I cannot agree with some of the conclusions reached by my associates in this case. I concur in the result announced as to the instructions given the jury by the trial court, and also as to the alleged separation of the jury after they had been accepted and sworn to try the case. I do not think that the mere fact of separation is sufficient to entitle a defendant to a new trial, but that he must at least show some other facts from which it would appear that he was in some manner prejudiced on account of such separation.
There is a question, however, in this case of most vital and serious import to which I cannot give my approval. It goes to the introduction of a class of evidence given by the stated first witness and running throughout the entire case for the *502prosecution. The first witness called by the prosecution was the health officer of Boise City, and after giving some testimony ■concerning the inmates of houses of ill-repute within the city and the steps being taken by the health officers to suppress disease prevailing among such persons, said: “I know a couple of women that were living with the defendant about this time.” Thereupon the prosecution asked the question: “You may state whether or not about this time you examined these women, or either of them?” To this question counsel for defendant objected and the attorney for the state said: “We will connect this with subsequent evidence in the nature of threats showing a direct connection between the two”; whereupon the court overruled the objection. The witness then proceeded: “I examined both •of these women; I don’t know their names.” Counsel for defendant here interposed further objections and was by the court overruled and the witness continued: “The brunette or dark-haired one I found had syphilis and refused to give her a certificate and notified the police. I think this was two or three days before the Levy body was found.” After the witness gave further testimony along this line defendant’s counsel moved to strike out all of the evidence on this subject, and thereupon the witness was asked: “You were acting under instructions from the police department as a member of the board of health?” To which he replied: “Yes, sir; I will explain. I think that at this particular examination one of the policemen spoke to me about it and ordered them to.come up, and I think it was Carswell.” After this answer was given the court overruled defendant’s motion to strike out the evidence. Evidence to the sanie effect and of the same character was given on the part of the state by other witnesses.
It is argued with much force and convincing reason by counsel for defendant that this line of evidence was incompetent to prove any possible or material fact in the case against the defendant, and that it had for its object the sole tendency and purpose of prejudicing the jury against him. Of the fact that it did actually prejudice the minds of the jurors against the defendant I have no doubt. It was introduced under the pretext of showing threats, but how such evidence could pos*503sibly show, or tend to show, of be connected with any threats on the part of the defendant against the deceased does not appear. How could the fact that these women with whom the defendant had been associated had a loathsome and infectious disease possibly .have any bearing on thé defendant’s guilt of the crime of homicide? How could such fact become a circumstance of the guilt of defendant? Is it possible that it was introduced for any purpose other than that of degrading the defendant in the minds of the jurors? Was it not an indirect attack upon the defendant’s standing in the community and his general character and moral depravity ?
In the majority opinion in justification of the admission of this evidence, it is said: “It appears from the record that defendant claimed and had stated that the deceased was the cause of his having to leave the city, and, as we understand it,- the evidence last referred to was introduced to show that the deceased had nothing to do with the matter; that the examination ■of said female was suggested to the physician by a policeman and that deceased had nothing to do with it.” What did it matter whether deceased was the cause of these women failing to get a health certificate or the police officers of the city were the cause ? What possible light could that question throw upon the guilt or innocence of the defendant? It certainly cannot be said that any motive could be shown by this class of evidence, and if threats were the real object the state had in view, then it was certainly unnecessary to go into the physical condition and character of a couple of lewd and abandoned women in order to lay the foundation for proving so simple a fact as a ihreat.
In People v. Wallace, 89 Cal. 158, 26 Pac. 650, the supreme court of California had under consideration the admissibility of evidence very similar in character to that here introduced. There a witness who had been an “actress” in a saloon or “dive” was asked: “Since you have been working at the Elite theater, has this man Wallace [the defendant] asked you to be his girl?” That question was objected to and the objection was overruled by the court, and upon its admission the appellate *504court said: "The admission of this testimony was erroneous. It was not relevant to any issue involved in the case, and was clearly calculated to present the appellant before the jury as a low and degraded character. It may be that there are those-who look with some indifference upon the moral delinquencies-of men in their social relation with the other sex, if such conduct is not too flagrant and notorious. But even if this should' be assumed as the fact, it would not follow that this evidence-was not prejudicial, as its object, its declared purpose and effect, was to show that appellant had proposed to ‘live’ with this-woman in a state of shameless immorality.....The occupation of this witness, all of the surroundings and character of the so-called ‘theater’ in which she was employed, were fully-disclosed by the evidence, and the proposition to ‘live’ with her,, and she to become his ‘girl,’ looked to a relation which need, ■not be characterized here, but which the jurors, as men of ordinary observation, must be presumed to have fully understood.. But one inference could be drawn from this testimony, and that most prejudicial to the appellant, in the minds of men of average morality. The evidence having only this tendency, and being wholly irrelevant, should not have appeared in the case.”'
