dissenting: The principal evidence against the defendant was that given by Harry Sapphire, a detective, who testified that he had purchased liquor from the defendant on five different occasions. The jury convicted on two counts and acquitted on three, though the evidence on all five of the charges was of the same character. .
In support of Sapphire’s testimony, the State offered A. G. Corpening, a character witness, who testified as follows:
“Q. Have you made any investigation of Mr. Sapphire and his character? (Objection; overruled; exception by defendant.) A. I made a trip to Atlanta and made a personal investigation, and from my investigation I would say his character was good.”
“And to the overruling of the objection and admission of the answer the defendant excepts.”
To my mind the natural and correct interpretation to be placed on the testimony of A. G. Corpening is that he was not undertaking to speak of his own knowledge concerning the character of the witness Sapphire, but was giving the result of his investigation, or the conclusion reached by him, from what others had told him, or from what he had learned about the witness in Atlanta. The record is silent as to whether this investigation was long or short, or whether it was made among friends and acquaintances or strangers, or whether his informers were few or many. He does not say that he knows the general reputation or character of the witness, and this is a necessary prerequisite or qualification to his right to testify under our decisions.
“It is fully recognized that in the trial of causes the testimony of a witness may be impeached by evidence of his bad character; and it is equally well established that before this is allowed the impeaching witness must qualify himself by saying, under oath, that he knows what such character is.” Hoke, J., in S. v. Mills, 184 N. C., 695.
“No principle of evidence is more clearly settled in North Carolina, nor by a longer line of decisions, than that a witness will not be allowed to testify as to character until he shall have first qualified himself by stating that he knows the reputation of the person in question.” Avery, J., in S. v. Coley, 114 N. C., 879.
“The witness is not to be discredited, because of the opinions which any person or any number of persons may have expressed to his disadvantage, unless such opinions have created or indicate a general reputation of his want of moral principle. The impeaching witness must, therefore, profess to know the general reputation of the witness sought to be discredited before he can be heard to speak of his own opinion or of the opinion of others, as to the reliance to be placed on the testimony of the impeached witness.” Gaston, J., in S. v. Parks, 25 N. C., 296.
*778“The rule as to this matter bas been, fully settled by many decisions of this Court. It is this: the party bimself, wben be goes upon the witness stand, can be asked questions as to particular acts, impeaching bis character, but as to other witnesses it is only competent to ask the witness if be ‘knows the general character of the party.’ If be answers ‘No,’ be must be stood aside. If be answers ‘Yes,’ then the witness can, of bis own accord, qualify bis testimony as to what extent the character of the party attacked is good or bad.” Clark, C. J., in Edwards v. Price, 162 N. C., 244. See, also, S. v. Haywood, 182 N. C., 815; S. v. Killian, 173 N. C., 796; Tillotson v. Currin, 176 N. C., 484; S. v. Robertson, 166 N. C., 356; S. v. Holly, 155 N. C., 485; S. v. Ussery, 118 N. C., 1177; S. v. Gee, 92 N. C., 760.
An impeaching or sustaining witness is not to speak of the general reputation or character of another unless be knows it, and such knowledge must be founded on an acquaintance and intercourse with the neighbors or associates of the person whose character is in question. this intercourse, of necessity, must be of some length of time sufficient, at least, to enable the witness to gather the general esteem or estimation in which the party is held in the community where be resides, or at the place where be carries on bis business. Curtis v. Fay, 37 Barb., 64. It is not indispensable that the witness should have resided in the same community with the person, of whose character be proposes to testify (though the contrary is supported by authority), but be must speak of bis own knowledge and not merely from what others have told him, for this would bé no more than reputation of reputation, or hearsay. S. v. Lambert, 104 Me., 394; Reid v. Reid, 17 N. J. Eq., 101; Douglass v. Tousey, 2 Wend., 352; 20 Am. Dec., 616, and note; 10 R. C. L., 954.
“It is not enough that the impeaching witness professes merely to state what be bas beard ‘others say’; for those others may be but few. He must be able to state what is generally said of the person, by those among whom be dwells, or with whom be is chiefly conversant; for it is this only that constitutes bis general reputation or character. And, ordinarily, the witness ought bimself to come from the neighborhood of the person whose character is in question. -If be is a stranger, sent thither by the adverse party to learn bis character, be will not be allowed to testify as to the result of bis inquiries; but otherwise, the court will not undertake to determine, by a preliminary inquiry, whether the impeaching witness bas sufficient knowledge of the fact to enable him to testify; but will leave the value of bis testimony to be determined by the jury.” Greenleaf on Evidence, sec. 461.
