People v. Ivey
49 Cal. 56
Cal.
1874
Check Treatment
By the Court :

The evidence offered by the prisoner as to his good character having been permitted to go to the jury without objection, the Court, at the conclusion of the .argument, gave the following instruction: “The jury can consider evidence of the character of the accused only in relation to the particular crime charged in the indictment, and if none has been given upon this particular trait the jury are not at liberty to consider evidence in respect to other traits of *57character.” And to the instruction as thus given an exception was reserved. The instruction was erroneous, because it submitted to the determination of the jury a question of mere law. If any portion of the evidence offered by the prisoner tending to show his good character concerned a trait not involved in the charge against him, objection should have been made by the prosecution to its introduction, for the pertinency of the evidence in such a case is a question of law. It will not do to submit the evidence to the jury hypothetically, that is, to be considered by them, if they are of opinion that it is applicable to the issue, and to be disregarded if they are of a contrary opinion.

Judgment and order reversed, and cause remanded for a new trial.