
    The People v. George L. Laird.
    
      Criminal law — Privileged communications — Evidence of good character — Instructions.
    
    1. Where, in a prosecution for burglary,'the defense is an alibi, and the officers who made the arrest explain their presence in the building by testifying that they expected it to be entered, it is not error to reject testimony, sought to be drawn out on their cross-examination, relative to the source from which they derived their information that a burglary was premeditated.
    2. A case might arise where a person claiming to have been innocently at the place where the crime was committed, at the solicitation of a person suspected of being the informant, would.' be entitled to inquire whether such, person was the informant.
    3. Where, in a prosecution for burglary, the sole disputed question of fact is as to the presence of the respondent at the scene of the burglary, and there is positive evidence on both sides of thé question, it is error to instruct the jury that, if they find that there is positive evidence that the respondent-did commit the offense, they .are to pay no attention to the-evidence which he has introduced tending to show his previous good character, such evidence being entitled to consideration in determining the disputed question.
    
    
      Error to recorder’s court of Detroit. (Chambers, J.)
    Argued June 28, 1894.
    Decided September 25, 1894.
    Eespondent was convicted of the crime of burglary, and sentenced to imprisonment in the State prison for seven years,
    Judgment reversed.
    The facts are stated in the opinion.
    
      George Cox, for respondent.
    
      A. A. Ellis, Attorney General, and Allan H. Frazer, Prosecuting Attorney, for the people.
    
      
       GOOD CHARACTER AS A DEFENSE IN CRIMINAL CASES.
      For cases bearing upon the question of proof of good character in criminal cases, and the effect that should be given to it by the jury, see:'
      
        General Rules Applicable to the Subject.
      
      1. People v. Garbutt, 17 Mich. 9, 26, holding that good character is an important fact .with every man, and never more so than when put on trial charged with an offense which is rendered improbable in *the last degree by a uniform course of life wholly inconsistent with any such crime; that there are cases where it becomes a man’s sole dependence, and yet may prove “sufficient to outweigh evidence of the most positive character; that the most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave; that good ■character may not only raise a doubt of guilt which would not ■otherwise exist, but it may bring conviction of innocence; that in ■every criminal trial it is a fact which the respondent is at liberty "to put in evidence, and, being in, the jury have a right to give it ■such weight as they think it entitled to.
      2. People v. Mead, 50 Mich. 228, 233, holding that a person on trial for crime is entitled in all cases to the benefit of testimony as to his good character; but, if the evidence of his guilt is convincing beyond a reasonable doubt, he should be convicted, notwithstanding .his good reputation.
      3. People v. Evans, 72 Mich. 367, holding that the failure of a respondent to offer affirmative evidence of his good character raises no legal inference that he is guilty of the offense charged, or that his character is bad, and it is the gravest error for the court to permit the prosecuting attorney to comment upon the absence of such testimony, which error is not cured by an instruction to the jury not to consider the argument, M
      4. People v. Marks, 90 Mich. 555, holding that where a respondent introduces evidence of his good character, which is not attempted to be rebutted by the prosecution, it is prejudicial error for the court to instruct the'jury that, while the law permits him to make such proof, the people are prohibited from showing his bad character.
    
   McGrath, C. J.

Eespondent was convicted of burglary. The police department, on the evening of December 15, 1893, received information that a bm-glary would probably be committed some time during the night, or early the following morning, at the residence of one Tannenholtz. Acting on this information, six officers were sent by Oapt. Bachman to Tannenfioltz’s place, with instructions, if a burglary was committed, to arrest the parties. The officers informed .Tannenholtz, procured from him a key, and secreted themselves upon the premises. At a few minrrtes after 5 in the morning, the rear door was broken open, and the place entered. Just after the place was entered, several shots were exchanged, and the burglars ran. Respondent was recognised by one of the officers at the door, and by two other officers in the course of the chase' which followed. The defense was an alibi. The officers, in explaining their presence in the saloon, 2testified that they expected the place to be entered. On cross-examination, each officer was asked a number of questions relative to the source from which they derived their information that a burglary was premeditated, bu.t the testimony was rejected.

