Stewart v. United States

• Decision Date: 20 March 1939
• Docket Number: No. 7270.,7270.
• Citation: 70 App. DC 101,104 F.2d 234
• Parties: STEWART v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

70 App. DC 101, 104 F.2d 234 (1939)

STEWART v. UNITED STATES.

No. 7270.

United States Court of Appeals for the District of Columbia.

Argued March 6, 1939.

Decided March 20, 1939.

Charles M. Irelan, Jr., Donald S. Caruthers, and Edison W. Mollohan, Jr., all of Washington, D. C., for appellant.

David A. Pine, U. S. Atty., and Charles B. Murray, Asst. U. S. Atty., both of Washington, D. C.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

PER CURIAM.

Appellant was indicted for the offense of robbery in the District of Columbia, was tried, convicted, and sentenced. He appeals and assigns as error the action of the trial court in overruling his objection to the question asked of his character witness — if she knew that the defendant had been arrested for investigation in 1936 and in 1937.

In the instant case the question was proper, for the reason that the accused himself had previously testified on direct examination "that he had been arrested for investigation on two previous occasions but never charged with any crime." This testimony opened the door to inquiry as to the truthfulness of that statement, and when later he definitely put his character in issue by calling character witnesses in his behalf it was certainly proper to permit the prosecuting attorney to ask the character witness about the arrests — if for no other reason — as a means of testing the basis of her belief. The question went no further than the voluntary disclosures already made by the defendant invited. Since, however, the question of the extent of cross-examination of character witnesses so frequently arises in this jurisdiction, we deem it not improper to state more definitely, perhaps, than has been done before what we believe to be the correct rule in relation thereto. The same rule which excludes independent evidence of the former criminal record of an accused confines character evidence to his general reputation.¹ When evidence of good character is offered, cross-examination of the character witness has a legitimate purpose in testing the grounds of his belief² and, since the only admissible evidence of good character is what people generally, who know the accused, think about him, the prosecuting attorney may ask if the witness has heard of conduct negativing a favorable reputation.³ For the word "character" in this sense means reputation as distinguished from disposition.⁴ By this token, the witness' knowledge of particular acts is not admissible to prove character.⁵ Consequently the witness should not be asked, either upon direct or cross-examination, if he knows of particular incidents in the career of the accused.⁶ In other words, the witness on cross-examination should be asked only — "Have you heard?" — not — "Do you know?"

Affirmed.

STEPHENS, Associate Justice, concurs in the result.

1 Wigmore on Evidence (Second Ed. 1922) secs. 192-4: "The law here declares a general and absolute rule of exclusion. It is forbidden, in showing that the defendant has not the good character which he affirms, to resort to particular acts of misconduct by him" (p. 412).

2 Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; 2 Wigmore, sec. 988.

3 Clark v. United States, 57 App.D.C. 335, 23 F.2d 756; Filippelli v. United States, 9 Cir., 6 F.2d 121; Spalitto v. United States, 8 Cir., 39 F.2d 782; People v. Laudiero, 192 N.Y. 304, 85 N.E. 132; Coxe v. Singleton, 139 N.C. 361, 51 S.E. 1019; Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509; State v....