Shell v. Commonwealth

• Decision Date: 11 October 1932
• Citation: 245 Ky. 223,53 S.W.2d 524
• Parties: SHELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

53 S.W.2d 524

245 Ky. 223

SHELL v. COMMONWEALTH.

Court of Appeals of Kentucky

October 11, 1932

Appeal from Circuit Court, Harlan County.

Chester Shell was convicted of murder, and he appeals.

Reversed.

E. H Johnson, of Harlan, for appellant.

Bailey P. Wootton, Atty. Gen., and William R. Attkisson, Asst. Atty Gen., for the Commonwealth.

STANLEY C.

The appellant, Chester Shell, appeals from a judgment sentencing him to life imprisonment for the murder of Mart Pace. Proof of his guilt consisted of evidence of animosity, threats admissions, and circumstances susceptible of showing culpability; also the testimony of one that he saw the appellant fire the shot which killed Pace, and to facts sufficient to show that Lee Vanover was an aider and abettor. The defense was a denial, an alibi, and an explanation of the circumstances; also proof to the effect that the claimed eyewitness was not in the vicinity at the time Pace was killed. It is not contended, nor could it successfully be that the evidence is not sufficient to sustain the verdict. The judgment must be reversed, however, because of the admission of incompetent evidence.

First. In rebuttal, the commonwealth was permitted, over objection, to introduce evidence that the reputation of the defendant for peace and quiet was bad. He had not put his character in issue. The admission of the evidence was an error, and, under the facts of the case, seems to the court to have been prejudicial to his substantial rights.

The apparent confusion that exists in the different rules of practice pertaining to evidence of character or reputation in criminal cases would seem to call for a discussion of the subject with some degree of fullness.

It is commonly said one's character is what he is, and his reputation is what people think he is. Perhaps it is better to say that reputation is the cumulative effect on the community's mind of a group, or the sum total of one's traits of character. Its growth is subtle and slow, although "a single lapse from virtue, or a single infraction of the world's code of honor, may blast a character. *** It is made up of numberless and infinitesimal acts, the individuality of which is lost sight of as they pass, and the aggregation alone remains as a monument to character." White v. Commonwealth, 80 Ky. 480, 485. Wigmore calls a good reputation "a circumstantial guarantee of trustworthiness." It has been regarded as a proper source of evidence for more than two centuries. Wigmore, § 1610.

The admission of character evidence is an exception to the hearsay rule. It is presumptive proof. It is evidence of a condition or characteristic from which the jury may presume or deduce a fact. It is admitted under the general conception coming from observation, experience, and common knowledge of human nature that on a specific occasion it is improbable that a person of good character, or one who has uniformly pursued an upright, law-abiding, peaceable, or honest course of conduct, or the converse, has departed from it, or that he had acted contrary to the impulse that usually or generally characterizes his actions, or his everyday behavior upon which estimates of his character are based. Thus proof that one is generally regarded by his associates and those who know him well to be untruthful permits the deduction that his testimony is untruthful. Likewise, evidence that one whose whole moral character is bad, that is, that he is addicted to vicious habits or is prone to commit immoral acts, gives rise to a reasonable inference that he has lost respect for truth, and is willing to perjure himself when it is to his interest to do so. So, too, proof that one is generally regarded as a peaceable, quiet, inoffensive man permits the deduction that he did not bring on a difficulty or commit murder or an offense involving violence; and proof that one is generally reputed to be honest permits the presumption that he did not steal, as he may have been charged with doing. Compare Globe Indemnity Company v. Daviess, 243 Ky. 356, 47 S.W.2d 990. But evidence of reputation, either good or bad, is incompetent if too remote and a continuance to a reasonably recent period is not shown, for regard must be had for changing dispositions.

There is a clear distinction in the rules of practice relating to the introduction of reputation evidence. The difference rests upon the ground that evidence of a bad trait which may have affected the defendant's conduct in relation to the offense for which he is upon trial is substantive proof going to his guilt or innocence, while evidence as to his reputation for veracity is not of that character, and merely affects his credibility as a witness.

