REG. v. JAMES ROWTON. 1865. Evidence of character Limits. On the part of the prosecution it was proposed to contradict this testimony, and a witness was called for that purpose. This was objected to by the defendant's counsel, who contended that no such evidence was receivable, and recited the case of Reg. v. Burt and others, 5 Cox C. C. 284. I thought the evidence was admissible, and after the witness had stated that he knew the defendant, the following question was put to him: What is the defendant's general character for decency and morality of conduct? His reply was, "I know nothing of the neighbourhood's opinion, because I was only a boy at school when I knew him; but my own opinion, and the opinion of my brothers who were also pupils of his, is, that his character is that of a man capable of the grossest indecency and the most flagrant immorality." It was objected that this was not legal evidence at all of bad moral character. I considered that it was some evidence, and I left the weight and effect of it as an answer to the evidence of good character, to be determined by the jury. The defendant was convicted, and is now in prison awaiting the judgment of your Lordships. The questions upon which I respectfully request your decision are 1. Whether, when witnesses have given a defendant a good character, any evidence is admissible to contradict.. 2. Whether the answer made by the witness in this case was properly left to the jury. October 22, 1864. JOSEPH PAYNE, Deputy-Assistant Judge. Sleigh for the prisoner. This conviction cannot be sustained. First, as to whether evidence can be called on the part of the prosecution to contradict the evidence of general good character given for the prisoner. In the case of Reg. v. Burt, 5 Cox C. C. 284, Martin, B., after consulting with Erle, J., ruled that it could not. The question of the prisoner's character forms no part of the record or of the issue; and the earliest reported case in which evidence of character was received, Reg. v. Harris, 7 St. Tr. 930, seems to put its admissibility in favorem vitæ (2 Russ. on Crimes, 784.) In Buller's N. P. 295, it is said: "The prosecutor cannot enter into the defendant's character unless the defendant enable him so to do by calling witnesses in support of it, and even then the prosecutor cannot examine to particular facts, the general character of the defendant not being put in issue, but coming in collaterally:" (Clarke v. Periam, 2 Atk. 333-337.) Secondly, as to the other question reserved, whether the answer of the witness was properly left to the jury, it is submitted that it was not. No specific fact or individual opinion of a witness in support or impeachment of the prisoner's character can be admitted in evidence. The only admissible evidence is that of the reputation which the prisoner has held, not what opinion any one person may have formed of him, and on that ground it is submitted that the individual opinion of any person, no matter the number of years he may have known the prisoner, or what opportunities he may have had of judging of his character, is inadmissible. The learned counsel then referred to the definition of the word "character" given in Johnson's, Webster's, and Richardson's Dictionaries, and also to Erskine's eloquent definition of it in Hardy's case, 24 St. Tr. 1079; and the following authorities: (2 Stark. on Evid. 304, 2nd edit.; 1 Phil. on Evid. 507 (edit. 1852), Rex v. Cole (M. S. S.); 3 Bentham, 191-195 (Rationale of Evidence); Best on Evid. 326 (edit. 1854); Rookwood's case, 13 St. Tr. 211; Rex v. Davison, 31 St. Tr. 189-190; Rex v. Jones, Ibid. 310; Sharp v. Scoging, Holt N. P. 541; Mawson v. Hartsink, 4 Esp. 102; Attorney-General v. Hitchcock, 11 Jur. 476.) G. Tayler for the prosecution.-(The Court informed him that he need only address his argument to the second question.)—With respect to the answer of the witness that was left to the jury, there is no rule of law by which it can be excluded. The objection is rather one of form than of substance. There is no authority for saying that the witness should have been stopped as soon as he had said that he knew nothing of the neighbourhood's opinion. There is a wide distinction between a witness stating his own opinion, or the judgment he has formed of the prisoner's character, and his going on to state particular facts in support of character. The only limit that ought to be put on evidence as to character is, that the witness must not go into particular facts. In this case the answer of the witness was substantially a general opinion formed by him of the prisoner's character. [COCKBURN, C.J.-In that sense the word character is synonymous with disposition. ERLE, C.J.-The question of character in this case is, what was the disposition of the prisoner with regard to such offences?] The prisoner, by calling witnesses to his character, raised the question, what was the disposition or tendency of his mind in such cases. Evidence of character does not mean evidence of reputation in the same sense as when reputation is applied to cases of right of way, or ancient customs, or matters of that nature. It has relation to the opinion or judgment formed by his fellows of a man's conduct. The only authority for saying that a witness's individual opinion or judgment of a man's character is inadmissible is that of Lord Ellenborough in Rex v. Jones. [POLLOCK, C.B.