“In order to discredit a witness, you can examine only to bis general character. . . . But it was remarked by plaintiff’s counsel that witnesses do not always understand what-is meant by general character; *779and, therefore, it is necessary to vary the question, so as to adapt it to their comprehension. That is true, and therefore there is no impropriety in proposing the question in various forms, so that the substance be retained. But you must never depart from general character. . . . There are few men of whom some do not speak well, and some evil.. ('Woe unto you when all men shall speak well of you.’ Luke, 6 :26.) But the question is, What is said by people in general ? This is the true point of inquiry, and everything which stops short of it is incorrect.” Tilghman, C. J., in Wike v. Lightner, 11 Ser. & Rawle, p. 199.
“When it is attempted to impeach a witness on account of a want of moral character, it cannot be done by the impeaching witness ‘merely stating what he has heard others say, for those others may be but few. He must be able to' state what is generally said of a person, by those among whom he dwells or with whom he is chiefly conversant, for it is this only which constitutes his general character.’ ” Mr. Justice Wayne in Gaines v. Helf et al., 12 How., 555.
“(The witness to reputation) must be able to state what is generally said of the person by those among whom he dwells, or with whom he is chiefly conversant, not by those among or with whom he may have sojourned for a brief period, and who have had neither time nor opportunity to test his conduct, acts, or declarations, or to form a correct estimate of either. A man’s character is to be judged by the general tenor and current of his life, and not by a mere episode in it.” Brace, J., in Waddingham v. Hulett, 92 Mo., 533. See, also, Wigmore on Evidence, sec. 1616, and cases there cited.
In Mawson v. Hartsink, 4 Esp. Rep. (Eng.), 103 (cited with approval in S. v. O’Neale, 26 N. C., 88), an impeaching witness was asked to state whether he had made particular inquiries as to the general character of a witness about which he proposed to testify. Lord Sllen-horough ruled that the question was improper, and gave the following reasons for his position: “That cannot be evidence. That information must be from persons not on their oaths; perhaps not reliable. If this were allowed, when it was known that a witness was likely to be called, it would be possible for the opposite party to send around to persons who had prejudices against him, and from thence to form an opinion, which was afterwards to be told in court, to destroy his credit.”
The words of Lord Ellenborough are particularly appropriate here, for, to my mind, the precedent we are setting is a dangerous one. In the O’Neale case, 26 N. C., 88, an impeaching witness was asked if he knew the general character of another witness. He replied that he did not know whether he did or not. He was then asked “whether he knew in what estimation Elizabeth Earnest was held in his neighborhood before she left it.” The Court said the latter question was properly *780excluded because it was too circumscribed, and did not amount to an inquiry as to ber general character before she left the .neighborhood. It will be observed that in the case at bar the witness does not even purport to speak of general character; but I do not place my dissent on this ground. That would be too narrow and technical. Where the testimony of a character witness is objected to, as it is here, he should be required to qualify himself by first saying that he knows the general character of the witness, or party, before he is allowed to give his testimony in evidence. This is the direct holding with us in a number of cases heretofore cited. See, also, S. v. Wheeler, 104 N. C., 893; S. v. Hairston, 121 N. C., 582; S. v. Efler, 85 N. C., 585.
Again, in S. v. Boswell, 13 N. C., 211, Toomer, J., speaking directly to the question now under consideration, used the 'following language: “A witness introduced to impeach the general character of another 'should not be permitted to give evidence of particular facts, nor repeat hearsay of strangers to the witness, whose testimony is intended to be discredited. He should only speak of the general moral character of the witness, as known among his neighbors and acquaintances. The discrediting witness should not express an opinion founded on his knowledge of particular facts, nor upon the hearsay of strangers to the witness intended to be discredited.” Some of the expressions employed in this opinion were subsequently disapproved in Hooper v. Moore, 48 N. C., 430; but, in no case, has the above portion of the opinion been overruled, criticised, or disapproved. On the other hand, this language was quoted with approval by Smith, C. J., in S. v. Bullard, 100 N. C., 488; and, indeed, its correctness can hardly be the subject of cavil or debate. See McQuiggan v. Ladd, 79 B. T., 90; 14 L. R. A. (N. S.), 689, and note; People v. Van Gaasbeck, 189 N. Y., 408; 22 L. R. A. (N. S.), 650, and note. This latter note contains an exhaustive review of the English and American authorities on the subject.
By the general character or reputation of every individual, that is, by the estimation in which he is held in the society or neighborhood where he is known, his word and his oath are valued. If his general character be free from imputation, his testimony weighs well. But if it be sullied, in the same proportion his word will be doubted. An impeaching or sustaining witness should speak only of his own knowledge, and then only with regard to the settled judgment or estimate of the community, touching the moral stamina or worth of the party whose character is in question. “Character,” said Mr. HrsJcine, in the trial of Thomas Hardy for treason, “is the slow-spreading influence of opinion, arising from the deportment of a man in society. As a man’s deportment, good or bad, necessarily produces one circle without another, and so extends itself till it unites in one general opinion, that general opinion is allowed to *781be given in evidence.” 24 State Trials, p. 1079. Tbe rul4 is tbat where an impeaching or sustaining witness is called, he must first qualify him-: self by saying whether he knows the general reputation or character of the witness or party about which he proposes to testify. -If he answer that he does not, he should be stood aside without being cross-examined on the subject. And if he reply in the affirmative, he should be confined to general reputation or character. ■ This is not an idle matter; for, in many cases, its proper enforcement is essential to a fair and impartial administration of justice. Due process of law is something more than a high-sounding phrase; and the well established rules of evidence have been adopted, not merely for book-writing and law-school instruction, but the primary purpose of such adoption is for actual observance in the trial of causes.
