I concur in the affirmance of the judgment. In view of the fact that I cannot agree with Mr. Justice Straup. in all of his conclusions, however, I shall, as briefly as it is possible to do so, state the reasons that lead me to the foregoing conclusion.
*160The only serious question in the 'case relates to the assignment that the court erred in refusing to give the charge upon good character in the form in which it was requested by the defendant. That is to say, it is contended that the court erred because it refused to give the charge just as it was requested by the defendant. The whole charge as requested, and as given, is set forth in the opinion written by Mr. Justice Straup. It is not assigned as error, or claimed, that the court erred in giving the portion of the charge given, but it is urged that the court erred in excluding the italicized portion of the charge because it states or contains a correct principle of law upon which the defendant had a right to have the jury informed. The refusal to give the second request is also assigned as error. I shall consider the italicized charge first.
The principle of law contended for, as I understand the contention, is to the effect that, in any criminal prosecution where the accused offers proof of his previous good character, he has the legal right to have the jury informed that in determining his guilt or innocence they should consider all of the evidence in the ease, including the evidence of good character, and if upon a consideration of all the evidence they entertain a reasonable doubt, or if the evidence of good character alone, when considered in connection with the.other evidence as 'aforesaid, produces 2 or creates a reasonable doubt in their minds of the guilt of the accused that he is entitled to the benefit of such doubt and should be acquitted. Such, in my judgment, is the law according to the great weight of authority as appears from the later decisions of the courts. While the courts are not in harmony with regard to the precise form in which the principle of law referred to should be stated, yet I think the best reasoned cases adhere to the principle as I have atempted to outline it. If evidence of good character is to be considered at all and is to be given practical effect, then it seems to me that it must be given the effect I contend for, or it will, ordinarily, have no effect whatever. If the old rule formerly adopted upon this subject shall *161prevail, that such evidence can be considered only in doubtful cases, then it practically is given no effect. To give it effect, therefore, it must follow that, when considered in connection with all the other evidence, the good character evidence may alone be sufficient to create a doubt which leads to the acquittal of the accused, So far, then, I fully agree with the reasoning and conclusions reached by Mr. Justice Straup.
But I cannot agree with him in his reasoning that the district judge committed prejudicial error in this case because he refused to give the charge requested by the defendant in its entirety. The italicized portion of the charge which was refused by the court, while it, in legal effect^ embodied the principle of law I have outlined- above, also contained matter which, in my judgment, was improper if not vicious. Much of what is said in that portion of the charge is mere argument and does not state a proper 3 legal principle. I cannot agree to the proposition contained in that portion of the charge that good character evidence may alone be sufficient to authorize the jury to find “that the other evidence in the case is not true,” or that they may find that for that reason alone the witnesses, or some of them, were mistaken. This, in my judgment, is mere argument. Nor do I think it is correct to say that the jury may, from the good character evidence alone, find that the other evidence is untrue. Whether any particular evidence is true or false cannot be determined by merely considering some other evidence in the case by itself. Whether certain evidence be true or false, or what weight it should receive, must be determined from a full and fair consideration of all the facts and circumstances surrounding the act or transaction to which the evidence relates, together with the inherent probability or improbability of its truthfulness, and not from considering alone some other particular evidence in the case. It might as well be contended that it would be proper for the jury to find an accused person not guilty upon his sole denials that he committed the offense charged against *162him, when such denials are considered by themselves alone. While the jury may find an accused person not guilty upon his own denials of guilt, yet no one would contend, and no court would charge a jury, that they might arrive at that result by considering the denials of the accused alone, and that the jury, from such denials, could determine the truthfulness of the evidence produced against him. Tbis, in effect, however, as I view it, is what the argumentative portions of the charge amount to.