-A master who can speak to a servant's character for a number of years for honesty and fidelity is surely entitled to do so.] In Rex v. Jones no doubt Lord Ellenborough said, on a question of character, that it must be reputation, and not what a man knows of any particular act of the prisoner's. The learned counsel then reviewed the authorities cited on the other side, and submitted to the Court that the opinion or judgment formed by a REG. V. JAMES ROWTON. 1865. Evidence of character Limits. REG. v. JAMES ROWTON. 1865. Evidence of characterLimits. particular witness was admissible as evidence of character, and that the only exclusion was as to the statement of particular facts in support of such general opinion: (Taylor on Evidence; Best on Evidence, 367 (3 edit.); Mawson v. Hartsink, 4 Esp. 102; Penny v. Watts, 2 De G. & Sm. 528; Rex v. Murphy, 9 St. Tr. 725.) Sleigh was heard in reply. JUDGMENT. COCKBURN, C.J.-The question in this case is, whether the answer given by a witness, who was called to rebut the general evidence to good character which had been given in favour of the prisoner, and who was asked what the defendant's general character for decency and morality and whose answer was, to the effect or in these terms, "I know nothing of the neighbourhood's opinion, because I was only a boy at school; but my own opinion and the opinions of my brothers who were also pupils of his is, that his character is that of a man capable of the grossest indecency and the most flagrant immorality;" the question is whether it was proper to leave that answer to the consideration of the jury who tried the case. I am of opinion that it was not, and the conviction therefore cannot stand. Two questions present themselves; the first, whether when evidence in favour of the character of the prisoner has been given on his behalf, evidence of bad character can be adduced upon the part of the prosecution to rebut the evidence so given. I am clearly of opinion that such evidence may properly be received. It is true, that probably in the experience of all of us no occasion has presented itself when such evidence has been given on the part of the prosecution. That may be easily explained by the circumstance that it seldom happens that evidence is called to the character of a prisoner, when those who represent the prisoner are aware that the character will be liable to be rebutted. Notice is often given from a sense or spirit of fairness by the prosecuting counsel, that if any attempt is made to set up the character of the prisoner against the facts adduced on the part of the prosecution, that they will be met either by a rigorous cross-examination or rebutting evidence; but it seems to me when we come to consider whether such evidence is admissible, speaking logically and reasonably, it is impossible to come to any other than one conclusion. It has been put, that evidence in favour of the character of a person on his trial raises a collateral issue. I can hardly think that it is a collateral issue in the proper sense of the term; it becomes one of the pivots on which the jury are to found their verdict and take into their consideration with the evidence; and if the prisoner thinks proper to raise that issue as one of the elements for the consideration of the jury, nothing can be more unfair or unjust, and fatal to the proper administration of justice, than that the evidence should go to the jury altogether one-sided in its nature, and that the prisoner should have, on the consideration of his guilt or innocence, the advantage of an assumed unblemished character, when in point of fact, if his true character REG. v. JAMES ROWTON. 1865. Evidence of Limits. was known, it would be found to be just the reverse; and therefore that is a ground and a reasonable ground for not excluding it. Assuming, however, that the evidence was properly received to rebut the prior evidence of good character adduced by the prisoner, the question still presents itself of whether the answer which was given to a question perfectly legitimate in its character was an answer which it was proper to leave to the jury. In the first characterinstance, it becomes necessary to consider what is the meaning of evidence to character. It is laid down in the books that a prisoner is entitled to give evidence as to his general character. What does that mean? Does it mean evidence as to his reputation amongst those to whom his conduct and position is known, or does it mean evidence of disposition? I think it means evidence of reputation only. I quite agree that what you want to get at, as bearing materially on the probability or improbability of the prisoner's guilt, is the tendency or disposition of his mind to commit the particular offence with which he stands charged; but no one ever heard of a question put deliberately to a witness called on behalf of a prisoner as to the prisoner's disposition of mind. The way, and the only way the law allows of your getting at the disposition and tendency of his mind is by evidence as to