Morgan v. State

88 Ala. 223

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

McCLELLAN, J.

Appellant was convicted of an assault with intent to kill. On the trial, he testified in his own behalf, and then proved his good character for truth and veracity, without objection. This was illegal evidence. If it was offered to generate a doubt of his guilt, or to solve an existing doubt in his favor, it was incompetent, because it did not go to any characteristic or quality which tended to illustrate or shed light on the offense charged. That he had the reputation of being a quiet, peaceable man, or the like, would have had a tendency to lead the jury to believe that he did not commit the violent act with which he was charged; but the fact that he bore a good character for truth, could exert no legitimate influence in determining whether he had been guilty of a malicious, violent and deadly assault, however potent such evidence would be had he been charged with crimen falsi. The object and effect of such evidence is to disprove guilt, by furnishing a presumption that the defendant would not have committed the offense; and hence the character sought to be proved must be such as would make it unlikely that the party would do the controverted act; as, for example, in murder, the prisoner’s reputation for peace and good order is admissible. — Franklin v. State, 29 Ala. 14; People v. Stewart, 28 Cal. 395; Kee v. State, 28 Ark. 155; State v. Kiley, 43 Iowa, 294; State v. King, 78 Mo. 555.

If, on the other hand, this evidence was introduced to give weight to the testimony of the defendant as a witness in his own behalf, as seems probable from the bill of exceptions, it was equally incompetent. It is familiar law, that a party can not offer testimony of the character for truth and veracity of his own witness, until and unless an effort has been made by the adversary to impeach the witness’ character in that regard. It does not appear by the bill of exceptions that any such effort was made in the case. This testimony was therefore, in either aspect, illegal.

The State, in rebuttal, was allowed to prove particular acts, or certain conduct of the defendant, tending to show low and immoral associations. This, too, was clearly illegal evidence. Character, whether of witness or defendant, can never be proved or rebutted by evidence of conduct or particular acts, even on cross-examination. — Moore v. State, 68 Ala. 360; Glaze v. Blake, 56 Ala. 379; Moulton v. State, at present term, ante, p. 116.

Here, then, we have the case of illegal evidence being received in rebuttal of illegal evidence. In such case, the admission of the illegal evidence in rebuttal is held to be necessitated or justified by the admission of such evidence in chief, so that the party first in fault can not take any advantage of the ruling of the court in favor of the other. — Gandy v. State, 85 Ala. 20; Sharp v. Hall, 86 Ala. 110; Ford v. State, 86 Ala. 385. On this principle, the action of the court below to which was reserved the only exception shown by the record, was free from error, and the judgment bekny is affirmed.