in almost all the American courts, is equally decisive, consists in the fact that an instruction of this tenor State v. Barth (1886) 25 S. C. 175, 60 Am. Rep. 496. A portion of it is also incorporated in Wharton, Crim. Law, § 644.

"Such a rule practically deprives a defendant of all benefit of evidence of his good character; for if, on the other evidence, there is a reasonable doubt, he is entitled to an acquittal without it; and in a case not otherwise doubtful, where alone he needs the evidence for the purpose of making it doubtful, he is denied the benefit of it." State v. Sauer (1888) 38 Minn. 438, 38 N. W. 355.

"The question is this: If, excluding the evidence of good character, the jury are satisfied of the prisoner's guilt, may they in such a case take good character into consideration? If they cannot, then this dilemma arises: If, excluding evidence of good character, the jury have a reasonable doubt, they must acquit; and hence evidence of good [character] is not needed. If, excluding such evidence, the jury have no reasonable doubt, then they are satisfied of the prisoner's guilt, and therefore evidence of good character is to be disregarded. Hence, in no case is it of any use." People v. Moett (1880) 23 Hun (N. Y.) 60.

In Stewart v. State (1872) 22 Ohio St. 485, the court said that "the form of stating the law as to evidence of good character" adopted by the trial court (i. e., that it is to be considered only in a doubtful case) "is condemned by what we deem the better authorities, and, as we think, by reason, as unsound, and calculated to mislead the jury. It is liable, to say the least, to an interpretation by which the accused is virtually deprived of all benefit from evidence of his good character; because, if such evidence can only be used in a ‘doubtful case' it can avail the defendant nothing, for he is entitled to an acquittal without it; and in a case not doubtful, where alone he needs the evidence, for the very purpose of making the case doubtful, or, it may be, of turning the scale in his favor, he is denied its benefit."

In Heine v. Com. (1879) 91 Pa. 145, the court said with regard to an instruction which embodied the doctrine: "The effect of this was to give the evidence of good character no 10 A.L.R.-8.

amount to an expression of opinion concerning the weight to be given the evidence. 5

weight whatever, for, if the other testimony left in the minds of the jury a reasonable doubt of the defendant's guilt, this of itself, without more, entitled him to an acquittal."

"To say that proof of good character is only available in a 'weak case' is to say that it is of no substantial account whatever." Hanney v. Com. (1887) 116 Pa. 322, 9 Atl. 339.

In State v. Daley (1880) 53 Vt. 442, 38 Am. Rep. 694, the statement in 1 Starkie on Evidence, 75, that evidence as to good character "ought never to have any weight, except in a doubtful case," was thus criticized: "If this is law, all such evidence might as well be excluded; for if the case is doubtful, before its introduction (and that is the undoubted meaning of the quotation) the respondent is entitled to an acquittal without it; if the jury have a reasonable doubt of the prisoner's guilt, it is their duty to acquit; hence the evidence becomes unnecessary; and if Mr. Starkie is correct in his proposition, where the case is not doubtful upon the other evidence it is not entitled to any weight, and so would be needlessly in the case."

For similar criticisms, see Felix v. State (1851) 18 Ala. 720; People v. Shepardson (1875) 49 Cal. 629; United States v. Hamilton (1886) 4 Mackey (D. C.) 446; State v. Northrup (1878) 48 Iowa, 583, 30 Am. Rep. 408; State v. Alexander (1877) 66 Mo. 148; State v. Howell (1890) 100 Mo. 628, 14 S. W. 4; Powers v. State (1897) 74 Miss. 777, 21 So. 657; People v. Blatt (910) 136 App. Div. 717, 121 N. Y. Supp. 507; Com. v. Cleary (1890) 135 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017; Com. v. Howe (1908) 35 Pa. Super. Ct. 554; Com. v. Mandela (1911) 48 Pa. Super. Ct. 56; People v. Hancock (1891) 7 Utah, 170, 25 Pac. 1093; State v. Brown (1911) 39 Utah, 140, 115 Pac. 994, Ann. Cas. 1913E, 1; State v. Leppere (1886) 66 Wis. 355, 28 N. W. 376; Jackson v. State (1892) 81 Wis. 127, 51 N. W. 89.

