the source from which it emanates. But such order may go in extenuation of it.' Thus, on a trial for theft of cattle, the mere fact that the accused was acting as the hired hand of another, is no defense, if he knew that his employer was causing them to be driven off with intent to steal them.' But defendant may prove conversations with himself and in his presence, tending to show that he took possession of the goods under the honest belief that he was acting as agent for the real owner.' So also, the accused may prove by a competent witness that another person, accused with him of having stolen a hog, and convicted on a separate trial, had asked him just before the alleged offense, "to go and help him get his hog." The circumstance was part of the res gesta, and the evidence admissible to show the absence of the animus furandi.* But on the trial of two persons for the larceny of a load of wheat, it is not error to reject evidence tending to show that the father of one of the persons charged tried to hire other persons to haul the wheat to town, and declared that he had hired the prisoners to do so, such evidence being mere hearsay.* § 222. Alibi.—Under the weight of authority the burden of proving an alibi is on defendant." Evidence to prove an alibi should be received with great caution; but the defense, if established, is equal to any other; and if a reasonable doubt is created by the evidence, he should be acquitted;' even though the alibi does not cover the whole time during which the crime was committed." It is not necessary that the jury 1 State v. Sparks, 27 Tex. 627. 2 Taylor v. State, 5 Tex. App. 529; Murphy v. State, 6 Tex. App. 420. 3 Chambers v. State, 62 Miss. 108; State v. Waltz, 52 Iowa 227. 4 State v. Dellwood, 33 La. An. 1229; State v. Jacques, 35 La. An. 1031. 5 State v. Romain, 44 Kan. 719. See also infra § 256. 'Garrity v. People, 107 Ill. 162; State v. Hemrick, 62 Iowa 414; State v Hamilton, 57 Iowa 596; State v. Krewsen, Id. 588; State v. Rivers, 68 Iowa 611; State v. Jennings, 81 Mo. 185. Contra Johnson v. State, 21 Tex. App. 368; Ayres v. State, Id. 399. 8 Provo v. State, 55 Ala. 222. 'People v. Nelson, 85 Cal. 421; State v. Hardin, 46 Iowa 623; State v. Watson, 7 S. C. 63. 10 Kaufman v. State, 49 Ind. 248; Stuart v. People, 42 Mich. 255; State v. Jaynes, 78 N. C. 504. 2 should be "fully satisfied" of the truth of the evidence;' and it is error to instruct that defendant must "satisfactorily" establish the defense. Proof of an alibi by a preponderance of evidence justifies an acquittal.' Proof tending to establish this defense, though inconclusive, should be submitted to the jury; and the jury may consider such evidence as rebutting the presumption arising from possession of the stolen property." Where there is a defense of an alibi, the evidence in support of it should be considered in connection with all the other evidence in the case, and if, on the whole evidence, there is reasonable doubt of defendant's guilt, he should be acquitted. But an alibi is not conclusive, unless defendant shows himself to have been so far away that he could not have participated.' The defense is not one requiring that the evidence given in support of it should be scrutinized otherwise or differently from that given in support of any other issue in a cause; and evidence to prove an alibi is not open to the objection of being cumulative.' But one on trial for a crime may not, for the purpose of proving an alibi, show what he said on his return home as to where he had been during his absence. An unsuccessful attempt to prove an alibi does not raise a presumption of guilt; though detection of a fraudulent attempt to establish a fictitious alibi by perjury may well have such an effect." In Kansas, defendant need not prove the defense by a preponderance of the evidence. Where the State alleges that the accused was personally present at the commission of the crime, and such presence is necessary to a conviction, that fact must be established by the State beyond a reasonable doubt.' 12 1 State v. Henry, 48 Iowa 403. Hoge v. People, 117 Ill. 35. 3 State v. McCracken, 66 Iowa 569; State v. Northrup, 48 Iowa 583. 4 People v. Fong Ah Sing, 64 Cal. 253. State v. Sidney, 74 Mo. 390. Pate v. State, (Ala.) 10 So. Rep. 665. 8 People v. Lattimore, 86 Cal. 403. 9 Smythe v. State, 17 Tex. App. 244. 10 State v. McCracken, 66 Iowa 569. 11 Porter v. State, 55 Ala. 95. 12 State v. Child, 40 Kan. 482. Upon trial for larceny of cattle, and a § 223. Character'— (a) Admissibility.-Defendant's good character is to be considered by the jury with other evidence in his favor, upon his trial for a crime.' Such evidence is admissible as relevant to the credibility of the evidence against him, and, like any other fact, is to be considered by the jury in determining whether or not his guilt has been established beyond a reasonable doubt. Its competency is not restricted to doubtful cases; and in such cases it is superfluous.' When a criminal intention is of the essence of the offense charged, the accused may, as bearing upon the question of his guilt or innocence, put in issue, and prove, his general good character in that respect which is impugned by the accusation. Thus, evidence of defendant's character, showing that he would not be likely to have committed the crime, is admissible at any time, though his character be not in any way directly impeached. Even where the defense is insanity, evidence is defense of an alibi, testimony was introduced by the State tending to show that the cattle had been seen in defendant's possession on the 28th of August, and, subsequently, other witnesses testified that they had seen the cattle in defendant's possession “about two weeks" before September 17. Held, that if the jury believed that the time testified to by these latter witnesses was exactly two weeks before September 17 their testimony was not to be considered; but that it might be considered, if, in considering the words "about two weeks," they, without guessing upon the subject, concluded that it was before August 28.