83 N.Y.S. 107 | N.Y. App. Div. | 1903
An issue is a single material point of law or fact depending in the suit, which, being affirmed on the one side and denied on the other, is presented for determination. (Webster Int. Dict.; Simonton v. Winter, 30 U. S. [5 Pet.] 141.)
A prisoner on trial may show what his reputation is and then the question is open to the prosecution and for the jury to determine like other controverted facts. But if the prisoner chooses to give no evidence on the subject the jury are not at liberty to indulge in conjecture that his- character is bad, in order to infer that he is-guilty of the particular crime charged. Good character is a shield - which the prisoner may use if he has it, but if he is content to-leave his character entirely out of the case the jury are not thence to infer that it is bad. Under such circumstances the general character of the accused is hardly a subject to be considered by the jury, and they should determine the guilt or innocence of the accused upon the evidence before them and wholly irrespective of the question of general character. (People v. Bodine, 1 Den, 281, 314.)
To admit evidence of bad character against the accused it is-necessary that he shall have already put his character clearly and expressly in issue. (Underhill Grim. Ev. § 78.)
It is a fundamental principle of the criminal law that the character of the defendant cannot be impeached or attacked by the State unless he puts his character in issue either by becoming a witness in his own behalf or by offering evidence in support of his. character. (Hughes Grim. Law, § 3155.)
Where an accused becomes a witness in his own behalf he may be cross-examined the same as any other witness, and his character for truth and veracity may be considered in determining the weight to-be given to his testimony, and within. the discretion of the trial court he may be asked as to specific facts which tend to discredit him or to impeach his moral character as bearing upon credibility. (Abb. Tr. Brief [Grim. Causes], §§ 396, 397.)
The admission of evidence bearing upon the credibility of the accused as a witness in' his own behalf - does not make the defendant’s character an issue upon the trial or justify the jury in taking
General character only can be considered in determining the guilt or innocence of an accused. It is general character alone which can afford any test of general conduct or raise a presumption that the person who had maintained a fair reputation down to a certain period would not then begin to act an unworthy part, and, therefore, proof of particular transactions in which the prisoner may have been concerned are not admissible. (2 Colby Grim. Law. 204.)
The refusal of the court to charge as requested by the defendant’s counsel, that the character of the defendant was not in issue in this case, and the charge that “ character is always in issue when a man is upon trial for a criminal offense,” was error.
It is claimed by the respondent that the subsequent remarks of the court to the jury corrected the error, if any, in said general statement.
The subsequent remarks of the court, in substance, were that the jury must presume the defendant’s character to be good, but if they found that there was any evidence relating to the defendant’s character then they could determine whether his character was good or bad. All of the statements of the court are confirmatory of the first general statement on the subject of character. The jury were not told that general character alone could be considered in determining the guilt or innocence of the defendant, nor that as evidence, of general character had not been given his character was not in issue, nor were they told that the evidence received relating to the defendant should only be considered in determining the weight to be given to his testimony. The jury clearly were left with the understanding that they could determine whether there was any evidence, either general or relating to specific acts, affecting the defendant’s character, and that such evidence, if any, could be considered by them in determining whether he was guilty as charged.
For the reason stated the judgment of conviction should be reversed and a new trial granted.
All concurred, except Chester, J., dissenting.
Judgment of conviction reversed and new trial granted.