5 Com. v. Leonard (1886) 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, 7 Am. Crim. Rep. 593; People v. Garbutt (1868) 17 Mich. 9, 97 Am. Dec. 162; State v. Howell (1890) 100 Mo. 628, 14 S. W. 4; Wharton, Crim. Ev. 8th ed. § 66; Com. v. Mandela (1911) 48 Pa. Super. Ct. 56; Lee v. State (1877) 2 Tex. App. 340.

Instructions to the effect that in doubtful cases good character is conclusive in the defendant's favor have been condemned in Indiana and Mississippi, as being an invasion of the province of the jury. In view of the consideration thus indicated, it seems questionable whether a case in which the supreme court of New York held that the trial judge had improperly refused to charge that "good character in a doubtful case is usually sufficient to exculpate" was correctly decided."

§ 51. Instructions containing statements as to the bearing of evidence of good character upon subsidiary issues.

The decisions are conflicting with regard to the correctness of instructions by which the jury is told to consider the probative force of good character with reference to the question whether the testimony of the witnesses for the prosecution is credible.1 A comparison of the decisions shows that there is no distinct preponderance of authority either for or against the view

In State v. Henry (1857) 50 N. C. (5 Jones, L.) 65, the court said: "It is admitted that, in all cases, a person accused of a crime of any grade, whether a felony or misdemeanor, has a right to offer in his defense testimony of his good character. Whatever is admitted as competent evidence must be for the consideration of the jury. Who, then, is to decide whether the case is a plain one, by which the testimony is to be withdrawn from them? It cannot be the court, because that would be deciding on the facts, and thus usurping the province of the jury. It cannot be the jury, because that would be deciding the preliminary question of competency, and thus usurping the province of the court. The advocate of the rule is thus placed in a dilemma, by taking either horn of which he is involved in an absurdity."

Shields v. State (1897) 149 Ind. 395, 49 N. E. 351; Cole v. State (1888) Miss., 4 So. 577.

7 People v. Drown (1891) 60 Hun, 581, 38 N. Y. S. R. 985, 14 N. Y. Supp. 740.

1 Approved.

California.-People v. Shepardson (1875) 49 Cal. 629.

Illinois. Guzinski v. People (1898) 77 Ill. App. 275.

that instructions of this type are improper. Under such circumstances a commentator may perhaps venture to express the opinion that the position of the courts by which they have been approved is the more reasonable. It seems unwarrantable to assume that a jury of average intelligence might be misled by a form of words which, for practical purposes, conveys the same meaning as the ordinary statement that the defendant's good character is to be considered as an element which tends to show that he is innocent of the crime in question.

So far as regards subsidiary issues of other descriptions, the reports show that instructions have been condemned for the reason that they were framed in such terms as to preclude the jury from considering the significance of good character, with reference to the following matters: The intention with which the defendant committed the act for which he is put upon his trial; the existence of malice in respect of the commission of that

Iowa.-State v. Krug (1907) 136 Iowa, 231, 113 N. W. 822, distinguishing State v. Wolfe (1900) 112 Iowa, 458, 84 N. W. 536, infra.

New York. People v. Childs (1904) 90 App. Div. 58, 85 N. Y. Supp. 627; People v. Birnbaum (1906) 114 App. Div. 480, 100 N. Y. Supp. 160.

Tennessee.-Phelan v. State (1904) 114 Tenn. 483, 88 So. 1040. Disapproved.

Georgia.-Culver v. State (1906) 124 Ga. 822, 53 S. E. 316.

Idaho.-State v. McGreevey (1909) 17 Idaho, 453, 105 Pac. 1047.

