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REG.

”.

JAMES ROWTON.

1865.

Evidence of character

Limits.

species of crime charged against him, and the unlikelihood of his
committing this crime. But it seems to me that is an anomaly.
I gather from the books that it was permitted in favorem vitæ, not
as bearing upon the issue, but as a matter which was permitted
by the benignity of the law to be given in evidence, and that
occurred as long as two hundred years ago. In no one single
instance during the whole of that period has evidence of general
bad character been given. No case can be cited of any trial that
has ever taken place on which such evidence was admitted. It is
quite true that in several text books it is stated that such evidence
is admissible, and the authors of those text books are persons
whose expression of opinion is worthy of the highest possible
consideration. But not one of them has cited an instance in
which the thing has been done. I am not at all unconscious of
the strength of the observations made by the Lord Chief Justice.
It is a common practice that when the counsel for the prisoner
intimates an opinion about hearing witnesses to character, the
counsel for the prosecution say "Be careful what you are doing,
for you may injure your client's cause." On the other hand, no
doubt if this evidence in reply is admissible, there would be a
stronger reason for it. But what I rely on is, that no single
instance has been adduced by Mr. Tayler in which evidence of
this sort has been admitted, and therefore the doubt at present on
my mind leads me to the conclusion that the better way of treating
the matter is, not as though evidence to good character is an
anomaly, but proceeding on a course of precedents, that it
will be better to leave it as it stands. I own I do not know
that much evil will arise from it, for probably notwithstand-
ing this judgment the criminal trials will go on pretty much
in the way that they have hitherto done. But such is the
extreme mischief of giving evidence of bad character, given
with a speech by the counsel for the defendant that he would be
entitled to give, and then a general reply by the counsel for the
prosecution upon the matter, that I can see cases in which far too
much weight would be placed on such evidence of general bad
character, and on which convictions might be obtained when
convictions ought not to be got. If it rested with me I should
take time for further consideration; but when I find that my
learned brothers are of opinion that the evidence is admissible, I can
say nothing but that I concur with them, although I am disposed
to act on what has been so far as I know the universal practice
and the precedents for the last two hundred years. I do not
myself believe that the course of the administration of the
criminal law would be altered by it.
But the matter may be
carried to a greater extent. Suppose a man tried for a robbery
in the street, and evidence given as to his good character, and a
policeman is called to say that he had known him for years as a
common thief in the street, and that he has been apprehended a
dozen times, that he apprehended him himself, and that would
appear from the decision of the magistrates-the man being tried

for the offence with which he is charged, he is in reality tried on the evidence of generally being a thief. It would be better to confine the real offence to that which is established by the evidence applicable to it, leaving the evidence of character to make what weight it may with the jury, without allowing any reply. I acquiesce in the opinion of the majority of my learned brethren, and of course will act upon their view in any court in which I may be called upon to act. With respect to the first question, I do not dissent from them, and I have stated the reasons which bear on my mind. With respect to the second question, I own that I think the evidence ought not to have been left to the jury.

WILLES, J.-I am of opinion that upon both the questions stated for the opinion of the Court by the judge who tried the case, that the ruling of the judge was right. With respect to the first question whether evidence was admissible on the part of the prosecution to answer evidence of character given by the prisoner, I own that I should be glad if the Court could have come to the conclusion that such evidence should be rejected, and that for the reasons stated by my brother Martin; but I am clearly of opinion that the Court could not come to that conclusion, because looking to the statements in the books of practice, and especially those in the works of Roscoe, Phillips and Starkie, I think it is clear that such evidence must have been given for a series of years, and the practice must have been settled as stated. The learned writers have stated the fact, and they could not have derived their information from reported cases, because no such cases have been referred to, notwithstanding the industry of counsel. They must have spoken from practice, and what they had observed. My reason, therefore, for believing that this evidence is admissible is founded altogether upon the fact that such has, I believe, in former times been the practice, to a sufficient extent to settle the law; and the fact that we find no case reported in which such evidence was given does not operate upon my mind, because the trials at which such a question could have arisen are not reported. There were not Nisi Prius reports until at a comparatively recent period. I must agree, therefore, that the evidence was admissible. have stated I should have been glad if I could hold that it was not, because I cannot help thinking that such a course is exceedingly unusual, and is one for which no precedent can be produced, and of which there is no information at the bar or upon the bench, and whatever may be the law upon the subject, it has been found inconvenient that that course should be resorted to, and it has become in modern times obsolete. However, as our law is not subject to a negative prescription, I must hold, as it appears to be settled that such evidence could be given when a person claims it for the interests of the cause he represents, that the judge is bound to receive it. With respect to the second question, I agree in opinion with the Lord Chief Justice Erle, and had the decision of the Court to do only with what may be given in evidence in answer to evidence of character on the part of the

