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37 Ala. 103

Ben v. State

Supreme Court of Alabama

Decided January 15, 1861

Supreme Court of Alabama · decided 1861-01-15

Feoji the Circuit Court of Baldwin. Tried before the Hon. 0. W.'Rapier. The prisoner in this case, a slave, was indicted for the murder of another slave, and pleaded not guilty to the indictment. “ On the trial,” as the bill of exceptions states, “during the opening examination of the witnesses for the prosecution, the State proposed to prove the good character of the deceased, as a peaceable, well-behaved negro.

Relies on Dukes v. State · Franklin v. State · Mose v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1861-01-15

How this case has been cited

Cited by 16 later decisions — most recently June 1977

16 state decisions — followed in 11 states

30186118701880189019001910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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A. J. WALKER, C. J.

¶1It has been decided in this State, that the bad character of the deceased is competent evidence for the accused, where the circumstances are such that they would be illustrated by such character. The reason upon which that decision rests, is, that the slayer *105must be reasonably presumed to act upon the circumstances surrounding him, as they are colored by the bad character of the deceased; and that, therefore, it is but just to the accused that the jury should know that character. We do not think that this reasoning requires us to hold, that the State may go into evidence of',the peaceable character of the deceased, when it is not assailed on the part of the accused. If the character "of 'the deceased was that of a peaceable man, the circumstances may safely be left to speak their own language : it is not -requisite to their interpretation that the character should be known.

¶2The character of a witness for truth cannot bo supported, until it has been assailed ; and,, on the other hand, the character of one charged with- á criminal offense, can not be assailed, except in reply to-'evidence of good characr ter. These cases show' that, in holding the bad character of the deceased admissible for tlie accused, and denying that good character is admissible -for the State, we have analogies in the law to support-us.., Wé think it much-safer not to extend the rule, in reference'to the admissibility of the character of the deceased, so far as to permit the State to adduce primarily evidence of good character. The authorities, with the exception,of Dukes v. State, (11 Ind. 557,) to the report of which we have no access, give the rule no greater extension, than, to embrace evidence of; bad character adduced by the defendant,- -and we think it safer to so limit the rule. — State v. Hicks, 27 Miss. 588; Monroe v. State, 5 Georgia, 137; State v. Tacket, 1 Hawks, 216 ; State v. Barfield, 8 Iredell’s Law, 344; Wharton on Hom. 249 ; Franklin v. State, 29 Ala. 14 ; 3 Greenleaf on Ev. 27.

¶3[2.] The court erred, in permitting the State to give in-.evidence the dying declaration of the deceased, as to the state of feeling existing between himself and the prisoner-We decided in Mose v. State, (35 Ala. 421,) that the admissibility of dying declarations was restricted to statements “as to the circumstances immediately attending the act, and forming a part of the res gestee.” That decision is conclusive of the question now presented.

¶4*106Judgment reversed, and cause remanded. The prisoner must remain in custody, ¡until-discharged »by due ¡course-of law,

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