Bennett v. State

• Decision Date: 23 December 1890
• Parties: BENNETT v. STATE.
• Court: Georgia Supreme Court

12 S.E. 806

86 Ga. 401

BENNETT v. STATE.

Supreme Court of Georgia

December 23, 1890

Error from superior court, Hart county; LUMPKIN, Judge.

McCurry & Proffitt, for plaintiff in error.

W. M Howard, Sol. Gen., by Harrison & Peeples, for the State.

SIMMONS J.

Bennett was tried for the offense of burglary, and was convicted. He made a motion for a new trial, which was refused, and he excepted. One of the grounds of the motion is that the prosecuting attorney, in the closing argument, argued that the defendant had a bad character; that he had a right to prove his good character, and had not done so. The defendant objected to this, and requested the court not to allow it. The court stated that the argument was proper, and he would allow it to proceed. Following is a note which the court attaches to this ground: "The first ground of the motion for new trial is true, with the following additional statement in connection with what occurred and in explanation thereof: In his argument before the jury defendant's counsel had stated and reiterated repeatedly (1) his personal conviction that the defendant was an honest man, and a man of good character, and that nothing criminal had ever before been charged against him; (2) that the defendant was a man of as good a character as Bowers, one of the state's witnesses, and stood as well in the community as Bowers did; (3) that Duncan, a witness for the state, was a man of good character, and had employed defendant for six years, and that Duncan would not have done so if defendant was a thief; and (4) that defendant stood well among his neighbors, and was regarded where he lived as an honest man, and one of good character, so far as the evidence in this case disclosed. In replying to these arguments the solicitor general said that in doubtful cases--in cases where the state had proved many suspicious facts and circumstances against a defendant--the law allowed him to prove his good character; and that, if this defendant was a man of such good character and reputation as his counsel had insisted he was, why had he not called some of his neighbors to prove his good character, and that his failure to do so must be because he had no such good reputation. When the point was made that this argument was improper the court refused to interrupt the solicitor general because of the fact that defendant's counsel had made the statements above mentioned." We think the court erred in allowing the state's counsel to argue before the jury after objection by the prisoner's counsel, that the defendant's character was bad because he had a right to prove his good character and had not done so. The accused is not bound to put his character in issue. If he omits to do so no inference of his guilt can be drawn therefrom by the jury. The general rule is that the omission to show good character does not justify a presumption that the character is bad from which an inference of guilt can be drawn. People v. Bodine, 1 Denio, 281; Ackley v. People, 9 Barb. 609; State v. Dockstader, 42 Iowa 436; State v. O'Neal, 7 Ired. 251; State v. Upham, 38 Me. 261; Stephens v. State, 20 Tex.App. 255; People v. White, 24 Wend. 520; Donoghoe v. People, 6 Parker Crim. R. 120; Cluck v. State, 40 Ind. 270; Fletcher v. State, 49 Ind. 134; 1 Bish. Crim. Proc. § 1119. The state is bound to prove the guilt of a defendant beyond a reasonable doubt, whether his character has been good or bad. It does not follow because an accused person may have a bad character that he is guilty of the particular offense for which he is being tried. Counsel, both for the state and the accused, should be compelled by the court to confine themselves in their arguments to the evidence in the case. In this state the defendant has a right to make a statement of his defense to the jury; and it has been held in several cases that the state's counsel, where the defendant omitted to make such statement, had no right to argue that fact to the jury. Nor can the jury inter guilt from the defendant's omission to make the statement. If the state's counsel is not allowed to argue this fact to the jury, why should be permitted to argue that the omission to prove good character is evidence of bad character? Why should the jury be permitted to infer that his character is bad because he has omitted to prove good character? The trial judge, however, certifies that he permitted the state's counsel to make this argument because the prisoner's counsel had argued to the jury that the prisoner had a good character, etc.; meaning thereby that, as the prisoner's counsel had argued to the jury a fact which was not in evidence, it was proper to allow the state's counsel to reply to that argument, and to say that the prisoner's character was bad because he had a right to prove good character and had failed to do so. In State v. Upham, 38 Me. 261, supra, the indictment charged the accused with having in his possession counterfeit bank bills. He offered no evidence of his general good character, but his counsel argued to the jury that from his position in society as postmaster his character ought to avail him in aid of the common presumption of innocence. Counsel for the government argued that the want of such testimony authorized the jury to infer that his character was bad. Refusal of the court to instruct the jury, upon request, that this failure to offer such proof afforded no inference of guilt, or that the character was not good, was held error.

There are many authorities which hold that the law presumes that a defendant has a good character. This was held in the case of Stephens v. State, 20 Tex.App. 269; and in the case of Cluck v. State, supra, the supreme court of Indiana held that the law presumes that every man has a good character and that it would have been competent for counsel to have commented on such presumption. This rule is also laid down in Sackett on Instructions to Juries. p. 500. In the case of Goggans v. Monroe, 31 Ga. 331, the defendant's counsel, in his argument, insisted that the plaintiff's character was bad, whereupon counsel for the plaintiff requested the court to charge the jury that the law presumed the plaintiff to be of good character until the contrary was shown by proof. The trial judge refused to charge as requested, and this court held that "it was error in the court to refuse to charge, on request, that the law presumes the character of the party to be good until the contrary is proven." JENKINS, J., in delivering the opinion, said: "Defendant's counsel having argued that plain...