specially concurring.
If the legislature or one of those courts by whose decisions I am judicially bound should declare that twice two are five, I would not know, in the law of the next case coming before me and involving mathematics, whether three times three should he declared to be six, or. some other number. Such inconsistencies frequently harass my judgment and always leave me in doubt. Our Supreme Court, and the legislature, through the code, have declared that the jurors shall not act upon personal knowledge of the character of the parties and the witnesses. Ideally speaking, this is possible; practically and psychologically considered, it. is impossible. The jurors, as human beings, in passing upon the credibility of the witnesses, necessarily must he, and in all cases are, to a greater or less degree affected by whatever knowledge they personally possess as to the character of the persons testifying. Shall we say, then, that an-intelligent lawyer (knowing as he does that, despite the mandate of the law to the contrary, the jurors will necessarily, to some extent, use their private knowledge if they have any) must absolutély ignore this practical feature of his case? May he not candidly assume this truth, in his discussion of the case to the jury? Suppose Mr. Hill had said to the jury, “The law forbids, that you should act upon your personal knowledge of the character of the witnesses; but I know that in a large degree this is psychologically impossible; and I congratulate myself, as counsel for the plaintiff, who has testified in his own behalf, that I am to suffer no disadvantage from this fact, in that I feel sure that whatever personal knowledge you possess and may use will merely corroborate, and not tend to detract, from that good character which the law allows you to presume he possesses,” would this have been improper? It is conceded that, in the absence of evidence showing.to the contrary, the law presumes that every party and witness is of good character, and that this presumption is sufficient of itself to justify counsel in urging to the jury, or in assuming before the jury, that the party or witness is of good character. *619See Bennett v. State, 86 Ga. 404 (12 L. R. A. 449, 22 Am. St. R. 465, 12 S. E. 806). It is conceded that in this case it was legitimate to point to the fact that the plaintiff had lived in the community throughout a long number of years and had been engaged in an honorable occupation; for these things appeared from the evidence. From this circumstance the presumption of his good character was strengthened; for if his life had not been honorable, his bad character would thereby have been so much the more easily capable of proof by the defendant. There was no evidence of his bad character; nothing on the trial indicated it. His good character was therefore a fact established in the case, — a fact of which the jury were required to take cognizance, even under the most ideal view of the jury’s prerogative in such matters. If the remarks of the plaintiff’s counsel in the present case are to be construed as urging the jury to act upon their private knowledge and find that the plaintiff was of good character, he was merely asking them to reach, through that practical process which he as a reasonable man knew they would use, the same result as.they should necessarily reach by the theoretical process which the law prescribes. If the actual and the theoretical truth in a given case are demonstrated to be the same thing, I can not see how either the opposite part} or the ultimate ends of justice can be very much hurt by the application of the one where the other is required. Now if Mr. Hill had said to the jury, of the witnesses for the opposite side, literally or in substance, “Gentlemen, they are presumed to be of good character, but in this case they are not telling the truth. We have not attacked their characters by proof, but I hope you know them personally, for your personal knowledge will not corroborate the presumption which the law raises in their favor,” then there would have been an attempt to array the actual against the theoretical truth, and the court could logically say, “This is juridie error.” I think that counsel should be allowed considerable latitude in argument, provided they do not attempt to bring into the case illegitimate extraneous facts. Matters which the law authorizes to be presumed are not extraneous; nor are those things which are within the range of the ordinary and common observation of all thinking men. At one time there was a tendency, in the decisions of our Supreme Court, to hold counsel to what, to my mind, seems to be undue strictness; *620but there is a tendency in the later decisions of that court to allow greater latitude. My personal judgment as to what is best leads me to desire to do nothing to counteract this tendency in what seems to be the right direction; and out of this consideration I am strongly led to dissent in this case. However, this verdict is not strongly supported by the evidence; and since what the French would call the tout ensemble of this incident of the trial may have unfairly prejudiced the defendant’s case, I will specially concur. See, in this connection, the concluding remarks in the Bennett case, supra. If counsel for the defendant had desired the jury to be instructed that they had no right to act on personal knowledge of the witness or party, a timely written request would have availed them.