
    The State of Ohio v. Roderick.
    
      Accused indicted for murder — May prove character of deceased — ■ From general reputation — Evidence of particular acts — Not admissible, when — Criminal lazu — Rules of evidence.
    
    1. When the person accused in an indictment for murder is defending on the ground of self-defense, he may prove that the deceased was a person of violent and dangerous character and that such character of the deceased was known to him at the time of the affray.
    2. In general the mode of proving the violent and dangerous character of the deceased is by showing that such was the general reputation of the deceased in that community and at that time and that such reputation was known to the defendant; hut the defendant can not he permitted to prove, for the purpose of showing reasonable ground for apprehension of bodily injury or loss of his life, particular instances of violence or viciousness. on part of the deceased, which did not concern the defendant and at which the latter was not present and of which he has no personal knowledge.
    (No. 10643
    Decided December 17, 1907.)
    Exceptions to the Court of Common Pleas of Franklin County.
    
      Messrs. Webber, McCoy, King & Game, for the state.
    . When a particular trait of character is in question, it is competent to offer evidence of the general character of the person with reference to that particular vice. Duval v. Davey, 32 Ohio St., 610, overruled the decision in Dewit v. Greenfield, 5 Ohio, 225.
    We contend, however, that if evidence of the general bad character of the deceased person is to be offered at all, it can only be done when it appears that the character of the deceased, in the respect in question, was known to the defendant at the time of the commission of the crime. People v. Lamb, 54 Barb., 342; State v. Turpin, 77 N. Car., 473; Hudson v. State, 6 Tex. App., 565; Cannon v. People, 141 Ill., 270; McCombs v. State, 8 Ohio St., 643.
    The character can not be impeached by evidence of particular acts, but only by general evidence of reputation in that respect. McDermott v. State, 13 Ohio St., 334.
    When general character is spoken of as the limit to which the inquiry is to be extended, the expression is used to exclude particular transactions. 
      Gandolfo v. State, 11 Ohio St., 116; Griffin v. State, 14 Ohio St., 62; Bell v. Rinner, 16 Ohio St., 46.
    On a trial for murder, the prisoner may, for the purpose of showing that the homicide was justifiable on grounds of self-defense, prove that the deceased was a person of violent, vicious and dangerous character, and that his character was known to defendant at the time of the recontre between them. Upthegrove v. State, 37 Ohio St., 662.
    In the last case the court said that the rule announced “was declared to be the law in the following cases.” Among these cases cited is that of Nichols. v. People, 23 Hun, 165. Now, if our supreme court intended, as they say, to adopt as the law in Ohio the principles laid down in Nichols v. People, then we feel certain that it is the rule in Ohio that when the character of the deceased is offered in evidence, it can only be the general character and no specific instances can be given.
    The inquiry in chief should, in a case like this, be confined to the general character or reputation of the deceased as a peaceable or dangerous man, and special circumstances can be gone into only upon cross-examination. Thurman v. State, 4 C. C., 144.
    While we feel that the law of this state upon the point in question has been settled by the decisions of the courts above referred to, still we desire to refer to a few authorities; all of which we think will coincide with what we believe to be the rule of law in Ohio. Eggler v. People, 56 N. Y., 642; Conley v. Meeker, 85 N. Y., 618; People v. Druse, 103 N. Y., 655; Peterson v. Morgan, 116 Mass., 315;. McLaughlin v. Cowley, 131 Mass., 70; McCarty v. People, 51 Ill., 231; Hirschman v. People, 101 Ill., 568; Forshee v. Abrams, 2 Ia., 575; Gordon v. State, 3 Ia., 410; State v. Abarr, 39 Ia., 186; Sterret v. State, 71 Ia., 386; State v. McGee, 81 Ia., 17.
    In State v. Beird, 118 Ia., 474, it was held that bearing upon the question of who was the aggressor, the defendant may show as part of the res gestae, particular acts of violence toward others, of which the defendant had no knowledge because it was part of the course of conduct of the deceased immediately preceding the affray and which continued up to the affray; it was part of the res gestae with reference to the intention or disposition with which the affray was entered into by him; previous conduct of a party charged with a crime which immediately precedes and is connected with the criminal act, may be shown as a part of the res gestae for the purpose of proving the intention with which the act was done.
    This perhaps would be good law in Ohio, but in the case of State of Ohio v. Roderick there were no such facts present, as the evidence offered and admitted, related entirely to different quarrels with different persons, covering a period of time of from three months to over a year prior to the time of the commission of the crime charged.
    The same principle of law is also settled in Berneker v. State, 40 Neb., 816; Patterson v. State, 41 Neb., 538; Walker v. State, 102 Ind., 502.
    
