crimes, 7th ed. p. 2117; Taylor, Ev. 9th ed. § 351; Whart. Crim. Law, 7th ed. § 636. The language used in 3 Greenleaf (b) The competency of such evidence is predicated upon the ground of an assumed improbability that a person possessing the moral qualities in question would have committed an offense to which they are antithetical.5 (c) Good character is an element on Evidence, § 25, is that the evidence "ought to be restricted to the trait of character which is in issue." This language has been adopted in many cases. Other phrases expressive of the same notion are these: The "trait involved in" the crime charged (United States v. Wilson (1910) 176 Fed. 806; State v. Bloom (1879) 68 Ind. 54, 34 Am. Rep. 247; State v. Beebe (1911) 151 Iowa, 701, 130 N. W. 714; State v. Bessa (1905) 115 La. 259, 38 So. 985; Maston v. State (1904) 83 Miss. 647, 36 So. 70; State v. King (1883) 78 Mo. 555; State v. McKnight (1915) 21 N. M. 14, 153 Pac. 83; People v. Van Gaasbeck (1907) 189 N. Y. 408, 22 L.R.A. (N.S.) 650, 82 N. E. 718, 12 Ann. Cas. 745; People v. Buccufurri (1913) 158 App. Div. 186, 143 N. Y. Supp. 62; State v. Moyer (1905) 58 W. Va. 146, 52 S. E. 30, 6 Ann. Cas. 344); "the particular trait of character which the indictment impugns" (People v. Albers (1904) 137 Mich. 678, 100 N. W. 908); personal qualities which have “a proper relation to the subject-matter of the prosecution" (Cathcart v. Com. (1860) 37 Pa. 108). 5 "The object of laying [evi dence of character] before the jury is to induce them to believe, from the improbability that a person of good character should have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence on the part of the prosecution." Patteson, J., in Rex v. Stannard (1837) 7 Car. & P. (Eng.) 674. "The principle upon which good character may be proved is that it affords a presumption against the commission of crime. This presumption arises from the improbability, as a general rule, as proved by common observation and experience, that a person who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it." Cancemi v. People (1858) 16 N. Y. 501. "In the laws of all civilized countries, under various aspects of the question, good character is recognized proper to be considered with relation not only to the main issue of guilt or innocence, but also to any subsidiary questions which that issue involves. The weight of authority is in favor of this proposition. See § 51, infra. The fact that the defendant bore a good character is not an absolute defense.6 as an element, a very potent element, of defensive proof, going directly to the credibility of the accusing witness, to the intrinsic value of the inculpating testimony, to the probabilities of mistaken memory, of mistaken identity, of innocent motives in actions apparently culpable, and in many instances amounting, in and of itself, to 'a complete defense, according to the nature and circumstances or enormity of the charge, unless overborne by the number, no less than by the general credibility, of the prosecuting witnesses." United States v. Gunnell (1886) 5 Mackey (D. C.) 198. Many other authorities might be cited in support of the statement in the text. The following will suffice: Reg. v. Rowton (1865) 10 Cox, Cr. C. (Eng.) 25, Leigh & C. C. C. 520, 34 L. J. Mag. Cas. N. S. 57, 11 Jur. N. S. 325, 11 L. T. N. S. 745, 13 Week. Rep. 436; State v. McGuire (1911) 84 Conn. 470, 38 L.R.A. (N.S.) 1045, 80 Atl. 761; State v. House (1899) 108 Iowa, 68, 78 N. W. 859; State v. Deuel (1901) 63 Kan. 811, 66 Pac. 1037; State v. Swain (1878) 68 Mo. 605; State v. Maupin (1906) 196 Mo. 164, 93 S. W. 379; Latimer v. State (1898) 55 Neb. 609, 70 Am. St. Rep. 403, 76 N. W. 207; People v. Elliott (1900) 163 N. Y. 11, 57 Ñ. E. 103, 15 Am. Crim. Rep. 41; People v. Bonier (1904) 179 N. Y. 315, 103 Am. St. Rep. 880, 72 N. E. 226; People v. Conrow (1911) 200 N. Y. 360, 93 N. E. 943; People v. Dippold (1898) 30 App. Div. 62, 13 N. Y. Crim. Rep. 230, 51 N. Y. Supp. 859; Com. v. Cate (1908) 220 Pa. 138, 123 Am. St. Rep. 683, 69 Atl. 322; People v. Hancock (1891) 7 Utah, 170, 25 Pac. 1096; Schutz v. State (1905) 125 Wis. 452, 104 N. W. 90. The following are a few out of the very numerous cases in which this undisputed proposition has been affirmed: State v. McGuire (1911) 84 Conn. 470, 38 L.R.A. (N.S.) 1045, 80 Atl. 761; Daniels v. State (1901) 2 Penn. (Del.) 586, 54 L.R.A. 286, 