Ben v. State

| Ala. | Jan 15, 1861

A. J. WALKER, C. J.

It has been decided in this State, that the bad character of the deceased is competent evidence for the accused, where the circumstances are such that they would be illustrated by such character. The reason upon which that decision rests, is, that the slayer must be reasonably presumed to act upon the circumstances surrounding him, as they are colored by the bad character of the deceased; and that, therefore, it is but just to the accused that the jury should know that character. We do not think that this reasoning requires us to hold, that the State may go into evidence of',the peaceable character of the deceased, when it is not assailed on the part of the accused. If the character "of 'the deceased was that of a peaceable man, the circumstances may safely be left to speak their own language : it is not -requisite to their interpretation that the character should be known.

The character of a witness for truth cannot bo supported, until it has been assailed ; and,, on the other hand, the character of one charged with- á criminal offense, can not be assailed, except in reply to-'evidence of good characr ter. These cases show' that, in holding the bad character of the deceased admissible for tlie accused, and denying that good character is admissible -for the State, we have analogies in the law to support-us.., Wé think it much-safer not to extend the rule, in reference'to the admissibility of the character of the deceased, so far as to permit the State to adduce primarily evidence of good character. The authorities, with the exception,of Dukes v. State, (11 Ind. 557" court="Ind." date_filed="1859-03-14" href="https://app.midpage.ai/document/dukes-v-state-7034089?utm_source=webapp" opinion_id="7034089">11 Ind. 557,) to the report of which we have no access, give the rule no greater extension, than, to embrace evidence of; bad character adduced by the defendant,- -and we think it safer to so limit the rule. — State v. Hicks, 27 Miss. 588; Monroe v. State, 5 Georgia, 137; State v. Tacket, 1 Hawks, 216 ; State v. Barfield, 8 Iredell’s Law, 344; Wharton on Hom. 249 ; Franklin v. State, 29 Ala. 14" court="Ala." date_filed="1856-06-15" href="https://app.midpage.ai/document/franklin-v-state-6505794?utm_source=webapp" opinion_id="6505794">29 Ala. 14 ; 3 Greenleaf on Ev. 27.

[2.] The court erred, in permitting the State to give in-.evidence the dying declaration of the deceased, as to the state of feeling existing between himself and the prisoner-We decided in Mose v. State, (35 Ala. 421" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/mose-v-state-6506647?utm_source=webapp" opinion_id="6506647">35 Ala. 421,) that the admissibility of dying declarations was restricted to statements “as to the circumstances immediately attending the act, and forming a part of the res gestee.” That decision is conclusive of the question now presented.

Judgment reversed, and cause remanded. The prisoner must remain in custody, ¡until-discharged »by due ¡course-of law,