United States v. Sing

• Decision Date: 26 January 1894
• Docket Number: Criminal 92
• Parties: UNITED STATES OF AMERICA, Plaintiff and Respondent, v. CHUNG SING, Defendant and Appellant
• Court: Arizona Supreme Court

36 P. 205

4 Ariz. 217

UNITED STATES OF AMERICA, Plaintiff and Respondent, v. CHUNG SING, Defendant and Appellant

Criminal No. 92

Supreme Court of Arizona

January 26, 1894

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker Judge.

Affirmed.

Bethune & McCabe, H. N. Alexander, and J. B. Woodward, for Appellant.

E. E Ellinwood, United States District Attorney, for Respondent.

Rouse J. Sloan, J., concurs. Hawkins, J. concurring.

OPINION

The facts are stated in the opinion.

ROUSE J.--

Appellant was indicted, tried, and convicted of the crime of disposing of ardent spirits to an Indian under the charge of an Indian agent, in violation of section 2139 of the Revised Statutes of the United States. Appellant made a motion for a new trial on the following grounds, viz.: "1. Because the court erred in admitting and rejecting evidence; 2. Because the court erred in charging the jury; 3. Because the evidence does not sustain the verdict of the jury." The motion for a new trial was overruled, and appellant was sentenced to imprisonment. On the trial, after the testimony for the prosecution was closed, defendant offered himself as a witness, and at the close of his testimony one J. B. McNeil was called as a witness on his behalf, and the following questions were asked him, viz.: "Question. Do you know the reputation of Chung Sing in the community in which he lives?--Answer. I do.--Q. What is that reputation, as to his being a law-abiding citizen? Is it good or bad?" The questions were objected to by the counsel for the government, and the court sustained the objections, and of that ruling the appellant complains. Counsel for appellant contends that the court erred in refusing to allow the witness to answer the questions. The United States attorney, to the contrary, insists that the ruling was correct, for the reasons: 1. That evidence of the character of the accused can only be offered by him in cases where a guilty knowledge or criminal intention is of the essence of the offense,--that is, in cases which are mala in se, and not in those which are mala prohibita; 2. That the questions called for defendant's character in general, and not for the trait involved in the case; and 3. That the questions did not call for the general reputation of the accused. In a criminal prosecution the law at the outset clothes the defendant with the presumption of innocence. We cannot attach too much importance to this principle. It is a cardinal point, to be ever kept in view, and, if followed, it is hardly possible for the stings of passion, prejudice, and suspicion to furnish a victim for judicial condemnation. When the proof adduced by the prosecution tends to overthrow the presumption of innocence of the accused, and to fix upon him the perpetration of the crime, he is permitted to support the original presumption of innocence by proof of the fact that his personal character in the trait involved in the charge has previously been good. The proof of good character is in aid of the general presumption of innocence, and is a fact to be considered by the triers in their deliberations, along with the original presumption itself, and with all the other facts and circumstances in evidence. People v. Ashe, 44 Cal. 288; 1 Bishop on Criminal Procedure, sec. 488; 2 Russell on Crimes, 704. Good character is a fact that the accused may offer in his defense, but, in order that it may be admissible, it must be character in the trait involved in the charge. That is, if the charge be adultery, a character for chastity may be proven; if for larceny, character for honesty may be offered as a defense, etc. Commonwealth v. Nagle, 157 Mass. 554, 32 N.E. 861; People v. Ashe, 44 Cal. 288. 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 defendant's general reputation in the trait involved in the charge against him, the court properly sustained the objections thereto.

As to the error complained of, "that the evidence does not sustain the verdict of the jury," we have to state that the evidence on the trial was conflicting. The jury could have found a verdict either way on the evidence. The court that tries a case has the right to set aside a verdict of guilty, and to grant a new trial, when, in its judgment, the verdict is against the evidence. That power is not limited to cases where the weight of the testimony is to be considered but is an inherent power, which may be exercised by the trial court; and that right cannot be questioned by an appellate tribunal. If, therefore, a trial court refuses to set aside a verdict and grant a new trial on...