State v. Thawley

4 Del. 562

Opinions

The Court,

(Harrington

dubitante) rejected the evidence.

Booth, Chief Justice.

—The testimony offered is the general character of the deceased as a violent man. From the fact, that we cannot find any case in the books, where this evidence has been admitted, nor any principle which would admit it, we feel constrained to reject the evidence. We do not see how the character of the deceased as a quarrelsome or fighting man is in issue. The question is, guilty, or not guilty of murder. The homicide being made out, it lies on the defendant to reduce the offence below the grade of murder, and he must do this by evidence of facts, and not by the mere general bad character of the deceased. If such evidence is admissible it would follow that the character of the prisoner as a peaceable or violent man must be admissible, for it is certainly as important to know his character as that of the deceased. Yet, it is perfectly well settled that the defendant’s character cannot be- in. quired into, unless he puts it in issue.

Judge Harrington’s doubt arose from the fact, that in four cases-within his knowledge, this evidence had been admitted without objection, viz., State vs. Cochlan, Elason, Saul Thompson, and Prince Tilghman. He thought it might possibly come within the reason of the principle, that “ in particular cases where the character of the-prosecutor is mingled with the transaction in question, it forms a point material to the issue, and may consequently be inquired into.”" (Ros. Ed. 88.)

The defendant was- acquitted.