evidence of witnesses (Com. v. Harris, 131 Mass. 336; State v. Forshner, supra; McCombs v. State, 8 Ohio St. 643; Richie v. State, 58 Ind. 355; State v. White, 35 Mo. 500; State v. Turner, 1 Houst. Crim. Rep. 76) but in some states such proof is competent (State v. Reed, 39 Vt. 417, 94 Am. Dec. 337, permitting it by cross-examination; Benstine v. State, 2 Lea, 169, 31 Am. Rep. 593; holding both modes of proof allowable, and so People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; Strang v. People, 24 Mich. 1). In New York the decisions are conflicting (Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309) but in a civil action for assault with intent to ravish, such evidence has been received in mitigation of damages. Gulerette v. McKinley, 27 Hun, 320; Watry v. Ferber, 18 Wis. 501, 86 Am. Dec. 789.

"In actions of seduction, the woman's bad character for chastity may be shown (see art. 57, note, ante), but she cannot be crossexamined as to acts of intercourse with other men than the seducer (Hoffman v. Kemerer, 44 Pa. 453; Doyle v. Jessup, 29 Ill. 460; Smith v. Yaryan, 69 Ind. 445, 35 Am. Rep. 232, but see Wandell v. Edwards, 25 Hun, 498; South Bend v. Hardy, 98 Ind. 577) unless a child is born and its paternity is in question. See Smith v. Yaryan, supra. But some cases hold that such acts may be proved by the testimony of the men themselves." 2 Greenl. Ev. § 577; Ford v. Jones, 62 Barb. 484; White v. Murtland, 71 Ill. 250, 22 Am. Rep. 100.

In a prosecution for rape, the character of the woman for chastity is involved in the issue, and may be impeached by general evidence of her reputation, but particular instances of criminal connection with other persons than the defendant are inadmissible. Com. v. Regan, 105 Mass. 593; Com. v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325.

§ 378. When Evidence of Good Character is Unavailing.— Where, however, the act charged in the indictment is malum in se, and the evidence clearly sustains it, and there is an entire absence of justifying circumstances or extenuating facts, proof of good character is wholly incompetent and irrelevant, as it has no tendency to either prove or disprove any issue raised by the indictment and evidence of this nature, if offered, should be wholly disregarded. Coleman v. State, 59 Miss. 484; Com. v. Hardy, 2 Mass. 317; State v. McMurphy, 52 Mo. 251; McDaniel v. State, 8 Smedes & M. 401; People v. Bell, 49 Cal. 488; Wesley v. State,

37 Miss. 331, 75 Am. Dec. 62; State v. Northup, 48 Iowa, 583, 30 Am. Rep. 408; United States v. Smith, 2 Bond, 323; Bennett v. State, 8 Humph. 118; United States v. Roudenbush, Baldw. 514; Rex v. Davison, 31 How. St. Tr. 217; United States v. Freeman, 4 Mason, 510; People v. Kirby, 1 Wheel. Crim. Cas. 64; People v. Vane, 12 Wend. 82; State v. Pearce, 15 Nev. 191; State v. Brown (note) 3 Strobh. L. 527; State v. Gleason, 1 Nev. 173; State v. Wells, 1 N. J. L. 628; People v. Josephs, 7 Cal. 129; People v. Cole, 4 Park. Crim. Rep. 35; People v. Roberts, 6 Cal. 214; People v. Millgate, 5 Cal. 127.

As regards the instructions of the court with reference to character, the charge should be so phrased as to clearly import to the jury that if upon the whole evidence that of good character among the rest, the jury regard the crime conclusively proven to their satisfaction beyond a reasonable doubt, then the good character furnishes no defense and can be of no avail to defendant. People v. Sweeney, 133 N. Y. 609.

$379. The Rule Restated.-The true rule is, that such evidence must, in any event, be considered by the jury, together with the other facts and circumstances of the case; it is not merely of value in doubtful cases, but will of itself, sometimes, create a doubt where none could exist without it, and if good character be proved to the satisfaction of the jury, it should turn the scale in favor of the defendant, even in cases where, without it, the whole evidence would slightly preponderate against him. Stephens v. People, 4 Park. Crim. Rep. 396; Cancemi v. People, 16 N. Y. 501; 2 Russell, Crimes, 785, 786.

And Jewett, J., says in People v. Gay, 7 N. Y. 381, "that in general a party will not be permitted to give evidence of his witness' good character until it has been attacked on the other side." A party is not allowed to sustain the character or chastity of his witness in advance of any attack. People v. Hulse, 3 Hill, 309; People v. Gay, supra; Russell v. Coffin, 8 Pick. 143; People v. Van Houter, 38 Hun, 168.

Nor is evidence of specific acts of violence towards third persons admissible. People v. Lamb, 2 Keyes, 371; Eggler v. People, 56 N. Y. 643; Thomas v. People, 67 N. Y. 218.

Epitomizing the present rules it may be advisable to cast them into the following propositions:

1. It is not permitted to the prosecution to attack the character

of the prisoner, unless he first puts that in issue by offering evidence of his good character.

2. It is not permitted to show the defendant's bad character by showing particular acts.

3. It is not permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged.

4. It is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions. State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69.