Again, the defendant excepts to the following part of the charge: “If one accused of crime — when the time and place of the commission of the alleged crime is fixed, can show and does show that at that time and at the place alleged, that he was not there, and it would have been impossible for him to have committed the crime, that is evidence that the jury may consider passing upon the question, and if it is established he could not have committed the crime on account of being elsewhere at the time and placed fixed, why that would be a defense.”
The foregoing is all that was said to the jury in regard to the defendant’s alibi. True, in the closing paragraph of the charge, his Honor instructed the jury that they must be satisfied beyond a reasonable doubt of the defendant’s guilt before a verdict could be rendered against him, and that, if they had a reasonable doubt about it, it would be their duty to acquit the defendant. But this was far removed from the above instruction, which forms the basis of the defendant’s fifth exception.
In S. v. Jaynes, 78 N. C., 504, it was said: “The burden of proving an alibi did not rest upon the prisoner. The burden remained upon the State to satisfy the jury upon the whole evidence of the guilt of the prisoner. It was only necessary for the prisoner in his defense to produce such an amount of testimony, whether by evidence tending to show an alibi or otherwise, as to produce in the minds of the jury a reasonable doubt of his guilt.” To like effect are the following cases: S. v. Bryant, 178 N. C., 702; S. v. Rochelle, 156 N. C., 641; S. v. Freeman, 100 N. C., 429; S. v. Starnes, 94 N. C., 973; S. v. Reitz, 83 N. C., 634. See, also, 12 Cyc., 619.
An alibi — meaning “elsewhere”- — is not, properly speaking, a defense within any accurate meaning of the word “defense”; but it is a mere fact which may be used to call in question the identity of the person charged, or the entire basis of the prosecution. 8 R. C. L., 124 and 224.
*782In Schultz v. Territory, 5 Ariz., 239; 52 Pac., 352, the law upon the subject of an alibi seems to be very satisfactorily stated as follows: “the burden of proof never rests upon the accused to show bis innocence, or to disprove the facts necessary to establish the crime with wbicb be is charged. the defendant’s presence at, and participation in, the corpus delicti, are affirmative material facts that the prosecution must show beyond a reasonable doubt to sustain a conviction. For the defendant to say be was not there is not an affirmative proposition; it is a denial of the existence of a material fact in the case. He meets the evidence of the prosecution by denying it. If a consideration of all the evidence in the case leaves a reasonable doubt of bis presence, be must be acquitted.”
I think the instruction, as given, was calculated to mislead, and in all probability did mislead, the jury. S. v. Morgan, 136 N. C., 628. the charge to the jury, in its different parts, should not be conflicting; and while a slightly inaccurate or incomplete instruction may be cured by subsequently supplying the defect or accurately stating the law, an erroneous placing of the burden of proof is not cured by a correct statement, widely separated from the excepted portion, and appearing elsewhere in the charge, unless the erroneous part is specifically withdrawn. S. v. Falkner, 182 N. C., 799, and cases there cited.
The rule as to the burden of proof is important and indispensable in the trial of causes. It constitutes a substantial right of the party upon whose adversary the burden rests, and hence it should be carefully guarded and rigidly enforced by the courts. Hosiery Co. v. Express Co., 184 N. C., 480.
Addendum.
Since writing tbe above, two concurring opinions have been prepared and filed herein. To my mind, what is said in these opinions tends to strengthen rather than to weaken tbe position that prejudicial error was committed on tbe trial of this cause.
It is contended that the objection to the testimony of A. G. Corpening is not properly presented. 'Why not? the defendant objected and excepted to the question propounded to the witness. He then objected and excepted to the admission of bis evidence. To say that the exception cannot be sustained because the defendant has not assigned the correct reason therefor, in my opinion, is untenable. the appeal is not here in any limited sense. I do not understand it to be the rule with us that when objection is made to the admission of evidence, counsel must state the ground upon wbicb the objection is based, unless requested to do so by the court. This may be the practice in other jurisdictions, but not so in North Carolina; at least, up to the present time the rule has been *783otherwise. The crucial point is that Oorpening failed to qualify as a character witness, in the face of objection, and this is a condition precedent to his right to testify under our decisions. It must follow, therefore, that his evidence is incompetent, and that the defendant has been erroneously convicted. The sufficiency of the form of the objection and the materiality of the evidence now in question were both presented and directly considered in S. v. Mills, 184 N. C., 694.
HoKE, J., concurs in dissent.