      In a homicide trial, evidence of special acts of violence by the defendant against another person, at a different time and place, would not be admissible because the prisoner could not be presumed to meet any such testimony or explain it, and its introduction might seriously prejudice the jury.
    We maintain that if the above rule would hold good with reference to the defendant, that is, his inability to meet these special instances, then- it would apply equally well with reference to the admission of specific instances against the deceased, for surely the deceased being dead, could not possibly appear and defend himself.
    We simply contend that there is no principle of law decided which permits third persons to testify as to the details of specific acts of the deceased, not part of the res gestae and occurring between third persons and the deceased and which have no reference to the crime charged in the indictment. People v. Smith, 26 Cal., 666; People v. King, 28 Cal., 270; Carthaus v. State, 78 Wis., 564; Heffington v. State, 54 S. W. Rep., 757; Pritchett v. State, 22 Ala., 42; Hussey v. State, 87 Ala., 131; Moriarity v. State, 62 Miss., 661; Jenkins v. State, 80 Md., 72; Betts v. Lockwood, 8 Conn., 488; Gore v. Curtis, 81 Me., 403; State v. Ferguson, 71 Conn., 232; State v. Leonard, 3 Ore., 157; State v. Mims, 36 Ore., 315; Snyder v. Commonwealth, 85 Pa. St., 519; Alexander v. Commonwealth, 105 Pa. St., 1; Bishop on Criminal Practice, Vol. 1, Secs. 1117, 1118; Ency. of Law & Procedure, Vol. 21, 910; Rice on Criminal Evidence, Secs. 375, 376, 377; Wharton on Plomicide (1907), Sec. 271.
    
      
      Mr. J. S. Walker and Mr. Franklin Rubrecht, for defendant.
    What we claim is this, after showing knowledge on the part of,,the defendant of the various acts of the deceased constituting violent and dangerous attacks made by him on other persons under our claim of self-defense in resisting an assault made on the defendant, he had a right to introduce evidence of persons who were present, to prove the facts as they saw and heard them, as reflecting on the state of mind of - the defendant at the time that shot was fired. Such evidence of specific acts disprove malice, and went far in the direction of substantiating the reason defendant had for believing himself in danger. Marts v. State, 26 Ohio St., 162; Turner v. State, 5 C. C., 542; Henning v. Bartz, 15 Cir. Dec., 17; Culley v. Walkeen, 80 Mich., 403; Godfrey v. White, 60 Mich., 443; State v. Beird, 118 Ia., 474; People v. Harris, 95 Mich., 87; Wharton on Criminal Evidence, 8th Ed., Sec. 69.
   Davis, J.

The defendant was indicted for murder in the second degree. Under his plea of not guilty, the defendant admitted that he fired the fatal shot but claimed that the shooting was in self-defense. The defendant himself testified that the deceased was the aggressor, that he was a man of violent and dangerous character and that it was known to him that such was the character of the deceased, the defendant, at the time of the alleged murder. He also testified that he was a witness to two manifestations of the deceased’s quarrelsome and dangerous disposition. Thereafter certain witnesses for the defendant testified that they had the means of knowing the “general character” of the deceased as á violent and vicious man and that his character in that respect was bad; and these witnesses, as well' as others who did not qualify as to their knowledge of the general reputation of the deceased in that respect, were permitted, notwithstanding objections on behalf of the state, to testify to particular cases of quarrelsome and violent conduct on the part of the deceased, at none of which was the defendant present or in any way concerned therewith.

