United States v. McPhail

*51Opinion of the Court

Robert E. Quinn, Chief Judge:

Convicted by a general court-martial of two specifications of larceny and two specifications of burglary, in violation, respectively, of Articles 121 and 129, Uniform Code of Military Justice, 10 USC §§ 921, 929, the accused appealed to this Court for review. The question before us is the correctness of the law officer’s instructions on the effect of evidence of good character.

The prosecution established that on two occasions, on different days and at different places, an unidentified person entered the private quarters of military personnel and stole certain sums of money. A few days later, the accused, who lived near the burglarized homes, was questioned by two air policemen, After advice as to his rights under Article 31, the accused gave them a full confession. The accused testified in relation to the admissibility of the confession but, in spite of his testimony and over his counsel’s objection, the confession was admitted into evidence. The defense case-in-chief consisted of testimony of two witnesses to the effect that the accused had a good reputation for “truthfulness and honesty and being a law-abiding citizen.”

After instructing on the elements of the offenses charged, the law officer advised the court-martial of some of the special principles of law applicable to the case. On this appeal, the defense contends that the italicized part of the following instruction on character evidence is erroneous and prejudicial:

“The defense in this case has introduced evidence of the accused’s good character. The law recognizes that a person of good character is not as likely to commit an offense as is a person of bad character. Evidence of the good character, therefore, is admissible as tending to show that it is improbable that the accused committed the offenses charged. Considered and weighed alone, or in connection with the presumption of innocence and all the other evidence in the case, this evidence of accused’s good character may be sufficient to cause a reasonable doubt to remain as to his guilt, thereby warranting an acquittal. On the other hand, the inference of innocence to be drawn from such evidence may be more than offset by other evidence in the case tending to establish the accused’s . guilt. As members of the court, the final determination as to the weight to be accorded this and all other evidence in the case rests solely with you, and I instruct you that character evidence is never sufficient to overcome direct evidence of the happening of an event.” [Emphasis supplied.]

Evidence of good character is admissible on behalf of an accused in connection with his guilt or innocence. Michelson v United States, 335 US 469, 93 L ed 168, 69 S Ct 213; United States v Browning, 1 USCMA 599, 5 CMR 27. The rule is based upon the assumption that a person who has followed an honest and upright course of conduct will not depart from it, and do an act inconsistent with it. Remsen v People, 43 NY 6. To the extent that it is believed and credited by the court-martial, charac-ter evidence alone may be sufficient to provide a reasonable doubt of guilt, despite the “convincing” nature of the other evidence and notwithstanding that the other evidence of guilt is direct rather than circumstantial. United States v Browning, supra; United States v Phillips, 3 USCMA 137, 11 CMR 137; Hayes v United States, 227 F2d 540 (CA 10th Cir) (1955). Consequently, it is error to instruct the court-martial in such a way as to depreciate the exculpatory significance of evidence of good character. United States v Johnson, 3 USCMA 709, 14 CMR 127. For example, it is improper to advise the jury that in cases “where the facts themselves establish either guilt or innocence, character is not admissible and cannot avail.” Rowe v United States, 97 Fed 779 (CA 8th Cir) (1899). It is also error to instruct that evidence of good character is of value only “in conflicting cases.” Edgington v United *52States, 164 US 361, 41 L ed 467, 17 S Ct 72.

Appellate defense counsel contend that, in effect, the challenged instruction directed the court-martial to disregard the accused’s character evidence in determining matters established by “direct evidence.” Under this direction, they argue, the court-martial would necessarily ignore the evidence of the accused’s good character, especially because the accused’s pretrial statement, which was “an item of direct evidence,” was before it. The difficulty with this argument is that it is predicated on only part of the contested instruction.

An instruction should be considered in its entirety. The instruction here does not end with the words “direct evidence”; it also refers to the “happening of an event.” In addition, the controverted part should be read in connection with the preceding part which advised the court-martial that the other evidence in the case tending to establish guilt may “more than offset” the effect of character evidence and the presumption of innocence. Manifestly, an event which has occurred is fixed in time and place; it cannot be affected by character evidence. We considered a phase of this circumstance in United States v Dodge, 3 USCMA 158, 11 CMR 158. We there pointed out that “Once the crime is admitted, character evidence is of no effect.” In other words, where a crime is established beyond a reasonable doubt on the basis of all the evidence, including that relating to the accused’s character, the fact that the accused has proved he has a good character “should not alter or influence the verdict.” Hughes v United States, 231 Fed 50, 53 (CA 5th Cir) (1916). Although ineptly expressed, this is the fair meaning of the complete instruction in this case.

The decision of the board of review is affirmed.