general character founded upon the knowledge of those who know anything about him and of his general conduct. Now that is the sense in which I find the word character used and applied by all the text writers of authority upon the subject of evidence. Mr. Russell in his book, which has now become a standard work of authority, puts the admissibility or the reception of evidence to character upon this ground, that the fact of a man having had an unblemished reputation up to the time of the particular transaction in question, leads strongly to the presumption that he was incapable of committing, and therefore did not commit the offence with which he stands charged. We are not now considering whether it is desirable that the law of England should be altered in this respect, or whether it should be competent for you to get at the tendency and disposition of a man's mind, which becomes an element in the consideration of the case, by evidence of his general disposition. It may be that it would be expedient to import into the administration of our law the practice of some other countries and to go into the history of a man's antecedents, with the view on the part of the prosecution of showing that he is capable and therefore likely to commit the offence; or, stopping short of that, it may be expedient that if you allow the prisoner the advantage of introducing, if he pleases, the issue of character to go into the facts from which the inference as to character might be drawn in his favour. No one pretends that you can ask as to a specific fact, though every one will agree that one fact of honesty or dishonesty, as the case may be, would weigh infinitely more than the opinion of his friends or neighbours as to his general character. But that cannot, according to the practice, be done. The truth is, this part of our law is an anomaly. Although, logically speaking, it is REG. v. JAMES ROWTON. 1865 Evidence of character Limits. quite clear that an antecedent bad character would form quite as reasonable a ground for the presumption and probability of guilt as previous good character lays the foundation of innocence, yet you cannot, on the part of the prosecution, go into evidence as to bad character. This allowing of evidence of good character in favour of the prisoner to be given, has grown up from a desire to administer this part of our law with mercy as far as possible. It has sprung up from a time when the law was according to the common estimation of mankind severer than it should have been. Be that as it may, this class of evidence has engrafted itself as a sort of anomalous exception on our law, and we must deal with it as we find it, and the opinion of all who have dealt with the subject of evidence is, that it is to reputation we must confine it. It is true that in practice, whenever a witness is called to character it gives a greater cogency and force to his evidence, if the evidence be introduced by a statement of circumstances from which it may be the more apparent and readily believed that the witness has had a full and abundant opportunity to acquire information so as to be able to speak satisfactorily upon the character of the prisoner; and in practice it is very often carried beyond what, I think, if we stood upon the strict letter of the law, can be altogether justified. But Mr. Phillips has truly pointed out that facts which do not come within the rule that evidence may be received of general character, are very often given in evidence in favour of prisoners. But when we come to consider the question of what, in the strict interpretation of the law, is the limit of such evidence, I must say, in my judgment, it must be restrained to this, the evidence must be of the man's general reputation and not the individual opinion of the witness. I put a question in the course of the discussion, to which I did not receive an answer which at all tended to shake my opinion upon this point; and the question was-suppose a witness acknowledges, in answer to a question put to him relative to the general character of the accused, that he knows nothing of the general character, but that he had had abundant opportunity of forming an individual opinion as to his honesty or the particular moral quality that came in question in the particular case, I take it to be clear that if that question be objected to, it could not be received in evidence. The witness who acknowledged that he knew nothing of the general character, and had no opportunity of knowing it in the sense of reputation, would not be allowed to give an opinion as to a man's character in the more limited sense of his disposition. Now, then, if that be the true doctrine on the subject of the admissibility of evidence to character in favour of the prisoner, the next question that presents itself is within what limits must the rebutting evidence be confined which is adduced to meet that evidence which the prisoner has brought forward? Now, I think that evidence must be of the same character and kept within the same limits; that while you can give evidence of general good character, so the evidence called to rebut it must be evidence of the same general description showing that the evidence which has |