be, and hence the accused should not be confined to his reputation for a certain trait of character involved in the charge, but may, by those most intimate with him during a course of years, spread before the jury his real self, touching the quality of conduct involved in the issue. But according to the prevailing view reputation, when properly made the subject of proof in courts of justice, means the estimate in which the individual is held by the community, and not the private opinion entertained of him by the witnesses who may be called to testify in reference to such fact. When, therefore, a witness is called to prove the good character of the defendant, his testimony should not go beyond the reputation which the defendant sustains in the community as to the particular traits of character, the exist ence or nonexistence of which bears upon the probability or improbability that he would commit or refrain from committing the offense with which he is charged.10 While it seems that proof of specific acts of conduct has been admitted in some instances,11 such practice is not in accordance with the general rule. Conduct doubtless is, in all cases, to a greater or less degree the basis of reputation,-the efficient cause of whatever impression has been made on the community touching the qualities of the man; but it is this resultant of conduct, and not conduct itself,--whether regard be had to a general course of life or to particular acts,-which may go to the jury. in a given case to aid them in arriving at a just conclusion as to the fact, and in some instances the degree, of guilt.12 In other words the witnesses to character may not testify as to particular acts or even the course of conduct of the accused, but must confine themselves to a statement of his general reputation in the neighborhood wherein he has lived; 18 and this rule applies as well to evidence in rebuttal as to original testimony.14 Every person is supposed to be capable

9. State v. Lee, 22 Minn. 407, 21 Am. Rep. 769; State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 122 A. S. R. 479, 11 Ann. Cas. 1181, 13 L.R.A. (N.S.) 341; State v. Hosey, 54 Wash. 309, 103 Pac. 12, 22 L.R.A. (N.S.) 670. Notes: 22 L.R.A. (N.S.) 664; 12 Ann. Cas. 751.

10. State v. Lambert, 104 Me. 394, 71 Atl. 1092, 15 Ann. Cas. 1055; State v. Lee, 22 Minn. 407, 21 Am. Rep. 769; Bullock v. State, 65 N. J. L. 557, 47 Atl. 62, 86 A. S. R. 668; People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718, 12 Ann. Cas. 745, 22 L.R.A.(N.S.) 650 and note; State v. Magill, 9 N. D. 131, 122 N. W. 330, 22 L.R.A. (N.S.) 666.

Notes: 20 L.R.A. 614; 11 Ann. Cas. 1190; 12 Ann. Cas. 750.

11. State v. Turner, 246 Mo. 598, 152 S. W. 313, Ann. Cas. 1914B 451. 12. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301.

13. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; State v. Turner, 246 Mo. 598, 152 S. W. 313, Ann. Cas. 1914B 451; People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718, 12 Ann. Cas. 745, 22 L.R.A.(N.S.) 650; Howard v. State, 37 Tex. Crim. 494, 36 S. W. 475, 66 A. S. R. 312; State v. Marfaudille, 48 Wash. 117, 92 Pac. 939, 15 Ann. Cas. 584, 14 L.R.A. (N.S.) 346.

Note: 11 Ann. Cas. 1191.

14. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; McCarty v. People, 51 Ill. 231, 99 Am. Dec. 542; Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494;

at any time of sustaining his general reputation, but it would be unreasonable to expect any one to be prepared, without special notice, to answer an assault on his character imputed by particular facts of bad conduct. To allow such evidence, moreover, would lead to the mischief of raising any number of collateral issues, the trial of which might be almost interminable, and otherwise objectionable as diverting the mind of the jury from the main issue.15 On crossexamination, however, it seems that the witness may be interrogated as a test of his information, accuracy and credibility, but not for the purpose of proving particular acts or facts as to the opinions he has heard expressed by members of the community, touching the character of the defendant and whether he has not heard one or more persons of the neighborhood impute particular acts, or the commission of particular crimes, to the party under investigation, or reports and rumors to that effect.16

206. Negative Evidence as to Character.-A very sensible and commendable instance of the relaxation of the old and strict rule is the reception of negative evidence of good character. That reputation may, with justice, well be called good which no slanderer has ever ventured even so much as to question. A blameless life oftentimes, though not always, gives origin to such a reputation. When it can be said of a man by those well acquainted with him that they never have heard his reputation as to truth and morals discussed, denied, or doubted, it is equivalent to passing upon him the highest encomium, and the authorities abundantly establish that the person testifying need not base his knowledge on what is "generally said" of the person whose character is in question, but may testify to the reputation of such person on evidence of the negative nature above noted.17

Com. v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325 and note; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; Bullock v. State, 65 N. J. L. 557, 47 Atl. 62, 86 A. S. R. 668; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 A. S. R. 851; People v. Van Gaasback, 189 N. Y. 408, 82 N. E. 718, 12 Ann. Cas. 745, 22 L.R.A. (N.S.) 650; Com. v. Cleary, 135 Pa. St. 64, 19 Atl. 1017, 8 L.R.A. 301.

15. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; Com. v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325.

16. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; State v. Doris, 51 Ore. 136, 94 Pac. 44, 16

L.R.A. (N.S.) 660. Compare State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 122 A. S. R. 479, 11 Ann. Cas. 1181, 13 L.R.A.(N.S.) 341.

17. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; State v. McClellan, 79 Kan. 11, 98 Pac. 209, 17 Ann. Cas. 106 and note; State v. Lee, 22 Minn. 407, 21 Am. Rep. 769; Sinclair v. State, 87 Miss. 330, 39 So. 522, 112 A. S. R. 446, 2 L.R.A.(N.S.) 553 and note; State v. Brandenburg, 118 Mo. 181, 23 S. W. 1080, 40 A. S. R. 362; People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718, 12 Ann. Cas. 745, 22 L.R.A.(N.S.) 650 and note; State v. Hosey, 54 Wash. 309, 103 Pac. 12, 22 L.R.A.(N.S.) 670.

207. Qualification of Witness.-A witness is qualified to testify to the reputation of a defendant, where he has been in such a position with reference to the defendant's residence or circle of acquaintances that the fact of his hearing nothing against him would have a tendency to show that nothing had been said against him, and, therefore, that his reputation was good.18 It is not indispensable that a witness to the reputation of the accused should have resided in the same community with the accused.19

208. Character Not Put in Issue; Attack by Prosecution.-The accused is not bound to put his character in issue. If he omits to do so, no inference of his guilt can be drawn therefrom by the jury. The general rule is, that the omission to show good character does not justify a presumption that the character is bad, from which an inference of guilt can be drawn.20 Indeed, the presumption in the absence of any proof is in favor of good character. When, however, the accused conceives that his case will be strengthened by proof of good character he opens the door to proof by the prosecution that his character in fact is bad.1 But the character of a person accused of a crime is not a fact in issue, and the state cannot, for the purpose of inducing belief in his guilt, introduce evidence tending to show his bad character; 2 neither will the state be permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged. It does not follow because an accused person may have a bad character, that he is guilty of the particular offense for which he is being tried. Of course if the charge against a defendant is based on his character, as it is by some statutes making it a

18. People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 713, 12 Ann. Cas. 745, 22 L.R.A.(N.S.) 650.

19. State v. Lambert, 104 Me. 394, 71 Atl. 1092, 15 Ann. Cas. 1055.

20. United States v. Lancaster, 44 Fed. 896, 10 L.R.A. 333; Bennett v. State, 86 Ga. 401, 12 S. E. 806, 22 A. S. R. 465, 12 L.R.A. 449.

Note: 20 L.R.A. 609.

1. Fletcher v. State, 49 Ind. 124, 19 Am. Rep. 673; Bullock v. State, 65 N. J. L. 557, 47 Atl. 62, 86 A. S. R. 668; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; State v. Foster, 130 N. C. 666, 41 S. E. 284, 89 A. S. R. 876; Com. v. Cleary, 135 Pa. St. 64, 19 Atl. 1017, 8 L.R.A. 301; State v. Barr, 11 Wash. 481, 39 Pac. 1080, 48 A. S. R. 890, 29 L.R.A. 154, overruled on another point by State v. Marfandille, 48 Wash. 120, 92 Pac. 939, 14 L.R.A. (N.S.) 346.

2. Fletcher v. State, 49 Ind. 124, 19 Am. Rep. 673; State v. Beckner, 194 Mo. 281, 91 S. W. 892, 3 L.R.A. (N.S.) 535; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; Bullock v. State, 65 N. J. L. 557, 47 Atl. 62, 86 A. S. R. 668; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 A. S. R. 851; People v. Lingley, 207 N. Y. 396, 101 N. E. 170, Ann. Cas. 1913D 403, 46 L.R.A. (N.S.) 342; State v. Hull, 18 R. I. 207, 26 Atl. 191, 20 L.R.A. 609 and note; Lincecum v. State, 29 Tex. App. 328, 15 S. W. 818, 25 A. S. R. 727.

3. State v. Brady, 100 Ia. 191, 69 N. W. 290, 62 A. S. R. 560, 36 L.R.A. 693; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 A. S. R. 851. Note: 105 A. S. R. 988.