48 Atl. 196; Scott v. State (1912) 137 Ga.. 337, 73 S. E. 575; People v. Munday (1917) 280 III. 32, 117 N. E. 286, re "It is merely a circumstance bearing indirectly on the question of the guilt of the accused, which the jury are to consider in ascertaining the truth of the charge."7 (d) Good character is a substantive fact, and, as such, is to be weighed versing (1917) 204 Ill. App. 24; Rollins v. State (1878) 62 Ind. 46; State v. Northrup (1878) 48 Iowa, 583, 30 Am. Rep. 408; People v. Clements (1886) 42 Hun (N. Y.) 353; State v. Totten (1899) 72 Vt. 73, 47 Atl. 105; Cupps v. State (1904) 120 Wis. 504, 102 Am. St. Rep. 996, 97 N. W. 210, 98 N. W. 546. In Wagner v. State (1896) 107 Ind. 71, 57 Am. Rep. 79, 7 N. E. 896, a larceny case, the court said: "Such proof may, in some cases, create a doubt in favor of the defendant where the circumstances in other respects tend to establish his guilt, but as to when such proof ought to be accepted as creating such a doubt, no definite rule can be stated." It was unsuccessfully argued in this case that, under the doctrine which declares that the prima facie presumption of guilt arising from the possession of stolen property is rebutted by proof of the defendant's good character, the production of such proof by the accused person entitled him to an acquittal. The refusal of an instruction to the effect that in a doubtful case, when the party charged had established a good character, the law presumed that he would not commit the offense charged, was affirmed in State v. Underwood (1882) 76 Mo. 635. 7 Harrington v. State (1869) 19 Ohio St. 264. "The good or bad reputation and character is by no means conclusive of guilt or innocence, but merely a fact from which, in connection with other evidence, guilt or innocence may be inferred or presumed." State v. Leppere (1886) 66 Wis. 355, 28 N. W. 376. Evidence as to good character "has been frequently declared to afford no defense. It is received as merely tending to show that the accused would not have been likely to have committed the crime charged, and is to be given such weight only as the jury may deem it entitled to receive." State v. King (1903) 122 Iowa, 1, 96 N. W. 712; State v. Krug (1907) 136 Iowa, 231, 113 N. W. 822. "Evidence of good character and considered in connection with all the other evidential elements in the case. 8 (e) The probative force of good character depends upon the nature of the alleged crime and upon the quality of the inculpatory evidence. The must be weighed and considered by the jury in connection with the other testimony in the case, and is to be regarded as evidence of a substantive fact, like any other evidence tending to establish innocence." Com. v. Aston (1910) 227 Pa. 106, 75 Atl. 1017. Similar language had previously been used in Hanney v. Com. (1887) 116 Pa. 322, 9 Atl. 339, and also in Com. v. Cleary (1890) 135 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017. "In all indictments the defendant is at liberty to produce positive testimony as to his good character, to strengthen the presumption which always exists, and when such evidence has been produced it is something more than mere corroborative evidence of the testimony which he gives. It is of itself positive evidence bearing upon the question of his guilt or innocence, and it is to be considered by the jury, not merely as explanatory of the criminating circumstances, to be considered after a conclusion has been reached upon the main question of the defendant's guilt or innocence, but as testimony bearing upon that precise point. In every case where such testimony has been given, the defendant is entitled to an instruction that it is to be considered as primary testimony upon the question of his guilt." People v. Friedland (1896) 2 App. Div. 332, 37 N. Y. Supp. 974. "It is important in every criminal case, and especially so when the inculpatory proof is circumstantial in its character, that the jury should be instructed, if the prisoner so requests, that, in determining whether or not he is guilty beyond a reasonable doubt, his good reputation, if he have such, as to the traits involved in the charge, should be weighed as any other fact established, and that it may be sufficient to create a reasonable doubt as to his guilt." People v. Bell (1875) 49 Cal. 485. See also STATE V. LANG (reported herewith) ante, 4, wherein the propriety of having all the relevant testimony considered at the same time was asserted. cases in which it carries the greatest weight are those in which the testimony adduced in support of the charge is entirely circumstantial, and those in which that testimony preponderates slightly against the defendant. 