Moreover, an examination of the opinion in State v. Van Kuran, cited by Mr. Justice Straup, discloses that the court included in the charge there given, and which was excepted to by the defendant, that part which relates to the effect the evidence of good character may have in determining the truth or falsity of the other evidence in the case. Upon this phase of the instruction, Mr. Justice Bartch, speaking for the court, said: “On the theory of this instruction, the evidence of good character could not be considered by the jury for any purpose, except for that of determining whether the witnesses for the prosecution were mistaken or had testified falsely or truthfully.” It is accordingly held that this statement was liable to mislead the jury. I refer to the foregoing for the sole purpose of showing that in my judgment this court did not unqualifiedly approve the whole of the italicized portion of the instruction in question as is argued by Mr. Justice Straup. This, as I view the matter, is 'made more apparent still from the language used by the court in concluding the opinion, which is in the following words: “We conclude, therefore, that the court erred in its charge as to good character, and that, at least, the substance of one or the other of the requests hereinbefore quoted and referred to should have been given.” This, in my judgment, falls far short of approving the argumentative portion of the instruction requested and of which the substance only was approved. But, conceding that the court in the Van Kuran Case did approve the giving of the mere argument in which was involved no legal principle, would the refusal to embody such an argument into a charge in a. subsequent case, where *163the legal principie was contained in the charge actually given, constitute prejudicial error ? I think not, for three reasons: (1) Because mere-argument never can be substituted for a legal principle; (2) if the legal principle is contained in a charge, the party objecting has obtained all he was entitled to, although the argument was omitted from the charge; and (3) because in such a case the substance of the charge has in fact been given. I am clearly of the opinion, therefore, that the argumentative portion of the instrueton set forth in the opinion of Mr. Justice Straup was not approved by this court in the Van Kuran case, and that that case was reversed for the sole reason that the legal principle I have called special attention to was omitted from the charge, and not because the argumentative part of it was refused.
The contention that the court erred in refusing the second request quoted in Mr. Justice Straup’s opinion is, in my opinion, not tenable in any view that may be taken. In the first place, nothing is contained in the second request that was not in the first, except mere argument. Every legal principle that was contained in the second request was-, covered by the first one. No prejudicial error could have resulted, therefore, from a refusal to give the second request,, in view that the court had covered it in the first with the exception of that portion which I have referred to at the opening of this opinion. In view, therefore, that the court did not, in direct terms, inform the jury that the evidence of good character, when considered in connection with all the other evidence in the case, might alone be sufficient to create the reasonable doubt which requires an acquittal, the appellant might have good cause for complaint were it not for the fact that the court’s omission to so charge is not reviewable by us for the reasons hereafter stated, and for the further reason that the error, in view of the whole charge as given by the court, is not prejudicial. As I have already pointed out, the error assigned is that the court refused to give the charge as requested. The rule -is elementary that a court is not required to give a requested charge unless it is sound as. a whole. The court is. not bound to seperate the bad from the *164good portions of the charge, or to give it as a whole because it contains some sound legal principle upon which the accused has a right to have the jury informed if it also contains some that are unsound. • Suppose that the court in this case had entirely omitted to charge upon the question of good character, and the defendant had offered no request upon that subject. Could h@ now complain and have the judgment reversed because the court ha,d not specially charged upon that feature of the case ? I think not. Is he in a better plight when, as in this case, he requests a charge which, as I view it, is defective and faulty? If so, why? The only difference between the two instances mentioned is that in the latter the defendant requested the charge, and thus directed the court’s attention to the subject, and hence it may be contended that the court should have charged the jury upon that subject as well as upon other material ones in the case. Grant this. And further grant that if the court charges upon any subject it must charge the law correctly, and still I fail to see how the defendant can complain. It certainly will not be contended that, even though the court had given a wrong charge "upon any material question in the case, the defendant, without an exception to such a charge, could, nevertheless, ask a reversal of the judgment upon the sole ground that the charge- as given by the. court does not state the law correctly, or does not, as in this case, state all the law upon that subject. This, as I view it, is in effect the situation before us. The defendant requested the court to charge upon a particular subject. The court refused the request prepared by the defendant because the request was defective in substance. He nevertheless charged the jury upon that subject. So far as the court’s charge went, no claim is made that it is not correct; but the contention is that the court did not go far enough and did not charge the whole law upon the subject. In my judgment the defendant cannot avail himself of any error that the court may have committed in not charging as fully as I think would have been proper with respect to the evidence of good character as hereinbefore stated, because he at no time requested *165a proper charge upon that subject and does not complain of the charge actually given, but complains only because the whole of a bad charge offered by him was not given.
