Ryan v. People , 19 Abb. Pr. 232 ( 1865 )

By the Court.^*—Ingraham, P. J.

In this case the judge in the court below charged the jury : “In a clear case of guilt, where a man is caught in the act, in the commission of a crime, good character is no shield and protection. Good character is only a shield and protection where it is interposed in doubtful cases, because it repels the presumption of guilt.” The testimony of the felony in this case came from only one witness, who could not tell whether he was under the influence of liquor or not, and a policeman, who saw him, testified that he was in that condition.

In the People a. Cancemi (16 N. Y., 501), the evidence of good character was taken from the jury, by telling them that it must be considered far inferior as a defence in cases of great criminality than in cases of a lesser degree of crime; and this was held to be error, if not by controlling the weight of the evidence, as calculated to mislead the jury as to the weight which the evidence should receive.

The charge in the case of Cancemi was in consonance with that of Ch. J. Shaw, in The Commonwealth a. Webster (5 Cush,. 295); but in that case, he added, “ But, still, even with regard to the higher crime, testimony of good character, though of less avail, is competent evidence for the jury, and a species of evidence which the accused had a right to offer.” And in Wharton’s Cr. Law (§§ 643, 644), several cases are cited where the instruction to the jury, “that in a clear case character has no weight,” is condemned.

It is objected, however, on the part of the People, that no direct exception is taken to the charge on this point. This is true, although, on the suggestion of the court, the defendant’s counsel excepted to the whole charge. While such a general exception is not available, we cannot avoid the conclusion, that the effect of the charge in this respect was to take from the jury the consideration of good character, where that evidence was entirely uncontradicted, and where the principal witness at the time of the transaction was shown to have been in a state of intoxication. This may have worked injustice to the prisoner; and although under ordinary circumstances we should require an exception to be taken to the various portions of the charge excepted to, the circumstances of this case are such as to make it more expedient to order a new trial, rather than to expose the prisoner to imprisonment in. the state prison, on the sole^testimony of a person who was intoxicated at the time of the alleged offence, and while his counsel might, under the suggestion of the judge, have supposed a general exception was sufficient.

Judgment reversed, and new trial ordered in the Sessions.

* Present, Ingraham, P. J., Clerke and Barnard, JJ.