Hales v. State , 39 Okla. Crim. 300 ( 1928 )

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge that he did willfully, unlawfully, knowingly, and wrongfully manufacture a certain compound mixture, to wit, 100 pints of a certain common compound mixture commonly known as "home brew" fit for the manufacture of beer and other alcoholic liquors, the sale, barter, giving away, and otherwise disposing of which is prohibited by the laws of the state of Oklahoma, and his punishment fixed at 60 days in jail and a fine of $250.

The fifth assignment of error relates to an error committed by the trial court in admitting evidence as to the character of the defendant. The evidence offered by the state tended to prove the following facts:

S.E. Cook testified that he went to the defendant's house with a search warrant, that there was no one at home, and they went on around the house to the barn, and on around to the west side of the house, where they found three cases of beer; "I did not know whether to take it or not, and phoned Judge Morris, and told him what I had found, and he said it was all right, if I had a proper search warrant."

Mr. B.F. Suitor testified, in substance, to the same facts as S.E. Cook. This is all the testimony that was offered. In the examination in chief, over the objection of the defendant, the court permitted the county attorney to ask the witness S.E. Cook the following questions:

"Q. I will ask you, Mr. Cook, if you are acquainted with the reputation of defendant in reference to being engaged in the illicit manufacture and sale of liquor.

"By Mr. Galyen: We object to this, as it is incompetent, irrelevant, and immaterial; you cannot put defendant's reputation at issue, unless done so by defendant himself. (Which objection is by the court overruled. To which ruling of the court defendant excepts, and exceptions are allowed.)

"A. I am.

"Q. Mr. Cook, state if that reputation is good or bad? A. It is bad."

Where the defendant is charged with a specific offense as in this case, it is a fundamental principle of criminal law that the character or reputation of the defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character. The precise question here presented was decided by this court in the case of Kirk v. State,11 Okla. Crim. 203, 145 P. 307. In the opinion it is said:

"It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by * * * evidence of good character."

Again the court says:

"The fact that an offense has been committed cannot be proved by common rumor or general repute." Cleve Morris v. State,26 Okla. Crim. 399, 224 P. 377.

The admission of this incompetent evidence may have turned the scale against the defendant. Its admission was prejudicial to his substantial rights. There are other errors assigned, but in the view we take of this record it is not necessary to consider them.

The judgment of the trial court is reversed.

DOYLE, P.J., and EDWARDS, J., concur.