The motion to quash was rightly overruled. The articles in each count alleged to have been feloniously received are the articles in that count alleged to have been stolen.
As testimony was introduced that the defendant did not keep, a junk-dealer’s book, the testimony of Murray was competent for the pui’pose of showing that the defendant knew that the statutes of the Commonwealth and the ordinances of the city of Cambridge required him to keep such a book. See Pub. Sts. c. 102, § 29. If the defendant intentionally neglected to keep a book which was required by law manifestly for the purpose of tracing all articles purchased by him as a junk-dealer, the fact was competent to be considered by the jury.
The offence of receiving stolen property, knowing it to have been stolen, must be considered as distinct from the offence of receiving embezzled property, knowing it to have been embezzled, Pub. Sts. e. 203, §§ 48, 51, although embezzlement under our statutes has been held to be a species of larceny. Commonwealth v. Pratt, 132 Mass. 246. The punishments of the two offences may be different, as the offence of receiving embezzled goods may be punished by a fine without imprisonment, If the *479property had actually been stolen, a belief on the part of the defendant that it had been stolen is tantamount to knowledge. If the defendant knew all the facts, and the facts constituted larceny, as distinguished from embezzlement, it would be no defence that the defendant thought that the facts constituted embezzlement. If the defendant did not know the facts, but believed, from the circumstances, that the property had been either embezzled or stolen, and it had been actually stolen, it was competent for the jury to find the defendant guilty of the offence charged. The second request for instructions was there” fore rightly refused.
The first request for instructions states the law with substan tial correctness. It is contended that the instructions given on this point, rightly construed, are the same in effect. We find it unnecessary to decide whether the case called for a more careful definition of larceny, as distinguished from embezzlement, or from wilful trespass.
. The third request was, we think, a correct statement of the law as it must now be held in this Commonwealth. The case was peculiarly one where evidence of the defendant’s general reputation for honesty in his business deserved consideration. Such evidence is always competent in the trial of offences of this character. It is not now the law, we think, that evidence of character can only be considered by the jury where the other evidence is doubtful, and that “it is not of the slightest consequence” where the other “evidence is strong,” and the guilt of the defendant “ is impressed on the minds of the jury.”
In Commonwealth v. Hardy, 2 Mass. 303, 317, it was said that, “ in doubtful cases, a good general character, clearly established, ought to have weight with a jury; but it ought not to prevail against the positive testimony of credible witnesses; ” and in Commonwealth v. Webster, 5 Cush. 295, a distinction was taken between crimes “of great and atrocious criminality” and “smaller offences,” and it was said that “against facts strongly proved good character cannot avail,” and that, in the smaller offences, such as “pilfering and stealing, where the evidence is doubtful, . . . . proof of character may be given with good effect.” Both these decisions were before the Gen. Sts. c. 115, § 5, (Pub. Sts. c. 153, § 5,) which provided that “ the courts shall not charge *480juries with respect to matters of fact, but may state the testimony and the law.”
The distinction taken in Commonwealth v. Webster, if it be regarded as matter of law, has been expressly disapproved of in Cancemi v. People, 16 N. Y. 501; Harrington v. State, 19 Ohio St. 264; and People v. Garbutt, 17 Mich. 9.
The old rule, that evidence of the good character of the defendant is not to be considered by the jury unless the other evidence leaves their minds in doubt, has been much criticised, and the weight of authority is now against it. 1 Bish. Grim. Proc. (3d ed.) §§ 1115,1116. 3 Russ. Crimes, (5th ed.) 391. 3 Greenl. Ev. § 25. Whart. Grim. Ev. (9th ed.) § 66. Stewart v. State, 22 Ohio St. 477. People v. Ashe, 44 Cal. 288. State v. Henry, 5 Jones (N. C. ) 65. Remsen v. People, 43 N. Y. 6. State v. Lindley, 51 Iowa, 343. Heine v. Commonwealth, 91 Penn. St. 145. State v. Daley, 53 Vt. 442. Coleman v. State, 59 Miss. 484. Cancemi v. People, ubi supra. Harrington v. State, ubi supra. People v. Garbutt, ubi supra.
If evidence of reputation is admissible at all, its weight should be left to be determined by the jury in connection with all the other evidence in the case. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt in the minds of the jury, although without it the other evidence would be convincing. To instruct a jury, that they are first to consider the other evidence in the case, and that, if they are thereby convinced beyond a reasonable doubt of the guilt of the defendant, they are to disregard the evidence of good character, and that they are only to consider this evidence when their minds are left in doubt by the other evidence, and when perhaps the defendant does not need the evidence of character for his acquittal, is a practice that finds even less support in reason than in authority.
The old practice of charging juries, that evidence of character was of little or no weight, except in doubtful cases, undoubtedly grew up when judges were accustomed to express their opinions to jurors upon matters of fact, and the weight to be given to evidence, and was perhaps sufficiently just in particular cases; but we think it ought not to have been made a rule of universal *481application, that is, a rule of law; and, since the passage of the Gen. Sts. c. 115, § 5, it is open to the objection that it is charging juries upon the weight to be given to evidence, when the law, in our opinion, does not define the degree of weight to be attached to it.
Exceptions sustained.