Bor the foregoing reasons, and in view of the whole record, including the whole charge as given by the court, I am firmly of the opinion that the judgment of conviction should be affirmed.
McCARTY, J.The only point in the case upon which the members of the court entertain different views relates to the refusal of the trial court to charge on the question of good character as requested by defendant. That part of defendant’s requested instruction No. 1, which the court refused to give to the jury, I thinh, was properly refused, for two reasons: Birst, it singles out and gives undue prominence to the evidence of good character; and, second, it is argumentative^ and, in a sense, disassociates such evidence from the other facts and circumstances in the case for the consideration of the jury. Defendant’s request No. 2, which the court also refused to give, contains matter of this same character which to my mind is equally as objectionable as the rejected part of his requested instruction No. 1. An instruction containing any of the objectionable elements mentioned is improper and should not be given. (11 Ency.“ PI. & Pr. 142, 185; 12 Cyc. 647, 649.)
The court, at defendant’s request, instructed the jury -that the law in criminal eases clothes the defendant with the presumption of innocence; that, when the proof tends to overthrow this presumption, the defendant is permitted to support the original presumption of innocence with proof of good character; that such good character is a circumstance tending in a greater or less degree to establish the innocence of the defendant; that it is of value not only in doubtful cases, but also when the testimony tends very strongly to establish the guilt of the accused, and when proven it should be considered by the jury as a fact in the case, and it is not to be put aside by the jury in order to ascertain if the other facts and circumstances considered in themselves do not *166establish defendant’s guilt beyond a reasonable doubt, “but such- good character, if proven, should be considered by the jury in connection with all the other testimony in the case and not independently thereof and the guilt or innocence of the defendant determined from all the testimony in the caseThe court also, of its own motion, charged the jury that “to warrant a conviction of the defendant he must be proven guilty so clearly and conclusively that there is no reasonable theory upon which he can be innocent when all the evidence of the case is considered togetherAnd the court further charged the jury as follows: “To warrant you in convicting the defendant, the evidence must to your minds exclude every reasonable hypothesis other than that of guilt. That is to say, if, after an entire consideration and comparison of all the testimony in the case, you can reasonably explain the facts given in evidence on any reasonable ground other than the guilt of the defendant, you should acquit him.” (Italics mine.)
It will thus be observed that the court not only instructed the jury (as per defendant’s request) in regard to the importance of evidence of good character, and that they should consider such evidence in connection with all the other testimony in the' case in determining the guilt or innocence of the defendant, but reiterated, in other paragraphs of the instructions given, that to warrant a conviction of the defendant they must be satisfied from all the evidence in the case (including the evidence of good character) of his guilt beyond a reasonable doubt. I am therefore clearly of the opinion that the defendant’s rights were fully protected by the instructions of the court. The charge of the court as given correctly states the law applicable to good character when proved in a case. That part of defendant’s request relating to good character which the court refused to give merely states the reason for the rule. This the cbnrt was not required to do. In this state courts are required to instruct the jury “upon the law applicable to the case” (Comp. Laws 1907, section 3147); but I do not understand that they must argue the law to the jury whenever requested so to do.
