Opinion
Decided August 27, 1929.
Criminal law — Intoxicating liquors — Third offense — Docket entries of justice proved by successor's or entering clerk's testimony, admissible — Transcript of preliminary examination, showing plea of guilty, admissible as confession — Cross-examination of accused as to other offenses, admissible, when — Proof of good reputation admissible, but not of veracity or peaceableness — Evidence that accused a law-abiding citizen admissible, and rebuttable.
1. Where indictment charged defendant with unlawful possession of intoxicating liquor and that he had been found guilty of violating liquor laws in court of justice of peace, docket entries of trial justice placed in record by evidence of successor in office of trial justice held admissible to prove conviction in justice court.
2. Evidence by clerk, who made up docket of court of justice of peace, that docket was made from papers in case, held admissible, in prosecution of defendant for unlawful possession of intoxicating liquor, to show that defendant had been convicted in justice court of violating liquor laws.
3. Admission in evidence of transcript of docket entries in preliminary examination of case on trial in prosecution for unlawfully possessing intoxicating liquor held not error, where defendant entered plea of guilty entitling state to show confession and to identify confession to show it was made under affidavit charging him with particular offense upon which he was being tried.
4. Where defendant in prosecution for unlawful possession of intoxicating liquor in which he was accused of previous conviction did not frankly tell truth regarding prior convictions, questions propounded him upon cross-examination tending to show guilt of other offenses, whereby state elicited number of additional court appearances of accused, held not error.
5. One accused of criminal offense has right to prove his good character to further fortify presumption of his innocence which law gives to him.
6. As indicating his character, an accused may show the good reputation which he has in community in which he lives.
7. Sustaining objection to attempt of defendant, in prosecution for unlawfully possessing intoxicating liquor, to qualify witness to testify to general reputation of accused for truth and veracity, held not error, since it was not trait involved in unlawful possession of liquor.
8. Sustaining objection to attempt of defendant in prosecution for unlawfully possessing intoxicating liquor, to qualify witness as to general reputation of defendant for being peaceable, quiet, law-abiding citizen, because it included traits of peaceableness and quietude, held not error, since crime charged may be both peaceable and quiet.
9. Though witness questioned as to reputation of defendant in prosecution for unlawfully possessing liquor for being law-abiding citizen did not say he was qualified, where he asked if he was to answer regarding defendant's reputation outside of bootlegging deal he thereby showed his qualifications.
10. Good character of an accused may always be shown.
11. Testimony, elicited by accused in prosecution for unlawfully possessing intoxicating liquor, that his reputation for being law-abiding citizen was good, was evidence of accused's good character upon trait involved in case, making it possible for state to rebut it.
12. Rebuttal evidence tending to show that reputation of accused in prosecution for unlawfully possessing intoxicating liquor as law-abiding citizen, so far as liquor laws were concerned, was bad, held competent and admissible for that purpose.
ERROR: Court of Appeals for Athens county.
Messrs. Woolley Rowland, for plaintiff in error.
Mr. R.D. Williams, prosecuting attorney, for defendant in error.
Abraham H. Booker was charged by indictment with the unlawful possession of intoxicating liquor on April 13, 1929. It was further charged that he had been found guilty of violating the liquor laws on October 26, 1925, in the court of a justice of the peace. It was further charged that he had been found guilty of violating the liquor laws on January 19, 1926, in the court of the mayor of the village of Trimble, in Athens county. The indictment concluded that his possession of liquor on April 13, 1929, was a third offense. To this indictment he pleaded not guilty, and a trial was had, resulting in a verdict of guilty. Judgment was entered upon that verdict, and a reversal is sought in this court.
It is here urged that incompetent testimony was admitted to the prejudice of the accused. The record shows clearly enough that Booker had been twice convicted of violating the liquor laws, as charged in the indictment. In proof of the allegation that Booker had been convicted in a court of a justice of the peace, the docket entries of the trial justice were placed in the record by the evidence of the successor in office of the trial justice. In addition to that, the clerk who made up the docket in that case was called and testified that the docket was made up from the papers in the case. We see no objection to either or both methods of proof in this respect.
It is further urged that the court erred in admitting in evidence a transcript of the docket entries made by the justice in the preliminary examination of the case on trial, and it would, of course, be incompetent to admit this record as evidence of the truth of the averments of the affidavit embodied therein. The record, however, disclosed that when the accused was arraigned on the charge of which he now stands convicted he entered a plea of guilty. The state was entitled to show this as a confession of guilt; and to identify it as a confession of guilt in the instant case it was proper to show that it was made under an affidavit charging him with the particular offense upon which he was being tried. It was competent for that purpose.