-People v. La Munion, 64 Mich. 709. trial for the larceny of two horses which must have been secreted by the thief on an island in the Platte river on a certain night, five witnesses testified that the prisoner was in a town twenty miles from the river on that night at eleven o'clock, and the only evidence for the prosecution was a witness' testimony that the prisoner came to his house in the same town about four o'clock the next morning. Held, that there was no evidence to justify a verdict of guilty.-Staman v. State, 14 Neb. 68. Where the State, in a prosecution for theft of a horse, relies on testimony of two witnesses that they saw three men take the horse from a place of concealment, and that they "took" defendant to be one of them, and that the person they took to be defendant was riding a horse similar to one which defendant had, a motion for continuance to procure a witness to show an alibi should be granted.-Taylor v. State, 27 Tex. App. 44. 1 See, also, infra, § 257. McQueen v. State, 82 Ind. 72. On a Lee v. State, 2 Tex. App. 338; State v. Barth, 25 S. C. 175; 60 Am. Rep. 496. Contra, State v. Wells, Coxe, 424; 1 Am. Dec. 211; Territory v. Klehn, 1 Wash. 584. Coffee v. State, 1 Tex. App. 548. 'State v. Donohoo, 22 W. Va. 761. admissible of the uniform good character of the accused as a man and a citizen.' But, if the jury are satisfied from the evidence of a prisoner's guilt, his good character cannot be a ground of acquittal.' In order competently to testify on cross-examination touching character, the witness must have heard a sufficient number of persons speak of the assailed to be able to express the well-founded opinion that he believes he knows what a majority would say if called on to speak.' Negative evidence of character is competent; for instance, the testimony of a witness who swears that he has been acquainted with an accused person for a considerable time, under such circumstances that he would be more or less likely to have heard what was said about him, and has never heard any remark about his character; the fact that a person's character is not talked about at all being excellent evidence that he gives no occasion for censure, or in other words, that his character is good. The right of the State to introduce evidence to rebut proof of good character, introduced by the accused, is confined to proof of general character, and does not admit proof of rumors as to a particular fact.“ (b) Limit as to traits, and as to time.-The defendant is entitled to offer in defense evidence as to his good character, and the only limitation by which the rule should be circumscribed is, that in each case the character sought to be proved should not be general, but such as would make it unlikely that the defendant would be guilty of the particular crime with which he is charged. Thus, on trial for larceny, the prisoner's evidence of good character must be confined to his 1 Hopps v. People, 31 Ill. 385. 2 State v. McMurphy, 52 Mo. 251. 3 Poole v. State, 58 Tenn. 288. 4 State v. Lee, 22 Minn. 407; 21 Am. Rep. 769. 5 State v. Laxton, 76 N. C. 216. Where, on trial for stealing letters and packages from the mail, it appeared that defendant, when it was made known to him that he was suspected, although in a distant State, immediately returned to his former residence and demanded a full investigation of the charge, it was held that this circumstance, together with proof of his good character, was entitled to the consideration of the jury, unless the evidence of guilt was clear beyond a reasonable doubt.- United States v. Crow, 1 Bond, 51. Kee v. State, 28 Ark. 155; State v. King, 78 Mo. 555. So, also, evidence of character for honesty and integrity. character should be limited to the time subsequent to the discovery of the offense, and not to be extended to the time of the arrest." (c) Weight and effect.-Good character, when proven, is a fact in the case; it is a circumstance tending to establish innocence, and it is not to be put aside by the jury in order to ascertain if the other facts and circumstances do not establish guilt beyond a reasonable doubt.' The presumption of innocence which arises from it varies in force, not with the grade of the crime charged, but with the circumstances. In some jurisdictions good character is admissible against circumstantial but not against direct evidence of guilt; and evidence of good character does not, per se, rebut the presumption of guilt arising from circumstances, but is evidence proper to be considered by the jury, the effect of which, as to whether it does in fact rebut such presumption or not, is for them to determine. Thus, it is held that proof of previous good character will not rebut the presumption of guilt from possession of stolen property. But the prevalent modern rule is that the jury are to take proof of the prisoner's good character into consideration, irrespective of the conclusiveness or weakness of the direct evidence of guilt.' It is to be considered by the jury as well where there is direct evidence of the commission by him of the crime charged, as where the evidence is circumstantial. In the former case it is to be considered upon the question of the credibility of the evidence." The question of defendant's guilt being in doubt, he is entitled to a charge that evidence of his previous good character is to be considered by the jury. Proof of good character is admissible in all criminal prosecutions, not only where doubt exists 1 State v. Bloom, 68 Ind. 54; 34 Am. Rep. 247. 2 White v. Commonwealth, 80 Ky. 480. People v. Ashe, 44 Cal. 288. 4 Harrington v. State, 19 Ohio 264. 'State v. Beebe, 17 Minn. 241. Wagner v. State, 107 Ind. 71; 57 Am. Rep. 79. 'Kistler v. State, 54 Ind. 400. Stover v. People, 56 N. Y. 315. * People v. Clements, 42 Hun 353. |