Iowa.-State v. Wolfe (1900) 112 Iowa, 458, 84 N. W. 536, distinguished in State v. Krug (1907) 136 Iowa, 231, 113 N. W. 822, supra.

Kansas. State v. Deuel (1901) 63 Kan. 811, 66 Pac. 1037.

Nebraska.-Latimer v. State (1898) 55 Neb. 609, 70 Am. St. Rep. 403, 76 N. W. 207.

Utah.-State v. Van Kuran (1902) 25 Utah, 8, 69 Pac. 60.

2 In People v. Casey (1879) 53 Cal. 360, where the prisoner was charged with murder, it was held to be error to tell the jury that "no inference can be drawn by a jury of the intention which induced the commission of the offense, from the previous character of the prisoner. His intention can only be

determined by his acts." The ratio decidendi was that previous good reputation is competent evidence to rebut presumption of malice.

In People v. Garbutt (1868) 17 Mich. 9, 97 Am. Dec. 162, where the defendant was accused of murder, it was held error to refuse to charge that, as to good reputation, it is for the jury to consider whether such reputation tends to rebut the presumption of malice. The court said: "We

think the instructions requested were correct in substance, and that the defendant was entitled to them without explanation or qualification.

That the evidence [of good character] was admissible in the case was unquestionable, but it was equally unquestionable that it could have no bearing whatever, except upon the question of malicious intent. To refuse the instruction, therefore, seems to us equivalent to holding, or at least to leaving the jury to infer, that the evidence which was lawfully put into the case was immaterial after it was in.

. . In every criminal trial it [evidence of good character] is a fact which the defendant is at liberty to put in evidence; and, being in, the jury have a right to give it such weight as they think it entitled to." Ibid.

In Com. v. Cleary (1890) 135 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017, the trial judge, in denying a new trial, observed: "As the commission of the crime by the defendant was not disputed, and the only question for the jury to determine was the grade or degree of the crime, and as the determination of that question depended upon the mental condition of the defendant, whether intoxicated or not, we are of opinion that the evidence of the defendant's good character had little relevancy." Commenting on this statement the court said: "We do not understand that the commission of the crime was undisputed by the defendant. It is true the commission of the homicide was conceded, but not the commission of murder in the first degree. That was the crime for which he was on trial, and of which he was convicted. The commission of that offense was disputed below, and also in this court. Nor did the question of the degree depend alone 'upon the mental condition of the defendant, whether intoxicated or not.' The jury

act; and the degree of punishment

found that he was not intoxicated to the extent of preventing his forming the wilful, deliberate, and premeditated intent to take the life of the deceased. Just here is the place where the evidence of good character was entitled to come in, and have its due weight. Here was his supreme peril. The defense of intoxication had failed. If a man's good character is to avail him at all, when does he need it more than when a jury is deliberating upon the question whether he had formed in his mind the deliberate intent to take a human life? It might not have availed anything in this case; we are not considering the weight of the evidence upon this point; that was for the jury; but it should have been submitted to them in such manner as to give them a proper understanding as to how they should apply it. We cannot treat this as an immaterial matter which did not prejudice the defendant. It may not have done so, but we cannot say so. The issue of life and death is so vast, both as to this world and the next, that it is our duty to weigh every word carefully, and leave nothing to conjecture." "The fact

that the homicide was committed by the appellant was not disputed below nor here, nor was there any attempt to show that the offense was manslaughter. The sole question was as to the degree of murder. The jury convicted appellant of murder in the first degree. We think the evidence of good character is applicable both to the commission of the ofense and the grade of the crime. So far we are in accord with the trial judge. But we think he stated inaccurately the law as applicable to good character." See also Com. v. Corsino (1918) 261 Pa. 593, 104 Atl. 739, where the same position was taken.

