The evidence concerning the general reputation of the defendant, must be restricted to the particular trait of character attending the particular crime.(People vs Josephs,7Cal.127), and remote or incicental traits cannot be considered. Different crimes involve a distinct trait or element peculiarrto that offense. if an accused is being tried for perjury, the outstanding element of the crime consists in a disregard for truth and probity. Hence the particular trait, which may be inquired into, would e the defendant’s general reputation for veracity and integrity. In cases of larceny and embezzlement; the substance of the acts consists in the wrongful taking or witholding the property of another, and so the defendant’s character- should be scrutinized as to his honesty and integrity. As to the unlawful killing of another with premeditation, it being a crime of violence, the jury should consider the reputation of the defendant for peace and quiet, however it is error to consider the defendant’s character for peace and quite, when he is being tried for involuntary manslaughter,(Peoole vs Thomas,58Cal.App.306), since the crime generally results without the presence of the “raalus animus11. In coses of ro’-.’bery, besides the investigation as to the defendant’s character for peace and quite, as it is generally perpetrated with the purpose of committing a larceny, the defendant’s particular renutation for honesty and integrity is also material, provided howeve in all the abcve cases,the defendant opens up the inquiry by his own testimony.
e nor consider character and reputation in homicide cases pertaining to the deceased, for the purpose of deterning the guilt ,of ane alleged wilier. It ma” be 3tated 3 an abstract proposition of law, that the character of the deceased may not be considered in determining the guilt of a defendant charged with homicide, since the taking of human life unlawfully is in no way excused or palliated by the bad character or reputation of the person slain, or by a showing that his life was of little value(People vs Lamar,148 Cal.564), but a few- exceptions arise, when the plea of self defense is interposed, and when the evidence is conflicting and circumstantial as to who was the aggressor in the case, and the nature of the aggression. it being more probable that a man of violent and dangerous character and disposition would make an unprovoked and deadly assault than a quiet and eacefufman. ‘Phis inquiry is also pertinent, when from all of the circumstances of the killing, it tends to show that the defendant acted in fear of the impending evil, by virtue of the bad character of the deceased( Franklin vs State.29 Ala. 14). (7/igmore ‘ s Evidence, Second Ea.p.42). It is quite reasonable to assume that a person may use a greater amount of force to reioell an attack against an adversary possessing a dangerous and turbulent disposition than a person of ordinary character, and that an affray or combat is more likely to be precipitated under such circumstances. The court in this case,Franklin vs State, (supra) , states’,’ the character of the deceased for turbulence, violence, revengefulness, blood-shed and the like, where it qualifies and gives meaning and point to the conduct of the deceased should be proper evidence, for the conduct of a man of peaceable character and harmless deportment might pass by without exciting a reasonable apprehension of impending peril; while on the other hand, the same conduct, from a. man of notoriously opposite character and habits, might reasonably produce a consciousness of the most imminent peril, and the conviction of the necessity of prompt defensive action. whenever such bad character on the part of the deceased thus illustrated the circumstances attending a homicide, and the circumstances so illustrated tend to reduce a reasonable belief of irinent danger in the r.ind of the slater, the character as ~i gled with the transaction is a cart of it _tnd is indispensitle tits correct understanding”. It has been held that it is not a ~a eriai qu:3tion as to whether the ..eceased was in fact a tan of dangerous character, but it is his reoutation as such, that constitut s the legitimate subject of inquiry, and the orosecution not shot? that the deceased was not in fact a dangerous man,(People vs Ho:fman 46 Cal. pp. :)ec.339).
-here is some conflict among the decisions of the state courts,
-s to the admissibility of the deceased character when the same is not • known to the defendant. In this state the following distinction is drawn. If it is attempted, on the part of the defendant to prove that he .as justified in believing himself in imminent danger, his knowledge of such reputation is absolutely necessary, in order to show, by reason of such knowledge there was sufficient c-use to excite him, to pursue the course of action as w s indicated by the circumstances nresented. If on the o per hand, the defendant does not ‘now of the reoutation of the deceased for violence and turbulence at the time of the homicide, such reoutation can only be introduced for the purpose, and is limited to the inquiry as to who was likely to be the assailant, when £z3x the facts” circumstantial in their nature, and the evidence equivocal. And to this part of the inquiry, the defendant may explain and state the particular threats made by the deceased against him, even though the same were uncommunicated.(People vs -..livtre 55 Cal263,
Peoole vs McGann,44Cal.App.Dec.82:People vs Arnold 15 Cal.476),
‘Ihese uncommunicated threats are evidence of the mental attitude of the .eceased toward the prisoner, touching upon the question as to who precipitated the ai’frayj while evidence of communicated threacs are intended to shed light upon the mental attitude o± the prisoner toward the deceased when the homicide secured, as bearing upon his justification in acting under the fear of the impending peril under which he was placed. In concluding this point, however, it must be noted, thab when a homicide is committed under circumstances where the issue of self defense does not exist, evidence of threats, on the part of the deceased, whether ccrmmic ted or uncommunicated are absolutely inamr terial and inadmissible,(People vs T-inr 55 Cal.602,
People vs Campbell,59 Cal.243, People vs Westlake 62Cal.303).
