his reputation for veracity may be sustained, to open the way to evidence of good character by proof of his general reputation for truth in denial? This must depend on the nature of and veracity."

[3] A defendant's general good character is always admissible in his favor to evidence the improbability of his doing the act charged. After the defendant has attempted to show his good character in his own aid, the state may in rebuttal offer as evidence his bad character. When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant, his character cannot be attacked by the state; as a witness, it can be. The law is that a defendant taking the stand as a witness may, as a witness, be impeached precisely like any other witness.

The question as to when and under what conditions a witness may be corroborated by evidence of good character for truth and veracity is one upon which there is a wide divergence of judicial opinion, and we think it would be useless to attempt to reconcile the many judicial decisions upon this question. However, there are a few general principles which pervade all the adjudicated cases, and these have been carefully stated and learnedly considered by eminent text-writers on evidence:

Prof. Wigmore says:

"The accused may at any time offer his own good moral character, for the trait in question, as evidence that he did not commit the crime. But he may not as witness offer his good character until it has been attempted to be impeached by the prosecution." Wigmore, Ev. § 891.

the opponent's impeaching evidence. It may be a direct assault on the witness' character, in which case no doubt exists. But it may be evidence of a doubtful or ambiguous import,for example, of bias, of a prior self-contradiction, of an error of fact, and so on through the whole series of kinds of discrediting evidence. It is obvious that the theory of each of these it can be said whether it affects the witness' kinds of evidence must be considered before character."

"1884, Walker, J., in Tedens v. Schumers, 112 III. 263, 266: 'If the practice sanctioned the calling of witnesses to prove general character whenever a witness is contradicted, it would of the time of courts would be liable to be enrender trials interminable. The greater portion gaged in the attack and support of the characters of witnesses. If permitted, each of the contradicting witnesses would have the same right; and not only so, but all of the supporting witnesses on each side contradicting each other would be entitled to the same privilege. It is thus seen that the rule must be limited to cases where witnesses are called to impeach the general character of a witness; otherwise, instead of reaching truth by the verdict, it would tend to stifle it under a large number of side issues calculated to obscure and not to elucidate' them.'

Co., 137 Mass. 77, 78: "The purpose and only
"1884, Holmes, J., in Gertz v. Fitchburg R.
direct effect of the (impeaching) evidence are
to show that the witness is not to be believed
in this instance. But the reason why he is not
to be believed is left untouched.
That may
be found in forgetfulness on the part of the
witness, or in his having been deceived, or in
any other possible cause. The disbelief sought
to be produced is perfectly consistent with án
admission of his general character for truth,
as well as for the other virtues; and until the
character of a witness is assailed, it cannot be
fortified by evidence.'

And in section 1104 the same author says: "Good character for veracity is as relevant to indicate the probability of truth telling as bad character for veracity is to indicate the probability of the contrary. But there is no reason why time should be spent in proving that which may be assumed to exist. Every witness may be assumed to be of normal moral character for veracity, just as he is assumed to be of normal sanity. Good character, therefore, in his support is excluded until his character is brought in question and it becomes worth while to deny that his character is bad. "It has been said, to be sure, by a few courts that where, without actually introducing testimony, the opponent has effectively insinuated the witness' impeachment, his good character is then proper in rebuttal. But this extension is exceptional and perhaps strained. More- Prof. Greenleaf, in volume 3, § 469 (15th over, the exception when an accused in a crim-Ed.), of his work, says:

inal case takes the stand is apparent only;

"No court favoring admission seems to have attempted a reasoned justification of its policy; and the great majority of jurisdictions agree in excluding such evidence."

for it is as an accused that he may offer his "Where evidence of contradictory statements good character in chief, and that character must by a witness, or of other particular facts, as, concern the trait involved in the charge; and for example, that he has been committed to thus since only his character for veracity can effect him as a witness, his evidence of character at that state will not usually be the same as that which he could later offer in his own support as witness.

"The question thus always arises, under this general rule: When is the witness' character brought into question by the opponent, so as

the house of correction, is afforded by way of impeaching his veracity, his general character for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence that he is a man of strict integrity and scrupulous regard for truth. But evidence that he has on other occasions made statements similar to what he has testified in the cause

(220 P.)

is not admissible unless where a design to misrepresent is charged upon the witness in consequence of his relating to the party or to the cause, in which case it seems it may be proper to show that he made a similar statement before the relation existed. So, if the character of a deceased attesting witness to a deed or will is impeached on the ground of fraud, evidence of his general good character is admissible. But mere contradiction among witnesses examined in court supplies no ground for admitting general evidence as to character."

