with intent to commit rape (ƒ), brings the question of her own chastity so far in issue that it is competent for the accused to give general evidence of her previous bad character in this respect, or even to shew that she has been criminally connected with himself (g); but the authorities are not agreed as to whether he will be allowed to prove particular acts of unchastity with other men (h). character of cutions. § 253. Although, in criminal prosecutions in general, Evidence to the character of the accused is not in the first instance accused in put in issue, still, in all cases where the direct object of criminal prose. the proceedings is to punish the offence, such as indictments for treason, felony or misdemeanor (i), and is not merely for the recovery of a penalty (k), it is competent to him to defend himself by proof of previous good character, reference being had to the nature of the charge against him. "On a charge of stealing," says a well known treatise on the Law of Evidence (1), “it would be irrelevant and absurd to inquire into the prisoner's loyalty or humanity; on a charge of high treason, it would be equally absurd to inquire into his honesty and punctuality in private dealings. Such evidence relates to principles of moral conduct, which, however they might operate on other occasions, would not be likely to operate on that which alone is the subject of inquiry; it would not afford the least presumption that the prisoner might not have been tempted to commit the crime Phill. Ev. 505, 10th Ed.; R. v. (f) Phill. & Am. Ev. 489; 1 Phill. Ev. 505, 10th Ed.; R. v. Clarke, 2 Stark, 241. (g) R. v. Martin, 6 C. & P. 562; R. v. Aspinall, 3 Stark. Ev. 952, 3rd Ed. (h) See R. v. Hodgson, R. & R. C. C. 211; R. v. Clarke, 2 Stark. 241; R. v. Barker, 3 C. (i) 2 Stark. Ev. 304, 3rd Ed.; (k) Phill. & Am. Ev. 488, 490; 1 Phill. Ev. 502, 10th Ed. (1) Phill. & Am. Ev. 490, 491; 1 Phil. Ev. 506, 10th Ed. Nature of character evidence liable to be for which he is tried, and is therefore totally inapplicable to the point in question." § 254. Few subjects are more liable to be misunderstood than that of character evidence. On an indictmisunderstood. ment for stealing from A., for instance, proof that on other occasions, wholly unconnected with the transaction in question, the accused acted the part of an honest, or even liberal and high minded, man in certain transactions with B. and C., assuming that it would to a certain extent render improbable the supposition of his having acted with felonious dishonesty towards A., is too remote and insignificant to be receivable in evidence. The inquiry should be as to his general character among those who have known him, with a view of shewing that his general reputation for honesty is such as to render unlikely the conduct imputed to him. "It frequently occurs, indeed, that witnesses, after speaking to the general opinion of the prisoner's character, state their personal experience and opinion of his honesty; but when this statement is admitted, it is rather from favour to the prisoner, than strictly as evidence of general character (m).' Evidence to the character of parties may be encountered by contrary testi. mony. § 255. Whenever it is allowable to impeach the character of a party by evidence, it is of course competent to the other side to give evidence to contradict the evidence thus adduced (n). And although, in a criminal prosecution, evidence cannot in the first instance be given to shew that the prisoner has borne a bad character, still, if he sets up his character as an answer to the charge against him, he puts it in issue, and the prosecutor may encounter his evidence either by cross-exa (m) Phill. & Am. Ev. 491; 1 Phill. Ev. 506, 10th Ed. (n) 19 Ho. St. Tr. 724; B. N. P. 296; R. v. Clarke, 2 Stark. 241; Bamfield v. Massey, 1 Camp. 460; Dodd v. Norris, 3 Camp. 519. But not by proof of parti. mination or contrary testimony (o). Thus, in the case of R. v. Wood (p), the prisoner, who was indicted for a highway robbery, called a witness, who deposed to having known him for years, during which time he had, as the witness said, borne a good character. On cross-examination it was proposed to ask the witness, whether he had not heard that the prisoner was suspected of having committed a robbery which had taken place in the neighbourhood some years before. This was objected to, as raising a collateral issue: but Parke, B., overruled the objection, saying, "The question is not whether the prisoner was guilty of that robbery, but whether he was suspected of having been implicated in it. A man's character is made up of a number of small circumstances, of which his being suspected of misconduct is one." The question was accordingly put, and the prisoner convicted. But as it is not competent for the accused to shew particular acts of good conduct, the prosecutor cannot go into particular cases of misconduct. An exception to this rule is established by Exception by the 14 & 15 Vict. c. 