
    The State v. Kabrich.
    Criminal law; evidence. The character of one charged with an offense is not in issue unless he himself introduces evidence relating thereto. The failure to call witnesses to prove his general good character raises no presumption against it.
    
      Appeal from Wayne District Cov/rt.
    
    Thursday, September 24.
    The defendant was indicted, tried and convicted for larceny, from which, conviction he appeals to this court. The facts of the case bearing on the points ruled appear in the opinion.
    
      Tedford dk Afiles, for appellant.
    
      M. E. Outts, Attorney General, for the State.
   Miller, Ch. J.

On the trial of the cause the appellant offered no evidence of good character. The court thereupon charged the jury as follows: “Defendant is presumed to be innocent until he is proven guilty. Defendant had the legal right to introduce testimony in support of his character, and the fact that he failed to do so is a circumstance that you may consider, with all the other testimony in the case, in determining the question of guilt.”

Appellant excepted to the giving of this instruction-, and assigns the same as error.

The law is now well settled that a party charged with the commission of a public offense may give evidence of his good character. But his character is not in issue, nor can the prosecution offer evidence of the general bad character of the accused until the defendant has offered evidence of his good character. 3 Greenlf. on Ev. §§ 25,26 and cases cited in notes; 2 Russell on crimes, 785; Commonwealth v. Hardy, 2 Mass., 317; Same v. Webster, 5 Cush., 325.

In the People v. Bodine, 1 Denio, 281, an instruction substantially the same as the one given in this case, although of much greater length, was held to be erroneous because its effect was to instruct the jury that, as the accused alone could offer evidence of liis good character, his failure to do so afforded an inference that it was bad, and it was further held that, when no evidence of good character is given, the law assumes that it is of ordinary fairness and respectability, and that the jury in such case should determine the guilt or innocence of the accused upon the evidence before them and wholly irrespective of the question of character. This case, in effect, overrules the People v. Vane. 12 Wend., 78, which seemed to hold a different doctrine. In the State v. O'Neal, 7 Iredell, 251, it was held that the character of the accused cannot be put in issue unless he opens the door by giving evidence thereof, and that, if he chooses not to offer any evidence on the subject, no deduction results therefrom unfavorable to his character. In that case the defendant offered no evidence of his good character, and it was insisted by the prosecution that this fact was proper for the consideration of the jury, but the trial court refused to so charge and its ruling was affirmed.

In the State v. McCallister, 24 Maine, 139, it was held that the omission of the accused to furnish evidence of his previous good character, may be called to the consideration of the jury in support of the prosecution. We find no other case, (except the overruled one of the People v. Vane, supra), which holds this doctrine. In our opinion the cases of the People v. Bodine and the State v. O'Neal, supra, are more in accord with-principle than this case. It is the settled doctrine of the cases that whenever the defendant, charged with a public offense,- chooses to call witnesses to prove his general character to be good, the prosecution may offer testimony to disprove it, but that it is not competent for the prosecution -to go into this inquiry, until the defendant has voluntarily put his character in issue. 2 Russell on Crimes, 703, 2d ed.; 1 Phill. Ev., 177, 7 Lond. ed.; Commonwealth v. Hardy, 2 Mass., 302; 3 Grnlf. Ev., § 25, and cases cited in notes. Since, therefore, the character of the accused is not in issue unless he shall put it in issue by offering evidence in support of it, and since the .prosecution cannot go into an inquiry, by the evidence of wit ■nesses, as to the general character of the accused unless he opens the door, it follows logically, that the prosecution cannot convert a failure of the defendant to give evidence of his good character, into evidence of bad character, thus doing indirectly what could not be done directly, converting the entire absence of evidence on the subject into evidence of bad-character, and raising a presumption against the accused on a question which was not in issue. This is in conflict with the settled principle tha’t the character of the defendant is not in issue unless he shall put it in issue by giving evidence of his previous good character. The instruction was, therefore, erroneous, and the error was intensified in that the court repeated the instruction in substance at the request of the District Attorney.

Eor this error the judgment must be

Reversed.  