
    Michael Harrington v. The State of Ohio.
    In a criminal'case, it is error to charge the jury that proof of the prisoner’s good character is entitled to less weight where the question is one of great and atrocious criminality, than, upon accusations of a lower grade. The presumption of innocence which it raises varies in force with the circumstances, hut not with the grade of the crime charged.
    Error to the court of common pleas of Lucas county. Reserved in the district court.
    The plaintiff in error was indicted in the court of common pleas of Lucas county for murder in the first degree.
    On the trial, it appeared that the deceased and the prisoner had been friends, and no difficulty was known to liave occurred between them. Evidence was given by the State tending to show that tbe deceased was possessed of money, the obtaining of which by the prisoner constituted the motive to the murder. The evidence against the prisoner was wholly circumstantial.
    For the defence a large number of witnesses testified to tbe good character of the prisoner for peace, aud in other respects. On the subject of good character there was no conflict in the evidence.
    On the subject of the weight to be given to tbis evidence the court charged the jury as follows :
    That evidence of good character on the part of the prisoner lias been submitted to tbe jury, .and it is evidence which he has a right to place before you, and which it is your duty to consider, and give to it its proper weight in the decision of' the case.
    “ There are cases of circumstantial evidence where the testimony adduced for and against a prisoner is nearly balanced, in which a good character would be very important to a man’s defence. But where it is a question of great and atrocious criminality, the commission of the act so unusual, so out of the ordinary course of things, and beyond common experience, — where it is so manifest that the crime, if perpetrated, must have been influenced by motives unusual, such as do not frequently operate on the human mind, —■ then evidence of character and of a man’s habitual conduct under ordinary circumstances must be considered less satisfactory than it would be in cases of accusation of lower grade. Against facts strongly proved good character cannot avail. It is, therefore, in smaller offences, in such as relate to the action of daily and common life, as when one is charged with pilfering and stealing, that evidence of good character would satisfy a jury that he would not be likely to yield to such a temptation.
    
      “ But in higher crimes of great atrocity, where we look for some extraordinary motive to have induced the commission of the offence, good character would not be of the same avail that it would in the class of minor offences I have before alluded to. That good character could not he relied upon as having the same controlling force and power in restraining a man from the commission of such an offence (which must have been induced by some extraordinary .and unusual motive), as it would naturally have in offences of a minor character.”
    The defendant excepted to this charge, and asked the court to instruct the jury:
    “ That there was no difference in the weight which should be given to evidence of good character between cases where the charge was for an atrocious or a minor crime.”
    
      This instruction the court refused, and thp defendant excepted.
    .The defendant was found guilty of murder in the second degree. A motion for a new trial having been overruled and sentence pronounced, the case was taken on error to the district court, where it was reserved for decision in this court.
    A number of other errors are assigned on the record which have been argued by counsel; but, as the opinion of the court reversing the judgment is confined solely to the question arising on the charge, it is unnecessary to notice them.
    
      J. W. Cummings for plaintiff in error:
    We think the court erred in its charge to the jury concerning the weight to be given to evidence of good character. The court followed, substantially, the doctrine laid down in the charge of Shaw, O. J., in the case of the Commonwealth v. Webster, 5 Cushing, 324. This is the only case, so far as we know, where such a doctrine has been held, and though it comes from a high authority, we think it erroneous. The question as to the weight to be given to proof of good character is for the jury, and does not depend upon the grade of the crime; and the only charge proper for the court to give on the subject is, that it is competent evidence to go to the jury, and that they should give it such weight as they think it entitled to. It seems to me that good character should be entitled to more weight where the charge is for an atrocious crime, than where it is for a crime of a lesser grade. It seems incredible that a man who had always been temperate, kind, peaceable, honest, upright, would be more likely to be transformed at once into a demon, and perpetrate an afrocious, fiendish crime, than that he would be induced to commit one.involving only slight turpitude.
    The doctrine of the charge to the jury has been expressly overruled in 2 Smith (N. Y.), 501.
    
      James B. Tyler, also for plaintiff in error:
    The court erred in charging the jury that less weight- • should be given to evidence of good character, when the charge was for an atrocious crime, than when the charge was for a minor offence. It will be noticed from the evidence set forth in the transcript, that the case was one in which proof was entirely circumstantial, and was, on a great majority of the points involved, in many contradictions, and in great doubt. The court is aware of the rule applicable to circumstantial proofs, and to causes depending on such evidence. I refer to the rule laid down by Mr. Wills in his work on circumstantial evidence, p. 171, sec. 149, Rule 4.
    It is true that the case of the Commonwealth v. Webster, 5 Cushing, 295, seems to support the charge of the court in this respect. But it will be borne in mind that that case is overruled, and is not now the law. See Cancemi v. People, 2 Smith's (N. Y.) Rep. 501. The court there say: It is error to charge a jury that evidence of the prisoner’s good character is entitled to far inferior weight where the question is one of great and atrocious criminality, than upon accusations of a lower grade. “ In cases where there is doubt, it is of great weight in favor of the accused.” “ In cases of murder, arson, robbery, or any other great offence, proof of good character is as strong as in any other case.”
    Hence we claim the charge was erroneous, and that a new' trial should be allowed on this ground.
    
