13 Blatchf. 252 | U.S. Circuit Court for the District of Northern New York | 1876
(after disposing of sundry exceptions). The remaining exceptions in the case involve the question, whether it was error to permit the defendants to give evidence of Scholefield’s general conduct in the discharge of his official duties, and of his mode of life and pecuniary circumstances. It is not surprising that the peculiar hardship of the position of the defendants upon the trial induced the learned judge who presided to give them the benefit of any doubts that might arise upon questions of evidence. Scholefield died in 1S69, and it appeared inferentially that he was never aware that he had been charged with the $10,000 in dispute. After his death, many of the papers were lost or destroyed, and the person who had been his clerk while assistant paymaster died while prosecuting an examination into the matters in eontro-versy. Hodge had been convicted as a defaulter for a large amount, and was in prison under his sentence, and no assistance from him could be reasonably expected. The defendants were, therefore, deprived to a great extent of means of defence, and, as they were strangers to the transaction involved, their situation appealed strongly to the court, and justified the utmost liberality in the application of the rules of evidence to their defence. These considerations, while they might and justly should influence the determination of doubtful questions upon the trial, cannot be permitted to prevail over convictions which are arrived at upon a deliberate review of the ease.
I am constrained to hold that the evidence excepted to was erroneously received. In criminal cases it is always competent to permit the accused to give evidence of general good character. But, in such cases, where the offence is clearly proved, it is incumbent on the court to instruct the jury that such evidence is not entitled to great consideration. In civil actions, the authorities are adverse to permitting such evidence, irrespective of the nature of the action. In the case of Ruan v. Perry, 3 Caines, 120, it was held to be admissible in actions where the party offering it is charged with fraud or a tort involving moral turpitude, and this doctrine has been quoted approvingly by other authorities, when limited to cases where the wrongful act complained of is established by circumstantial evidence or by the testimony of witnesses of doubtful character (Townsend v. Graves, 3 Paige, 455, 456); but the later decisions in the same state repudiate it and adopt the rule in England, that the evidence is only admissible in a direct prosecution for a crime (Flower v. Aetna Fire Ins. Co., 6 Cow. 675; Gough v. St. John, 16 Wend. 646). Upon the trial of an information for keeping false weights it was excluded (Attorney General v. Bowman, 2 Bos. & P. 532, note); also, in an action for divorce (Humphrey v. Humphrey, 7 Conn. 116). Nor does the fact that the person is dead whose fraudulent or wrongful act is the subject of the action permit any relaxation of the rule (Anderson’s Ex’rs v. Long, 10 Serg. & R. 55; Nash v. Gilkeson, 5 Serg. & R. 352); and the reason for the rule is, that the evidence must apply to the particular fact in dispute (Givens v. Bradley, 3 Bibb, 195), or, as stated by Chief Justice Savage, “the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties.” The evidence received in this case is more objectionable than that which I have referred to. Its effect was not to prove the general character of Major Scholefield, but his special characteristics as a paymaster. The effort was to prove the general manner in which he discharged his official duties. It was none the less incompetent because this evidence was given by those who spoke from
I do not deem it necessary to discuss the exceptions taken to other evidence received upon the trial. The judgment of the court below must be reversed, and the cause remanded for a venire de novo.