19, s. 9 (g), which provides, that 14 & 15 Vict. "if, upon the trial of any person for a subsequent offence, such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction of such person for the previous offence or offences." It is equally within this enactment, whether the evidence to character is given by witnesses called on the part of the accused, or extracted by cross-examination from witnesses for the prosecution (r). In practice we seldom see evidence called to rebut the defence of character, although it is apprehended the interests of justice would be advanced if it were done more frequently. (0) 2 Stark. Ev. 304, 3rd Ed.; Bull. N. P. 296; 19 Ho. St. Tr. 724. (p) R. v. Wood, Kent Sp. Ass. 1841; MS., and 5 Jurist, 225. (9) See the previous statute, 6 & 7 Will. IV. c. 111. (r) R. v. Shrimpton, 2 Den. C. C. 319. cular facts. c. 19, s. 9. Witnesses to character generally treated with great indulgenceperhaps too much. § 256. Witnesses to the characters of parties are in general treated with great indulgence-perhaps too much. Thus, it is not the practice of the bar to cross-examine such witnesses unless there is some specific charge on which to found a cross-examination (s), or at least without giving notice of an intention to cross-examine if they are put into the box; the judges discourage the exercise of the undoubted right of prosecuting counsel to reply on their testimony (t), and the most obvious perjury in giving false characters for honesty, &c., is every day either overlooked or dismissed with a slight reprimand. But surely this is mercy out of place. If mendacity in this shape is not to be discouraged, tribunals will naturally be induced either to look on all character evidence with suspicion or attach little weight to it. Now there are many cases in which the most innocent men have no answer to oppose to criminal charges but their reputation, and to deprive this of any portion of the weight legitimately due to it is to rob the honest and upright citizen of the rightful reward of his good conduct. In this, as in many other instances, the old legal maxim holds good, "Minatur innocentes qui parcit nocentibus (u)." It has accordingly happened that judges, knowing from experience to how little weight the character evidence so often received is entitled, have occasionally told juries that character evidence is not to be taken into consideration unless a doubt exists on the other evidence-a position perfectly true in the sense that if the jury believe the accused guilty on the evidence, to acquit him out of regard for his good character would be a violation of their oath, but utterly false and illegal if meaning that character evidence is not to be considered until the guilt or innocence of the accused is first determined on the facts. The (s) R. v. Hodgkiss, 7 C. & P. 298. (t) R. v. Stannard, 7 C. & P. 673. That the right exists, see that case, and the Resolutions of the use of character evidence being solely to assist the jury in estimating the credibility of the evidence brought against the accused, we cannot dismiss this subject without directing attention to the nervous observations of C.J. Holt: "A man is not born a knave; there must be time to make him so, nor is he presently discovered after he becomes one. A man may be reputed an able man this year, and yet be a beggar the next” (x). character of witnesses. § 257. With respect to the character of witnesses. Evidence to the The credibility of a witness is always in issue, and accordingly general evidence is receivable to shew that the character and reputation which he bears are such that he is unworthy to be believed, even when upon his oath. But evidence of particular facts, or particular transactions, cannot be received for this purpose, both for the reasons already assigned, and also because it would raise a collateral issue, i. e., an issue foreign to that which the tribunal is sitting to try (y). A witness may indeed be questioned as to such facts or transactions, but he is not always bound to answer; and if he does, the party questioning must take his answer and cannot call evidence to contradict it (z). admissible in one point of view, or for one purpose, ad missible in or for some other. § 258. In determining the relevancy of evidence to Evidence not the matters in dispute in a cause, it is of the utmost importance to remember that the question is whether the evidence offered is relevant to any of them,-as evidence not admissible in one point of view or for one purpose may be perfectly admissible in some other point of view, or for some other purpose. 1. Evidence not admissible to prove some of the issues or matters in question, may be admissible to prove others-evidence not admissible in causâ may be most valuable as evidence extra causam; (x) Per Holt, C. J., in R. v. Swendsen, 14 Ho. St. Tr. 596. (y) 13 Ho. St. Tr. 211; 16 Id. 246-7; 32 Id. 490--5; B. N. P. 1. Evidence admissible to prove some of the matters in question, though not others. |