      P. B. Pond, attorney-general, for the State.
    
      J. K. Hamilton, prosecuting attorney, also for the State:
    The charge of the court in regard to the weight of evidence of character was good sense as well as good law. This kind of evidence refers, of course, simply to the reputation a person may have acquired in a community. A man may have a very bad character but a fair reputation. His ordinary conduct may, bn the surface, appear moral and lawful, while, in fact, he may, in secret, be given up to the practice of vice and immorality. A crime of great magnitude, as a homicide, is usually the result of some strong passion, smne powerful motive, which breaks through and overwhelms the barriers of previous good habits and conduct; while on the contrary, a sense of self-respect, and a decent regard for men’s good opinion, will prevent one, whose conduct has been such as to have commended him to the good opinion of his neighbors, from committing some trifling offence where the inducements are weak, and disgrace and danger of detection great. The charge of the court below is substantially the same as that of Chief Justice Shaw in the case of the Commonwealth v. Webster, 6 Cushing, 325. This charge of Chief Justice Shaw is approved by Wharton in his work on criminal law, vol. i. § 645.
   White, J.

We are not satisfied with the instructions of the court to the jury as to the weight to be given to the evidence of the good character of the accused.

The court, in effect, instructed the jury that the law required less weight to be given to such evidence than if the accused were on trial for a crime of a lower grade.

The weight that ought to be given to proof of good character does not depend upon the grade of the crime, but rather upon the cogency and force of the evidence tending to prove the charge, and the motives shown to exist for the commission of the crime by the accused. The presumption of innocence which is raised by such proof varies in force with the circumstances, but not, we apprehend, with the grade of the offence irrespective of the circumstances.

The charge is substantially taken from that given to the jury by Chief Justice Shaw in the case of Commonwealth v. Webster, 5 Cush. 324. That case was peculiar in its circumstances; and we may here remark, that it is unsafe as a general rule, and often calculated to mislead, to adopt a charge prepared for a particular case, and give it as a rule of law to guide juries in weighing evidence in other cases dissimilar in their circumstances.

The distinction taken in Webster’s case, as to the weight that may be given to proof of good character, between cases where the charge is for crime of a higher, and where it is of a lower grade, we have not found recognized in any other case; while its correctness has been denied by the court of appeals of New York. Cancemi v. The People, 16 N. Y. R. 501.

The indictment in Cancemi’s case was for mtirder, and the instruction of the court below to the jury was the same as that given in Webster’s case. The instruction was held to-be erroneous, and to constitute ground for reversing the judgment.

The reasonable effect of proof of good character is to- raise a presumption that the accused was not likely to have committed the crime with which he is charged. The force of this presumption depends upon the strength of the opposing evidence to produce conviction of the truth of the charge. If the evidence establishing the charge is of such a nature as not, upon principles of reason and good sense, to be overcome' by the fact of good character, the latter will, of course, be unavailing and immaterial. But the same will be true of any other fact or circumstance in evidence, which, after receiving its due weight, does not alter the conclusion to be drawn from the other evidence in the case. Good character is certainly no excuse for crime; but it is a circumstance-bearing indirectly on the question of the guilt of the accused, which the jury are to consider in ascertaining the truth of the charge. Hence it has been held, and we think correctly, that it is error for the court,, in a criminal ease, to charge the jury, that, in a plain case, a good character would not help the prisoner; but in a doubtful case, he had a right to-have it, cast into the seales¡, and weighed in his behalf.” State v. Henry, 5 Jones' (N. C.) Rep. 66. The true rule was said to be, “that the testimony is-to- go to the jury, and be considered by them in connection with all the- other facts and circumstances; and if they believe the accused to be guilty, they must so find, notwithstanding, his good character.”

We are aware that, in instructing juries, judges have frequently used language in conflict with the ruling in the case cited; but the instructions thus' given have not escaped the just criticism of jurists’ and law writers. Ibid. 67-8; 2 Russ. on Crimes, 786; Whar. Am. Crim. Law, § 644.

Instructions advising the jury of the object for which particular items of evidence are admitted, and cautioning them against being misled by their improper use, are certainly propei’, and are often called for by the circumstances of the ease; but the instructions ought to be so given as neither tc withdraw the evidence from their consideration, nor to restrain them from giving to it, in connection with the other evidence in the case, such weight in respect to the matter which it tends to prove, as, in the light of reason and good sense, they may, as thus advised, believe it to deserve.

Judgment reversed, new trial ordered, and cause remanded

Brinkerhoff, C.J., and Scott, Welch, and Day, JJ., concurred.  