The general rule is that persons engaged in the detection of crime are not bound to disclose the sources of the information which led to the apprehension of the prisoner. The reason for the rule is that such disclosure can be of no importance to the defense, and may be highly prejudicial to the public in the administration of justice by deterring persons from making similar disclosures. 1 Q-reenl. Ev. § 250; Best, Ev. (Ohamberlayne’s 1st ed.) § 578, note la; Rex v. Akers, 6 Esp. 125; Hardy’s Trial, 24 Howell, St. Tr. 808; U. S. v. Moses, 4 Wash. C. C. 726; Attorney General v. Briant, 15 Mees. & W. 169; State v. Soper, 16 Me. 293; Gray v. Pentland, 2 Serg. & R. 23, 32; Worthington v. Scribner, 109 Mass. 487. In the last case cited, Gray, J., says:

“It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws. To encourage him in performing this duty, without fear uf consequences, the law holds such information to be among the secrets of state, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shall be suffered to' be known to' the absolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of justice, therefore, will not compel or allow, the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government. The evidence is excluded, not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications.”

And our own Court, in People v. Davis, 52 Mich. 569, 573, recognize the rule. Chief Justice Cooley in that case says:

“ And we are not called upon in this case to consider whether there may not be eases in which the prosecuting attorney would be excused, in the ¿interest of the State, from disclosing what had been told to him with a view to the commencement of criminal proceedings.. There would be strong reasons in many cases why the counsel of the State should be inviolably kept; and nothing we shall say in this case will be intended to lay do,wn a rule except for the very case at bar and others standing upon the same facts.”

The rule is broad enough to protect the information as well as the informant, at least so far as it is necessary to shield the informant. In the present case the question involved was the presence and identity of the respondent at the scene of the burglary, and the court permitted a disclosure of the information so far as it related to him. A case might arise where a person claiming to have been innocently at the place of the crime, at the solicitation of a person suspected of being the informant, would be entitled to inquire whether such person was the informant. U. S. v. Moses, supra. But no such case is here. The defense here was that respondent wras not present. '

Much is said in the respondent’s brief about the methods of the police department. The police are dealing with dangerous characters. Burglary is a profession. Men known to be connected with the profession 'infest communities. They are desperate characters, and take life to facilitate escape. The duty of the police lies beyond the protection of the public from a particular offense. It will not do to lay down the rule that, if a burglary is suspected,'it is the duty of police officers to_ prevent the commission'of that particular offense, rather than lie in wait and secure the guilty parties. In such case the police do not encourage the commission of the crime, but simply apprehend parties bent upon the crime, who, in carrying out plans already formulated, rush into the arms of the officers. Even an informant accompanying his associates does not necessarily encourage their purpose, and it is not proper that he should, but he simply acquiesces in a plan already formed. We find no error in the record in respect to these matters.

The conviction must, however, be set aside for. other reasons. Several witnesses were called as to the previous good character of the'respondent, and the people called no witnesses upon that subject. The court instructed the jury that—

“Good character is always' admissible, gentlemen, in criminal cases, and may be always received by you, but it is for you to say whether it will have any weight with you in coming to your verdict, or not. The testimony of the defense may be introduced to show what the character of /the defendant is; and if the testimony is incompatible with your judgment in regard to defendant's good character, if you think it is insufficient, or if you think defendant is guilty without any testimony with reference to character, it would be your duty to say so. The defendant might have a good character up to a certain time, and afterwards he might have committed a crime.
“If a crime was absolutely committed, and you are satisfied beyond a reasonable doubt, then good character would be comparatively useless, so far as you are concerned, because men sometimes have to have some commencement in crime, and a man might have a good reputation and good character most all of his life, and he may commit some crime; and it does not follow, because he has always had a good reputation, that, therefore, he is a good man. It is a question for you to say whether, if there is any doubt in regard to the case, — whether you believe that testimony, or lohether you will accept testimony to shoto that his character is good, when you have positive evidence that his character is not good, and that is a question for you to say entirely.
“In regard to the man's reputation, you have heard the testimony introduced here of some' of the witnesses that defendant had borne a good character up to the time of this offense; and it is a question for you to consider whether a man who has lived a good life and enjoyed a high reputation for 35 or 40 years, — whether he would be likely to commit the offense charged. If you believe he would, then, of course, character would be of no importance. If yon believe that he did commit the offense, and you find that there is positive evidence that he fitid commit it, of course you would pay no attention to the man's reputation.”