*167There are decisions bolding that, when the character of .a defendant in a criminal case is proven to be good, it is error for the court, when requested so to do, not to charge the jury in the language of the rejected part of appellant’s request; but the great weight of authority is that such instruction is improper and ought not be given. In State v. Cushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. Rep. 883, cited in the opinion in this case written by Mr. Justice Straup, the defendant having introduced evidence of his good •character, his counsel requested the court to instruct the jury that defendant was entitled to have this evidence considered by them in determining the question of his guilt; that in such cases good character is proper evidence to be considered by the jury in connection with all the other evidence; and that, “in determining the guilt or innocence of the accused, the weight to he attached to the fact of good character or reputation, like that to be attached to every other fact in the case, is for the jury alone to determine." The court not only refused to give the instruction, but failed to instruct the jury at all upon the subject. On appeal the Supreme' Court held that the instruction should have been given. By an examination of the.opinion it will be seen that the question here presented was not involved in the case. The court, however, in the course of its decision of the case, made use •of the following language: “A defendant in a criminal case may introduce evidence of his good character ... as a fact to weigh in his favor, and that he is entitled, if he requests it, to have the jury advised as to the weight to he given to such evidence(Italics mine.) The following authorities, •cited by the Washington court on this point, do not, as I read them, support the conclusions announced in the opinion: 2 Thompson on Trials, 2444; Kistler v. State, 54 Ind. 400; State v. Clemons, 51 Iowa, 274, 1 N. W. 546; McQueen v. State, 82 Ind. 72; People v. Laird, 102 Mich. 135, 60 N. W. 457; People v. Jassino, 100 Mich. 536, 59 N. W. 230. In the case of McQueen v. State, supra, the instruction relating to good character was much less favorable to the defendant *168than the instruction given in this case, yet the Supreme Court of Indiana held that it was sufficient; but, in stating the reasons for the rule requiring instructions on good character to be given,'the court says: “Good character may sometimes turn the scale in a defendant’s favor, and it is always to be considered in connection with all the other evidence in the case.” And so, in the Michigan cases, the court, in stating the reasons for the rule, makes use of language similar to that used by the Indiana court. The question as to whether the court erred in giving or refusing an instruction embracing the elements contained in the instruction under consideration was not before the court in either of the cases cited by the Washington court. Furthermore, that part of the court’s conclusion which I have italicized is in direct conflict with the italicized part of the instruction which undoubtedly states the correct rule. Therefore, the decision, as I read and construe it, is not an authority on the question under consideration. But, be that as it may, the same court, on another appeal of the same case (17 Wash. 544, 50 Pac. 512), had before it the identical question under consideration in this case, and said: “The court was also requested to charge the jury that good character is admissible not only in a case where doubt would otherwise exist, but may be offered for the purpose of creating a doubt. This instruction was refused, and we think rightly. It may be true, as an abstract proposition of law, as stated in People v. Jassino, 100 Mich. 536, 59 N. W. 230, cited by counsel, that evidence of good character may be offered for the purpose of creating a doubt; but, in our judgment, where evidence of good character has been admitted by the court and the jury charged to consider it with the other evidence in arriving at their verdict, it is not necessary for the court to further state to the jury the purpose for which such evidence may be admitted. The statute requires the court simply to instruct the jwry as to the law in the case, and, when the court has done that, it is not incumbent upon it to enlighten the jury upon abstract legal propositions.” And in a later ease the Supreme Court passed upon this identical question (State *169v. Stentz, 33 Wash. 444, 74 Pac. 588) and held adversely to the contentions of appellant in this ease. In that case the court gave an instruction touching good character in terms the same as the requested instruction in State v. Cushing, 17 Wash. 544, 50 Pac. 512, hut refused to- give certain instructions requested by defendant on the same subject. One of these rejected instructions was as follows: “If you find that the defendant has proved a good character, . . . the law says that such a good character may be sufficient to create a reasonable doubt of guilt, although no such doubt would have existed but for such good character.” The other rejected instructions embraced the same proposition as the one set out. ' The Supreme Court held that the rejected instructions did not state the correct rule, and that the court did not err in refusing to give them.
The case of People v. Bell, 49 Cal. 485, is directly in point and' supports the conclusions announced by Mr. Justice Straup, on this phase of the case; but the same court in a subsequent decision (People v. Bowman, 81 Cal. 566, 22 Pac. 917) seems to have declared a different rule from the one announced in the former ease. In People v. Bowman counsel for defendant requested the court to instruct the jury that “the defendant has introduced evidence of his good character. ... If in the present case the good character of the defendant ... is proven to your satisfaction, it is to be considered by you in connection with the other facts in the case, and it may be sufficient to create in your minds a reasonable doubt of his guilt, although no such doubt would have existed but for such good character.” The court ‘refused to give this instruction, but instructed the jury as follows: “The defendant has introduced evidence tending to show his good character. ... If in the present case the good character of the defendant ... is proven to your satisfaction, then such fact is to be kept in view by you in all your deliberations, and it is to be considered by you. in connection with the other facts in the case; and if? after a consideration of all the evidence in the ease, including that bearing upon the good character of the defendant, the jury *170entertain any reasonable clonbt of the defendant’s guilt, then it is your duty to- acquit him.” In the course of the opinion the court says: “The defendant was not prejudiced. The last instruction was a clearer enunciation of the law than the first, and contained all that the defendant was entitled to have on the point. Good character must be considered in connection with all the other evidence in the case, and if the jury have a reasonable doubt of the defendant’s guilt they must acquit. Thompson on Trials, 2444.”