(a) Desirable caution not to impose punishment upon the innocent demands that proof of guilt shall not rest upon what is said about a man. There is danger that the defendant may be found guilty, not because he is believed to be guilty of the offense for which he is being tried, but because of his bad character he deserves to be punished. Hence, the prosecution is not permitted to prove in chief or as direct evidence that the accused possessed a bad reputation generally or a trait from which may arise a presumption of guilt, since the defendant has not yet attempted to use a good character in his exoneration. Combs v. Commonwealth, 160 Ky. 386, 169 S.W. 879; Romes v. Commonwealth, 164 Ky. 334, 175 S.W. 669; Denton v. Commonwealth, 188 Ky. 30, 221 S.W. 202; Brashear v. Commonwealth, 178 Ky. 492, 199 S.W. 21; Strong v. Commonwealth, 216 Ky. 98, 287 S.W. 235; Hall v. Commonwealth, 219 Ky. 446, 293 S.W. 961; Dean v. Commonwealth, 234 Ky. 308, 28 S.W.2d 11.

Illustrative of the importance of the rule and of special application to the case at bar, since they relate to the specific error committed, are Calhoon v. Commonwealth, 64 S.W. 965, 23 Ky. Law Rep. 1188, Strong v. Commonwealth, 216 Ky. 98, 287 S.W. 235, and Hall v. Commonwealth, supra, where it was held prejudicial to permit the commonwealth to introduce evidence of the defendant's bad reputation for peace and quiet when he had merely testified, and had not undertaken to prove a good reputation in that respect. The reason for excluding the evidence is given and discussed in the opinions. Also of pertinence is Hansford v. Comth., 170 Ky. 700, 186 S.W. 498, 499, holding it to be a reversible error to admit evidence of the defendant's bad reputation for truth and veracity where he did not undertake to prove a good character, and did not testify.

But the accused is permitted to show that he possesses a character and particular trait from which innocence may be deduced. He is limited to proving general good moral character and specific traits or virtues involved in the nature of the offense charged and relevant to the moral wrong involved in its commission, or which bears some analogy to it, and is indicative and uniform of his conduct generally. Underhill, § 136. Thus it is not competent in a homicide case for the defendant to prove a reputation for truth and veracity as substantive evidence when the commonwealth has not attacked his reputation in that respect in his capacity as a witness. Commonwealth v. Ashcraft, 224 Ky. 203, 5 S.W.2d 1067. "It is a substantive fact in defense and positive proof which may be considered together with all other evidence as a species of circumstantial evidence as to the innocence of the defendant." Underhill's Criminal Evidence, § 3; Romes v. Commonwealth, supra. There is no distinction in the application and effect between this character of evidence and evidence of exculpatory facts, for both rest upon the same basis. Underhill, § 138.

When the defendant has made such a showing, the commonwealth may introduce rebutting evidence confined to the general reputation and the specific trait to which the defendant's evidence related. Underhill, § 137.

Thus it is said in Lockard v. Commonwealth, 87 Ky. 201, 8 S.W. 266, 10 Ky. Law Rep. 102, "The law invests every person charged with crime with a presumption of good character. If the accused chooses to rest upon it, and not put his general character in issue by offering evidence as to it, then the state can offer none to impeach it. It is only when the defendant casts aside this shield of presumption, and attempts to show his general good character by affirmative evidence, that the door is opened for evidence of his bad character upon the part of the prosecution. This has long been a familiar rule."

See, also, McDonald v. Commonwealth, 86 Ky. 10, 4 S.W. 687, 9 Ky. Law Rep. 230; Allen v. Commonwealth, 134 Ky. 110, 119 S.W. 795, 20 Ann. Cas. 884, and cases cited, supra.

This has been the uniform rule, that the defendant may introduce evidence as having probative force to disprove guilt, testimony of both good moral character generally, and of a relevant, specific kind. The statement in McCandless v. Commonwealth, 170 Ky. 301, 185 S.W. 1100, that upon a homicide charge he is restricted to his reputation for peace and quiet, is out of line with all other authorities, and is not to be regarded as authoritative. Thus in Denton v. Commonwealth, supra, a judgment of conviction was reversed because the defendant was not permitted to prove a good general moral character and was confined to evidence of his reputation for peace and quiet.

To avoid possible misunderstanding, perhaps notice should be taken of section 2554a-15 of the Statutes as making an exception to the general rule by a special provision in prosecutions for violating the liquor prohibition laws by permitting as substantive evidence testimony that the defendant had the reputation of being engaged in the illicit liquor business before the offense charged. Keith v Commonwealth, 197 Ky. 362, 247 S.W. 42; Crawford...