
    Supreme Court—Appellate Division—Third Department.
    June, 1903.
    THE PEOPLE v. CHRISTOPHER J. SLAUSON.
    (85 App. Div. 166.)
    1. Trial—Evidence—Prosecution mat not Put in Issue Character op Accused.
    It is not competent for the government to give in proof the bad character of the defendant unless he first opens that line of inquiry by evidence of good character.
    2. Same.
    The admissibility of evidence, bearing upon the credibility of the accused as a witness in his own behalf, does not make the defendant’s character an issue upon the trial or justify the jury in taking the character of the accused into consideration in determining whether he is guilty of the particular crime charged.
    3. Same.
    The charge that “ character is always in issue when a man is upon trial for criminal offense,” is error.
    4. Same.
    This was not cured by a subsequent charge that the jury must presume the defendant’s character to be good, but if they found that there was any evidence relating to the defendant’s character then they could determine whether his character was good or bad.
    Appeal by the defendant, Christopher J. Slauson, fro-m a judgment of the Supreme Court, rendered on the 30th day of December, 1902, convicting him of a felony, and also- from an order entered in the office of the clerk of the county of Albany on the 3d day of February, 1903, denying the defendant’s motion for a new trial, made upon the ground of newly-discovered evidence.
    The defendant did not offer evidence of good character and the People did not offer any evidence of general bad character. The defendant was a witness in his own behalf, and the testimony shows that he was a young man who used vile language, associated with other young men of the same class and lounged with them about drinking places; that he was accustomed to drink intoxicating liquors, and had, on the day in question, drunk repeatedly.
    The remarks of the district attorney to the jury at the close of the evidence were taken hy the stenographer at the request of the defendant’s counsel. After the charge by the court, requests to charge were made by the defendant’s counsel, and the record thereof, so far as material, is as follows: “ Defendant’s counsel objects and asks, the-court to. correct the following portions of the district attorney’s summing up; the district attorney’s reference to the defendant’s connection with the ‘ growler gang,’ as being without the evidence. The Court: Yes, there is no evidence of that. Mr. Woollard: Also to. any reference or allusion as to the character of the defendant on the ground it is not in issue in this case. The Court: Character is always in issue when a man is upon trial for a criminal offense. But I do not recall any evidence in this- case to. show that this man is a man of bad character. We know nothing about his character, whether it is good or bad, and in the absence of any such evidence his character is supposed to be reasonably good; that is, there has been nothing brought against him, so far as I can recall, in the evidence, excepting, I think, in response to. one inquiry he said he could not tell whether he has been convicted of intoxication or not. That is1 the only evidence relating to bad character that there is in the case that I recall. [Defendant excepts to the statement.] . . . Mr. Woollard: I ask the court to charge they must presume the character of the defendant to be good. The Court: Yes. Mr. Addington: I except to your honor’s charge; the jury must presume the den fendantfs character is good, and ask your honor to charge the jury must determine from all the evidence whether his character is good or bad. The Court: If there was any evidence upon that subject that would be so; but in the absence of any evidence I think it is fair to. a man upon trial that the jury should assume that up to that time, up to the time of the commission of the offense, he was a reputable citizen. Hr. Woollard: We except to that. The Court: That is favorable to1 you. Hr. Woollard: Hot as favorable as the law contemplates.”
    William E. Woollard, for the appellant.
    George Addington and Robert H. McCormic, for the respondent.
   Chase, J.:

An issue is a single material point of law or fact depending in the suit, which, being affirmed on the one side and denied on the other, is presented for determination. (Webster Int. Dict.; Simonton v. Winter, 30 U. S. [5 Pet.] 141.)

It is the privilege of the accused to put his character in issue, or not. If he does, and offers evidence of good character, then the prosecution may give evidence to rebut or counteract it; but it is not competent for the government fi> give in proof the bad character of the defendant unless he first opens that line of inquiry by evidence of good character. (2 Colby Crim. Law, 205.)

A prisoner on trial may show what his reputation is and then the question is open to the prosecution and for the jury to determine like other controverted facts. But if the prisoner chooses to give no evidence on the subject the jury are not at liberty to1 indulge in' conjecture that his character is bad, in order fir infer that he is guilty of the particular crime charged. Good character is a shield which the prisoner may use if he has it, but if he is content to1 leave his character entirely out of the case the jury are not thence to infer that it is bad. Under such circumstances the general character of the accused is hardly a subject to be considered by the jury, and they should determine the guilt or innocence of the accused upon the evidence before them and wholly irrespective of the question of general character. (People v. Bodine, 1 Den. 281, 314.)

To admit evidence of bad character against the accused it is necessary that he shall have already put his character clearly and expressly in issue. (Underhill Crim. Ev. sec. 78.)

It is a fundamental principle of the criminal law that the character of the defendant cannot be impeached or attacked by the State unless he puts: his character in issue either by becoming a witness in his own behalf or by offering evidence in sup>port of his character. (Hughes Crim. Law, sec. 3155.)

Where an accused becomes a witness in his own behalf he may be cross-examined the same as any other witness, and his character for truth and veracity may be considered in determining the weight to1 be given to' his testimony, and within the discretion of the trial court he may be asked as to- specific facts which tend to' discredit him or to impeach his moral character as bearing upon credibility. (Abb. Tr. Brief [Crim. Causes], secs. 396, 397.)

The admission of evidence bearing upon the credibility of the accused as a witness in his own behalf does not make the defendant’s character an issue upon the trial or justify the jury in taking the character of the accused into' consideration in determining whether he is- guilty of the particular crime charged.

General character only can be considered in determining the guilt or innocence of an accused. It is general character alone which can afford any test of general conduct or raise a presumption that the person who- had maintained a fair reputation down to- a certain period would not then begin to act an unworthy part, and, therefore, proof of particular transactions in which the prisoner may have been concerned are not admissible. (2 Colby Crim. Law, 204.)

The refusal of the court to charge as requested by the defendant’s counsel, that the character of the defendant was- not in issue in this case, and the charge that character is- always in issue when a man is upon trial for a criminal offense,” was error.

It is. claimed by the respondent that the subsequent remarks o-f the court to- the jury corrected the- error, if any, in said general statement.

The subsequent remarks- of the court, in substance, were that the jury must presume the defendant’s character to- be good, but if they found that there was any evidence relating to the defendant’s character then they could determine whether his character was- good or bad. All of the statements o-f the court are confirmatory of the first gen'eral statement on the subject of character. The jury were- not told that general character alone could be considered in determining the guilt or innocence of the defendant, nor that as evidence o-f general character had not been given his character was not in issue; nor were they told that the evidence received relating to- the defendant should only be considered in determining the weight to be given to- his- testimony. The jury clearly were- le-ft with the understanding that they could determine whether- there Was- any evidence, either general or relating to- specific acts., affecting the defendant’s character, and that such evidence, if any, could be considered by them in determining whether he was guilty as- charged.

For the reason stated the judgment o-f conviction should be reversed and a new trial granted.

All concurred, except Chester, J., dissenting.

Judgment of conviction reversed and new trial granted.  