In the case of Edgington v. United States 164 U. S. 361, 17 Sup. Ct. 72, 41 L. Ed. 467, the trial court charged the jury that good character “is of value ... in conflicting cases in determining points in the case,” and that “good character goes to the jury with spepial force whenever the commission of the crime is doubtful,” and that, if the mind of the jury “hesitates on any point as to the guilt of the defendant, then you have the right and should consider the testimony given as to his good character.” The Supreme Court, speaking through Justice Shiras, said: “It is impossible, we think, to read the charge without perceiving that the leading thought in the mind of the learned judge was that evidence of good character could 'only be considered if the rest of the evidence created a doubt of defendant’s guilt.” The court held that the giving of the instruction with the qualifications mentioned was error. Further along in the opinion the court said: “Whatever may have been said in some of the earlier cases, to the effect that evidence of the good character of the defendant is not to be considered unless the other evidence leaves the mind in doubt, the decided weight of authority now is that good character, when considered in connection with the other evidence in the case, may generate a. reasonable doubt. 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, although without it the other evidence would be convincing.” The instruction given in that case did not contain, literally nor in substance, the language used in the rejected part of appellant’s request in this case. *171'Therefore I insist that tbe court was not called upon nor did it pass on tbe question under consideration, and that tbe •decision is not in point on tbe question in controversy.
Some of the New York decisions seem to. indicate that the •courts of that state are committed to the rule contended for by appellant; but I have been unable to find a case where an instruction was given on good character which covers the question as completely as the instructions given in this case, in which it was held error for the court to refuse to instruct the jury, either literally or in substance, in the language of the rejected portion of appellant’s request. In the case of People v. Hughson, 154 N. Y. 153, 47 N. E. 1092, the defendant requested the court to charge the jury that “tlv evidence of good character may create a doubt against positive evidence of defendant’s guilt.” the court replied: “It is for the jury to say. the evidence of good character is evidence which must be considered, and if, in the judgment of the jury, that good character does raise a doubt against positive evidence, they have a right to entertain that doubt, and the prisoner must have the benefit of it.” the defendant alleged error, but the Court of Appeals affirmed the judgment.
In the case of White v. United States, 164 U. S. 100, 17 Sup. Ct. 38, 41 L. Ed. 365, the defendant requested the trial court to charge the jury that “the evidence of good character, when established by the evidence in a case, taken in connection with all the other evidence, may generate a reasonable doubt of the guilt of the defendants.” The court refused to give this instruction, but charged the jury as follows: “It is admitted in this case that the defendants are men of good character, the law presuming every defendant to have a good character, and the jury may consider such character and give it such weight as they see proper, under all the evidence in the case that defendant is entitled to a reasonable doubt.” the defendant excepted to the refusal of the court to charge the jury as requested. The Supreme Court, speaking through Justice Peckbam, said: “When the court told the jury it was admitted that the defendant was a man of *172good character, and that the jury might consider snch good character and give snch weight to it as they saw proper under all the evidence in the case, and that the defendant was entitled to a reasonable doubt, it was sufficient.”
