1. Was the evidence offered by the defendant, that the general character of the deceased was that of a violent, turbulent, revengeful, blood-thirsty, dangerous man, and reckless of human life, properly excluded by the court ? I feel constrained to answer this question in the negative.
By the common law, the jury determined merely the guilt or innocence of the prisoner; and, if their verdict was guilty, their duties were at an end. They had nothing whatever to say as to the punishment to be inflicted. The court alone determined what the punishment should be, its extent and its severity; with that the jury had nothing to do. Their whole duty was discharged when the verdict of guilty was pronounced.
The common law, on this subject, has been greatly changed by our statutes, and the duties and responsibilities of juries largely increased; consequently, evidence that would have been ■ irrelevant and impertinent at the common law, becomes proper and necessary, under our statutes, to enable juries to discharge their newly imposed duties rightly and properly.
By our statutes, the crime of murder is made one of degrees, divided into murder in the first and second degree. Rev. Code, § 3653. Section 3654, Revised Code, enacts, that “ any person who is guilty of murder in the first degree, must, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury; and any person who is guilty of murder in. the second degree, must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor .for the- county, for not less than *607ten years, at the discretion of the jury.” Section 3657 provides, that “ when the jury find the defendant .guilty, under an indictment for murder, they must ascertain by their verdict, whether it is murder in the first or second degree; but, if the defendant, on arraignment, confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of testimony, and pass sentence accordingly.”
Here, we see that the degree of the crime must be determined by the verdict of a jury, upon an examination of testimony, and the punishment to be inflicted on the defendant rests in the discretion of the jury. If the' crime be murder in the first degree, the jury must determine whether the punishment shall be death, or imprisonment in the penitentiary for life. If in the second degree, the defendant must be imprisoned in the penitentiary, or be sentenced to hard labor for the county, for not less than ten years, at the discretion of the jury. Testimony is as necessary and important, to enable the jury to exercise this discretion prudently and properly, as to enable them to de-‘ termine the guilt or innocence of the defendant. The jury have two important duties to perform, and both are to be governed and controlled by the evidence, and neither can be wisely or rightly discharged without evidence. As these duties are different, the evidence must necessarily be different. After the guilt of the defendant is settled, the proper evidence, to determine the degree of his crime, and what should be the extent and severity of his punishment, must, in great measure, depend upon a careful examination of the circumstances, not those only immediately attendant on the killing, but those also which may reasonably be supposed to have led to it; and these circumstances should be considered in connection with the good, or bad character, both of the defendant and the deceased. Who is prepared to say the punishment should be the same where a turbulent, revengeful, blood-thirsty, dangerous man, reckless of human life, has been slain, who had recently, only a few hours before, violated and outraged the person of his slayer, as though the party plain had been a man of *608good character, and of a peaceable disposition ? For myself, I can not, conscientiously, say so. Although the violence and outrage committed upon the person of the defendant, in this case, might not have been sufficient to reduce the offen^. from murder to manslaughter, yet, we hold it was clearly proper for the consideration of the jury in determining the turpitude of the -crime, and what should be the measure of the punishment to be inflicted. If the evidence of the general bad character of the deceased was proper, only in the latter case, it should have been received, and not excluded by the court.
2. The charge in writing, which the defendant requested the court to give to the jury, we think was improperly refused. The good character of the defendant as a peaceable man was proved by several witnesses. In the case of The Commonwealth v. Hardy, 2 Mass., Chief-Justice Parsons said he was of the opinion that a prisoner ought to be permitted to give in evidence his general good character, in all criminal cases; Justices Sewael and Parker said they were not prepared to say that testimony of general good character should be admitted in behalf of the defendant in all criminal prosecutions, but they were clearly of the opinion that it might be admitted in capital eases, in favor of life. In Roscoe’s Cr. Ev. p. 96, it is said, “In trials for high treason, for felony, and for misdemeanors, where the direct object of the prosecution was to punish the offense, the prisoner was always permitted to call witnesses to his general character; and in every case of doubt, proof of good character was entitled to great weight.” In the case of Felix (a slave) v. The Stale, 18 Ala. 720, it is decided that “in criminal cases, evidence of previous good character is proper for the consideration of the jury, not only where a doubt exists upon the other proof, but even to generate a doubt as to the guilt of the accused.”
The evidence of good character was admitted in this case, but the error of the court consists in refusing to give a proper charge based upon said evidence. I do not say the evidence of good character should have created a rea*609sonable doubt in the minds of the jurors, in this ease, when considered in connection with the other evidence. But as the law permits evidence of good character in criminal cases, it certainly intends it for the consideration of the jury, and it is for the jury alone to determine whether, when considered with the other evidence, it does or does not create a reasonable doubt as to the defendant’s guilt.
It is manifest that a part of the charge given at the request of the solicitor, and excepted to by the defendant, is left out in copying it into the' transcript. As the charge there appears it- is unintelligible, and we can not tell whether it was right or wrong.
Eor the errors in excluding the evidence of the general bad character of the deceased, as a violent, blood-thirsty' man, &c., and in refusing to give the charge asked, the judgment and sentence of the court below is reversed, and the cause is remanded for another trial; and the defendant will remain in custody until acquitted, or discharged by due course of law.