32 S.E.2d 111 | Ga. Ct. App. | 1944
When the defendant, in the trial of a criminal case, puts his character in issue the State (a) may cross-examine the witnesses offered by him in order to test their knowledge of his character, and (b) may also offer witnesses to prove his general bad character. In the latter instance the State will not be permitted, on direct examination of its own witnesses, to question them concerning specific acts, but on cross-examination the defendant may examine the State's witnesses as to specific acts, to test their knowledge of his general reputation or character; and (c) the State may, where the defendant has been previously convicted of a crime involving moral turpitude, introduce the record of such conviction in the manner provided by law.
The defendant put his character in issue, and introduced witnesses who testified that his character was good. The State attacked the good character of the defendant, and this gives rise to *737 the assignment of error in ground 1. This ground shows that B. C. Dickinson, chief of police of Monroe, Georgia, was offered as a witness for the State, and the following transpired: "Q. Have you had occasion to arrest the defendant in Monroe recently? A. Yes. Q. What was the arrest for, Mr. Dickinson; what did you arrest him for if you arrested him? A. My recollection is we arrested him for drunk driving while under the influence of whisky some two or three years ago; without going to the records that is the way I recall it. Q. Did you arrest him once or twice? A. I remember twice." At the time the evidence was offered counsel for the defendant interposed the following objections: (a) that it was "not relevant and material, and it was not admissible;" (b) that the State was taking the position that the evidence was in rebuttal of evidence of good character of the defendant, and the movant objected to such evidence because it was proving the bad character of the defendant by particular transactions, and was not admissible; (b) that the evidence was immaterial, irrelevant, prejudicial, and harmful to the movant; (d) that the general good character of the defendant could not be rebutted by the State by proof of particular transactions by the State's own witness Dickinson. As we view the case, the admission of this testimony, over objection, under the record of this case, shows reversible error. (a) In the trial of a criminal case the defendant has the right to put his general good character in evidence. In doing so the law forbids him to go into specific acts to establish his good character by his own witnesses offered for that purpose. On cross-examination, however, the State may go into specific acts for the purpose of testing the knowledge of the defendant's witnesses as to his general good character.
(b) Where the good character of the defendant is put in issue, as in the instant case, the State in rebuttal may offer evidence as to his general bad character. In offering proof of the general bad character of the defendant the State is held to the same restrictions as to bad character as the defendant in offering his good character — that is, the State can not prove specific acts to show the defendant's bad character. Likewise, the defendant may cross-examine *738
these witnesses as to specific acts to test their knowledge of his bad character. In Mimbs v. State,
(c) We know of no provision or decision concerning our law which would permit the State to offer specific acts to rebut the proof of general good character by offering proof by its own witnesses of specific acts of the defendant save where the accused has been convicted of a crime involving moral turpitude. In such event the record of such conviction must be introduced and not otherwise. But we doubt if this could be done over proper objection if such conviction was for an offense merely malum prohibitum. Crimes malum in se, such as larceny, perjury, and the like, even though specific transactions, tend to show such a moral degeneracy as would rebut proof of general good character, and for this reason *740
the State is permitted to offer the record of such convictions. The only way the law provides for the introduction of such convictions is by proper proof of the record of the convictions. The Supreme Court in Pulliam v. Cantrell,
It is contended by the State that the case should not be reversed because the evidence admitted over objection of the accused was concerning a trivial matter. This defendant, a negro, was being tried for murder, and to permit evidence that he was operating an automobile on the public highways while under the influence of intoxicating liquor on some previous occasion might have (and very likely it could have) prejudiced his case in the minds of the jury trying him.
Since the case is being reversed on this special ground we make no mention of the general grounds. The court committed error in overruling the motion for a new trial for the reasons herein set forth.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.