I

REG.

v.

JAMES ROWTON.

1865.

Evidence of character

Limits.

REG.

v.

JAMES ROWTON.

1865.

Evidence of character

Limits.

prisoner, I should certainly not have taken up time by making any remarks at all, because, for the reasons which I have stated, and from the infrequency of the occurrence of such a case and from the improbability that it will often occur that such evidence will be offered in future cases, it would not be useful to make any remarks upon the subject. But I cannot help thinking that our decision must necessarily have a most important effect with reference to what evidence may be given upon the part of the prisoner, and it is because I am of opinion that to remain silent would be assenting to what, I think, would be a great hardship on prisoners, I feel myself bound to deliver my opinion at large upon the subject. Now, why is it that evidence of character is admissible upon the part of the prisoner? I entirely agree and concur in the opinion which has been expressed by the Lord Chief Justice of England, that it is a mistake to suppose that because only the prisoner can raise the question of character, that, therefore, is evidence on a collateral issue. It is not. It is evidence which is admissible because it makes it the less probable that that which the prosecution averred and had to make out by affirmative evidence should be true. It is evidence strictly relevant to the issue, but such evidence is not admissible upon the part of the prosecution for the reasons stated by my brother Martin, because if the prosecution were allowed to go into such evidence we should have the whole life of the prisoner ripped up, and as has been witnessed in the proceedings of jurisdictions where such evidence is admissible upon a charge preferred, you might begin by showing that when a boy at school he had robbed an orchard and so read the rest of his conduct and the whole of his life; and the result would be that a man on his trial would be overwhelmed by prejudice instead of being convicted on affirmative evidence, which the law of this country requires. The prosecution is prevented from giving such evidence for reasons rather of policy and humanity than because proof that the prisoner was a bad character is not relevant to the issue,-it is relevant to the issue, but it is expedient for the sake of letting in all the evidence which might possibly throw light upon the subject; you might arrive at justice in one case and you might do injustice in ninety-nine. The prisoner is bound to give evidence, the prosecutor is not. And those cases in which the prosecution is allowed to go into previous acts of the prisoner's life are collected for the purpose of showing that he has had sufficient opportunity of committing the offence and sufficient knowledge necessary for the person who committed it, or to prove that in a particular instance the acts could not have been accidental or are not exceptions, and that rule has merely established this, that it is not because a relevant fact, and that relevant apart from it being a fact affecting the prisoner's character; the fact that the relevant facts accidentally arise does not change the principle when it is part of the direct evidence in the case. But the prisoner is allowed to give evidence of character for the purpose of showing it was unlikely that he should have committed the offence. At once, therefore, we start

