DEC. 1832. STATE v. LIPSEY. Thus far, the majority of the court concurs in this opinion, and the reasons given for it. It remains now to consider another exception, on which there is a difference of opinion, and I have the misfortune to stand alone here. Upon the effect of the evidence of character, I think the error of the judge, if any, was on the side of the prisoner. I take the judge to mean, and that he must have been understood to mean, by the words "positively sworn to," sworn to directly by witnesses believed by the jury. In that case, I think evidence of character has no weight. I conceive, character is a circumstance, which cannot repel the positive and affirmative statement of credible witnesses. In other words, that the character of the person cannot change or give color to the character of his acts, when these last are satisfactorily established. The judge is more than supported, in terms, by respectable writers on evidence and crimes. Mr. Archbold, (Crim. Pl. 73,) lays it down, that "evidence of character can be of avail only in doubtful cases." Mr. Starkie, (Evidence, Pt. 1 55.) says, that" a presumption from good character is too remote to weigh against evidence which is in itself satisfactory, and ought never to have any weight except in doubtful cases." These writers only follow those who have treated the subject before them, and seem fully to sustain the judge in adopting the rule, at least to the extent he did. I think he is equally sustained by principle. Although there is no certain test of truth to each individual but his own senses, yet when one is called on to determine, upon human testimony, how the truth is as to a particular fact, not the object of his own senses, he must proceed on that testimony as if it were the certain means of determining the enquiry. He must do so, not only because by the universal sense of mankind, (founded on a general experience that a disinterested person will, under the sanction of an oath, ordinarily depose to the truth,) such testimony has been held to be means adequate to the ascertainment of truth, but be STATE v. LIPSEY. cause it is the only means in our power. If the interests Dec. 1832. of society would allow the determination to be avoided, it would be different. Each person might then claim the evidence of his senses before he pronounced his opinion affirmatively, that the fact was the one way or the other. But our obligations to each other will not suffer us to evade a decision. The tribunals must act, and they are obliged to decide without that highest evidence, their senses. In coming to a decision, they must assume that the means by which the truth may be best attained by them by which alone they have it in their power to attain it, are means positively sure and certain of determining the question of fact. When therefore, the testimony of a witness is affirmative, positive and direct, and it is not contradicted by the testimony of another witness, or the credit of the first witness is not impeached, there is no opening for doubt, unless we say, not only that there is no absolute certainty, but that we must act, or are at liberty to act, as if every thing were absolutely uncertain-which is inadmissible. There is in such a case nothing, in the sense of weighing the testimony, to be left to the tribunal-whether judge or jury-to whom it is addressed; for there is no other relation touching the same fact, with which to compare it-nothing to be put in the other scale. It must be taken as entirely true; because the law says, in admitting it, that such testimony under the sanction of an oath, is a sufficient test of truth; and if it be uncontradicted, it is a perfect test, being the only one. When a collateral circumstance is offered to shake a conclusion thus established, it is manifest that it is irrelevant to that end, if it be not inconsistent with the conclusion; or at leat, if it stand indifferent, admitting the circumstance to exist, whether the conclusion be true or false. Such a circumstance I conceive general character to be. I admit it to be absurd to say, that an honest man has committed a larceny. But the question is, whether such honesty is proved by a previous character for honesty, against direct proof of the very fact. It seems STATE บ. LIPSEY. DEC. 1832. to me, that it has no tendency to repel the positive testimony, unless we say that it is as probable that one man with a good character will commit the crime of perjury, and is committing it, as that another man of like character, did commit the crime deposed to. This may be true in the abstract. But it is a principle upon which we cannot act. We are obliged to proceed on the contrary principle, or let all offences go unpunished, and all wrongs unredressed. Of all circumstances, that of character is the least satisfactory. It is extremely dif ficult to say, in the first place, what the character is. The estimation in which one is held by the world at large is not, like particular facts, capable of being certainly known. Still more difficult is it, if not impossible, to dive so deeply into the human heart, upon the