Underhill says:

"The direct impeachment of a witness by any of the means which have been above explained creates an issue respecting his general character for truthfulness. Evidence to support this and to show that he is a person in whose testimony the jury may have confidence is, therefore, relevant. But evidence of reputation is not relevant merely because there is a contradiction between adverse, witnesses, or because the credibility of a witness is shaken on cross-examination, though its admission in such cases may not be reversible error. A distinction has sometimes been made by which it has been held that general evidence of the character of the witness for truthfulness is not relevant if he was impeached merely by showing that he had made contradictory statements. This distinction is repudiated by a majority of the decisions which support the proposition that general evidence of the character of the witness as a truthful person is always admissible whenever any attempt, though it may have been unsuccessful, has been made to impeach it, as for example, where another witness is asked what is his character for truth and replies it is good." Underhill on Evidence, 352.

credit may be sustained by proof of his good reputation for truth and veracity; that since the object of the attack is to impeach the witness, the mode of such attack is immaterial, and the same reason exists for sustaining the witness as where witnesses are called to testify to his bad reputation. But it is the better view, and one sustained by the weight of authority, that in such cases the witness cannot be fortified by evidence of good character. Although the contradiction in his statements may tend to show that he ought not to be believed in the particular case, this does not necessarily tough his general good character for truth or integrity, since the inconsistency may be the result of mistakes or forgetfulness. On the same principle, and perhaps for stronger reasons, it is no ground for the introduction of evidence to sustain the character of a witness that other witnesses have contradicted him by testifying a different state of facts, and this remains true although the contradiction is of such a character as to incidentally impute immorality or crime." Jones on Ev. vol. 3, § 871.

Judge Elliott, in his work on Evidence (volume 2, § 995), says:

"When the reputation of a witness for truth has been impeached, the party calling a witness has a right to call other witnesses to prove that his reputation is good. Good character, it has been held, may be shown where the witness has been impeached by proof of conviction of crime. But this principle is not always applied, at least where there is no real attack by way of impeachment. If the witness has been impeached by proof that he made contradictory and inconsistent statements out of court, some of the cases allow his good character to be shown in corroboration, while others refuse to admit such testimony. How

And in section 243, in his work on Criminal ever, to render testimony of good character Evidence, the same author says:

competent and admissible in support of the witness, an attack must necessarily have been made on his character."

In the well-considered case of First Nation

106, 91 Pac. 868, 12 L. R. A. (N. S.) 364, the question is discussed with convincing ability. Chief Justice Burford in the opinion said:

"It has been held that a party should not be permitted to prove that his witness was a man whose reputation for veracity was good, where the impeachment consisted wholly of evidence that the witness had made contradictory state-al Bank of Bartlesville v. Blakeman, 19 Okl. ments out of court. But the majority of the cases repudiate this distinction. It is now held almost universally that evidence to show that the reputation of the witness for veracity is good may be introduced whenever the evidence of the witness has been impeached in any way, whether by his contradictory declarations or by a direct attack upon his character.

"But evidence that a witness enjoys a rep

utation for truthfulness is not receivable to strengthen his testimony merely because he has been contradicted by an adverse witness, or be

cause he has been shaken or confused on crossexamination."

In Bradner on Evidence, § 16, it is said: "Testimony to support the character of a witness cannot be given in evidence unless the credibility of the witness is impeached."

Jones says:

"It has sometimes been held that, where proof has been offered of the inconsistent or contradictory statements of a witness, his

"The weight of modern authority seems to classify the cases in which evidence of general reputation in support of a witness is admissible practically as follows: First, where there the witness by offering evidence tending to show has been a direct attack upon the character of that his general reputation for truth and veracity is bad. This rule is universal and unquestioned. Second, where the witness has been impeached by evidence of particular acts of criminal or moral misconduct, either on cross-examination or by record of conviction. While this rule is not universally adopted by the American courts, it is supported by the following cases: Lewis v. State, 35 Ala. 386; People v. Ah Fat, 48 Cal. 61; People v. Amanacus, 50 Cal. 233; State v. Fruge, 44 La. Ann. 165; Vernon v. Tucker, 30 Md. 456; Russell v. Coffin, 8 Pick. (Mass.) 143; Gertz v. Fitchburg R. Co., 137 Mass. 77; People v. Rector, 19 Wend. (N. Y.) 569; Carter v. People,

78

[5] Our investigation leads us to conclude that where a defendant in a criminal action elects to testify as a witness in his own behalf, and where his credibility is not attacked, except by contradiction of his testitruth and veracity is not admissible. In so far as the cases of Friel v. State, supra, and Smith v. State, supra, and the case of Gilbert v. State, 8 Okl. Cr. 329, 127 Pac. 889, conflict with this rule, they are overruled.

