94 Tenn. 495 | Tenn. | 1895
Sam Lea was convicted of the crime of petit larceny, and has appealed in error. After testifying in his own behalf, he introduced three witnesses as to his general character. All of these witnesses said, upon examination in chief, that they knew the defendant’s character, and that it was good up to the time of this charge; and they likewise said, on cross-examination, that his character is bad since this charge, and that they would not now give him credit on his oath, though they would have done-so before this charge was brought against him.
With respect to that testimony, the Circuit Judge instructed the jury as follows: “When a defendant puts his character in issue before you,” that character becomes a witness in the case. If it be "shown to be ‘£ good, it is a witness for him, and if bad, it is a witness against him; and such character, -good or bad, is taken into consideration witjh the other evidence in the case in determining his guilt or innocence. ’ ’
This instruction would be correct in the ordinary case, in which the witnesses, speaking in regard to the defendant’s character, are confined to that character as existing at the time the charge was made against him; but it is erroneous when applied to testimony with respect to his character both before and after the charge was made, as in this case.
The defendant’s character, whether good or bad, since the charge, cannot affect the question of his guilt or innocence of the crime imputed to him.
Lea’s counsel sought to have the proper distinction made by the following request: “The character of the defendant' before the present charge can be looked to as a witness for or against him as to his guilt or innocence, but his character since then can only be looked to in determining the amount of credit due him as a witness, and cannot be looked to as a witness as to guilt or innocence.” The instruction thus requested was erroneously refused.
The record shows that the trial of this case in the Court below occupied two days; and the only entry in reference to the oath administered to the officers in charge of the jury during the intervening night, recites simply that they were ‘1 sworn to wait on said jurors until the meeting of the Court to-morrow morning, at 8:30 o’clock.” This entry is fatally defective. The oath shown to have been taken contains hardly a single element of that required by law. It contains not á word involving any kind of restraint upon the public, upon the jury, or upon the officers themselves; and only constrains the officers “to wait on the said jurors.” In every felony case the record should show affirmatively that the requisite oath was administered to the officer or officers in charge of the jury pending the trial.
Keverse and remand.
