Page:Pittsburgh Legal Journal (New Series), Volume 12, (Old Series, volume 29), August 1881 to August 1882.djvu/10



E. Y. BRECK, Editor.

N. S.

There are three modes in which character might possibly be put in evidence with a view to raise a presumption as to a man being innocent of a crime charged against him; first, by giving testimony as to previous acts of the accused under somewhat similar circumstances to those of the act in question; secondly, by persons who have had opportunities of forming an opinion as to the disposition of the accused, testifying the result of their experience; and, thirdly, by the testimony, not of the witness's own estimate of the accused, but of the estimate in which he is held by the community amongst whom he has lived and with whom he has mingled. The first of these modes, evidence of specific acts, has never been tolerated in our courts. Nothing could be more unfair to prisoners, according to every English idea of criminal jurisprudence, because, on the one hand, the evidence that a man had on one or two occasions not committed a felony, would go a small way to raise a presumption of innocence; and, on the other, if, as would be necessary, similar evidence was to be allowed to the prosecution, proof of one or two previous transgressions would create such a violent prejudice against the prisoner, that in many cases conviction would depend much more on the nature of the antecedents of the accused, than on the proof of the commission of the crime charged. Moreover, the endeavor to substantiate or disprove the various acts alleged, would incumber the issue to be tried with such labyrinths of doubtful and collateral questions, as to insure the hopeless embarrassment of juries and endless prolongation of trials.

Endeavors have been frequent to bring to bear on the question of guilt or innocence the opinion formed by individual witnesses as to the character of the accused. Indeed, such evidence is practically often given in all courts. The questions generally asked of a witness to character are: "How long have you known the prisoner?" "What is his character?" And in reply, nine times out of ten, the witness gives the result of his own experience. Yet it is clearly settled that no such evidence can be given. "Character," said Lord in R. v. Hardy, 24 St. Tr., 1079, "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 be given in evidence." So in ''Reg. v. Turner'', 10 Cox, C. C., 31, Lord says: "I find it uniformly laid down in the books of authority that the evidence to character must be evidence to general character in the sense of reputation." And in ''Reg. v. Rowton'', 34 L. J., 57 M. C., the point came expressly to be decided under the following circumstances: A schoolmaster was charged with committing an indecent assault upon one of his scholars; evidence was called to character on his behalf, and similar evidence was called against him by the prosecution in the person of a witness who had formerly attended the prisoner's school. In reply to the question as to the character of the accused the witness said: "I know nothing of the neighborhood's opinion, because I was only a boy at school when I knew him; but my own opinion, and the opinions of others who were also pupils of his, is, that his character is that of a man capable of the grossest indecency and the most flagrant immorality." Here, then, the issue between the reception of evidence of the second and third classes into which it has above been divided, was sharply raised. The witness distinctly disclaimed his ability to testify to the general estimate formed of the prisoner's character by the circle in which he moved, but volunteered the opinion which was the outcome of his own acquaintance with him. This evidence the court for Crown Cases Reserved held, by a majority of eleven to two (, C. J., and, J., being the dissentients), could not be received. In giving their judgments, however, the holders of the prevailing opinion emphasized the fact that they felt themselves coerced by the stream of authority, and took care to guard against any expression of approval of the rule which they enunciated; indeed, the