2 Hill (N. Y.) 317; People v. Gay, 7 N. Y. 178, 27 S. E. 669; Presser v. State, 77 Ind. 274; 378; Stacy v. Graham, 14 N. Y. 492; Webb Morrison v. State, 37 Tex. Cr. R. 604, 40 S. v. State, 29 Ohio St. 358; Wick v. Baldwin, W. 591; Rutherford v. State (Tex. Cr. App.) 51 Ohio St. 51; Warfield v. Ry. Co., 104 Tenn. 67 S. W. 100; State v. Louie Hing, 77 Or. 74; Smith v. Tate (Tex.) 50 S. W. 363; Lut462, 151 Pac. 706. terell v. State (Tex.) 51 S. W. 930; Paine v. Tilden, 20 Vt. 554; George v. Pilcher, 28 Gratt. (Va.) 299; Reynolds v. R. R. Co., 92 Va. 400; Clarke v. State (Ga.) 43 S. E. 853; Clark v. Bond, 29 Ind. 555; Warfield v. L. & N. Ry. (Tenn.) 55 S. W. 304. Third, impeachment by evidence of corruption on the part of the wit-mony, evidence sustaining his reputation for ness in connection with the case in which he appears. Fourth, impeachment by evidence of contradictory or inconsistent statements admitted on cross-examination or shown by the testimony of other witnesses. Upon this last rule the authorities are in irreconcilable conflict, and are about equally divided, but the better reason seems to favor the right to corroborate the witness, whose evidence is in this manner discredited, by allowing proof of his general reputation for truth and veracity. Hodge v. Gooden, 13 Ala. 718; Holly v. State, 105 Ala. 100; Mercer v. State, 40 Fla. 216; McEwen v. Springfield, 64 Ga. 159; Clark v. State, 117 Ga. 254; Paxton v. Dye, 26 Ind. 394; Clem v. State, 31 Ind. 418; Board V. O'Conner, 137 Ind. 622; State v. Boyd, 38 La. Ann. 374; Davis v. State, 38 Md. 15; People v. Rector, 19 Wend. (N. Y.) 583; Isler v. Demy, 71 N. C. 14; Burrell v. State, 18 Tex. 713; Street v. Sherman, 21 Vt. 23; Stevenson v. Gunning, 74 Vt. 601; State v. Stoley, 45 W. Va. 198.

"There are other particular cases in which, in the exercise of a wise discretion, the trial court may properly allow evidence of general reputation of a witness in support of such witness, but there must be some special or particular element introduced into the case by the adverse party by which such witness is impeached or discredited. But the foregoing rules embrace the general classes of cases in which such practice is allowable."

In the note to this case the editor states: "The authorities are nearly unanimous in holding that the mere fact that a witness' testimony is contradicted by opposing testimony does not warrant the introduction of evidence as to his reputation for truth and veracity."

The following cases sustain this rule: Funderberg v. State, 100 Ala. 36, 14 South, 877; Turner v. State, 124 Ala. 59, 27 South. 272; Bell v. State, 124 Ala, 94, 27 South. 414; People v. Bush, 65 Cal. 129, 3 Pac, 590; State v. Ward, 49 Conn. 429; Bell v. State, 100 Ga.

In the present case the defendant became a witness in his own behalf, and, to support his testimony, offered to prove by witnesses that he was a man of good character for truth and veracity. The fact that his testimony conflicted with that of witnesses for the state gave him no right to introduce evidence of his good character for truth and veracity, and the court did not err in rejecting the same. If the defendant desired to avail himself of good character, to be considered by the jury in connection with the other evidence in determining the question of his guilt or innocence, he should have offered evidence of his good character as a peaceable and law-abiding citizen,

We have examined the other assignments and find no error in any of the rulings assailed by them, and find none of them having sufficient merit to warrant any further discussion.