This instruction was erroneous, in that it authorized the jury to disassociate the testimony as to good character from the other testimony in the case. The sole question was as to respondent’s presence at the scene of the burglary. The evidence upon that question was conflicting. There was positive evidence that respondent was present, but there was also testimony, equally as positive, that he was not. The testimony as to good character supplemented the latter class of testimony, and was entitled to consideration in determining the disputed question. The court might as well have said:

“ If you find positive evidence that, respondent was present, then you may reject the testimony which tends to show that he was not.”

The 'precise question was before this Court in People v. Jassino, 100 Mich. 536.

The judgment is reversed, and a new trial granted.

Long and Hooker, JJ., concurred. Grant and Montgomery, JJ., did not sit. 
      
       The first story of the building was occupied as a saloon, and the second as a dwelling.
      5. People v. Mills, 94 Mich. 630, holding that, where a respondent’s general character is put in issue by the defense, comment upon that character is clearly proper.
      6. People v. Jassino, 100 Mich. 536, holding that evidence of good character is admissible not only in a ease where doubt otherwise exists, but may be offered for the purpose of creating a doubt.
      
        Illustrative Cases.
      
      1. People v. Garbutt, 17 Mich. 9, 26, where, in a prosecution for murder, evidence was adduced by the respondent to establish his uniform good character previous to the time of the alleged offense, and the court was requested to instruct the jury that they had a right t& consider whether such evidence tended to rebut the presumption of malice. And it was held that the proposed instruction was correct in substance, and that the respondent was entitled to it without explanation or qualification; that the evidence could have no bearing whatever except upon the question of malicious intent; that to refuse the instruction, therefore, was equivalent to holding, or at least to leaving the jury to infer, that the evidence, which was lawfully put into the case, was immaterial after it was in.
      2. Campbell v. People, 34 Mich. 351, where, in a prosecution for rape, the court instructed the jury that the respondent had offered evidence tending to show his good character; that it was not usual, perhaps, for good men to commit crime, but it was possible, and men who have stood high have been convicted; that the jury-should consider the evidence with the rest, and give the prisoner all the benefit of it that they believed him entitled to. And it was held that the instruction was calculated to insure to the respondent the full benefit of his good reputation.
      3. Brownell v. People, 38 Mich. 732, 736, holding, in a prosecution for murder, that it was entirely inadmissible, in answer to proof of the general good reputation of the respondent, to receive evidence of an alleged act of violence against another person than the deceased, at a former time and different place; that the respondent could not (be expected to) be prepared to meet any such testimony or explain it, and its introduction might seriously prejudice the jury.
      4. People v. Harrison, 93 Mich. 594, where, in a prosecution for larceny, the circuit judge instructed the jury that a good character was of importance to a person charged with crime, and that the jury had the right to consider whether a person with a good character would be less liable to be guilty of crime than one of bad habits and character. And it was held that this is undoubtedly the true rule, and it is so beneficient in its character that it is entitled to the constant recognition of all courts when engaged in the trial of any person charged with the commission of a crime.
      
        5. People v. Pyckett, 99 Mich. 613, where, in a prosecution for arson, testimony was introduced as to the general good character of the respondent, the question put-to the witnesses being, “Do you know what his reputation for good moral conduct is?” On cross-examination the witnesses were interrogated as to specific acts pf the respondent which occurred prior to the fire. And it was held that such interrogation was proper.
      6. People v. Jassino, 100 Mich. 536, where, in a prosecution for an assault with intent to do great bodily harm less than the crime of murder, the court instructed the -jury that a man’s good character is a valuable thing under all circumstances; that it is proper evidence to be considered by the jury in doubtful cases to determine whether or not a man having that good character would commit the offense charged; that it often avails, and should avail, to acquit a man under such circumstances; but that, when there is positive proof of the commission of an offense, good character cannot avail to overthrow the proof. And it was held that the instruction was erroneous, in that it deprived the respondent of the benefit of proof of good character if the jury should find positive evidence tending to show the commission of the offense.
     