It was with reference to this state of the law that Sir William Russell, in his well-known treatise on Crimes (p. 2119 of the edition of 1909), made the following remarks, frequently quoted by American judges: "It has been usual to treat the good character of the defendant as evidence to be taken into consideration only in doubtful cases. Juries have been generally told that, where the facts proved are sufficient to satisfy their minds of the guilt of the party, character, however excellent, is no subject for their consideration; but when they entertain any doubt as to the guilt of the party, they may properly turn. their attention to the good character which he has received. It is, however, submitted that the good character of the party accused, when satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the jury with the other facts and circumstances of the case. The nature of the charge, and the evidence by which it is supported, will often render such ingredient of little or no avail; but the more correct matter of fair and reasonable doubt whether a party is guilty or not, in common cases, if you prove that a prisoner up to that time has always maintained a good character, it will apply and balance in his favor; but if the evidence of guilt is satisfactory to the minds of a jury, evidence of previous good character cannot and ought not to have any avail."

1

4 The doctrine that evidence concerning good character is of weight only in doubtful cases is also laid down in other English treatises. Phillips, Ev. 469; 1 Starkie, Ev. 75 (p. 303 of vol. 2, 7th Am. ed.); Taylor, Ev. 9th ed. 1908, § 351.

But, so far as the present writer has been able to ascertain, the subject has never yet been discussed by a court of review.

1In Linn v. United States (1918) 163 C. C. A. 470, 251 Fed. 476, the following charge was held not to be erroneous: "When I say that you should consider all the testimony in the case, that included the testimony of the witnesses who were called as character witnesses, and you will take into consideration and give it such weight as you think it ought to have

course seems to be not in any case to withdraw it from consideration, but to leave the jury to form their own conclusion upon the whole of the evidence, whether an individual, whose character was previously unblemished, has or has not committed the particular crime which he is called upon to answer." As this passage has been left unaltered by the most recent editors of the treatise, the practice which the learned author condemns is presumably still followed in England.4

§ 6. American Federal courts. Approved by Supreme Court or circuit courts of appeal.

(a) Instructions in which the subject of reasonable doubt is covered by a general statement, applicable to the whole of the evidence, and the defendant's good character is specified as one of the elements to be considered. 1

(b) Instructions by which the jury are directed to acquit the defendant, if a reasonable doubt is raised in their minds by a consideration of all the evidence, including that which relates to his good character. 2

in the case as bearing upon the guilt or innocence of the defendants.'

2 In White v. United States (1896) 164 U. S. 100, 41 L. ed. 365, 17 Sup. Ct. Rep. 38, the trial judge refused to give the following charge: "The evidence of good character, when established by the evidence in a case, taken in connection with all the other evidence, may generate a reasonable doubt of the guilt of the defendants." Afterwards, in his oral charge, he said: "It is admitted in this case that the defendants are men of good character, the law presuming every defendant to have a good character, and the jury may consider such good character and give it such weight as they see proper, under all the evidence in the case that defendant is entitled to a reasonable doubt." The following remarks were made by the Supreme Court: "When the court told the jury that it was admitted that the defendant was a man of good character, and that the jury might consider such good character and give such weight to it as they saw proper under all the evidence in the case, and that the defendant was entitled to a reasonable doubt, it was sufficient, although the court unnec

(c) Instructions to the effect that good character is an element which may of itself suffice to raise a reasonable doubt as to the defendant's guilt. 3

(d) Instructions by which the jury are directed to render a verdict against the defendant, notwithstanding his good character, if upon a consideration of the whole evidence they

essarily added that the law presumed every defendant to have a good character. The charge gave the jury the right to give weight enough to the evidence to generate a reasonable doubt of the guilt of the defendant, and a substantial compliance with the request was made, although not in the very words thereof."

See also Searway v. United States (1910) 107 C. C. A. 635, 184 Fed. 716, infra, note 5.

3 In White v. United States, supra, note 2, it was manifestly assumed by the court that the requested instruction of this tenor was in itself a correct statement.

