State v. Garrand

5 Or. 156 | Or. | 1874

By the Court,

McArthur, J.:

It is well settled that in all criminal prosecutions tbe prisoner will be allowed to call witnesses to speak generally as to bis character, and it is equally well 'settled that tbe prosecution cannot in rebuttal enter into particular facts to show tbe general bad character of tbe defendant. Roscoe (Crim. Ev. 98) says that tbe prosecutor cannot enter into evidence of the defendant’s bad character, unless the latter enable him to do so by calling witnesses in support of his good character, and even then the prosecutor cannot examine as to particular facts,. Phillips (1 Ev. 765) says evidence will not be admitted, on the part of the prosecution, to show the bad character of the accused person, unless he has called witnesses in support of his character, and even then the prosecutor cannot examine as to particular facts, the general character of the accused not being put in issue, but coming in collaterally. And again (1 Phil. Ev. 764), it is laid down that the inquiry must also be as to the general character, for 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 a dishonest, unworthy part. Proof of particular transactions in which the defendant may have been concerned is not admissible as evidence of his general good character. Nor, in reply to such evidence. (8 Conn. 487, 488.) Chitty (1 Crim. Law, 575) says that evidence of character is more frequently called on behalf of the defendant, and in doubtful cases will often influence the jury to an acquittal. And even where the defendant thus opens the discussion, the prosecutor can ask no question as to° particular facts, but must confine himself simply to general reputation and character.

In the argument it was contended by respondent’s counsel that, as the facts testified to by Barker and Blantain tended to support the issues, on the part of the State, they were properly admitted. To maintain this proposition an exceedingly artificial construction of the bill of exceptions was resorted to. The bill sets forth that “the.State, after the defendant had rested his case, and to sustain the issues on its part,” etc. Erom this language we are asked to draw the deduction that the evidence was offered at that stage of the trial when testimony of an escape, or attempt to escape, was admissible, or the deduction that after the defendant had rested his case, the court, having control over -the order of proof (Code, § 820), in the exercise of its discretion admitted the testimony.

If language has any force at all, that used in the hill of exceptions must convince the most cursory reader that the particular testimony objected to was admitted, not only after the defendant had rested his case, but as rebutting evidence to the testimony which the defendant had offered of his general good character. The" premises being false, both the deductions are illogical and fallacious.

As a general rule, testimony in relation to attempted escape is admissible to show consciousness of guilt. (1 Wharton’s O. L., § 714.) It should be offered at the proper time, and before the prosecution rests its case. Then the prisoner is not taken by surprise, and is afforded an opportunity to submit testimony overcoming or qualifying that of the State. Such testimony should not have been admitted under cover of rebutting testimony of general good character, and at that stage of the trial when the defendant could no longer be heard through his witnesses.

We think the admission of the testimony of Barker and Blantain, as set out in the bill of exceptions, was error.

Appellant’s counsel made a point íd the argument to which allusion seems necessary. It was contended that on the trial of a defendant charged with one crime, testimony is not admissible to show that he was engaged in plans for the commission of other crimes. This position seems well sustained by the authorities referred to. It cannot, however, apply in this case. The latter part of the answer of Blantain, as set forth in the bill- of exceptions, was not responsive to the question asked. It was a. voluntary statement and apparently unsought. It was the duty of counsel to have asked the court to withdraw it from the jury. Nothing of the kind was done. It cannot, therefore, be treated as error by this Court.

As to the instruction which was offered and refused, we think there was no error in its refusal. In cases of homicide, where the wound is the immediate cause of the death, it is no defense that the deceased might have recovered if greater care or skill had been shown in his treatment. (1 Wharton’s C. L., § 941.)

It follows, from the views of this Court upon the question first discussed, that the judgment of the court below should be reversed, and a new trial granted.

Judgment reversed.