W.D. Neff, a witness for the state, being upon the witness stand, was asked by counsel for appellant on cross-examination if he knew the general reputation of appellant for being a peaceable, quiet, law-abiding, hard-working citizen in the community in which she resided, to which counsel for the state objected upon the ground that the evidence was incompetent, irrelevant, and immaterial, because no proper foundation had been laid for the introduction of such testimony, and also upon the ground that it was not proper cross-examination. Counsel for appellant stated that he knew he was out of order, but he desired permission to prove it now and save time, and asked if the county attorney insisted upon the objection that the evidence was out of order on this ground. To which the prosecuting attorney replied, "This evidence is not admissible and never is admissible until the defendant has testified, until there is some show of self-defense." This was equivalent to withdrawing the objection that this was not proper cross-examination and resting the objection upon the special grounds made. The court sustained the objection upon this ground, and counsel for appellant excepted.
It is always permissible for a person charged with the crime of murder to offer his or her general reputation in the community in which he or she resides as being a peaceable, quiet, law-abiding citizen, and such testimony is not confined to cases where the doctrine of self-defense arises, neither is it necessary that the defendant should first take the witness stand to render such testimony competent. Good character is admitted for two purposes: First, to raise the presumption that there must be some mistake in the testimony of the state, upon the ground that a person of good character would not have committed the crime charged, and for this purpose it may be sufficient to create in the minds of the jury a reasonable doubt of the defendant's guilt; second, it may be introduced in evidence for the purpose of mitigation, and it is always admissible for either one or the other of these purposes. It was therefore error for the trial court to sustain the objection *Page 545 made upon the ground offered, viz., that such evidence was not admissible until after the defendant testified or until there was some evidence of self-defense. Under this ruling a defendant would be forced to take the stand and testify in his own behalf or offer evidence of self-defense by other witnesses before evidence of character would be admissible. This is not the law. It is not proper to reject any legal evidence upon the ground that the defendant has not testified. Such an idea is in direct conflict with our statute, which in express terms provides that the failure of the defendant to take the witness stand in his own behalf shall not raise any presumption of his guilt and must not in any manner be referred to during the trial. In this case the jury convicted appellant of manslaughter in the second degree, which entirely eliminated murder and manslaughter in the first degree and the doctrine of self-defense. The punishment for manslaughter in the second degree may be by imprisonment in the penitentiary or it may be by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment. The jury might have assessed the punishment of appellant at imprisonment for one hour or by a fine of $1, or both; for, while manslaughter in the second degree is a felony, it may also be punished as a misdemeanor. The evidence of the character of appellant was therefore of the utmost importance in this case, and it was her legal right to prove it to be good by any reasonable number of witnesses.
It is true that appellant is only a poor washerwoman and is without friends, without influence and without money, and is dependent upon the charity of her attorneys for her defense; but she is a human being, and her rights are as sacred in the eyes of the law as though she were the wealthiest and most influential society favorite in Oklahoma. It is the duty of this court to see that the poor and friendless are fully protected in the enjoyment of the rights given them by the law.
The court did not err in the other rulings complained of.
For the error above pointed out, the judgment of the lower court is reversed, and the cause is remanded for a new trial.
ARMSTRONG, P.J., and DOYLE, J., concur. *Page 546