53 N.J.L. 45 | N.J. | 1890
The opinion of the court was delivered by
The plaintiff in error was convicted in the 'Camden Quarter- Sessions of being a common scold.
One ground on which she seeks a reversal of the judgment is because the indictment does not state the particular facts which make a common scold. Rut it is not necessary that the indictment should be so explicit. It is enough for it to aver that the accused is a common scold, to the common nuisance, &c. Where the offence consists, not of a single act, but of a habitual course of conduct, an indictment need not charge the details of that conduct, which are only evidence of the misdemeanor, but must charge the general practice which constitutes the crime itself. Hawk., bk. 2, ch. 25, §§ 57, 59; Commonwealth v. Pray, 13 Pick. 359, 362; Whart. Cr. Pl. & Pr., § 155.
Another reason urged for reversal is, that the court charged the jury as follows: “The evidence on the part of the state -consists of a number of witnesses who have sworn, not that she only scolded one person at one time, but that she did it to several persons on several occasions. Now, if you believe she did that thing, if you believe the evidence on the part of the state, she is guilty of being a common nuisance to the neighborhood in which she resides.”
This charge did not correctly point out to the jury the facts required to warrant a conviction, nor submit to their judgment, as it should, the question whether such facts were proved. A woman does not necessarily become a common scold by scolding several persons on several occasions. It is the habit of scolding, resulting in a public nuisance, which is criminal; -and whether the scoldings to which the state’s witnesses testified were so frequent as to prove the existence of the habit, and whether the habit was indulged under such circumstances as to disturb the public peace, were questions which the jury
The court also charged the jury as follows: “'There is some •evidence as to the defendant’s good character for peace and •quietness. In a doubtful case evidence of character for peace and quietness is to be taken "the same as any other evidence by the jury and weighed with the other evidence. But if there is no doubt, evidence of good character does not amount to anything.”
The import of this charge is, that when, laying out of view the evidence of good character, the case is doubtful, then the evidence of good, character is to be Aveighed by the jury with the other evidence; but when, laying out of view the evidence ■of good character, there is no doubt, then such evidence does not amount to anything. Such a charge is erroneous. It is the right of a person charged with crime to have all the rel•evant testimony, including that relating to his good character or reputation, considered by the jury in every case, and if, on .such consideration, there exists reasonable doubt of his guilt, even though that doubt be engendered merely by his previous good repute, he is entitled to an acquittal. Remsen v. People, 43 N. Y. 6; Commonwealth v. Leonard, 140 Mass. 473. The remark of Kinsey, C. J., in State v. Wells, Coxe 424, 429, so far as it indicates a contrary opinion, is merely obiter dietum. 'The principle above stated holds even in cases where the crime consists of a single misdeed, of which many a person of good reputation may be guilty; in cases like the present, where guilt implies the notorious practice of a vicious habit, a general reputation of a contrary disposition seems to be direct ■evidence of innocence, and therefore entitled to the greater ■weight.
The conviction should be reversed, and a venire de novo -awarded.
