Spain v. Rakestraw

• Decision Date: 10 April 1909
• Docket Number: 15,795
• Parties: F. M. SPAIN v. H. S. RAKESTRAW
• Court: Kansas Supreme Court

101 P. 466

79 Kan. 758

F. M. SPAIN v. H. S. RAKESTRAW

No. 15,795

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Graham district court; CHARLES W. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

EVIDENCE--Character--General Reputation. This being a case where it was proper to show the character of a party, it was not error, in the circumstances shown, to permit witnesses to answer questions referring in direct terms to his character as a fighting quarrelsome and vindictive man, as well as questions inquiring what his general reputation was in respect to the qualities named, although the generally approved rule is to restrict such questions to general reputation.

C. L. Kagey, and R. M. Anderson, for plaintiff in error.

F. D. Turck, for defendant in error.

OPINION

BENSON, J.:

In this action for damages for an assault and battery the defendant alleged that he acted in self-defense, and offered evidence designed to prove that the plaintiff was a fighting and quarrelsome person. In presenting this testimony the witnesses were asked if they knew the character of the plaintiff as a fighting, quarrelsome and vindictive man, and what that character was. Following the answers to these questions inquiries were made concerning his general reputation in respect to the qualities named. The answers to both inquiries were the same, viz., that they did have the knowledge inquired about, and that his character and his general reputation in these respects were bad. The plaintiff, who failed in the action, insists that the questions concerning character were improperly allowed, and that the evidence should have been restricted to general reputation.

There was a time when the personal knowledge and opinion of a witness concerning the character of one with whom he was acquainted were regarded as proper evidence, but in Reg. v. James Rowton, 10 Cox Crim. Cas. 25, this practice was disapproved in England. In this country the weight of authority in such cases is that the question should be restricted to general reputation concerning the particular quality involved in the issue, and this is the practice approved in The State v. Johnson, 40 Kan. 266, 19 P. 749. A history of the judicial consideration of this subject is given in volume 2 of Wigmore on Evidence, sections 1605 to 1625, inclusive, and in volume 3 of the same work, sections 1980 to 1986, inclusive. (See, also, Stephen's Hist. Crim. Law of Eng., pp. 449, 450.) The object sought by such testimony, whatever the form of the question, is to prove character (The State v. Spangler, 64 Kan. 661, 68 P. 39), but the proper method is, it seems, to arrive at this by showing the general reputation of the person rather than the personal knowledge of the witness.

The terms "character" and "reputation," however, are often used interchangeably, as pointed out in the recent decision in The State v. Tawney, 78 Kan 855, 99 P. 268. If the witness really testifies to knowledge gained from general repute, although the word "character" is used in the inquiry, there can be no error in receiving the testimony. The plaintiff contends, however, that several of the witnesses in this case testified from personal knowledge, and not from reputation. It is often difficult for a witness to discriminate clearly between what he has heard about another and his knowledge from personal transactions with that person. Two of the witnesses in this case testified that they knew nothing of the plaintiff's...