one charged with an atrocious crime, like this of murder, to prove a high character, and by strong evidence to make it counterbalance a strong amount of proof on the part of the prosecution. It is the privilege of the accused to put his character in issue or not. If he does, and offers evidence of good character, then the prosecution may give evidence to rebut and counteract it. But it is not competent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character." h § 646. Mittermaier i says: "Throughout the Middle Ages, the German as well as the Latin codes made ill repute a cause of inquest, and attached to it certain consequences averse to the defendant in the original and in mesne process, on a substantive trial. Similar expressions occur in the modern codes, and in the proceedings preparatory to the trial by jury, it is an important point of the defence to establish the good character of the accused by witnesses. In the German practice, the inquiry into reputation has grown into a principal portion of the inquest, in the shape of a statement on the record, of the walk and conduct of the accused, and his moral character. The influence of the character of the accused upon the weight to be ascribed to the suspicion, and the requisition of the modern codes that he be put face to face with the judge, make this inquiry particularly valuable. "The better course is to examine witnesses in regard to the character of the accused; the result, however, will depend upon the selection, as witnesses, of those who are best able to speak from personal experience of the facts necessary to be known, for the purpose for which the inquiry is conducted. This inquiry is general, when its purpose is merely to learn the walk and the personal character of the accused. This will be attained by the general questions put to the accused; the inquiries made of the municipal authorities under whose jurisdiction he lived, and the views of the persons who had an opportunity of becoming acquainted with him. But it is also special, for the purpose of obtaining cognizance of particular circumstances of his life (e. g. a disposition to commit certain offences), or peculiarities of his i Deutsch. Straf. sect. 131. h Com. v. Webster, 5 Cush. 535; Bemis's Webster's case, 495, 496; see State v. Turner, 19 Iowa, 144. moral nature (e. g. in questions of self-defence, a peaceable disposition), the knowledge of which is necessary to a proper appreciation of certain points which exert an influence on the decision whether the facts referred to are incriminatorial or exculpatory. Where the evidence is involved and circumstantial, or where a partial confession has been obtained, this investigation must not be omitted. Its importance in particular cases will vary as the circumstances evolved at the primary examination, which demand further remark, are more or less weighty, or as the trial takes a turn which makes the discovery of the moral peculiarities of the accused more or less desirable. Its direction will be determined by the nature of the crime (as, for instance, in infanticide) which is in question, and in one and the same species of crime by the particular turn and course of the proceedings. The judge must bear in mind that impertinent matters, the investigation of which would swell the costs and cause delay, must not, perhaps to gratify an idle curiosity, be made the subject of an inquiry into character; but a declaration of opinion of the witness on the character of the accused will never suffice, and the witness must state the arguments and facts upon which he founds his opinion, and the necessary proofs thereof, so that the inquiry may, if necessary, be extended to the application of the proofs thus adduced.” In this country, it is hardly necessary to repeat, this latitude is not tolerated, and the prosecution cannot show that the prisoner's character would make his guilt likely, until the latter puts his character in issue.j CHAPTER II. METHOD OF PROOF. I. EVIDENCE TO BE CONFINED VI. DECLARATIONS OF CO-CONTO ISSUE, § 647. II. SECONDARY EVIDENCE, § 652. IV. DYING DECLARATIONS, § 669. SPIRATORS, § 702. VII. PRESUMPTIONS, § 707. VIII. CIRCUMSTANTIAL EVIDENCE, § 732. IX. ESTOPPEL, § 751 a. I. EVIDENCE TO BE CONFINED TO ISSUE. § 647. THE general rule on the subject of permitting testimony to be given of matters not alleged, is that nothing shall be given in evidence which does not directly tend to the proof or disproof of the matter in issue. a Evidence of a distinct substantive offence cannot be admitted in support of another offence; a fortiori, evidence of an intention to commit another offence cannot be admitted. So, proof of a distinct murder, committed by the defendant at a different time, or of some other felony or transaction committed upon or against a different person, and at a different time, in which the defendant participated, cannot be admitted until proof has been given, establishing, or tending to establish, the offence with which he is charged, and showing some connection between the different transactions; or such facts and circumstances as will warrant a presumption that the latter grew out of, and was, to some extent, induced by some circumstances connected with the former; in which case, such circumstances connected with the former as are calculated to show the quo animo or motive by which the prisoner was actuated or influenced in regard to the subsequent transaction, are competent and legitimate testimony.c a State v. Wisdom, 8 Porter, 511; State v. Whittier, 8 Shep. 341; Kinchelow v. State, 5 Humph. 