State v. Selby

• Decision Date: 08 December 1914
• Citation: 144 P. 657,73 Or. 378
• Parties: STATE v. SELBY.
• Court: Oregon Supreme Court

144 P. 657

73 Or. 378

STATE v. SELBY.

Supreme Court of Oregon

December 8, 1914

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Hamilton, Judge.

Labin J. Selby was convicted of assault with a dangerous weapon and he appeals. Affirmed.

A. S. Cooley, of Enterprise (Sheahan & Cooley, of Enterprise, on the brief), for appellant. O. M. Corkins, of Enterprise (W. G. Trill, of Joseph, on the brief), for the State.

RAMSEY J.

The defendant is accused by the indictment of the crime of assault with a dangerous weapon upon Mortimer Collins committed by beating him with a gun, etc., on the 13th day of August, 1913, in Wallowa county. He pleaded not guilty, and was tried on the 13th day of May, 1914, and the jury found him guilty as charged in the indictment. On May 18, 1914, he was sentenced by the court to imprisonment in the county jail for the term of one year, etc. The defendant appeals.

1. The defendant, on his trial, produced witnesses in his behalf who gave evidence tending to prove that his general reputation for peace and quietness in the community in which he resides is good. The state called Mrs. Hall as a witness, and after she had been sworn, the district attorney asked her inter alia, the following question:

"Are you acquainted with his [the defendant's] general reputation in the community in which he resides as to being a peaceable, law-abiding citizen? Answer, Yes or No?"

Counsel for the defendant objected to this question "for the reason it is not properly formed. It should be as to peace and quiet. This question is too general." The court overruled the objection, and the defendant excepted to said ruling. The witness answered that she knew what his general reputation was, and that it was bad. The above ruling is assigned as error.

A considerable number of cases hold that, when a defendant in a criminal action elects to put his general reputation in evidence, the testimony upon that point must be limited to the particular trait of character that is involved in the charge contained in the indictment. People v Fair, 43 Cal. 137, 147; State v. Surry, 23 Wash. 655, 63 P. 557, 560; State v. Bloom, 68 Ind 54, 34 Am. Rep. 247, 248; Kahlenbeck v. State, 119 Ind. 118, 24 N.E. 460, 461; 1 Wharton's Criminal Evidence (10th Ed.) p. 1007. But there are other authorities that do not assent to said proposition, and Mr. Bishop appears to repudiate it. In section 1113, vol. 2 (2d Ed.) of his New Criminal Procedure, he says:

"The particular trait of character which the indictment impugns, probably, by all opinions, may be given in evidence in the defendant's favor. And it is widely deemed that the inquiry should be limited to such trait; it being said to be 'obviously irrelevant and absurd, on a charge of stealing, to inquire into the prisoner's loyalty; or, on a trial for treason, to inquire into his character for honesty in his private dealings.' But this reasoning ignores the point of the argument in issue; no one contends for the absurdity it states; the proposition on the other side is that general good character may always be shown in defense, not that particular irrelevant trait may be. Plainly the trait should not be wholly disregarded, yet it is believed that the better doctrine gives this evidence the wider range. Goodness and wickedness do not flow altogether in channels, and a man of good character in general is less likely to commit a particular wrong than one of bad character in general."

The appellant contends that the question set out supra was improper, because it asked for evidence as to the defendant's general reputation as " a law-abiding citizen," etc.

16 Cyc. page 1271, says:

"That a person is law-abiding is admissible in case of assault, carrying concealed weapons, homicide, or rape; but the trait is not material on a charge of illegally selling liquor."

The sixth volume of the Encyclopedia of Evidence, pages 656, 657, says:

"The accused may always offer direct evidence of his general reputation for being a peaceable and law-abiding person, even when the homicide was committed by means of poison, or when he has admitted that he did the killing, and pleads insanity."

In volume 4 of Chamberlayne on Modern Evidence, § 3291, the author says:

"The defendant's good character as a peaceable, law-abiding citizen is admissible in his favor in prosecution for assault with intent to kill, but not his good character for industry or truth and veracity, as such evidence has no probative force."