In the case of Com. v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325, the law in regard to the admissibility of evidence as to character is very fully and satisfactorily discussed. The distinction that the term "character" concerns what the man is, and the term reputation" concerns what issaid of him, is kept plainly in view; and it is clearly shown that the only legitimate mode of proving character is by showing reputation. State v. Lapage, supra.

§ 380. When Negative Evidence of Character is Competent. The propriety of the rule, permitting negative evidence of good character, is gradually forcing itself upon the recognition of the courts, and there is a current and modern authority rapidly forming in support of it.

Mr. Taylor, in his work on Evidence, after observing that the term "character" is not synonymous with "disposition," but simply means reputation, or the general credit which a man has obtained in public opinion, observes as follows of the practice of the English judges to this point: "Aware that 'the best character is generally that which is the least talked about,' they have found it necessary to permit witnesses to give negative evidence on the subject, and to state that 'they have never heard anything against the character of the person on whose behalf they had been called.' "Nay, some of the judges," he continues, "have gone so far as to assert that evidence in this negative form is the most cogent proof of a man's good reputation." 1 Taylor, Ev. § 350. In support of this view he cites the late case of Reg. v. Cory, 10 Cox, C. C. 23, where Cockburn, Ch. J., observes: "I am ready to admit that negative evidence to which I have referred, of a man saying 'I never heard anything against the character of the person of whose

character I come to speak,' should not be excluded. I think, though it is given in a negative form, it is the most cogent evidence of a man's good character and reputation, because a man's character does not get talked about until there is some fault to be found with him. It is the best evidence of his character, that he is not talked about at all. I think the evidence is admissible in that sense."

A well considered case in direct support of this doctrine is that of State v. Lee, 22 Minn. 407, 21 Am. Rep. 769, where Berry, J., observes: "A very sensible and commendable instance of the relaxation of the old and strict rule is the reception of negative evidence of good character-as, for example, the testimony of a witness who swears that he has been acquainted with the accused for a considerable time, under such circumstances that he would be more or less likely to hear what was said about him, and has never heard any remark about his character-the fact that a person's character is not talked about at all being, on grounds of common experience, excellent evidence that he gives no occasion for censure, or, in other words, that his character is good." It was held accordingly that a witness might, when a proper predicate of knowledge has been laid, be permitted to testify negative to one's good character by affirming that he had never heard his character discussed, or spoken of by any one."

To the same effect is Gandolfo v. State, 11 Ohio St. 114, where negative evidence of a defendant's good character was allowed to be given. "Such evidence," it was said, "is often of the strongest description; as, where a character for truth is in issue, that among those acquainted with the party, it had never been questioned; and so, as to character for peace and quietness, that among those with whom the party associates, no instance has been known or heard of, in which he has been engaged in a quarrel."

In State v. Nelson, 58 Iowa, 208, the same rule was recognized, and a party was allowed to testify that he had never heard anything against the defendant's character or reputation, the court observing that, in the absence of such a rule, "a person, who had lived so far a blameless life as to provoke but little discussion respecting his character would oftentimes be utterly unable to support his character when assailed."

So in Davis v. Foster, 68 Ind. 258, an instruction to the jury was held good, which asserted that, "if a man's neighbors say

nothing whatever about him, as to his truthfulness, that fact of itself is evidence that his general reputation for truth is good." And in Davis v. Franke, 33 Gratt. 413, a witness who had an opportunity to know another's character was allowed to testify that he never heard it called in question, Staples, J., observing: "Possibly, in many cases, the highest tribute that can be paid to the witness is that his reputation as a man of veracity is never called in question, or even made the subject of conversation in the community where he resides."

In Childs v. State, 55 Ala. 28, a witness, who claimed to know the character of another witness, "but never heard his character discussed," was held competent to speak to the question of character. A like principle was declared in Hadjo v. Gooden, 13 Ala. 718.

In Reid v. Reid, 17 N. J. Eq. 101, much of the evidence as to the character of the witness was founded on opinions expressed by others after their examination, and a material portion was furnished by a person who made inquiries in the neighborhood of their residence for the purpose of procuring evidence in the cause. It is said: "All this evidence is clearly incompetent. No rule is better settled, or founded on clearer principles, than that which excludes all testimony touching reputation founded on opinion expressed post litem motam. Not only should the character of the witness be founded on reputation previously existing, but a stranger sent by a party to the neighborhood of the witness, to learn his character, will not be permitted to testify as to the result of his inquiries."

A very sensible and commendable instance of the relaxation of the old and strict rule is the reception of negative evidence of good character-as for example, the testimony of a witness who swears that he has been acquainted with the accused for a considerable time, under such circumstances that he would be more or less likely to hear what was said about him, and he has never heard any remark about his character,-the fact that a person's character is not talked about at all being, on grounds of common experience, excellent evidence that he gives no occasion for censure, or in other words, that his character is good. Reg. v. Rowton, 10 Cox, C. C. 25, 2 Hurd, Crim. Cas. 333; Gandolfo v. State, 11 Ohio St. 114; State v. Lee, 22 Minn. 407, 21 Am. Rep. 769.

That reputation may, with justice, well be called good which