Pennsylvania is another jurisdiction in which the court of last resort has repeatedly held that an instruction on good character couched in the language of the one under consideration is a proper instruction. But in Commonwealth v. Beingo, 217 Pa. 60, 66 Atl. 153, recently decided by that court, the defendant requested the trial court to instruct the jury that “evidence of good character, in itself, by the creation of a reasonable doubt, may work the acquittal of the defendant.” The court refused to give the instruction, and the defendant alleged error. On appeal the Supreme Court said:
“The law of Pennsylvania as to the weight of good character is more favorable to the accused than the common law or the law of most other states, hut it has not gone so far as to give it any special prominence or superiority to the other facts in evidence in the case. The learned judge charged that evidence of character ‘ordinarily comes to the court when there is a general denial. But it is none the less important, and none the less pertinent in a ease of this kind where the defendant admits the killing, as bearing upon the question of whether the killing was, as the commonwealth contends, a deliberate, willful, premeditated, felonious killing, or whether, as the prisoner contends, it was done in self-defense. This kind of testimony is not to be made light of; it is not a mere makeweight thrown in to fill out a case; it is affirmative, substantive testimony to be considered by you fairly in connection with -all the other evidence in the case, as hearing upon the question of whether the commonwealth has or has not established the guilt'of the prisoner, as he stands charged in the indictment, beyond a reasonable doubt.’ He thus, in immediate connection with the reiteration of the duty of the commonwealth to prove guilt beyond a reasonable doubt, charged the jury that good character was an affirmative and substantive fact to be considered on the whole question of guilt, including reasonable doubt. ■ Only a lawyer racking his ingenuity to find a flaw could say that this was not an adequate, as well as accurate, statement of the law.”
The case of Newsom v. State, 107 Ala. 133, 18 South, 206, is another case directly in point and which supports the contention of appellant on this question; but the Alabama *173court, in each of tbe following cases, bas, in unqualified terms, condemned instructions containing the propositions embraced in the rejected part of appellant’s request. (Crawford v. State, 112 Ala. 1, 21 South. 214; Cobb v. State, 115 Ala. 18, 22 South. 506; Bryant v. State, 116 Ala. 445, 23 South. 40; Eggleston v. State, 129 Ala. 80, 30 South. 582, 87 Am. St. Rep. 17; Scott v. State, 183 Ala. 112, 32 South. 623; Bohlman v. State, 135 Ala. 45, 33 South. 44; Bell v. State 140 Ala. 57, 37 South. 281.)
The following decisions are also to the same effect: Maclin v. State, 44 Ark 115; Briggs v. Commonwealth, 82 Va. 554; Hammond v. State, 74 Miss. 214, 21 South. 149; Spalding v. People, 172 Ill. 40, 49 N. E. 993; State v. Porter, 32 Or. 135, 49 Pac. 964; Heard v. State, 9 Tex. App. 1; Wilson v. State, 3 Okl. Cr. 714, 109 Pac. 289; McCall v. State, 55 Fla. 108, 46 South. 321. See, also, Morris v. Territory, 1 Okl. Or. 617, 99 Pac. 760, 101 Pac. 111; People v. Baldocchi, 10 Cal. App. 42, 101 Pac. 28; Olds v. State, 44 Fla. 453, 33 South. 296; Langford v. State, 33 Fla. 233, 14 South. 815; State v. Gustafson, 50 Iowa, 194; Anderson v. State, 53 South. (Miss.) 393; State v. Alderman, 83 Conn. 597, 78 Atl. 331; Commonwealth v. Wilson, 152 Mass. 12.
In Grabowski v. State, 126 Wis. 447, 105 N. W. 805, cited by Mr. Justice Straup, the court charged the jury touching good character in language much less favorable to the defendant than that contained in the charge actually given in this case. The concluding part of the instruction was as follows: “I may say to you, however, that the office of good character is not to create doubts of guilt. It is simply to assist the jury in solving doubts.” The defendant excepted to the instruction, and, on appeal, the Supreme Court said: “Much of this portion • of the charge (referring to the portion set out in the opinion in that case) is favorable to the accused and furnished no ground for objection or exception. The last sentence of this portion of the charge-is erroneous.” I do not think the case is in point. ' Be that as it may, as I read the decision, it is against, rather than *174in harmony with, appellant’s contention here. The Wisconsin court, however, in a later case, has passed on the precise question here under consideration. In that case (Niezorawski v. State, 131 Wis. 166, 111 N. W. 250) the defendant requested the court to charge the jury that the testimony of defendant’s good reputation “as to his honesty and integrity . . . may be in itself sufficient to raise a doubt in your minds, a reasonable doubt as to his guilt of the crime charged in the indictment, and if you entertain such doubt you must return a verdict of not guilty.” The court refused to give this instruction, but charged the jury as follows :
“Testimony has been received as to the good character of the defendant for honesty and integrity previous to the time it is alleged he committed the offense charged in the indictment. Such testimony of good reputation should be considered by you in connection with all the other evidence in the case, and, if after such consideration you entertain any reasonable doubt as to the guilt of'lhe defendant, you must acquit him; but if, from all the evidence in the case, including the testimony as to the good reputation of the defendant, you are satisfied of his guilt beyond a reasonable doubt, then it is. immaterial what his reputation has heretofore been as to honesty and integrity.”
