Sullivan v. State , 66 Ala. 48 ( 1880 )

STONE, J.

In Haley v. The State, 63 Ala. 83, we said: “ Character is the estimation in which one is held in the community; reputation — the estimate put. upon him. This estimate may be just or unjust, true or false ; still, it is character. It is judged by many things, some of which it would be difficult, if not impossible, to define. All the authorities admit, that what the public generally say of a person, and the manner in which he is received and treated in society, are among the tests by which his character is determined. * * But these are not the only sources of the witness’ information. He may know his character, although he never heard it canvassed, and does not even know a majority of his neighbors.” Reputation is, unquestionably, a source from which character is ascertained and determined. But, as we have shown, it is not the only source of information on which the conclusion is based. Character is a word of broader significance than reputation. True, the character which affects the question of guilt or credibility, in legal phrase, is almost the synonym of reputation — the estimate placed on the party by tbe public. But the non-professional witness cannot be presumed to know this. Tbe question of general character or reputation, is one of difficult solution to a majority of witnesses. Counsel should be allowed to vary the phraseology, or sever the constituent parts or members of the sentence, so as to place the subject within the comprehension of the witness. We think the County Court erred, in not allowing an answer to the inquiry, whether the witness knew the general character of the defendant in the neighborhood in which he lived.

There is a second exception to the action of the court below, pending the trial there. Testimony was offered by the prosecuting attorney, which was ruled out as incompetent. In tbe argument to the jury, the said attorney stated to them what he could have proved, if the court had not ruled it illegal. Counsel for the defense asked the court to arrest this line of discussion. The court said nothing, but prosecuting counsel passed to another subject. Subsequently, the attorney for the prosecution referred to proof he could have made but for the ruling of the court. The court, being again appealed to, to interfere, said nothing, and defendant excepted. The prosecuting attorney again dropped that line of discussion. A third time, the attorney did the same thing; the same objection was made; the same silence of the court; an exception reserved, and the attorney again desisted from that line of discussion.

It is exceedingly difficult to lay down a rule, beyond which counsel shall not be allowed to travel in argument. Illustrations, analogies, inferences from facts proved, and, in many cases, from failure to introduce proof, or to explain suspicious conduct, when it appears reasonable that such explanatory fact could be proved, if it existed, are legitimate subjects of comment and argument. A^d presiding officers should not be severe in arresting such argument, on the ground that, to their minds, the analogy or inference is forced or unnatural, or that the argument employed is illogical. When necessary, that function can be much better performed in the charge to the jury. But, counsel should not be allowed to state, as facts, anything of which they have made no proof. Juries, under their oaths, can look only to the testimony allowed to go before them. True, they may draw natural and legitimate inferences from the facts developed, but they can go no farther. The County Court should not have allowed counsel to comment on testimony offered, but rejected as illegal. McAdory v. The State, 62 Ala. 154.

Reversed and remanded.