Rowe v. State ( 1944 )

Appellant again complains of the matters set forth in his bills of exception wherein upon cross-examination of appellant's character witnesses they were asked certain questions as to whether they had heard of appellant's supposed trouble with Mr. Patterson in a certain cafe. We quote from Underhill on Criminal Evidence, Section 82, p. 148, Second Edition, as the basis of the law allowing such a question to be propounded by the State's attorney:

"Evidence of specific acts of bad conduct is not admissible to show bad character. The accused may always be prepared to meet an attack on his general character, but cannot fairly be required, without notice, to controvert particular facts.

"It is error to permit a character witness to be cross-examined as to his own knowledge of particular acts of bad conduct by accused.

"But a witness to good character may be asked on cross-examination to list (test) his credibility whether he has heard rumors of particular or specific charges of the commission of acts inconsistent with the character which he was called to prove, and generally as to the grounds of his evidence, not so much to establish the truth of such facts or charges, as to test his credibility, and to determine the weight of his evidence. He may be asked if he has not heard some general report which contradicts the good reputation which he has been called upon to prove.

"A witness to the good character of the accused may properly be cross-examined as to particular facts which are within his knowledge to test the soundness of his belief that the character of the accused is good, and the facts on which it is founded. Thus, he may be asked on cross-examination whether he had not heard of a difficulty during which the accused had assaulted a person with a knife."

One's reputation of necessity is based upon hearsay, to the extent at least as to what the people say or think about such matter on one's own neighborhood. If there have occurred certain acts of misconduct, or if the State's attorney in good faith believes such acts have occurred, witness' knowledge of same, or lack of knowledge of same, would have some bearing on the weight to be given to his testimony as well as to his credibility.

Of course the good faith of the State's attorney in asking relative to certain rumors should be exercised, and if bad faith should be shown, a different question would present itself. See Vailone v. State, 147 S.W.2d 230. In the absence of a showing of bad faith, the presumption would apply that the officer acted in good faith in thus asking the question relative to the knowledge of the rumor as to the trouble with Mr. Patterson, the act of misconduct itself not being admissible.

Appellant also complains because the trial court failed to limit in his charge to the jury the matter relative to the purported trouble with Mr. Patterson, and he says that the trial court should have limited same in the consideration by the jury of appellant's application for a suspended sentence only. We find no such request in the record, and there are no exceptions or objections to the court's charge therein; therefore such complaint comes too late.

We adhere to the views expressed in our original opinion, and the motion is overruled.