In Hughes v. United States (1916) 145 C. C. A. 238, 231 Fed. 50 (certiorari denied in 242 U. S. 640, 61 L. ed. 541, 37 Sup. Ct. Rep. 112), the following charge was approved: "If [the jury] believed the evidence tending to show the good character of these defendants, they should give it the same weight and consideration as any other fact proven in the case, but that if, from the entire evidence (including that relating to good character), the jury should believe the defendants guilty beyond a reasonable doubt, then the evidence as to good character should not alter or influence the verdict." The court said: "We think this substantially covered what the defendants were entitled to. The effect of the charge was not that evidence of good character was to be considered only in a doubtful case, as was held in the case of Edgington v. United States (1896) 164 U. S. 361, 41 L. ed. 467, 17 Sup. Ct. Rep. 72, relied upon by defendants. Its direction was that the jury were to consider it, just as much as any other evidence submitted to them, in their inquiry as to whether the defendants were guilty beyond a reasonable doubt, but if, after having so considered it, along with the other evidence, they reached the conclusion with that degree of certainty that defendants were guilty, then the fact of

Disapproved by Supreme Court or circuit courts of appeal.

(e) Instructions which import that the defendant's good character is of no avail to him, if the evidence, apart from that element, satisfies the jury beyond a reasonable doubt that he is guilty. 5

their previous good character, if proven, should not avail to change their verdict. This was a correct statement of the law."

5 In Searway v. United States (1910) 107 C. C. A. 635, 184 Fed. 716, it was held error to deny a request to charge the jury that evidence of good character may of itself create a reasonable doubt of guilt, though without it no such doubt would exist, and thereafter to charge as follows: "That a defendant may bear a good reputation among his neighbors and those who know him, of being a law-abiding, honest, upright citizen, is no ground on which he should be acquitted, if you find and believe from the other evidence in the case, beyond a reasonable doubt, that he committed the acts charged against him." The combined effect of the denial and of the charge as given is "that the evidence of good character was put aside and deprived of its probative force, and the question of the innocence or guilt of the accused was left to the other evidence in the case."

In Rowe v. United States (1899) 38 C. C. A. 496, 97 Fed. 779, when the defendant was accused of murder, the jury were charged as follows: "In cases where the facts themselves establish either guilt or innocence, character is not admissible, and cannot avail; but, in cases where the facts leave the case involved in doubt, good character is admissible, as tending to show who most probably began the conflict, if that point is left in doubt by the evidence; or as to whether the accused, when he shot and killed the deceased, believed, and had reasonable ground to believe, that he was in danger of losing his life, or in danger of receiving great bodily harm, if that point is left in doubt by the evidence. And the bad character of the deceased, if that is shown, is admissible as tending to show who most likely began the combat, if that point is left in doubt by the evidence, or as tending to show the nature and character and

(f) Instructions to the effect that the element of good character is sufficient of itself to raise a reasonable doubt as to the defendant's guilt.

(g) Instructions which unduly depreciate the probative significance of good character as an exculpatory element."

(h) Instructions so worded that the

purpose of any assault he may be shown to have made. So that, if the case is left in doubt upon any of the points just suggested, evidence with reference to good and bad character may be considered by you, and given such weight as, in your judgment under all the circumstances in the case, it is justly entitled. But if the evidence makes clear the truth of the facts, establishing either the guilt or innocence of the accused, independent of the character of the parties, then you should discard the question of character, as having no bearing upon the case whatever." The court said: "When the court told the jury that, 'where the facts themselves establish either guilt or innocence, character is not admissible and cannot avail.' It, in effect, withdrew from the consideration of the jury all the evidence tending to show the good character of the accused. This was clearly erroneous. Evidence of the good character of an accused may itself produce in the minds of the jury a reasonable doubt as to his guilt."

In Linn v. United States (1918) 163 C. C. A. 470, 251 Fed. 476, the refusal of the following charge was approved: "Good character is in itself sufficient to raise a reasonable doubt, whereas without it no reasonable doubt would exist." The court said that such a statement "cannot be true, for, if it were, no defendant could be convicted whose character was good."

