State v. Kinley

Eothbook, J.

I. The indictment charges that the defendant, in a preliminary examination of certain persons before one C. Leckie, a justice of the peace, did willfully and corruptly swear, testify and state falsely that certain wheat was his property, that he had not turned the said wheat over to Louis Smith to pay a debt, and that he did not recollect of telling Louis Smith to take the wheat away; whereas, in truth and in fact, as the defendant well knew, said wheat was not his property, and he then and there well recollected that he told Louis Smith to take said wheat away, etc.

The defendant procured the arrest of said Louis Smith and some other persons for malicious trespass in taking away certain wheat claimed by him, and it was on the examination of this charge before the justice that the alleged perjury was committed. On the trial of the indictment it appeared that the wheat in question was the property of the defendant, and ■ the alleged perj ury, if any, consisted in the defendant swearing that he did not give Smith permission to take it, or that he did not recollect of giving Smith such permission. Three witnesses for the State testified to an agreement between defendant and Smith by which Smith was to thresh and remove the wheat. This was not contradicted, and it was not denied that defendant testified at the examination that he did not recollect giving such authority. It was, therefore, an important question for the jury to find whether defendant did so recoMeei.

1. EVIDENCE J ment?°foundation for. The defendant on the cross-examination of Louis Smith, a witness for the State, asked, “Have you not said, yourself, that you thought the defendant half crazy, and did not know what he was doing at the time?” This question was objected to as incompetent, etc., and the objection was sustained.

Defendant claims this was erx*or for the reason that the witness stated in his examination-in-chief that he did not observe the defendant was intoxicated at the time he testified before the justice. In this ruling there was no error. It was sought by the question to lay the foundation for impeachment, and timé and place, and the person to whom the alleged *296 statement was made, should have been given in the question.

2 _. gooa character. II. The defendant sought to prove his good character up to the time of the trial. This was excluded, and fie was confined to the period prior to and up to the finding of the indictment. In this there was no error. It was sufficient for all purposes to show good character prior to finding the indictment, and as the State is precluded from showing the opposite after that time, we know no reason why the defendant should be permitted to go into that inquiry.

3 --: —: charge. III. The defendant sought to show his “good character for truth and veracity up to the time of finding the indictment.” Objection to this was sustained, and- only general character was allowed to be shown. In this there was error. It is always permissible for a defendant to show his general good character, or reputation, as to the trait involved in the charge. In this case the defendant’s truthfulness was directly in question, and he should have been permitted to show that his general reputation for truth was good. 1 Philips on Ev., 643. “In all cases when evidence is admitted touching the general character of the party, it ought manifestly to bear reference to the nature of the charge against him.” 1 Greenleaf on Ev., Sec. 54.

4. -; —: W6ÍffllÍ5 Of evidence. IY. A number of witnesses testified to the general good character of the defendant, and the court, in the . ' tenth instruction, directed the jury that good character should only be received as a circumstance in cases where a crime is sought to be solely established by circumstantial evidence. The effect of this instruction was to entirely take the question of character from the consideration of the jury, because the evidence upon which a conviction was sought was not circumstantial. In this we think there was error. Glood character is admissible evidence in all criminal cases. The importance to be attached to it necessarily varies according to the varying circumstances of different cases. Its weight must be slight where the accusation of crime is supported by the direct and pointed testimony of credible witnesses; and it will seldom avail to control the mind in cases where the *297 evidence, though circumstantial, is reliable, strong, and clear. But in cases where the other evidence is nearly balanced, proof of good character is entitled to great weight. Remson v. The People, 43 New York, 6; Wharton’s Amer. Crim. Law, 293. We áre the more ready to hold this instruction to be prejudicial error for the reason that there is much in the evidence, as it is presented to us, tending to show that, at the time the defendant committed the alleged perjury, he was in such a state of intoxication as to raise a doubt as to his mental capacity to form the corrupt intent necessary to establish the crime.

There are other errors complained of, but as, in our opinion, there must be a reversal for those above enumerated, we deem it unnecessary to consider the case further.

The judgment of the District Court is reversed, and the cause remanded for a new trial.

Reversed.