Harris v. StateHarris v. State
- Reporters:
- Before:
- Gregory
Thе appellant was indicted for an assault and battery with intent to commit a rape; a trial was had before a jury, and a verdict of guilty of assault and battery only; fine five hundred dollars. Motion for a new trial overrulеd.
The court, over the objection of the defendant, instructed the jury that, “inasmuch as counsel on both sides have spoken to you about the reputation and good character of both the defendant and prosecuting witness, Ellen Patty, it becomes my duty to say to you that you should givе no time *132to the discussion of the general character of either of these persons, for the simple reason that there has beеn no testimony in regard to the general character of either.
“ Counsel for the defendant offered no evidence touching the chаracter of their client, but you must not therefore fall into the error of inferring that his general character is not good. If his general charаcter had been shown to be good it would have been a circumstаnce in his favor, and it would have been my duty to charge you as to the tendency and effect of that proof. As the evidence stands it simply amounts to this, viz., that you must .entertain no presumptions whatever as to the gеneral character of the defendant, because there is nо evidence whatever on which you can base a presumption in reference thereto.
“ So also, with regard to the general сharacter of Ellen Patty. It is a mattei’, or rather a subject, on which there is not one particle of evidence. The defense has nоt offered any testimony as to the general character of Mrs. Pаtty, and counsel for the State had no right to produce evidencе that her general reputation is or was good.
“To speak morе directly of the facts of this case, Ellen’ Patty made a certain stаtement in the course of her examination as a witness for the Statе, or rather, to be more exact, the defense, on her cross-еxamination, asked her, whether she had not made a certain statеment to one Martha Harris; she answered in the negative. The defensе after-wards called Martha Hams as a witness and attempted to contradict her. IIow far such attempt succeeded, or whether it entirely failed, is a question for you to determine. I only say that, under these сircumstances, I would not have permitted the State to offer the еvidence of the good character of Mrs. Patty.”
As there was an аttempt to impeach Mrs. Patty, the State had the right to sustain her by proоf of general good character for truth, but we cannot see hоw this misstatement of the law could prejudice the appellant.
The jury were plainly told, that they could not, in the *133entire absence of proof, indulge in presumptions either way. This was right. The character of the prosecuting witness having been attacked, was open to the State as well as to the defendant. Such -character was not a matter peculiarly within the knowledge of eithеr party. The failure to sustain on the one side, or to attack on the other, gave no legal ground for presumptions.
The defendant offеred no evidence of the- general character of the witnеss. The court gave the defense the benefit of the attempted contradiction. This was the entire right of the appellant, so far as impeaching the testimony of Ellen Patty was concerned. The court committed no error in overruling the motion for a new trial.
The judgment is affirmed, with costs.