7 In PERARA v. UNITED STATES (reported herewith) ante, 1, the following charge was held erroneous: "Evidence of this nature [as to good character] should be taken with a great deal of caution, for a man may bear the very best reputation and yet may secretly indulge in vice and crime. We often hear of cases where men of the very highest character

have been sometimes found to be secretly engaged in vice and crime, and if it is proven that they did commit the crime, the fact that they only practised it in secret, and that so far as the public knew they were men of

defendant's good character is exhibited to the jury as an element positively disadvantageous to him. 8

(i) Instructions by which a conclusive exculpatory force is ascribed to good character, so far as regards cases in which the evidence against the defendant is circumstantial.9

(j) Instructions from which the the highest character, would not excuse them from the consequences of their crime. Not only that; there are many crimes that can only be committed by men who bear a good reputation, such as the crime in this case [stealing from the mails]. Take, for instance, the case of an employee of the Postoffice Department, as this defendant was. Under the law, before he can obtain employment, he must, upon his application, get the recommendation of two reputable citizens vouching for his integrity. Otherwise, his application couldn't even be considered, and of course, gentlemen, neither the government nor anybody else is going to employ a man in a position where he has opportunities to commit larceny, to steal or embezzle funds, if his reputation is bad. . . . So that ought to be taken into consideration, whether the mere fact that, so far as the public knew, a man's character was good,-for that reason, if the evidence otherwise shows that he committed the crime,-it would justify or I would raise such a doubt in the minds of a reasonable jury as to justify a verdict of not guilty." The court said that these remarks, "by direct statement, innuendo, and suggestion, in effect nullified the true rule as first stated [see supra], and made good reputation of doubtful value and probably a positive disadvantage to the defendant."

8 In Humes v. United States (1910) 105 C. C. A. 158, 182 Fed. 485, where the defendant was accused of using the mails for fraudulent purposes, the following charge was held erroneous: "Conceding that he did have a good reputation at the time of these transactions, and that he was regarded as a man of truth and veracity, it only accentuates the measure of his responsibility. A man who has a good reputation as a business man and citizen is more apt to have weight and credence attached to his statements than a man who is disreputable, a man who is unsavory."

9 In Browne v. United States (1905)

jury may draw the inference that good character is an element to be considered only in doubtful cases. 10

Charges given by trial judges.

(k) It seems probable that the in76 C. C. A. 31, 145 Fed. 1, it was held that the trial judge had properly refused to charge as follows: "In cases depending upon circumstantial evidence, evidence of good character of itself creates a reasonable doubt, to which the defendant is entitled." The court said: "Inasmuch as it is necessary in criminal cases to convince the jury of defendant's guilt 'beyond a reasonable doubt,' the request was really for an instruction that no person of good character can be convicted of crime by circumstantial evidence, however strong. It is needless to say that this point on the brief is supported by the citation of no authority." (A writ of certiorari was denied by the Supreme Court. See (1906) 200 U. S. 618, 50 L. ed. 623, 26 Sup. Ct. Rep. 755.)

10 In Edgington v. United States (1896) 164 U. S. 361, 41 L. ed. 467, 17 Sup. Ct. Rep. 72, the jury were thus charged: "If a man in the community where he lives, by his incoming and outgoing among his neighbors, has built up in the years of his life, be they comparatively few or many, a character among them for good morals, which includes the uprightness and excellency of our general citizenship, it is right that the jury should know that fact. It is of value to them in conflicting cases, in determining points in the case; and yet, gentlemen, I have to say to you that evidence of good character is no defense against crime actually proven. If the defendant in this case is proven guilty of crime charged, any good character borne by him in his community is no defense; it must not change your verdict; for the experience of mankind,—of all of us, teaches us that men reputed to be of good moral character in a community unfortunately sometimes we find they are sadly different from that which they are reputed to be, and that they are committers of crime; yet the good character goes to the jury with special force whenever the commission of the crime is doubtful. If your mind hesitates on any point as to the guilt of this defendant, then you have the right and should consider the tes

structions quoted in the footnote would be approved by the higher Federal courts, in so far, at all events, as the question of correctness was not affected by a denial of a request for a more precise statement. 11

timony given as to his good character, and it becomes, as I have suggested, or may be, of great importance in the minds of the jury in the matters of doubt." The court said: "It is impossible, we think, to read the charge without perceiving that the leading thought in the mind of the learned judge was that evidence of good character could only be considered if the rest of the evidence created a doubt of defendant's guilt. He stated that such. evidence 'is of value in conflicting cases,' and that if the mind of the jury 'hesitates on any point as to the guilt of the defendant, then you have the right and should consider the testimony given as to his good character.' Whatever may have been said in some of the earlier cases to the effect that evidence of the good character of the defendant is not to be considered unless the other evidence leaves the mind in doubt, the decided weight of authority now is that good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although without it the other evidence would be convincing."

