State v. Clark

By the Court, Lord, C. J.:

The first assignment of error in the bill of exceptions is to the following question in rebuttal, asked a witness for the prosecution: “ If he knew what her (Mhsser’s) character for chastity was in the neighborhood where she resided % ” The argument conceded that the word character, as used in the question, was intended to be and is synonymous with reputation; but it is contended that the word general should be prefixed to it, as it is only the general reputation for chastity which is proposed to be inquired about by the question.

Mr. Greenleaf says that the impeaching witness “ must be able to state what is generally said of the person by those among whom he dwells, or with whom he is chiefly conversant, for it is this that constitutes his general reputation or character.” (1 Greenleaf’s Evidence, 577.)

According to this statement of the text, it is the opinion generally entertained of a person in the neighborhood in which he resides that constitutes his general reputation or character. Now, the objection here is to the form of the *469 question, in that it does not ask for the general reputation for chastity. If the question as put would elicit an answer for less than general reputation, it is bad beyond doubt.

But may it not be argued, that when the question is asked the witness: “If he knew what her reputation for chastity was in the neighborhood where she resided?” that reputation is here used, not in a limited but in an unqualified sense, and means general reputation, and that the question would be commonly so understood. When it is said of a person that he has a good or bad reputation, it is only meant to convey the opinion generally entertained of such person.

Beputation being then what is generally said of a person in his community, does not the question as above suggested, inquire and call for an answer which will reflect what is generally said of such person, and is this not the genera] reputation? It is true this argument admits that the inquiry .must be directed to her general reputation for chastity, but it claims that the form of the inquiry is immaterial, provided by its terms it calls for the general reputation, and is not objectionable in other respects.

“Any question,” says Judge Thurman, “not leading, that asks for the general reputation of the witness for truth is sufficient; and if the word reputation, when unqualified, does ex vi termwii, or in common parlance, mean general reputation, as we think it does, it is unnecessary to prefix the word general.” (French v. Millard, 2 Ohio St., 50 .)

But it is claimed by the appellant, that to avoid the many embarrassing questions which would arise for construction, and delay the administration of justice, our court has definitely settled the form of the inquiry in cases of this character, and required the word general to be prefixed to “ reputation.” In Finly v. Page, 8 Oregon, 46, the witness was asked what the reputation of the party for chastity was- — omitting the word general — and the court held the question objectionable, because the witness was asked as to “ her reputation instead of *470 her general reputation among her neighbors,” and reversed the judgment and ordered a new trial.

In our judgment this is decisive of the case before us, unless Finly v. Page, supra, is to be overruled. We imagine it would be difficult to find a case overruled to maintain a conviction. Stare decisis is the policy of the courts, and the principle upon which rests the authority of judicial decisions as precedents in subsequent litigation, and this doctrine ought not to be departed from, except when subsequent examination shows the case to have been decided contrary to principle.

The court having erred in admitting the witness to testify as alleged in the first assignment of error, it becomes unnecessary to consider the other questions presented. The judgment is reversed, and this case will be remanded to the court below for a new trial.