Finally, after a careful consideration of the whole case, we are forced to conclude that under the evidence the defendant might well have been convicted of murder. As to the self-defense theory, the physical facts conclusively show that the testimony of the defendant is wholly incredible. We think the jury were exceedingly lenient in fixing both the degree of the crime and the punishment. As shown by the record, the defendant had a fair and impartial trial under the laws of the state.

The judgment of the district court of Delaware county is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.

(220 P.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The want of a direct allegation of anything material to an offense cannot be supplied by intendment, and held, under Rev. Codes 1921, §§ 11843, 11845, 11850, 11851, and 11852, relating to essentials, an information charging a violation of Rev. Codes 1921, § 3189, in that accused did "willfully, unlawfully, and feloni. ously sell and dispose of certain narcotics, to wit, * to another person, * fatally defective for failure to state the name of the purchaser, notwithstanding section 11853, declaring that no indictment or information is insufficient by reason of any defect in form,

etc.

*

was

Appeal from District Court, Yellowstone County; Robert C. Stong, Judge.

Tom Hem was convicted of unlawfully selling narcotics, and he appeals. Reversed and remanded, with directions to discharge defendant from custody.

This is to enable the defendant to prepare his defense, and to plead his conviction in bar of another charge for the same offense. Chitty says:

"It must charge the crime with certainty and precision, and must contain a complete description of such facts and circumstances as will constitute the crime." 1 Chitty's Criminal Law, p. 227.

The latest editions of the American textwriters on Criminal Practice and Procedure all approve and adopt the views of the English authors upon this subject. In Bishop's second edition of his New Criminal Proce

dure, in section 593, this will be found:

"The doctrine of this chapter is that the indictment on a statute, the same as on the common law, and with the same individualizing of the transaction, must set forth all the affirmaO. F. Goddard and H. C. Crippen, both of tive facts which constitute a prima facie case; Billings, for appellant.

but it need not anticipate any defense by deW. D. Rankin, Atty. Gen., and L. V. Ket- nial, differing from the indictment on the comter, Asst. Atty. Gen., for the State.

COOPER, J. The defendant was convict

ed under section 3189 of the Revised Codes of 1921, which makes it unlawful "to sell, barter, exchange, distribute, give away, or in any manner dispose of, at retail, or to a consumer, opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, within this state, except upon the original written prescription of a duly licensed physician." The specific charge in the information is that he did "willfully, unlawfully, and feloniously sell and dispose of certain narcotics, drugs, to wit, two (2) cards of smoking opium and one bundle or package of morphine, to another person, which said drugs were then and there sold in unstamped packages, not on a written order form, and not on a prescription written by a duly licensed physician." After a verdict of guilty was returned, the court denied the defendant's motion in arrest of judgment and pronounced sentence. He appeals from the judgment His counsel insist that the information does not allege all the elements of a public offense, because it does not aver that the drugs were sold "at retail" or "to a consumer," and does not give the name of the purchaser.

The want of a direct allegation of anything material in the description of the substance, nature, or manner of the offense cannot be supplied by intendment or implication. As stated more definitely by Mr. Archibald:

mon law simply in this: That it must profess on its face to be drawn on a statute, and em

ploy enough of the statutory words to indicate

what particular one.".

Mr. Bishop, in section 505 of the same work, says:

"The Doctrine of Certainty. There are many reasons for it, helpful toward a comprehension of its degree and forms; as to quote from De Grey, C. J., that the defendant may know for what crime he is 'to answer; that the jury may appear to be warranted in their conclusion of livered to them; and that the court may see "guilty" or "not guilty" upon the premises desuch a definite crime that they may apply the punishment which the law prescribes.' which Lord Kenyon adds, 'that posterity might know what law is to be derived from the record.'"

To

The Supreme Court of Arizona, in Earp v. State, 20 Ariz. 569, 184 Pac. 942, deprecates the practice of leaving the name of the purchaser out of the information and points out its consequences. It says:

"If the prosecution may await the commencement of the trial and then, for the first time, select one of a class of acts included in the terms of the information upon which a conviction will be asked," neither the accused nor his attorney can possibly be prepared to meet the proof.

The Supreme Court of Oklahoma gives another aspect to the situation presented here. The opinion reasons thus:

"There can be no sale without a purchaser, and no gift without a receiver. A sale or a gift necessarily implies the existence of two or

"Where the definition of an offense, whether
by rule of the common law or by statute, in-
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes