State v. Marks

• Decision Date: 04 February 1898
• Docket Number: 864
• Citation: 51 P. 1089,16 Utah 204
• Court: Utah Supreme Court
• Parties: STATE v. ANNA MARKS

51 P. 1089

16 Utah 204

STATE v. ANNA MARKS

No. 864

Supreme Court of Utah

February 4, 1898

Appeal from the Sixth district court, Juab county. E. V. Higgins Judge.

Anna Marks was found guilty of an assault with a deadly weapon with intent to do bodily harm, and appeals from the judgment.

Reversed and remanded.

Powers Straup & Lippman, for appellant.

A. C. Bishop, Atty. Gen., Benner X. Smith, E. D. Pike, and E. A. Wedgwood, for respondent.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

An information was filed in Juab county, charging the defendant with the crime of making an assault upon one Patrick Shea, with intent to commit murder. Upon trial, the defendant was found guilty of an assault with a deadly weapon, with intent to do bodily harm, without just cause or excuse. Thereupon the court pronounced judgment, and the defendant appealed to this court, alleging errors in the admission and rejection of testimony, and in the charge of the court to the jury. At the time this difficulty occurred, Patrick Shea was, with others in his employment, engaged in digging post holes and building a fence along a lot adjoining the residence of the defendant in the rear. This lot was vacant, and had been used by the defendant as a roadway to her coal sheds for several years. Both parties claimed the right to the possession of the land, and each was endeavoring to keep possession of the lot when the defendant discharged the revolver.

After the prosecution had rested its case, the defendant was called, and testified in her own behalf, but no witnesses were called to sustain her reputation for truth, honesty, and integrity in the first instance. The prosecution then called two witnesses who testified that they had resided in Eureka for several years, and knew the defendant. Thereupon the prosecution put the following question to each witness: "Do you know her reputation in that community for truth, honesty, and integrity?" The question was objected to as incompetent, immaterial, and irrelevant, and that the prosecution could not attack the character of the defendant until it had been put in issue by evidence, and also raised the objection that the general reputation of the defendant witness for truth and veracity could only be inquired into, and that the question was improperly framed, in that it did not embrace the general reputation of the witness in the community where she resided. The objection was overruled, and the defendant excepted. The witness answered, "Yes," and that her reputation was bad. The form of the question was improper. The general reputation of every witness, for truth and veracity is open to question. In impeaching the credibility of a witness, the inquiry must be confined to the general reputation for truth in the neighborhood or community where he is best known and resides, or has resided, and of those who can state what is generally said of the person by those among whom he dwells, or with those with whom he is chiefly acquainted. The word "general" should always be used in propounding the question. When character is a fact to be established, it may be proved by another fact, namely, general reputation. In ascertaining what that general reputation is, it is important to call those witnesses who are acquainted with it generally. A person may have a bad reputation among a very limited set of people, or among his personal enemies, while his general reputation in the community would be good. So a person may have a limited reputation, and a witness may truthfully testify that he knows it, and that it is bad; while the general reputation in the community may be unknown to the witness, or, if known, such reputation may be good with reference to the speech of the people generally. As a general rule, the question allowed to be asked in such cases is: "Do you know what the general reputation of John Doe is for truth and veracity in the neighborhood in which he resides?" If answered in the affirmative, the next question would be: "What is that reputation,--good or bad?" If the answer is, "It is bad," the further question may be put as follows: "From that reputation, would you believe him on oath in a matter where he is personally interested?" The English and American doctrine with reference to the propriety of allowing the latter question, with numerous authorities supporting it, is laid down in Hamilton v. People, 29 Mich. 173, and Keator v. People, 32 Mich. 484.

The American decisions, instead of shaking the English doctrine, are found to be very decidedly in favor of allowing the question to be asked, and this has become the settled rule in many of the states. Whart. Cr. Ev. § 487; 1 Greenl. Ev. § 461; Leonard v. People, 27 Mich. 145; Kessler v. People , 32 Mich. 484; People v. Finley, 8 Ore. 45; Teese v. Huntingdon, 64 U.S. 2, 23 How. 2, 16 L.Ed. 479; U. S. v. Vansickle, 2 McLean 218; Bucklin v. State, 20 Ohio 18; Cary v. Smith, 16 Ga. 7; Bradner Ev. §§ 13, 16; State v. Howard, 9 N.H. 485.

The inquiry concerning the general reputation of a person accused of crime, who has testified as a witness, or otherwise placed his reputation in issue, should be confined to a date not later than the commission of the alleged offense, or at least not later than the period when the arrest was made, because the reputation of the accused at the time of the trial would be injuriously affected by the offense itself when made known. People v. Brewer, 27 Mich. 134; State v. Kinley, 43 Iowa 294; Wroe v. State, 20 Ohio St. 460; Whart. Cr. Ev. 62, 63.

There is still another reason why the same question which embraced the reputation of the accused for truth, honesty, and integrity was improper. The general character of a defendant cannot be put in issue unless it is voluntarily placed in issue by the accused. When the accused testifies concerning the matter complained of, or offers evidence of his good character for truth, then the question of his truthfulness and credibility as a witness is placed in issue, and his general reputation for truth and veracity could be shown, as affecting his credibility and truthfulness as a witness; but his character for honesty and integrity, not being in issue, cannot be attacked or placed in issue by the prosecution by proof of his general reputation concerning his character for honesty and integrity.

The prosecution rely upon section 3876, Comp. Laws Utah 1888, which provides that "the credibility of a witness may be drawn in question, by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty or integrity," and claim that the testimony was proper under this statute. We are of the opinion that this statute was intended to allow the impeachment of a witness only so far as the general character of the witness was...