Commonwealth v. O'Brien, 119 Mass. 342

119 Mass. 342 | Mass. | 1876

Endicott, J.

The defendant called witnesses who testified to his general reputation as a peaceable and quiet citizen. The government was then allowed to prove that the defendant had been indicted for an assault, and to put in evidence an indictment, wherein he was, with other persons, indicted for an assault upon one John Walsh. To this indictment it appeared that the defendants pleaded not guilty; two days afterwards satisfaction was filed, and on the day following the plea was retracted by the defendants, and they pleaded guilty. The indictment was then placed on file on payment of costs, which were paid, but no sentence was passed. The evidence thus admitted to meet evidence of general reputation, was, in substance, that the prisoner had committed another assault, and had in court admitted or confessed the same by a plea of guilty. And the question is, can a particular fact be proved to rebut evidence of a general reputation.

Where a party undertakes to show that his reputation is good, or that the reputation of the other party or a witness is bad, he cannot put in evidence of particular facts to prove the general reputation he is endeavoring to establish. And to meet evidence of general reputation the opposing party may put in evidence to the contrary of a like general character. But he cannot prove particular facts for the reason that a particular fact does not necessarily establish a general reputation or fairly meet the issue presented, and may also raise collateral issues; and for the further reason that while a party is presumed always to be ready to defend his general reputation, he is not expected to be prepared to meet a distinct and specific charge. Peterson v. Morgan, 116 Mass. 350.

In Commonwealth v. Hardy, 2 Mass. 303, 318, it was said by Chief Justice Parsons : “ It is not competent for the prosecutor to go into this inquiry, until the defendant has voluntarily put his character in issue, and in such case there can be no examination as to particular facts.” See Commonwealth v. Sacket, 22 Pick. 394 ; Commonwealth v. Webster, 5 Cush. 295.

In a case heard before all the judges of England, it was held that, if evidence of good character is given in behalf of the prisoner, evidence of bad character may be given in reply; but in either case the evidence must be confined to the prisoner’s general reputation, and the individual opinion of the witness as to his disposition, founded on his own experience and observation is inadmissible. Chief Justice Cockburn, in delivering the opinion of the court, says: “ The only way of getting at it [his character] is by giving evidence of his general character founded on his general reputation in the neighborhood in which he lives.” “ It is quite clear that, as the law now stands, the prisoner cannot give evidence of particular facts, although one fact would weigh more than the opinion of all his friends and neighbors. So, too, evidence of antecedent bad conduct would form equally good ground for inferring the prisoner’s guilt, yet it is quite clear evidence of that kind is inadmissible.” Again, in speaking of the limits of rebutting evidence, where the prisoner puts in evidence of good character, he says, “ I think that that evidence must be of the same character and confined within the same limits, — that as the prisoner can only give evidence of general good character, so the evidence called to rebut it must be evidence of the same general description, showing that the evidence which has been given in favor of the prisoner is not true, but that the man’s general reputation is bad.” The judges who dissented admitted that evidence of particular facts was inadmissible, but were of opinion that the testimony of a witness founded on his own experience and observation went to show disposition and was therefore admissible on the question of character. Chief Justice Erie said: “ I agree that evidence of individual facts is to be excluded; but whether the answer given by the witness in this ease is in the nature of an individual fact or not I do not stop to inquire, because a question of very general importance has been raised; and, with reference to that question, I am of opinion that the answer, understood as evidence of disposition, is admissible.” Regina v. Rowton, Leigh & Cave C. C. 520; S. C. 10 Cox C. C. 25; and 2 Lead. Crim. Cas. (2d ed.) 333, 351, and notes.

It is true that upon cross-examination of a witness, testifying to general reputation, questions may be put to show the sources of his information, and particular facts may be called to the witness’s attention, and he may be asked if he ever heard of them; but this is allowed, not for the purpose of establishing the truth of these facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony. Leonard v. Allen, 11 Cush. 241. Rex v. Martin, 6 C. & P. 562. So in actions for slander, evidence of general bad character of the plaintiff may be put in evidence in mitigation of damages ; and where the plaintiff alleges that the defendant has slandered him in a particular respect, as for thieving, the defendant may put in evidence for the same purpose that the plaintiff’s general reputation in that respect is also bad. Clark v. Brown, 116 Mass. 504. But we are not aware of any case, where the defendant upon that issue has been allowed to prove a particular act of theft.

We are of opinion therefore that the learned judge erred in admitting this evidence. The government was entitled to rebut the evidence of the defendant, he having put his character in issue, but could not do so by proof of another assault.

The evidence of Wachtell that, on the night of the assault, he sold, to a person who called at his shop, a knife similar to the knife which the government contended was in the hands of the defendant at the time of the assault, was competent; although Wachtell could not positively identify the defendant as the purchaser. The fact that the defendant was the purchaser might have been established by other evidence. As the conversation between Wachtell and the purchaser is not reported, we are unable to say that it was improperly admitted. It might have been entirely immaterial, in no way bearing on the guilt of the defendant. As the defendant has failed in his bill of exceptions to show that it was material, or that he has been injured by it, this exception must be overruled.

The same answer will apply to the ruling that a jack-knife, like that exhibited to' the jury, was a dangerous weapon. That it was not a dangerous weapon as matter of law, the defendant has given us in his bill of exceptions no means of determining.

Exceptions sustained.