Commonwealth v. Cleary
19 A. 1017
Pa.
1890
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Opinion,

Me. Chief Justice Paxson :

But fоr a single error, this judgment might have been affirmed. The learned judge below instructed the jury, in his general charge, that “ good character is always of importance and is evidence to be duly considered by the jury, and may turn the scale where there is a reasonable doubt as to the degree or grade of the crime.” See second assignment. This is all the charge contains upon this subject; there was no pоint put to the court in regard to it. 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 offence was manslaughtеr. 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 cоmmission of the offence 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. In Heine v. Commonwealth, 91 Pa. 145, the court below instructed the jury: “ If a man is guilty, his previous good character has nothing to do with the case, but if you have reasonable doubts as to his guilt, then character steps in, and aids in determining that doubt.” This ruling was reversed by this court, Mr. Justice Gordon saying: “ The effect of this was to give the evidence of good character no weight whatever ; for, if the other testimony left in the minds of the jury a reasonablе doubt of the defendant’s guilt, this of itself, without more, entitled him to an acquittal. Evidence of good character is not a mere make-weight, thrown in to assist in the production of a result *83that would happen at all events; but it is positive evidence, and may of itself, by the creation of a reasonable ‍‌​‌‌‌​​‌​​​​‌​‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌​​​​‌​‌‌‌​​​​​‍doubt, produce an acquittal: ” citing Whart., Crim. Law, § 643. In Hanney v. Commonwealth, 116 Pa. 323, the court below fell into the same error as in Heine v. Commonwealth, supra, and upon its review in this court the judgment was reversed, Justice Gordon repeating and amplifying his remarks in the former case.

It was urged, however, that Kilpatrick v. Commonwealth, 31 Pa. 198, sustains the ruling of the court below. The portion of the charge assigned as error in that case is as follows: “ The evidence ‍‌​‌‌‌​​‌​​​​‌​‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌​​​​‌​‌‌‌​​​​​‍proves the defendant to have borne an excellent reputation ; originally, evidence of good character was not allowed to go to the jury, when there was positive proof of the commission of an offence, for if one was seen to commit a murder with deliberation, although he had borne an irreproаchable character, and were even an angel, he would yet be guilty. The rule of law in this state, however, permits evidence of good character to be submitted to the jury in every case of homicide, no matter what may be the other testimony in the cause. But when a doubt suggests itself to your minds, as to the prisoner’s guilt upon the facts of the case as presented by the evidence, the' law easts thе whole weight of the prisoner’s former good character in mercy’s scale, and settles the question in favor of the accused.” In commenting upon this language, this court said, through Mr. Justice Strong : “ The final exception is that the court erred in the instruction which they gave to the jury, respecting the evidence of the prisoner’s good character. This, like the former, is based upon a misconception оf the eharge. We do not understand the purport of the instruction to have been such as it is contended to have been by the counsel for the plaintiff in error. The substance of the charge was that thе law permitted evidence of good character to be submitted to the jury (of course for their consideration) in every ease of homicide, no matter what might be the other testimony in the cause, and that, when a doubt arises as to the guilt of the accused, such doubt was conclusive in his favor. This by no means confined the jury to attaching importance to the evidence only in cases of reasоnable doubt. On the contrary, it left them at liberty to make it a basis for the formation of a doubt.” •

*84I have been thus careful to quote the exact language of the court below and of this court in Kilpatrick v. Commonwealth, as I fear it has been misunderstood in some instances. The distinction between the two cases, briefly stated, is this: In the case in hand, the benefit of good character was limited to cases wherе there is a reasonable doubt of the guilt of the accused, or, in the precise language of the court below, “ may turn the scale where there is a reasonable doubt as to the degree or grade of the ‍‌​‌‌‌​​‌​​​​‌​‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌​​​​‌​‌‌‌​​​​​‍crime; ” while in Kilpatrick v. Commonwealth, the language of the court below, while not as explicit as in some of the later cases,—to repeat again the language of Justice Strоng,—“by no means confined the jury to attaching importance to the evidence only in cases of reasonable doubt. On the contrary, it left them at liberty to make it a basis for the formation of a doubt.” Thеre is nothing in the charge of the court below from which the jury could fairly infer that the evidence of good character might create the reasonable doubt which entitles the prisoner to a safe deliveranсe. It is true that the difference in phraseology in the two cases is apparently slight. There is, however, a real and substantial difference ; and, where a man’s life may depend upon a single word, the use of language cannot be attended with too much care.

We might cite numerous other cases upon this point, but the law is too well settled to require it. The rule' deducible from the authorities may be briefly stated thus: Evidence of good character is always admissible for the defendant in a criminal case ; it is to be weighed and considered in connection with all the other evidence in the cause,—it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal. The rule itself is not mei’ely merciful. It is both reasonable and just. There may be cases in which, оwing ‍‌​‌‌‌​​‌​​​​‌​‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌​​​​‌​‌‌‌​​​​​‍to the peculiar circumstances in which a man is placed, evidence of good character may be all he can offer in answer to a charge of crime. Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril ? The vice of this portion of the charge is in the instruction that good character “ may turn the scale where there is a reasonable doubt as to the degree or grade of the crime.” But, if the other evidence .is such .as to raise a reasonable doubt whether the grade of crime was mur*85der in the first degree, then the jury are bound to acquit of that offence; so that, as was observed in the cases cited, “ this was to give the evidence of good character no weight whatever.” The evidence of gоod character is to be considered with the other evidence in the case, and if it all combined creates a reasonable doubt, the defendant is entitled to an acquittal.

The learned judge below evidently was of opinion that the evidence of good character had little bearing upon the case. I gather this from his opinion refusing a new trial, in which he said, in commenting upon this portion of his charge : “ Of this instruction the defendant has no cause of complaint. It was as favorable to him as he could ask. In fact, 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.” We do not think the premises upon which this conclusion was drawn are entirely accuratе. 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 offence was disputed below, and also in this court. Nor did the question of the degree depend alone “upon the mental cоndition of the defendant, whether intoxicated or not.” The jury 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 decеased. J ust 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 defence of intoxication hаd 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 is such manner as to give them a proper understanding as to how they should *86apply it. We cannot treat this as an immaterial matter which did not prejudice the defendant. It may not have done so, but we caunot 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.

As the case must go back for another trial, it is proper to say that we do not discover any error in the remaining assignments. The testimony of Dr. Reese, referred to in the first assignment, was properly rejected. It was not competent to prove the defendant’s intoxication by showing the condition of Belford, who was with him, and had taken the same number of drinks. Some men can drink twice as much as others without showing it. The inquiry would have involved a collateral issue which might have confused, if not misled, the jury. The remaining assignments refer to the charge. With the single exception above noted, we find no error in it.

Judgment reversed, and a venire facias de novo awarded.