In People v. Gleason (1865) 1 Nev. 173, where the defendant was accused of murder, a charge to the effect that "good character can only be taken into consideration when the jury has a reasonable doubt as to whether the defendant is the person who committed the offense" was held to be erroneous on the ground that, under the evidence as given, the only questions involved were whether the killing of deceased was accidental or intentional, and. if criminal, what was the grade of crime committed, and that the

which is to be inflicted. The consideration that all the points to which the attention of the jury was directed in the cases cited represented details which it was necessary to settle in one way or another for the purpose of a complete disposition of the charge against the defendant would seem to afford a completely sufficient and satisfactory basis for the rulings made. But instructions have been held erroneous on the ground that they directed the jury to consider the bearing of good character upon the questions whether the plea of self-defense in a murder case was sustained by the charge as given prevented the jury from considering the probative force of the defendant's good character relative to these questions.

5 In Rosenbaum v. State (1859) 33 Ala. 354, an assault case, the following charge was disapproved: "The evidence of good character went only to the question of the defendant's guilt, and, if they found the defendant guilty, should not be regarded by them in mitigation of the fine which they might think proper to assess against him." The court said: "In prosecutions for offenses which consist of different degrees, as declared and defined by law, no one, we apprehend, would hesitate to declare that

good character should be weighed by the jury in determining the dooree of guilt. Now, although few, if any, misdemeanors have legally defined degrees, most of them are in fact classified by the measure of criminality which attends them. Some assaults are more violent and aggravated than others; and yet the law, in the absence of some specified and particular circumstances and intents, has not declared anv degrees in assault, or assault and battery. The jury, in pronouncing upon the question of guilt, can render only a general verdict of guilty or not guilty. In assessing the fine, however, the jury are not thus shackled. Code, 3307. They are clothed with a large discretion, which must have had for its object the accommodation of the punishment to the degree of criminality. In fact, the fine assessed in the particular case is but a reflection of the opinion of the jury on the guiltiness of the accused. We hold, then, that the jury should

evidence, and whether the explanation offered by the defendant to account for the possession of stolen goods was reasonable."

$ 52. Instructions with regard to cases in which the incriminating evidence is circumstantial.

It has been stated in § 1, supra, that one of the classes of cases in which the element of character carries the greatest weight consists of those in which the inculpating evidence is entirely circumstantial. The propriety of a charge embodying this doctrine has been affirmed. On the other hand, it is error to instruct a jury that good have been instructed to regard the evidence of defendant's good character in determining the degree of the defendant's guilt; and as the degree of guilt can only find expression in the amount of the fine assessed, the . . . charge given by the court is erroneous."

Compare Aneals v. People (1890) 134 Ill. 401, 25 N. E. 1022, wherein it was laid down as a matter of substantive law that "not only may the jury consider the evidence of good character upon the question of guilt, but if they feel constrained to find the defendant guilty, it is proper to consider the same in mitigation of punishment."

See also Hagood v. State (1908) 5 Ga. App. 80, 62 S. E. 641, where the evidence as to good character induced the jury to recommend a "misdemeanor punishment," and the recommendation was approved by the trial judge and the court of appeals.

State v. McNally (1885) 87 Mo. 644.

7 State v. Hutchison Minn. 405, 141 N. W. 483.

(1913) 121

1 In Hedger v. State (1911) 144 Wis. 279, 128 N. W. 80, a charge was approved which contained, inter alia, a statement to the effect that "in a case depending entirely upon circumstantial evidence, where, in addition, the testimony for and against the accused is in conflict," evidence of good character "may become very important."

In United States v. Babcock (1876) 3 Dill. 587, Fed. Cas. No. 14,487, the jury were charged by Dillon, J., that evidence of good character "has more scope and effect in cases in which the proof is circumstantial than in cases where the proof is positive and direct."

character is of weight only in such cases, or that in such cases this element is conclusive in the defendant's favor. 3

§ 53. Instructions concerning probative force in relation to the gravity of the crime charged.

The decisions disclose a conflict of judicial opinion with regard to the propriety of instructing the jury that good character is an element of slight probative force in cases involving crimes of a serious description. 1

But such an instruction seems to be clearly objectionable, as being in effect one which amounts to a direction concerning the weight to be ascribed to a certain portion of the evidence.

2 State v. Northrup (1878) 48 Iowa, 483, 30 Am. Rep. 408; State v. Rodman (1883) 62 Iowa, 456, 17 N. W. 663; State v. McMurphy (1873) 52 Mo. 251; Stover v. People (1874) 56 N. Y. 315; State v. Leppere (1886) 66 Wis. 355, 28 N. W. 376. See also the charge of Dillon, J., in United States v. Babcock (1876) 3 Dill. 581, Fed. Cas. No. 14,487.

3 Browne v. United States (1905) 76 C. C. A. 31, 145 Fed. 1, certiorari denied in (1906) 200 U. S. 618, 50 L. ed. 623, 26 Sup. Ct. Rep. 755; People v. Streuber (1898) 121 Cal. 431, 53 Pac. 918. See also State v. King (1903) 122 Iowa, 1, 96 N. W. 712, where the court rejected the contention of counsel that, "as the evidence was purely circumstantial, the proof of good character should be held so far defensive as to overcome any inference of guilt to be drawn therefrom."

In charging the jury in the famous case of Com. v. Webster (1850) 5 Cush. (Mass.) 325, 52 Am. Dec. 71, Chief Justice Shaw said: "Where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things and beyond common experience, it is so manifest that the offense, if perpetrated, must have been influenced by motives not frequently operating upon the human mind that evidence of character, and of a man's habitual conduct under common circumstances, must be considered far inferior to what it is in the instance of accusations of a lower grade." This statement of the law was also approved in Hogan v. State (1874) 36 Wis, 226.

$ 54. Miscellaneous grounds on which instructions have been held erroneous.

The impropriety of an instruction concerning the probative force of evidence as to the defendant's good character may be predicated on such grounds as the following:

(a) That it did not explain to the jury that they were not merely authorized, but bound to consider said evidence. 1

(b) That its virtual effect was to withdraw such evidence from the consideration of the jury. 2

(c) That in substance it constituted a direction to the jury with regard to the weight which they were to attach to such evidence.

On the other hand, instructions embodying the doctrine thus laid down have been condemned in Cancemi v. People (1858) 16 N. Y. 501. The court was of the opinion that "the doctrine of the charge was stated to the jury in such a manner as to be, if not in effect an instruction controlling the weight of the evidence, calculated to mislead the jury as to the weight which the evidence should receive; and afforded, therefore, good ground under the Act of 1855 (Laws of 1855, chap. 337, p. 613), for a new trial."

The doctrine was also disapproved in Harrington v. State (1869) 19 Ohio St. 264. In McLain v. Com. (1881) 99 Pa. 86, the trial judge, after reading the above passage to the jury, added that such evidence "may of itself, by the creation in your minds of a reasonable doubt of the existence or truthfulness of the criminating evidence, cause you to acquit the defendant." The comment of the supreme court was: "We are not prepared to dissent from the doctrine declared by Chief Justice Shaw; but, qualified as it was by the court below, the accused has no just cause of complaint."

1 People v. McGraw (1901) 66 App. Div. 372, 72 N. Y. Sunn. 679.

2 State v. Sloan (1899) 22 Mont. 293, 56 Pac. 364; People v. Pedro (1897; Sup. Sp. T.) 19 Misc. 300, 43 N. Y. Supp. 44, 12 N. Y. Crim. Rep. 399; People v. Brooks (1892) 131 N. Y. 321, 30 N. Y. Supp. 189.

3 Arkansas.-Maclin v. State (1884) 44 Ark. 115; Whitley v. State (1914) 114 Ark. 243, 169 S. W. 952. Delaware. State v. Snow (1901) 3 Penn. 259, 51 Atl. 607 (ruling of trial