Moulton v. State

McOLELLAN, J.

Appellant, defendant below, was convicted on an indictment charging him with larceny from a tug-boat, under section 3789 o£ the Code. On the trial, defendant introduced one Chandler, who testified that he knew the general character of the accused, in the neighborhood in which he lived, and that it was “very good.” This witness, on cross-examination, was asked by the solicitor whether he “didn’t know that the defendant used to run away from home for weeks and months at a time, and his father had to send and bring him back;” and replied: “Yes; he used to go off for a week or so at a time, but I used to tell his father where he was; and this is all I ever heard against him.” The defendant objected to the interrogatory, and moved'to exclude the answer; but both his objection and motion were overruled, and the evidence allowed to go to the jury. This action of the court was duly excepted to, and is now presented for our consideration.

The doctrine is too familiar to require support from a citation of texts or adjudged cases, that character, good or bad, can only be established by evidence of general reputation. The issue involved, when it is sought to influence the verdict of jurors by inviting their consideration of the good character of the defendant, embraces no element of conduct, but is met and filled solely by the repute in which the person inquired about is held in the community in which he lives. Conduct doubtless is, in all cases, to a greater or less degree, the basis of reputation — the efficient cause of whatever impression has been made on the community, touching the qualities of the man; but it is this resultant of conduct, and not conduct itself — whether regard be had to a general course of life, or to particular acts — which may go to the jury in a given case, do aid them in arriving at a just conclusion as to the fact, and in some instances the degree, of guilt. The law draws no inferences, nor permits the jury to indulge in speculations, as to guilt or innocence in respect to the act charged, from the fact that the accused has or has not been guilty of other acts — except in certain cases wholly foreign to the question of character — or that his walk in life has been exemplary or the reverse. And a witness to character can not speak of particular acts, or even the course of conduct of the person inquired about, but is confined to a statement of general reputation in the neighborhood in which he lives. The rule applies with equal force to original and rebutting testimony. The issue is good or bad repute, and to this each party is confined. Similarly, the cross-examination of a character witness must be conducted within the limits o£ this inquiry. The cardinal rule, applicable to cross-examination, is, that while it may take a wider range in the case than was covered by the examination in chief, and even elicit facts not before in evidence, it must still “relate to facts in issue, or relevant, or deemed to be relevant thereto.” — Stoudenmire v. Williamson, 29 Ala. 558; 2 Brick. Dig. 549, § 125. It is manifest that, where good or bad repute is the issue, and this issue is incapable of being solved either way by evidence of conduct or particular acts, such evidence is wholly beyond the inquiry, and irrelevant. The only exception to the general rule last stated, which bears any relation to the matter we are considering, is, that irrelevant questions which tend to test the accuracy, veracity, or credibility of the witness, may sometimes be asked on cross-examination.

It is inconceivable that the accuracy or credibility of a witness, who has testified to a fact which does not in any degree rest in evidence of conduct, can be impeached by any sort or amount of proof as to conduct. There is a class of questions which are admissible only on cross-examination, and are competent solely under this exception; but they raise no inquiry as to the conduct of the person whose character is in issue. Since it is the opinions of a man’s neighbors which constitute the character which may become the subject of judicial investigation, the expression of those opinions is often the best and most direct evidence of character, addressing itself primarily to the mind of the witness, and forming the basis of his statement before the jury. So, too, rumors and reports which the witness has heard, respecting the man whose character he deposes to, naturally serve to form the general estimate, and to evidence it to the witness. Opinions, therefore, and rumors and reports, concerning the conduct or particular acts of the party under inquiry, are the source from which, in most instances, the witness derives whatever knowledge he may have on the subject of general reputation; and, as a test of his information, accuracy and credibility, but not for the purpose of proving particular acts or facts, he may always be asked on cross-examination as to the opinions he has heard expressed by members of the community, and even by himself as one of them, touching the character of the defendant or deceased, as the case may be, and whether he has not heard one or more persons of the neighborhood impute particular acts or the commission of particular crimes to the party under investigation, or reports and rumors to that effect.

Our decisions fully sustain the competency of this kind of testimony. — DeArman v. State, 71 Ala. 351; Ingram v. State, 67 Ala. 67; Jackson v. State, 78 Ala. 472; Tesney v. State, 77 Ala. 33.

But this court has never held that it was proper, even on cross-examination, to elicit the witness’ knowledge of the conduct, or of particular acts of a defendant, or other person whose character is involved in the issue; but, on the con-tray, its expressions, when referred to the facts of the cases, are in perfect harmony with all the text-writers who touch on the point, and with an unbroken line of cases adjudged by courts of last resort, and which are uniform to the effect, that such evidence is incompetent and inadmissible. — Engleman v. State, 2 Ind. 91; s. c., 52 Amer. Dec. 494; Redman v. State, 1 Blackf. 96; Com. v. O'Brien, 119 Mass. 345; Peterson v. Morgan, 116 Mass. 350; Gordon v. State ,3 Iowa, 415: State v. Arnold, 12 Iowa, 487; Regina v. Rawton, 10 Cox, C. C. 25; Teese v. Huntington, 23 How. (U. S.) 2; Whart. Cr. Ev. 61.

The court below erred, therefore, in allowing the testimony objected to to go to the jury.

We have carefully examined the other exceptions reserved, but discover no error in the rulings on the trial other than that pointed out above.

The judgment of the City Court is reversed, and the cause remanded.