most intimate acquaintance, throughout the longest period of intercourse, as to afford a reasonable certainty of gaining such a knowledge of the temper and disposition as would produce more than a faint inference, that there was not an original taint in principle, or such a latent infirmity of temper as might be surprised by sudden, though slight provocation, or such a secret love of wicked lucre, as could not withstand temptation and opportunity. Men constantly do things, which astonish those who knew them before; nay, the thought of which never, under different circumstances, entered their hearts; at the very imagination of which, they would, at other times, have been shocked. Such is our experience of the frailty of our nature. There can be nothing then in the evidence of the character of the accused, to contradict or discredit clear and direct testimony. It may be said then, that it is altogether irrelevant and ought to be rejected by the court as incompetent. So it ought, upon principle, in a clear case of affirmative evidence ; for the presumption founded on it is remote in every case, and absolutely inadmissible against evidence otherwise plain and satisfactory. It always has been held so, as evidence of guilt. This could not be, if it were substantive evidence to establish the crime; but it would be admissible, as is every other circumstance tending to The hu STATE v. LIPSEY. the conclusion. Neither in a clear case of positive tes- DEC. 1832. timony, does it tend to establish innocence. manity of the law, admits it on behalf of the prisoner. But it cannot be laid down to a jury, that they have a right to make what use they choose of it. It would be wrong to be governed by it in any case in concluding guilt; it is therefore never admitted for that purpose. It is equally inconclusive, on the other side, in general; but in favor of life and character, it is admitted as a slight circumstance to operate where even slight circumstances will avail-in a case of doubt and uncertainty. It cannot, in itself, make a case of doubt and uncertainty. Therefore, as I said, it is in principle incompetent, except in a doubtful case, and the court ought to reject it in every other. And so the court would as upon other questions of competency, if the court could determine the question upon which its relevancy depends, namely, the doubts entertained by the jury upon the substantive evidence to the fact. It is an anomalous case, and the evil arising from the admission of evidence when it ought not to be admitted, is sought to be corrected by advice to the jury, as to the state of facts in which that circum- · stance may be properly used. That, I think, was done here. The evidence was proper here, because there was a conflict in the testimony to the fact. If, upon that, the jury doubted, they could call in aid of the prisoner his good character, as contributing to the presumption, that he did not perpetrate a murder. If they had no doubts as to which of the witnesses swore to the truth, as between themselves, character could not raise them. And that, it seems to me, is what the judge said. I am therefore, opposed to a new trial upon either of the grounds. PER CURIAM.-JUDGMENT REVERSED. DEC. 1832. WILLIAM WOODHOUSE, et al. v. ABNER WILLIAMS, et al. Where to debt on a bond, for the payment of purchase money, the defendant pleaded performance, and offered in proof of his plea an acknowledgement of payment, and a release in a bill of sale: It was held, that as he had not pleaded the release specially, it was mere evidence, and the plaintiff was not estopped to prove the contrary. This was an action of DEBT, upon a bond executed by the defendants, whereby they bound themselves to pay the plaintiffs $2,000, with a condition reciting, that there was a treaty for the purchase of a vessel by the defendant Williams, from the plaintiffs, and proceeding: "Now, if in addition to the sum of money which the "said Abner Williams hath already paid, he shall pay "to the plaintiffs such further sum as the repairs they, "the plaintiffs, have put upon said vessel, since she hath "been under repair, and shall receive from the plaintiffs "all such rigging, &c. as they may have prepared for "said vessel, at a fair cash price, then the obligation "to be void, &c." This bond was dated April 25th, 1828. Plea-Performance of the condition. On the trial, at Camden, before SWAIN, Judge, on the last Spring Circuit, the defendant in support of his plea, offered a bill of sale for the same vessel as that mentioned in the bond, dated April 29th, 1828, whereby the plaintiffs sold the vessel to the defendant Williams, “for and "in consideration of the sum of $2,000, to them in hand "truly paid, at and before the sealing and delivery of "these presents by" the defendant Williams, the re"ceipt whereof we do hereby acknowledge, and there"with are fully satisfied and contented, &c." To rebut this, the plaintiffs offered a letter of Williams' to them, dated April 30th, 1828, authorizing them to deliver the vessel to the bearer, and promising to pay their bills for sails, &c. according to the contract. |