Closely connected and allied with this class of evidence and illustrating the character of evidence introduced in this case,, and the effect that the same must have ha.d upon the minds-of the jurors — presuming that they were average jurors subject to the ordinary human prejudices and passions — was that of another witness as to the cruel character and disposition of the -defendant. I quote the questions and answers as given: "Q. And you testified in regard to certain matters, threatening language and so on; I will ask you if there was any other occurrences in the nature of threatening language on the part of the-defendant toward Davis Levy, the deceased? A. Yes, sir; in the latter part of November, 1900. Q. State the language and the-, circumstances ? A. Why, he had a rabbit and was hanging it on the fence in the back yard on Mrs. Bush’s property, and was skinning it right back of what is Maud Mudoek’shouse.now; and I was working on my house there, and I heard one of the French women holler to him, and then I heard a. *505rabbit squeal, so then I goes out there and I says, 'Why don’t you kill it?’ and I hit it with a stick.” .
At this point counsel for defendant objected to these details and thereupon the prosecutor asked: “Now, Mr. Maley, what was said on this occasion ?” to which the witness replied: “Just as I was coming to it as I hit the rabbit over the head — he stopped and looked up and said, 'I skin Levy that way.’ ” The witness continued in detail concerning the skinning and killing of this rabbit. The whole of this testimony was apparently given under the pretense of shqwing to the jury that on this occurrence which was a year before the death of Levy, the defendant had remarked that he would shin Levy. It doesn’t take a very critical examination of this to disclose the fact that the state introduced this evidence, not so much for the purpose of showing what the defendant had said, as for the purpose of getting before the jury the fact that he had shinned a live rabbit, and that he was therefore a man of a cruel and unfeeling disposition. In fact, counsel for the state in their brief give as a reason for sustaining the verdict of the jury, that “It is also made certain by the evidence that defendant is a cruel and vicious man.”
My associates in discussing this evidence say: “This evidence was evidently introduced to show the malice and hatred of the defendant toward the deceased.” Is it to be seriously contended that because a defendant was capable of skinning a live rabbit, or in fact did do so, it is a circumstance tending to show that he has murdered a human being? Or is the remark made by the defendant that he would like to skin the' deceased that way isolated from any other fact whatever, at a period a year prior to the homicide, and where they had dealt together during all the intervening time, admissible to show malice in a case of homicide? I certainly think not. This seems to me to have been an indirect way of doing the very thing the law forbids. This was an attempt to show the bad moral traits and disposition of the accused — a thing condemned by all the text-writers and authorities on the subject. (Underhill on Criminal Evidence, see. 85; Underhill on Civil Evidence, sec. 10; Bice on 'Evidence, secs. 375, 379.)
*506In line with this evidence two witnesses for the state were permitted to testify to certain isolated, specific acts of the defendant committed sometime previous to the death of the deceased, too revolting, odious and depraved in character to permit of recital here, but in line with the class of evidence which counsel for defendant claims had no other purpose and effect than that of prejudicing the jury against him. It is true, this evidence last referred to was not objected to by counsel for defendant, but it was of a nature so shocking and offensive to every sense of decency and morality that the damage must have been as effectually wrought by the asking of the question as by the answer.
Whether a defendant be guilty or innocent, and whatever his previous mode or condition of life may have been, he is nevertheless entitled to a fair trial. He should only be tried for the offense charged and not upon his general moral delinquencies and turpitude. If guilty, the state should secure a conviction upon evidence and not upon p’ejudice and passion; if innocent, it should not want a conviction for any consideration.
The fact that deceased .came to his death by foul means is the only fact in this case proven by positive evidence. All the evidence tending to connect the defendant with the commission of the offense was purely circumstantial. A large part of the record in the case consists of the merest suspicions against the defendant, and cannot in a legal sense be said to even approach the dignity of circumstantial evidence. By this I do not mean to be understood as saying there are no circumstances in the case against the defendant. But I do mean that repeated examinations of this evidence have impressed me with the belief that the class of evidence above referred to must have had much to do with the conviction of the defendant, and that the verdict does not rest alone upon the legal circumstances shown against him. For these reasons I cannot agree with the conclusion of my associates wherein they hold that the admission of the class of evidence I have recited did not prejudice the rights of the defendant.