See also Rowe v. United States (1899) 38 C. C. A. 496, 97 Fed. 779, supra.

11 The reported summary of the charge given by McLean, J., in United States v. Whitaker (1855) 6 McLean, 342, Fed. Cas. No. 16,672, states that he told the jury that "the exemplary character of the defendant should have weight in their deliberations," and that he summed up by saying that "unless the jury came to the conclusion, upon the whole evidence, the defendant was guilty beyond reasonable doubt, they should acquit him."

In United States v. Emerson (1855) 6 McLean, 406, Fed. Cas. No. 15,051, the same judge told the jury that weight was to be given to the evidence of good character, "in connection with the other facts of the case."

The evidence of good character

(1) On the other hand it may safely be affirmed that some, if not all, of "must be considered and weighed by the jury with the other evidence in the case, and its effect is to be determined by them in connection with it." Swing, J., in United States v. Hutchins (1876) Fed. Cas. No. 15,430. The doctrine that such evidence is admissible only in doubtful cases was disapproved.

The good character of the defendant as a man of unquestioned integrity "is a fact to be weighed and considered by the jury, in the light of which they should view all the evidence and determine the question of his innocence or guilt of the crime charged against him in the indictment [conspiracy]. The above is the settled rule of the law in all criminal cases, as well in those in which direct and positive evidence is relied on, as those in which the proof is circumstantial, but in cases of the latter kind the evidence of previous good character has more scope and force than in cases where the proof of the offense is positive and direct. In the language of an eminent judge, speaking upon this point: "There may be cases so made out that no character can make them doubtful; but there may be others in which evidence given against a person without character would amount to conviction, in which a high character would produce a reasonable doubt,-nay, in which character will actually outweigh evidence which might otherwise appear conclusive.'" Dillon, J., in United States v. Babcock (1876) 3 Dill. 581, Fed. Cas. No. 14,487. A charge similar to that embodied in the first sentence in the passage quoted was again used by the same judge (Treat, J., concurring) in United States v. McKee (1876) 3 Dill. 551, Fed. Cas. No. 15,686, and followed by a general charge on the factor of "reasonable doubt."

"The good character of an accused person is always a fact to be considered by the jury. It should lead the jury to scrutinize the evidence adduced in support of the commission of the crime charged, and their own process of reasoning upon that subject; and, further, should be considered as an independent fact in favor of the accused. Nevertheless, if, after this application of the testimony in favor of good character has been made, and this effect given to it, the whole evidence in the case is sufficient to war

the instructions set out below, are objectionable, as reflecting the doctrine,

rant a conviction, the jury are not authorized to withhold from the other evidence its proper effect, or to refuse to draw from it the legitimate conclusions. While good character is always an element to be considered, and there are cases in which it would furnish evidence which would create a reasonable doubt of guilt, there are also cases in which the former spotless character of the accused could not overcome the weight of testimony in support of guilt." Billings, J., in United States v. Noblom (1878) Fed. Cas. No. 15,896.

"Good character is generally a fact, fit, like all other facts proved in the cause, to be weighed and estimated by the jury. Good character is an ingredient which may render that doubtful which would otherwise be clear. If the guilt of the accused is plainly proven to the satisfaction of the jury, notwithstanding the good character of the accused has been given its due weight by them, it would be their duty to convict the defendant, irrespective of such proof of character; but, where the evidence is doubtful and conflicting, the importance of the character of the accused is increased." Speer, J., in United States v. Jackson. (1886) 29 Fed. 503.

"A good character of a party accused of crime is always evidence fit and proper to be given in his behalf. The good character of the accused may render that doubtful which otherwise would be perfectly clear, and therefore he is always entitled to have the benefit of his good character, and you should weigh it, and give to it such weight as belongs to it. But if you believe from the evidence that he is guilty of the crime charged, and the other evidence in the case shows this. to be true, you should convict him, notwithstanding proof of good character." Speer, J., in United States v. Jones (1887) 31 Fed. 718.

"The good character of defendant is a fact to be weighed by you in the light of all the evidence bearing upon the question of his innocence or guilt of the crime charged against him in the indictment. But good character is no defense against crime actually committed, and the jury are charged that, if the guilt of defendant is plainly proven to the satisfaction of the jury, notwithstanding