9; 2 Russ. on Crimes, 772; Williams v. State, 45 Alab. 57. See ante, § 631 a. b Kinchelow v. State, 5 Humph. 9; R. v. Mobbs, 6 Cox C. C. 223; Com. v. Miller, 3 Cush. 243; State v. Wisdom, 8 Porter, 511; Cole v. Com. 5 Grat. 696; Rosenweig v. People, 63 Barbour, 634. c Dunn v. State, 2 Pike, 229; 2 § 647 a. Subsequent offences. Eminently proper is this caution when subsequent acts are brought in as proof of a prior crime; and such acts, unless showing a prior intent on the defendant's part to injure the prosecutor, are clearly irrelevant. cl Thus on the trial of an indictment for arson, after the state has proved the burning of the house as charged, and offered evidence tending to show that the defendant was the person who set fire to it, evidence showing that another house belonging to the prosecutor was subsequently burned, is irrelevant and inadmissible ; nor is it made relevant by being offered in connection with proof of defendant's declaration, made after the first, but before the second burning, that he was not yet done with the prosecutor, especially when the declaration is shown to have been made in a conversation, in which "no reference was made to either of the burnings, but the parties were speaking of a civil case which defendant had before the prosecutor as a justice of the peace, and in which defendant complained the prosecutor had treated him rascally."d Yet even offences technically subsequent can be admitted when they virtually form one transaction with that under trial. di 647 b. Test is such connection between offences as proves same perpetrator. The true distinction in this respect is well illustrated in a case before the supreme court at Albany, in September, 1868.e The defendant was charged with burglariously opening the barn of J. G. and stealing certain articles, which were subsequently found on the defendant's boat, and in his possession. It was held to be erroneous to permit the prosecutor to prove that there was also found on the prisoner's boat other articles of property stolen from a third party, two or three weeks prior to the alleged burglary. "This testimony," said Peckham, J., "is Russ. on Crimes, 777; Tharp v. State, 15 Ala. 749; R. v. Dossett, 2 Car. & K. 306; Com. v. Call, 21 Pick. 515; Brock v. State, 26 Ala. 104; Farrer v. State, 2 Ohio St. R. (N. S.) 54; Com. v. Ferrigan, 8 Wright, 386; People v. Jones, 32 Cal. 80; State v. Hoyt, 13 Minn. 132; Com. v. Campbell, 7 Allen, 541; R. v. Regan, 4 Cox C. C. 335. On an indictment for manslaughter, by reason of gross negligence and ignorance in surgical treatment, neither on the one side nor the other can evidence be gone into of former cases treated by the prisoner, but witnesses may be asked causa scientia their opinion as to his skill. R. v. Whitehead, 3 C. & K. 202 Maule. Ante, § 631-2-3-45; post, § 725. c1 See Bonsall v. State, 35 Ind. 460. 671. loose and indirect-inconclusive and dangerous. The people might have properly shown the condition of things where this property was found, but they could not prove another felony unless it was so strongly connected with the felony charged as to prove, or strongly tend to prove, that the man who committed the one was guilty of the other. I remember a case of one Dunbar, tried for the murder of a boy in Albany County. It appeared that two little boys had been murdered the same afternoon and on the same farm were left together about midday, and were killed that afternoon. One was found, within a few days, hanging in a tree; the other some distance off, on the same farm, killed by a flail and partly buried. There was other evidence tending strongly to show that the same person must have killed both. On the trial for killing the one found buried, evidence was offered and received that the nails in the prisoner's boots fitted precisely the marks made in climbing the tree where the other boy was found suspended. That testimony, I think, was clearly proper." el § 648. Collateral crimes. These, unless for the purpose of meeting proof by the defendant that the act, though committed by him, was inadvertent, are likewise inadmissible. Thus, on a trial for homicide, the attorney general offered proof to show that the defendant had, some short time before the murder, set fire to the house of the deceased, in the night. The proof was offered for the purpose of proving the defendant to have been the perpetrator of the murder; but it was held that the proof was not admissible. In the same case, however, proof was admitted, showing that the defendant had beat his wife, and forced her to abandon his house, and seek refuge under the protection of the deceased. It was held that the protection afforded by the deceased was an aggravating circumstance to the prisoner, and, therefore, proper proof of malice prepense on his part, and that the incidental abuse accompanying, and perhaps inducing the flight of the wife, was not such proof of a separate criminal charge as vitiates the verdict. g On a trial of indictment for larceny of a watch, evidence of another larceny of a cloak, committed by the prisoner, the two acts being wholly distinct and unconnected, is not admissible el See fully ante, § 631 a. g Ibid. f Stone v. State, 4 Humph. 27. |