It is conceded that in cases of self-defense it is competent for the defendant to prove the violent and dangerous character of the deceased at the time of the commission of the crime, if such character was then known to him. Marts v. State, 26 Ohio St., 162. It is also conceded that one of the appropriate methods of proving the character of the deceased in respect to those traits, is by proving that such was his “general character,” at that time and in that community, using the term “general character” in the sense of general reputation. Bucklin v. State, 20 Ohio, 18, 22-24. The plain ground of these rules of evidence is, first, that proof of the vicious character of the deceased, known to the prisoner, places the jury in a position to judge whether the prisoner entertained an honest and reasonable belief in the imminence of bodily harm to himself, and, second, that general reputation, as distinguished from mere isolated rumors, is the final judgment of the public respecting the character of an individual, as his traits and disposition have been repeatedly manifested through a more or less extended period of time. This view of the law is not in entire harmony with the following remarks which appear in the opinion in the Marts case, supra: “We suppose that evidence of the reputation of the deceased as being a vicious, violent, or dangerous person, could only be given after the introduction of testimony tending to show that such was in fact his character, and then only for the purpose of proving that the prisoner had notice of that character. In other words, the dangerous character of the deceased can not be proved by proof of his reputation, but notice of that character to the prisoner may be shown by proof of such reputation, in connection with proof that the prisoner had the means of knowing that reputation.” It will be observed that the question in the Marts case was whether or not the accused might be permitted to introduce evidence of the violent, vicious and dangerous character of the deceased, and 'that the mode of the proof of character was'not in question in that case, and we may add that the statement of the judge delivering the opinion of the court is clearly opposed to the weight of modern authority, and it seems to us, to reason also. See Upthegrove v. State, 37 Ohio St., 662; 1 Wigmore on Ev., Secs. 52, 63; 2 Ibid, Secs. 1608, 1609, 1610; State v. Turpin, 77 N. C., 473; State v. McIver, 125 N. C., 645; People v. Druse, 103 N. Y., 655, and cases there cited.

But the contention in behalf of the state is that general reputation as to the traits of character involved having been admitted, together with facts within the defendant’s personal knowledge, the inquiry must stop there; and that it can not be extended to narration of particular acts of the deceased, which were not of the res gestae, which did not concern the prisoner and at which he was not present and of which he could háve no personal knowledge. This is exactly as we understand the law to be (see numerous cases cited in 5 Am. & Eng. Ency. Law, 875, n. 3) ; but the trial court saw the problem in another light and admitted the testimony. The theory upon which the court admitted testimony as to such particular acts does not very clearly appear; but it seems to have been based on the dictum in the Marts case', to which we have alluded. Accordingly the defendant was permitted to prove the conduct of the deceased on other occasions, as indicating his actual character; and then the defendant was allowed to show that he had heard of those instances previous to his own affray with the deceased, in order to show the state of mind under which the defendant acted.

Plausible as this theory may seem, it has, so far as we know, failed to obtain a substantial footing in any jurisdiction where justice is administered according to the principles of the common law; because, first, reputation to be available as evidence must be common or general reputation, the crystallized estimate which people in general - have formed of the individual in the community where he has lived, and reputation does not consist of mere reports or rumors which may be true or false; because, second, to prove that a man was the aggressor in one case does not necessarily prove that he was the aggressor in the case. on trial; because, third, the policy of the common law is to keep close to the issue in the case on trial and not to allow the jury to be distracted in the determination of side issues, as numerous as the particular instances of conduct which may be offered in evidence; and because, fourth, while it may be presumed that the general reputation of an individual in the community where he has lived is always susceptible of proof or defense, nobody can be ready at a moment’s notice to defend against accusations relating to all the transactions of his life.

On this subject the judgments of this court have always been consistent in adhering to the rule that “character can be impeached only by evidence of general reputation and not by evidence of particular acts of misconduct. It should be what people in general say and not what others say.” Snyder v. Commonwealth, 85 Pa. St., 519. An apparent conflict exists between Dewit v. Greenfield, 5 Ohio, 225, and Duval v. Davey, 32 Ohio St., 604. In the latter case the rule stated in the former was regarded as too narrow, viz.: “In all the foregoing cases, the inquiry must be confined to the general good or bad character of the party;” but when the expression “general character” is construed in the light of what was said by the court in Bucklin v. State, ut supra, there is really no difference in the two cases.

Exceptions sustained.

Shauck, C. J., Price, Crew, Summers and Spear. IT., concur.  