The principle of law announced in the majority opinion, to the effect that where a defendant has produced affidavits show*507ing that a juror had previously expressed an opinion hostile to the defendant, that the state might introduce affidavits in rebuttal showing the good character of the juror for truth and veracity, seems to me to be in such conflict with the law of evidence in similar cases that I cannot refrain from expressing my disapproval thereof. After a verdict had been rendered against the defendant his counsel discovered that one of the jurors, prior to being selected as a juror in the case, had made statements that he 'believed the defendant ought to be hung on general principles, etc. They accordingly presented the affidavits of those who had heard the statements made on this motion for a new trial. The state secured the affidavit of the juror denying ever having made such statement, and then proceeded to secure numerous affidavits showing that the juror’s reputation for truth and veracity was good. In support of the admissibility of this evidence it is announced that “The truth and veracity of the juror was directly put in issue and directly attacked.” If this position be true, then so soon as the defendant ■or any of his witnesses might go upon the witness-stand and directly contradict any positive fact testified to by a witness for the prosecution, the state would at once be entitled to ransack the community for evidence showing the good reputation of the contradicted witness for truth and veracity. There can be no difference in principle between the two instances. This certainly cannot be the rule as to the admission of evidence. It seems to me that the error lies in assuming that the character of the witness for truth and veracity has been attacked whenever he has been directly contradicted. It is when the general character of the witness for credibility is directly attacked, and not when the character of the testimony given in a specific instance is attacked and contradicted that sustaining evidence may be offered. If the rule announced in this ease should prevail, there would be no end to the introduction of testimony in any given case, and the result would be that every witness who testified in a case would be shown to either have a good or a bad reputation. When defendant moved for a new trial on the ground that the juror had made statements which disqualified him from trying the case, the juror did not in any *508sense become a defendant in that proceeding, hnt was a mere witness the same as any other person, and it was no more competent for the state to produce witnesses to show his reputation for truth and veracity than it would be in any other case where a witness was contradicted. (3 Rice on Evidence, sec. 379; People v. Hulse, 3 Hill, 309; People v. Van Houter, 38 Hun, 168; Russell v. Coffin, 8 Pick. 153; Stevenson v. Gunning’s Estate, 64 Vt. 609, 25 Atl. 697; Tedens v. Schumers, 112 Ill. 266; Louisville & N. R. Co. v. McClish, 115 Fed. 268, 53 C. C. A. 60.)
Hpon the motion for a new trial defendant presented in. his affidavit newly discovered evidence, and among other things urged that the police officers of Boise City had taken undue advantage of him and influenced witnesses against him; and in support of that contention presented affidavits showing that a reward of some $3,000 had been parceled out among the police officers, and that one of the principal witnesses for the prosecution had obtained $1,500 of the Teward, and that the chief of police and one of his subordinates had signed an obligation to pay $50 to the barber who had shaved the defendant on the night upon which it was claimed the homicide occurred, and to whose testimony considerable reference is made in the majority opinion. That document is as follows:
“Boise, Idaho, Eeb. 22, 1902.
“This is to certify, that we, the undersigned, agree to pay J. L. Eagland, or order, the sum of $50 out of any reward we may receive from either the state of Idaho or the heir of Davis Levy.”
This was signed by the chief of police and his subordinate officer. It also appears that after the trial the chief of police drew warrants for fees of witnesses who had testified on the part of the state in. the aggregate sum of $591.50. He claimed in reply to this that he did it only as an accommodation. It is also made .to appear that the inmates of the houses of ill-repute in. Boise City, from which class most of the witnesses against defendant were drawn, were entirely dependent upon the .police officers as to whether or not they should be allowed *509to conduct such resorts. It is also shown that these places were closed by the police during the trial of this case and reopened as soon as the case was closed. Upon the trial of the cause the chief of police testified in relation to finding the body of the deceased: “I went into this office probably a few minutes after finding his body; there was no blood anywhere except on the face towel or gag.” The witness testified to having examined the premises carefully, but made no mention of finding any blood stains anywhere in the building, and no evidence to that effect was given at the trial. Upon motion for a new trial, however, the defendant presented the affidavit of a reputable physician of Boise City, stating that soon after the body of Davis Levy was found, the chief of police called upon the physician and took him to the Davis Levy lodging-house. What then occurred is best shown by the language of the affidavit: “In the front room facing Main street on the west side of the stairway leading from Main street to the second story of said building, and right across the hallway from the office or living-room of Davis Levy, I found blood stains which had the appearance of being placed upon the door leading from the room on the west side of the hallway by the fingers or hand of someone as they unlocked the catch or latch of the door, and in said room I found also blood stains on the handle of a water pitcher; that I at that time took some of the stains and made a microscopic examination of them and found from said examination that the stains were caused by the blood of a human being; that I did not communicate the above fact to the defendant or either of his attorneys until after his conviction.” This affidavit tends very strongly to corroborate the contention of defendant that the police officers were acting unfairly with him and suppressing evidence which might have thrown light upon the case. If no error had been committed in the admission of evidence, the newly discovered evidence in this case, and even the showing as to the conduct of the officers, might not justify a reversal of the case; but considered in connection with the mass of incompetent and prejudicial testimony to which I have referred, certainly presents a strong consideration for the granting of a new trial.
(February 12, 1904.)For the foregoing reasons I cannot agree to an affirmance of the judgment.