9 (f) The competency of good character as an exculpatory element is not restricted to cases in which the remainder of the evidence leaves the defend 9"When an accused person proves an unblemished reputation, it stands as a factor in the case, tending to fortify and establish innocence; and where the evidence against him is wholly circumstantial, and the testimony for and against him is nearly balanced, the weight of a good character ought to exert a potent influence in turning the scale in his favor. 3. The force and weight of evidence of good character depend somewhat upon the nature of the charge preferred against the accused, and should be considered in determining the probability of a man of previous high character committing a crime of the nature of the one under investigation." Cavender v. State (1890) 126 Ind. 47, 25 N. E. 875. "The influence of the presumption from character will necessarily vary according to the varying circumstances of different cases. It must be slight when the accusation of crime is supported by the direct and positive testimony of credible witnesses; and it will seldom avail to control the mind in cases where the testimony, though circumstantial, is reliable, strong, and clear. But in cases where the other evidence is nearly balanced, but slightly preponderating against the defendant, the presumption from proof of good character is entitled to great weight, and will often be sufficient to turn the scale and produce an acquittal." Cancemi v. People (1858) 16 N. Y. 506. In People v. Bonier (1904) 179 N. Y. 315, 103 Am. St. Rep. 880, 72 N. E. 226, the following remarks were made: "The testimony in the case now before us shows that, if the defendant committed the crime charged against him, he did it with deliberation and forethought. It was not the result of sudden impulse, but of careful premeditation and deliberate execution, for the purpose of robbing the victim. Proof of good character is of peculiar value in such a case, especially when ant's guilt doubtful. This principle has not yet been adopted in England; but at the present day it prevails almost universally in the United States. See § 50, infra. (g) Good character is an element which may in some instances be sufficient of itself to create a reasonable doubt as to the defendant's guilt. 10 Affirmations of this principle are somethe evidence of guilt rests, as it does here, entirely upon circumstantial evidence, because the deliberate perpetration of the gravest of crimes is so inconsistent with an upright and orderly life as to cause the mind to hesitate, and to examine and re-examine the circumstances with the utmost care, before accepting them as conclusive proof." "Good reputation" carries much weight, especially when proof is doubtful and circumstantial. Gerke v. State (1913) 151 Wis. 495, 139 N. W. 404. The objection to the use of the word "doubtful" in this connection is that if the "proof" is of that nature, apart from the element of good character, the defendant is entitled to an acquittal, and the degree of "weight" to be ascribed to that element becomes wholly immaterial. A similar comment applies to the following statement of Woolson, J., in a charge to a jury: "Where the evidence is conflicting and doubtful as to defendant's guilt, the importance which the jury are authorized to give to evidence of good character is thereby increased." United States v. Newton (1892) 52 Fed. 275. 10 "No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbability that a person of such character would be guilty of the offense charged, that the other evidence in the case is false or the witnesses mistaken." Remsen v. People (1870) 43 N. Y. 9. "When evidence of good character raises a reasonable doubt as to the guilt of person accused of crime, he is entitled to an acquittal, although without such evidence no doubt as to his guilt would exist." People v. Conrow (1911) 200 N. Y. 360, 93 S. E. 943. "The evidence for the people may be of such weight that, in the absence of evidence of good character, a jury would have no hesitation in convict |