Seymour v. State
30 S.E. 263
Ga.
1898
Check Treatment
Simmons, C. J.

Good character is a substantive fact, like any other fact tending to establish the defendant’s innocence, and ought to be so regarded by court and jury. Shropshire v. The State, 81 Ga. 591. “No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities that a person of such character would be guilty of the offense charged, that the other evidence in the case is false, or the witnesses mistaken.” Rice, Evid. Grim. § 371. Evidence of good character is not admitted as a mere makeweight, but as evidence of a positive fact, and may of itself, by the creation of a reasonable doubt, produce an acquittal. Weston v. Com., 111 Pa. 251. Such evidence should be weighed and considered by the jury in connection with all the other evidence in the case. The rule is both reasonable and just. There are cases where, owing to the peculia'r circumstances in which a man is placed, evidence of good character may be all he can offer in answer to a charge of exime. “ Of what avail is a good character, which a man *806may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril?” Com. u Cleary, 135 Pa. 64, 8-L. R. A. 301. Such a case is now under consideration. * The accused submitted evidence that he had borne a most excellent character from his boyhood up to the time of the alleged offense. This, under the circumstances, was the only way in which he could meet the charge made against him. He was accused of rape upon a girl nine years old. The girl’s testimony shows that the alleged crime was committed in the dining-room of a dwelling-house, within a few feet from the mother and father. The accused had no witnesses. His good character was, therefore, practically all upon which he could rely in support of his plea of not guilty. This matter should have been submitted to the jury by the judge in his general instructions and while presenting the case to them for their determination. Instead of doing this, he failed entirely even to mention the fact that the accused relied upon good character, or to allude to the proof submitted in this connection, until at the end of his charge, and then only after calling upon counsel to know if there was anything else upon which he should charge and after being requested to charge as to good character. In compliance with this request, he merely gave in general terms the law bearing upon this subject. After a careful and deliberate study of the evidence, we are convinced that, at most, a very weak and unsatisfactory case against the accused was made out. In view, therefore, of the fact that the main defense relied upon was not presented to the jury at the proper time and in the proper connection, and being apprehensive that, for this reason, the jury may not have given the evidence tending to show the good character of the accused the full weight and consideration it was entitled to receive, we feel constrained to order a new trial. We do so, in this instance, in the exercise of the broad power which the statute confers upon us,—a power which we rarely exercise but which, in our judgment, was intended to meet just such cases as the present. Even if, in a strict and technical sense, no error was committed, we can not help feeling that the accused did not have an absolutely fair trial. Accordingly, it is our judgment that the ends of justice *807require a new hearing. A like result, and upon very similar considerations, was reached by this court in the case of Mathews v. The State, 56 Ga. 469.

Judgment reversed.

All the Justices concurring.