Further complaint runs to questions propounded the accused upon cross-examination, tending to show his guilt of other offenses. This character of testimony was justified by defendant's attitude on the stand. None of it would have been elicited if he had frankly told the truth in regard to his two previous convictions. He evaded proper questions designed to bring out the truth, and so dodged and equivocated that the state naturally enough elicited a number of additional court appearances of the accused in its effort to bring out the two appearances and convictions upon which its case depended.
A question of greater difficulty arises from the introduction and the offer to introduce testimony running to the defendant's good character, and the rebuttal evidence thereto. It is a well-grounded principle in this state, and practically in all others, that one accused of a criminal offense has a right to prove his good character to further fortify the presumption of innocence which the law gives him. It is also well established in this state that as indicating his character the accused may show the good reputation he has in the community in which he lives. In showing his character, however, he is confined to that trait of character that is inconsistent with guilt of the offense charged in the indictment. The accused in this case attempted to qualify a witness to testify to the general reputation of the accused for truth and veracity. The objection thereto was properly sustained. Such a reputation might properly be shown in a case of perjury, but it is not a trait involved in unlawful possession of liquor. He then attempted to qualify a witness as to the "general reputation of Mr. Booker for being a peaceable, quiet, law-abiding citizen." Objection was made to this question because it included the traits of peaceableness and quietude. The court sustained this objection, observing that the crime charged was not one of violence, and in this the court was right, for it is of course true that bootlegging may be both peaceable and quiet. Thereupon the record shows this:
"Q. What is his reputation in that respect, good or bad? A. You mean his reputation as a citizen in regard to outside of this bootlegging deal? Is that the way you want me to answer?
"Q. Outside of the charge against him in this trial? A. Is good."
This disclosed that the witness and the parties understood that the court had limited the witness to testifying to the reputation of the accused as a law-abiding citizen, and, while the witness did not say he was qualified, he had shown his qualifications, and in this way testified that the accused enjoyed a good reputation as a law-abiding citizen.
It is difficult to say just what trait of character is involved in a great many offenses that are deemed mala prohibita only, and great difficulty has been experienced in laying down any rule that covers such cases. Yet the law is that good character may always be shown. Chamberlayne, in Section 3271 of the Modern Law of Evidence, volume 4, says this: "In most criminal cases, the character of the accused is clearly relevant on the question whether or not he committed the crime of which he is charged. A case can scarcely be conceived in which this would not be true, where the offense alleged involves a moral quality. * * * Where the crime charged involves really no moral quality as in case of petty misdemeanors such, for example, as the violation of a game law or a city ordinance, the probative force of the inference drawn from character may be slight and upon principle it may seem that the case might well be governed by the rule applied in civil actions and evidence of character excluded. However, the modern rule seems clear to the effect that no distinction is made with reference to the nature of the crime charged."
The same author says, Section 3296, that in the prosecution for a sale of intoxicating liquors the character evidence must be confined to the trait involved, and that the accused may not show a good reputation as a law-abiding citizen or for peaceableness and quietness. The authorities cited are United States v. Chung Sing, 4 Ariz. 217, 36 P. 205; Westbrooks v. State, 76 Miss. 710, 25 So. 491; and Baehner v. State, 25 Ind. App. 597, 58 N.E. 741. These cases do not quite sustain the text. They do tend to the view that the only objection against showing a good reputation for being law-abiding, in behalf of one charged with violating the liquor laws, is that such reputation is too general and that it should rather be confined to a reputation as a law-abiding citizen with reference to the particular sort of law which the accused is charged with violating. There must, however, be some expression that can be employed by one accused of an offense of this kind designed to bring out the good character of the accused, and nothing occurs to us as being better adapted to that purpose than proof that he is a law-abiding citizen. That is to say, that he has a regard for the law and observes it because it is the law. So viewing it, we look upon the testimony above quoted as evidence of the accused's good character upon the trait involved in this case, and by bringing out this testimony the accused opened up the question of his good character and made it possible for the state to rebut it. The state did attempt to rebut it by evidence tending to show that the reputation of the accused as a law-abiding citizen, so far as the liquor laws were concerned, was bad, and this testimony we find to have been competent as a matter of rebuttal.
The record discloses no error to the prejudice of the plaintiff in error, and the judgment is affirmed.
Judgment affirmed.
MIDDLETON, P.J., concurs.
BLOSSER, J., not sitting.