8 Fla. 56 | Fla. | 1858
delivered the opinion of the Court.
The Appellant was convicted at the last term of the Circuit Court for Franklin County, of an assault and battery upon one Mary Allendor, and her punishment assessed by
This is a question which, it appears to us, is conclusively settled, as well by reason and precedent, as by the necessary policy and effect of our Statute, (Thompson’s Dig. p. 490,) placing the measure of punishment in such cases at the discretion of the jury who tries the case. Mr. Star-tie, in his well considered and long approved work on Evidence, (2 vol. 4 Ed. p. 363,) considers that evidence of character is admissible on three grounds — “ 1st. To afford a presumption that a particular party has or has not been guilty of a particular act. 2nd. To affect the damages in particular cases where their amount depends upon the character and conduct of any individual, and 3rdly. To impeach or confirm the veracity of a witness.” Upon the first and second principles here stated, it would seem the evidence offered and rejected in this case, should have been admitted. It is true that the presumption derived from character is throughout the authorities held of little avail except in cases of doubt. But the objection goes-rather to the value of the evidence it affords of the perpetration or pretermission of a particular act, than to its admissibility. The objection, in other words, it will be found, is to the force and weight of a presumption arising from character, and not to the competency of such testimony.
The general rule is, that the testimony shall be confined to the issue •, and in the very nature of things, why should not the moral character and conduct of a person in society
“ These several cases, when fully considered, will be found to be not exceptions to, but illustrations of the rule above mentioned, namely, that nothing shall be given in evidence which does not tend directly to the proof or disproof of the matter in issue.” * * * * “ As to the evidence of the defendant’s character, it can be of avail only in doubtful cases. Where the probabilities of the defendant’s guilt on one side, and the probabilities of his innocence on the other, are nearly equal, satisfactory testimony of his general good character for honesty or humanity, may have the effect of raising a well founded presumption, in the minds of the jurors, that a man of such character could not have been guilty of the larceny or violence imputed, and in this sense it may be deemed evidence tending to the disproof of the matter in issue.” And to the same effect, as far as we have examined, is the doctrine laid down in all the leading elementary writers on criminal law. But the question here seems to be not so much whether character is admissible in a criminal prosecution, but which party shall have the privilege of first introducing it. We had regarded the practice as settled in at least so far as to allow the defendant his election of taking the hazard of putting his character in direct issue, by introducing testimony in relation to it. And if the reason for the principle just stated be sound, upon which this description of evidence is admitted, such practice is manifestly consistent therewith. To hold the defendant’s right of introducing his character in evidence, to rebut the probabilities of proofs arrayed against him, or
There is one other point made in some of the authorities on this question, which perhaps deserves a passing consideration. It is this — that character should only be admitted in evidence in case of doubt. This record does not
But it appears to us that if it were matter of doubt as to the principle at common law, of the defendant’s right to adduce his character in his defence, there can be none under our statute above cited, empowering the jury to determine the measure of punishment within the Statutory limits. It has ever been the practice of the courts to admit evidence in mitigation of damages and in extenuation of punishment, where the court was clothed with a discretion in regard to the punishment. Twice this discretion has been transferred by our statute to the jury. It follows that its incidents must go with it; for it is manifest such discretion cannot be wisely and beneficially exercised without the aid of such testimony.
The judgment below must be reversed and a new trial granted.