4. Bennett v. State, 86 Ga. 401, 12 S. E. 806, 22 A. S. R. 465, 12 L.Ŕ.A. 449.

crime to be a "notorious thief" or to be guilty of "notorious adultery," then his bad character in the particular respect may be shown, as that is the very gist of the offense.5 An error committed in admitting evidence on behalf of the state as to the bad character of the defendant is not cured by his offering evidence in rebuttal thereof." When a defendant takes the witness stand in his own behalf it is at once obvious that he occupies a dual position,-that of witness and accused. As already seen, unless the defendant has first offered evidence of good character in exoneration from the crime charged, the state has no right to attack his character, but it may, when the defendant offers himself as a witness, impeach his character for truth and veracity."

Evidence at Former Trial or Proceeding

209. In General.-Generally, the viva voce examination of a witness in the presence of the party on trial is required, because it is the best evidence. The direct and cross examinations are the best means of eliciting the whole truth, and the manner of the witness is one of the tests by which to determine the degree of credit to which he is entitled; but this is not always attainable, and what a deceased witness, or one who from other causes has become incapacitated to give evidence, has sworn on a former trial or preliminary examination where the accused had the opportunity to cross-examine the witness, is admitted on the principle that it is the best of which the case admits. Such testimony is not open to the objections ordinarily urged against hearsay or derivative evidence, having been delivered under the sanction of an oath, and the adverse party having had the full benefit of a cross-examination. It is therefore admitted upon the principle of necessity so as to prevent a defeat of the ends of justice. There is doubtless reason for saying that the accused should never lose the benefit of any of the safeguards thrown around him, even by the death of the witness, and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal

5. State v. Hull, 18 R. I. 207, 26 v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Atl. 191, 20 L.R.A. 609. Dec. 406; State v. Hefferman, 24 S. 6. State v. Beckner, 194 Mo. 281, 91 D. 1, 123 N. W. 87, 140 A. S. R. 764, S. W. 892, 3 L.R.A. (N.S.) 535. 25 L.R.A.(N.S.) 876; Robertson v.

7. State v. Beckner, 194 Mo. 281, 91 State, 63 Tex. Crim. 216, 142 S. W. S. W. 892, 3 L.R.A.(N.S.) 535.

8. Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608 and note; People v. Elliott, 172 N. Y. 146, 64 N. E. 837, 60 L.R.A. 318; Brown v. Com., 73 Pa. St. 321, 13 Am. Rep. 740; State v. DeWitt, 2 Hill L. (S. C.) 282, 27 Am. Dec. 371; State

533, Ann. Cas. 1913C 440; State v.
King, 24 Utah 482, 68 Pac. 418, 91
A. S. R. 808; Spencer v. State, 132
Wis. 509, 112 N. W. 462, 122 A. S.
R. 989, 13 Ann. Cas. 969.

See EVIDENCE.

9. Marler v. State, 67 Ala. 55, 42 Am. Rep. 95.

presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.10 The circumstances that a juror was withdrawn on the first trial, and no verdict found, cannot vary the question, for the evidence derives its weight alone from the circumstance that it was given on oath, when the parties had in opportunity of examining and cross-examining the witness.11

210. Nature of Former Proceedings.-Former evidence to be admissible under the rule in question must have been introduced in the regular course of a judicial proceeding, 12 before a tribunal capable of enforcing the attendance of witnesses, administering oaths, and employing cross-examination as a part of its procedure. 18 It must also appear that the party to be affected by such evidence was a party to such former proceeding, 14 and that the issue in the former proceeding was the same as that in the subsequent trial.15 The courts have refused to permit the introduction of the testimony of a deceased or absent witness given on a former trial unless it is clearly shown that the accused had an opportunity to cross-examine the witness on that trial.16 In some jurisdictions, it is held that the accused is not given a full opportunity of cross-examination at the preliminary hearing, and hence evidence given in course thereof is held to be inadmissible at the trial.17 However, some courts have taken a different view, and hold that the right of the accused to be confronted with the witnesses against him is afforded by conferring the right at the preliminary hearing.1

18

211. Absence of Witness.-In some jurisdictions it has been held, that the testimony of an absent witness given on a former trial or

10. State v. Heffernan, 24 S. D. 1, 123 N. W. 87, 140 A. S. R. 764, 25 L.R.A. (N.S.) 876; State v. King, 24 Utah 482, 68 Pac. 418, 91 A. S. 808.

R.

v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580.

15. Childers v. State, 30 Tex. App. 160, 16 S. W. 903, 28 A. S. R. 899; 11. State v. De Witt, 2 Hill L. (S. Somers v. State, 54 Tex. Crim. 475, C.) 282, 27 Am. Dec. 371.

12. State v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580.

13. State v. Heffernan, 24 S. D. 1, 123 N. W. 87, 140 A. S. R. 764, 25 L.R.A. (N.S.) 876.

14. Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; State

113 S. W. 533, 130 A. S. R. 901.

16. State v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969.

Note: Ann. Cas. 1913C 464.
17. Note: 25 L.R.A. (N.S.) 869.
18. Note: 1 Ann. Cas. 471.