we shall now discuss character and re utation in its application to civil cases. It it is charged that a party has been guilty of an unlawful or immoral a t, the fact that he is known to have ‘-any times committed similar acts would no doubt be a circumstance which would in ordinary affairs of life weigh heavily against him. In popular estimation few facts are more powerful in determing the merits of sny claim than the character of the respective litigants: and yet it is the general rule of le^ that in civil actions, the character of the rarties are irrelevant, lor however just may be the inferences, which might in many cases be drawn as to the merits of the controversy from their character, such inferences or conclusions are too vague and unreliable for that degree of certainty which should prevail in judicial tribunals. If in cases involving contracts or torts, evidence were to be received, che result would be made more dependent on the popularity of the party than on the merits of th e case. The testimony would consist largely of matters of or>In_on and e greatly affected by bias and favoritism, resulting in delay and uxpen.se to all, to say nothing of the injustice. In a leading case, Thompson vs Church, 1 Root (Conn)312, it was attempced in a civil action for assault, to prove that the defendant was a quarrelsome man. The court said,” The general character of a party is not inissue, the business of the court is to try the case, and not the man”: and a very bad man, may have a very righteous cause. Hence we see that there is a greater -amount of restriction in reference to character as ap lied in ciyil controversies, ’ than there is in criminal cases. In the ordinary case of breech of contract, character is of no concern, except as to the credibility of y person, considered from the standpoint as a witness.such as those based on negligence, it is irrelevant to nrove that the Plaintiff or the defendant has on similar occasions been careful or negligent, or that the renut tion of one has theretofor been chat of a careful and prudent man.
Although in civil actions, evidence of character is not ’omissible to sustain a cause of action or defeat a recover:-, there are a class of actions in which from the nature of the issue, evidence of character is relevant, especially as to the measure of damages. Perhaps this doctrine is most frequently illustrated in actions for slander and libel. Lord Ellenborough long since tersely stated the doctrine which still prevails:”Certainly a person of disparaged fame is not entitled to the same measure of damages as one whose character is unblemished, and
it is competent to show that by evidence,(——————— vs boor,105 English
Reprint 106), (Jones on ic.en.ce . third ed.p.J98).
In such cases however, the evidence must e confined to the general re utation of the plaintiff, this being the same condition for its introduction in criminal cases as well. ‘this general reputation cannot be brought to light by specific instances of misconduct. As it has been announced, character grows out of specia acts but is not proved by them”. The weight of authority also favors the rule that such reputation must be confined to the trait of character involved in the action. Breach of Promise to Larry cases are, like slander and libel, exceptions to the general character rule in civil cases, due to the peculiar nature of these actions, and in such cases, the bad character of the plaintiff is clearly in issue. If the plaintiff has beer- guilty of immoral acts with another, nd such fact is known to the defendant,’ a l the time of the contract, he may prove i-t as a defense.
This same rule is true of w ohout the fault of the defendant the plaintiff, by her subsequent indelicate conduct injures her reputation.
The measure of damages in such cases are commensurate with the character of the person, since it is their character, which chiefly determines the extent of the injury. In actions of Seduction and
Criminal Conversation, character is also relevant as the chief elements of damage are the wounded sensibility of the injured party, and the loss of the society of the daughter, or wife. hid the damage is manifestly less if the daughter or wife was a person of iso rag.d fare, chan one possessing good reputation. In these c ses, the woman’s character for chastity is the trait in issue.
In civil actions involving fraud, it has been nnounced in sore cases that the party who is charged vitli fraud, or other acts involving moral turoitude, may rebut the same by ‘roof of ooa character.
Greenleaf states,”Generally in accions of tort, wherewer the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to repell it”(Greenl. Ev.par.54). However this statement of the law seems contrary to the clear weight of authority. It is the best rule that each transaction should be ascertained by its own cir< ‘stances, ana not by the character of the party.
In ctions for damages for malicious prosecution, the defendant may show that he acted without malice, and in good faith.( Lamb vs Galland,44 Cal.609). die general refutation of the plaintiff may also be inquired into in mitigation of damages. ihere is authority, of great weight and respectability holding that in such actions the plaintiff may prove in the first instance hisuvn good character,(L’.urphy vs Davids,
181 Cal.706). This seems to be an exception to the rule that good char cter ca .not be received until it is attacked, the above four or five varieties of actions already discussed, practically covers the field of exceptions wherein character is ao lied in civil actions.
I have attempted in the foregoing thesis to review and aoply the principles of evidence as anrlicable to character in civil and criminal cases, as the same are defined by substantive code law; commentators; and judicial decisions, ignoring for the most, ‘art,character or reputation touching uwon the qualifications and credibility of witnesses incidental to the trial of issues in such cases.