In Lann v. State, 25 Tex.App. 495, 497, 8 S.W. 650, 651 (8 Am. St. Rep. 445), the defendant had been convicted of unlawfully carrying a pistol, and on appeal the court says:

"As bearing upon this issue the defendant proposed to prove that his general character for being a peaceable, law-abiding man in that community was good. This proposed testimony was rejected, and he excepted, and in this ruling of the court we think there was material error."

In the case of the State v. Schleagel, 50 Kan. 325, 329, 31 P. 1105, 1106, the defendant was convicted of felonious assault, and on appeal the court says:

"The defendant, also, offered to prove by another witness what the general reputation of the defendant, John Schleagel, was as to his being a peaceable, law-abiding citizen in the community where he lived. * * * This evidence was excluded by the court, and the defendant excepted. We also think that this was error."

Unless the defendant offers evidence as to his character, the state is not permitted to submit any testimony on that point. The defendant having offered evidence as to his character, it was competent for the state to produce testimony relating thereto. The citations set out supra hold that in criminal cases for homicide, felonious assault, carrying concealed weapons, and rape, it is competent to show what the defendant's general reputation was in the community in which he resided at the date of the supposed offense as to being a peaceable, law-abiding person.

From the day that Cain slew his brother to the present time, every person who has committed murder or has assaulted and beaten his fellow man, without justification or legal excuse, has been guilty of an act of lawlessness. A law-abiding man does not commit acts of lawlessness, and a person whose general reputation as a law-abiding citizen is good is not as likely to commit an act of violence as one whose reputation in that respect is bad.

To sustain his contention that the said ruling of the trial court was erroneous, the appellant cites the case of United States v. Chung Sing, 4 Ariz. 217, 36 P. 205, 206. In that case the defendant had been indicted for unlawfully selling whisky to Indians. The defendant called a witness, who testified that she knew the reputation (not the general reputation) of the defendant in the community in which he lived, and she was then asked the following question: "What is that reputation as to his being a law-abiding citizen?" The trial court sustained an objection to said question, and ruled it out. In passing on that question on appeal, Rouse, J., says inter alia:

"The character that may be introduced in evidence is the general reputation of the accused, and the questions must be framed so as to secure answers as to the general reputation of the accused in the trait involved in the charge. The questions propounded to the witness not having been put in form to secure answers as to the defendant's general reputation in the trait involved in the charge against him, the court properly sustained the objection thereto."

In that case Justice Hawkins concurred in the result, but he did not assent to the reasons given by Justice Rouse, and, in his concurring opinion he said inter alia:

"I, however, do not agree with the expression in the opinion that, 'in order that it [evidence of good character] may be admissible, it must be character in the trait involved in the charge.' It should not be limited to such trait. It is a character of evidence of which any man charged with crime has a right to avail himself. * * * Evidence of a previous good character is relevant in all criminal cases to the question of guilty or not guilty, and is to be considered by the jury with the other facts in the case."

As the question in that case was held bad in part, because it called for the reputation and not the general reputation of the defendant, and one of three justices dissented on the point that evidence as to character should be limited to the trait involved in the charge, we think that that case should not be given great weight in this case. Furthermore, that was a case for selling intoxicating liquors to Indians, while this is a case for assault with a dangerous weapon. The Arizona case did not involve violence, while this case does. We hold that in a criminal action for assault with a dangerous weapon, it is competent for the state to prove that the general reputation of the defendant as a peaceable, law-abiding citizen is bad, where the defendant has offered character evidence in his own behalf. Where such evidence is given, the defendant has a right to show, by cross-examination, upon what the evidence of the witness is based. We find that the court did not err in admitting said evidence.

2. The appellant contends, also, that the trial court erred in giving to the jury the following charge:

"An assault, I instruct you, is an intentional attempt to do violence to the person of another, coupled with present ability to carry that intention into effect."

On page 120, vol. 3, of his Commentaries, Blackstone defines assault as "an attempt or offer to beat another."

In 1 Hawkins' P. C. § 1, c. 15, assault is defined thus:

"Assault is an attempt or offer, with force and violence to do a corporal hurt to

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