cause the accused enjoyed a reputation for peacefulness and honesty when a boy that he retained it after maturity or down to the date of the crime.51

But even when the evidence is not excluded for remoteness the remoteness of the time and place may be considered in estimating the weight of character evidence. It was so held where it was proved that the accused was of a peaceable and quiet reputation in a place where he lived many years before committing the crime. 52

Again, evidence of bad character must refer to a period prior to the discovery of the crime.53 It is only just that this evidence should be free from any imputation or suggestion of wrong-doing which may have arisen from a public discussion of the crime or of the arrest of the accused. To permit the inquiry to extend down to the arrest or trial would be to embarrass, if not to destroy, the probability of innocence arising from good character by evidence of a single wicked transaction with which the accused may not have been connected at all. This is not only contrary to all recognized rules of evidence, but extremely unfair to the accused. 54

Thus, for example, the state is not entitled to bring out on cross-examination of a witness called to prove the good character of the accused that, after the commission of the crime, he had heard that the accused had been guilty of actions and conduct that would indicate that the witness was mistaken in his estimate of his character.55

61 State v. Barr, 11 Wash. 481, 39 Pac. 1080, 48 Am. St. 890, 29 L. R. A. 154n. The reputation of the accused as a soldier in the army is not relevant to show character, good or bad. People v. Eckman, 72 Cal. 582, 14 Pac. 359; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162n; Burns v. State, 23 Tex. App. 641, 5 S. W. 140. People v. Van Gaasbeck, 118 App. Div. (N. Y.) 511, 913, 103 N. Y. S.

52

249.

53 White v. Commonwealth, 80 Ky. 480, 485, 4 Ky. Law 373; State v. Kinley, 43 Iowa 294; Smalls v. State, 101

Ga. 570, 28 S. E. 981, 40 L. R. A. 369; Lea v. State, 94 Tenn. 495, 496, 29 S. W. 900; Brown v. State, 46 Ala. 175, 184; Griffith v. State, 90 Ala. 583, 539, 8 So. 812; People v. McSweeny (Cal.), 38 Pac. 743; People v. Fong Ching, 78 Cal. 169, 20 Fac. 396; State v. Sprague, 64 N. J. L. 419, 45 Atl. 788 ; but compare Commonwealth v. Sacket, 22 Pick. (Mass.) 394, 399.

White v. Commonwealth, 80 Ky. 480, 4 Ky. L. 373.

65 Powers v. State, 117 Tenn. 363, 97 S. W. 815.

§ 84. The grade and moral nature of the crime.-The admissibility and force of evidence of character do not depend upon the degree of immorality involved in the crime," but rather upon the cogency and force of the evidence tending to prove its commission and upon the motives which prompted the crime. In the case of a great crime, which apparently was planned and executed with great deliberation, no reason exists why character should not be considered, as it is extremely probable that a person. of blameless and pure habits would not engage therein. Of course, unusual and atrocious crimes involving great moral turpitude are so obviously beyond the ordinary bounds of human conduct that it is clear that the perpetrator must have been prompted by extraordinary motives, far different from those guiding his every-day actions, upon which estimates of his character are based. Hence, perhaps, evidence does not possess the same cogency in connection with a crime of extraordinary malignity apparently committed with little, if any, forethought, and under the influence of some sudden and powerful emotion, as it would in the case of an inferior offense.57

§ 85. Disposition is irrelevant.-It is important to distinguish between evidence of reputation to show character and direct evidence of the good or bad moral disposition of the accused. Evidence of a good disposition is not admissible for him, to mitigate or excuse his act,58 or of a bad or malicious disposition to show the probability of his guilt.59

435, 448, 13 Pac. 528; Hirschman v. People, 101 Ill. 568; People v. Ah Lee Doon, 97 Cal. 171, 31 Pac. 933; Sindram v. People, 88 N. Y. 196, 200; Fitzpatrick v. Commonwealth, 81 Ky. 357, 360; Sawyer v. People, 91 N. Y. 667, 668; Voght v. State, 145 Ind. 12, 43 N. E. 1049; Berneker v. State, 40 Neb. 810; 59 N. W. 372; State v. Emery, 59 Vt. 84, 7 Atl. 129.

And see I Crim. Law Mag. 331-335. Contra, State v. Lee, 22 Minn. 407, 410, 21 Am. 769; State v. Sterrett, 68 Iowa 76, 78, 25 N. W. 936.

bo Reg. v. Rowton, 10 Cox Cr. Cas. 25, 29.

Accordingly the opinion of a witness that a prisoner accused of murder was a kind-hearted man,6° or as to what his disposition was when crossed or misused,61 or that his behavior was rude, arbitrary and unreasonable, is inadmissible. But the state has been permitted to show that the accused charged with homicide had been in active military service, and was thus probably disposed to acts of bloodshed and to place a low estimate on human life.63

§ 86. Number of witnesses to character. It is sometimes provided by statute that, under circumstances specifically described, that the witnesses to reputation called by the accused in a criminal trial shall not exceed a given number unless the party calling them shall provide for the payment of the fees for the witnesses in excess.64

Such statutes, it has been held, do not violate a constitutional provision that the accused shall be entitled to compulsory process to procure the attendance of his witnesses.65

§ 86a. Instructions as to the character of the accused.-The accused, it is said, is not entitled to an instruction that his character is presumed to be good, unless he introduces evidence of character or unless the prosecution attacks it." While an express refusal of a request by the accused that the court shall charge that he is presumed to have a good character, unless the contrary is shown, would not be error, it is customary for the court to charge

Cathcart v. Commonwealth, 37 Pa. ute, compel the attendance of ten witSt. 108. nesses to his character at public ex01 Thomas v. Feople, 67 N. Y. 218, pense. If he desires more he must pay their expenses. The limitation is a reasonable one, and in no way deprives the accused of any constitutional right. Commonwealth V.

223.

62

"People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846, rev'g 20 App. Div. (N. Y.) 139, 46 N. Y. S. 1020.

63 State v. Moelchen, 53 Iowa 310, 5 Thomas (Ky.), 104 S. W. 326, 31 Ky. N. W. 186.

64 For an example of such a statute, see 2 Bates Rev. Stat. (Ohio), § 7287. 65 State v. Stout, 49 Ohio St. 270, 30 N. E. 437, 438. Their purpose is to prevent the waste of time and money. The accused may, under such a stat

L. 899.

Bodine v. State, 129 Ala. 106, 29 So. 926; Sanders v. People, 124 Ill. 218, 16 N. E. 81; People v. Brasch, 193 N. Y. 46, 85 N. E. 809; State v. Gartrell, 171 Mo. 489, 71 S. W. 1045.

on the presumption of good character as a part of the law of the case. In any event, it would be error for the court to single out the failure of the accused to offer evidence of good character and call attention to it as a part of its instruction.67

68

Any charge which directly or indirectly tells the jury that the prosecution cannot in the first instance attack the character of the accused would be error as from such a charge, the jury might reasonably infer that the prosecution is compelled by the law to keep silence as to evidence which it has in its possession which, if permitted to be received, would prove the accused to be a man of bad character. It is error to refuse to charge that the character of the accused may be such as to lead the jury to believe that the evidence against him was false." Any instruction which confines the effect of character evidence to a doubtful case, is erroneous for the reason that the good character of the accused must be considered without reference to the apparently conclusive or inconclusive character of the other evidence."

"People v. Bodine, 1 Denio (N. Y.) 281; State v. Sanders, 84 N. Car. 728.

"People v. Marks, 90 Mich. 555, 51 N. W. 638; People v. Gleason, 122 Cal. 370, 55 Pac. 123.

70

"People v. Childs, 90 App. Div. (N. Y.) 58, 85 N. Y. S. 627.

70 State v. Birkey, 122 Iowa 102, 97 N. W. 980.

CHAPTER VIII.

PROOF OF OTHER CRIMES.

§ 87. General rule regarding evidence $90. Relevant evidence not inadmis

§ 87. General rule regarding evidence of crimes other than that charged in the indictment.—The rule which requires that all evidence which is introduced shall be relevant to the guilt or the innocence of the accused is applied with considerable strictness in criminal proceedings. The wisdom and justness of this, at least from the defendant's stand-point, are self-evident. He can with fairness be expected to come into court prepared to meet the accusations contained in the indictment only, and, on this account, all the evidence offered by the prosecution should consist wholly of facts which are within the range and scope of its allegations. The large majority of persons of average intelligence are untrained in logical methods of thinking, and are therefore prone to draw illogical and incorrect inferences, and conclusions without adequate foundation. From such persons jurors are selected. They will very naturally believe that a person is guilty of the crime with which he is charged if it is proved to their satisfaction that he has committed a similar offense, or any offense of an equally heinous character. And it cannot be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very likely subsequently to commit another of the same description.

To guard against this evil, and at the same time to avoid the