Tbe Supreme Court said:
“The instructions requested by the defendant and refused by the court are not correct in law, and the subject thereof is much better covered in the charge given by the court. . . . The defendant had no more right to have this evidence separately pointed out by the court to the jury as such which ‘may be in itself sufficient to-raise a reasonable doubt’ than he would have to take any other item of evidence from which an inference favorable to the defendant might be raised and call it separately to the attention of the jury with this particular comment, almost suggestion. The charge of the court on this subject shows the proper way of presenting such matters to the jury by instruction.”
Tbe reasoning of tbe court in that case clearly illustrates tbe vice of tbe rejected part of appellant’s request in tbis case. And tbe doctrine there announced is reaffirmed in tbe case of Hedges v. State (Wis.), 128 N. W. 80.
*175Appellant cites and relies upon tbe case of People v. Hancock, 7 Utah, 170, 25 Pac. 1093, and State v. Van Kuran, 25 Utah, 8, 69 Pac. 60, as decisive of this question. In each of those cases the, defendant requested the court to charge the jury substantially in the language of the rejected part of defendant’s request in this case. To the refusal of the court to so charge the defendant in each case duly excepted. In the case, of People v. Hancock, the court stated that it was of the opinion that the requested instruction should have been given or embraced in the charge of. the court. I think it clearly appears from the decision that the case was not reversed because of the refusal of the trial court to give such request, but was reversed because the instruction given by the court limited the effect of the evidence of good character to doubtful cases. In State v. Van Kuran, the court, among other things, charged the jury that, if they believed from the evidence that “the defendant had always borne a good character, . . . then this is a fact proper to be considered by the jury, with all the other evidence, in the case, in determining the question whether the witnesses who have testified to facts tending to criminate him have teen mistaken or have testified falsely or truthfully(Italics mine.) This court held that the limitations thus put upon the evidence of good character was error, and reversed the case. In the last paragraph of the decision of the case the court says: “We conclude, therefore, that the court erred in its charge as to good character, and .that, at least, the substance of one or the other off the requests heretofore quoted and referred to should have been given.” I think it clearly appears that the case was reversed, not because of the court’s refusal to charge the jury as requested, but because the instruction given in the case was erroneous. Judging from the guarded expressions of the court in referring to'the requests, it would seem that it was not prepared to approve of them in the form in which they were presented. Furthermore, the instruction touching good character actually given in the case at bar contained none of the objectionable elements embraced in the instructions given in the two cases last men *176tioned. Therefore I do not think these cases are decisive of the question now under discussion.
The rule in New York and Pennsylvania as to the weight that should be given evidence of good character is much more favorable to the accused than the rule declared by the courts of most other states, and yet in each of those two states the court of last resort has held that the giving of an instruction which embraces the propositions contained in the instructions actually given in this case was sufficient, and that it was not error to refuse to, charge the jury in the language of the instruction under consideration. (People v. Hughson, supra; Commonwealth v. Beingo, supra.)
The Chief Justice, in his opinion concurring in the affirmance of the judgment tersely, and I think correctly, states the rule in the following language: “In any criminal prosecution, where the 'accused offers proof of his previous good character, he has the legal right to have the jury informed that in determining his guilt or innocence they should consider all the evidence in the case, including the evidence of good character, and if upon a consideration of all the evidence they entertain a reasonable doubt, or if the evidence of good character alone, when considered in connection with the other evidence as aforesaid, produces or creates a reasonable doubt in their minds of the guilt of the accused, that he is entitled to the benefit of such doubt and should be acquitted.'