with this. The ultimate fact to be arrived at and to be established by such evidence is that the prisoner's character in the sense of the particular disposition which nature or education may have stamped upon him is a character that is good and not a character that is evil. The evidence of that the law has admitted, and that you should go into the apparent disposition of a man. It is admitted that you can go into the question of reputation, or, what is the same thing, an opinion good or bad; the opinion good, in the case of a prisoner, of others respecting him. But I apprehend that the former is the principal matter to be inquired into, that the latter is merely accessory and in the way of evidence, and when it is stated, to which I entirely assent, even if I were not bound by it, that general evidence of character is admissible, that in my opinion does not mean merely the evidence of the general opinion of a number of persons as to his character, but it is general evidence of the character of a man. You exclude particular facts on the part of the prisoner because a person who is a robber may do an act or acts of generosity, and the proof of such acts are, therefore, irrevelant to the question whether he was likely to have committed the particular act of robbery or not; and, on the one hand, I agree that particular acts must be excluded on the part of the prosecution partly for the reason that excludes them in the first instance, and partly for the reason that no notice has been given to the prisoner that you are going into an inquiry as to particular acts. That is not an opinion of my own, but it is in accordance with the practice of the law when the character of the indictment is such that you must necessarily go into particulars, you need not specify as to which. In the case of an indictment for barratry, which is as common as anything else, in which reputation as to the offence is irrelevant: you may prove in that case any number of particular facts to bear upon the prosecution; you allow that to be done, and you are to give notice of what acts you intend to rely upon on the trial. The impossibility of doing that in this case will exclude such evidence on the part of the prosecution if the general reason of policy were not, as I think it is, applicable. It is then admissible on the part of the prisoner not what people in general, or the multitude think of him, which is mere rumour-but there is also admissible generally what is known of him in the judgment of the witness, and his judgment is superior in quality and value to mere rumour. Numerous cases may be put in which a man may have no general character in the sense of any reputation or rumour, and yet it may be most material for him to prove that he is a person of an actual good disposition. For instance, a person who is of a retiring disposition and known only to a few, he may be a person of the vilest character and disposition, and yet only his intimates can speak of that; he may have obtained a good repute without deserving it. What does everybody do in ordinary life. when he wants to know the character of an individual on whom he is to rely? He asks the last person with whom that individual

REG.

v.

JAMES ROWTON.

1865.

Evidence of character

Limits.

REG.

V.

JAMES

ROWTON.

1865.

characterLimits.

was connected what he thinks of him, as in the common case of the character of a servant given by a master. A servant in service may be known to nobody but the members of the family of the person applied to for his character, and the person to apply to for the character of the man would be the master. So the character of Evidence of a child is known to its parents and teachers; and the character of a man of business to the persons with whom he deals. I apprehend there is nothing in the law as it stands to prevent a prisoner's counsel calling every person with whom he has dealt and asking each in succession," Is he a person, according to your observation, a person of an honest character, and a just character," and that would be of the highest value. If a person were called to say that another has got a good character in the parish, it may be because he has gone through the parish offices with reasonable decency, and because he has put on appearances of wealth, but he may have had no opportunity of judging of his real character and disposition for honesty. If that evidence may be called, why should you not call every person with whom he has dealt and ask them individually whether they confirm or contradict that which has been the apparent character of the man as proved by the other witnesses. I own I think that according to the ordinary experience of mankind as well as according to reasoning that you would rely rather on the information and judgment of persons than on report in such a case, and why not? In a court of law, it is said, we are to be guided by the practice. Mr. Sleigh insists upon the practice. I can add nothing to what has been stated by Chief Justice Erle. I apprehend the practice is not merely to call persons to say a man has a good character in the neighbourhood, but to call the master with whom the prisoner served, or people with whom he has been acquainted, to say whether he has borne, in their judgment, the character of a man, meaning the sort of man he is, and the sort of disposition he has. After what the Lord Chief Justice Erle has said as to his experience of the practice in that respect, I do not propose to add an instance of any observation of my own; but such a practice must either stand altogether on sufferance, or the real character of the man must be arrived at by calling persons who have had an opportunity of knowing him. Now, it seems if that may be admitted upon the part of the prisoner the evidence on the part of the prosecution in rebutting it must be at least as extensive as the evidence which can be given on the part of the prisoner; and this brings me to the evidence of the particular case. The evidence was with reference to this case of a very peculiar character, because the prisoner was charged with an offence which would not only be committed in secret if it was committed, but would be likely to be kept secret by the persons who were alleged to have been subject to it; and such being the case, in order to determine what his character for morality and decency was is relevant to the question whether he was likely to have committed the offence. The very persons of whom you would inquire would be those who would have been within the reach of his influence and who would not be likely to have communi

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