SMITH
v.
UNITED STATES.

*88 Mr. William M. Cravens for plaintiff in error. Mr. C.J. Frederick was on his brief.

Mr. Assistant Attorney General Whitney for defendant in error.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The main question in controversy at the trial was whether the killing of Welch by the defendant was in self-defence. Upon that question any evidence, which, according to the common experience of mankind, tended to show that the defendant had reasonable cause to apprehend great bodily harm from the conduct of the deceased towards him just before the killing, was admissible; and upon principle, and by the weight of authority, evidence that the deceased was a larger and more powerful man than the defendant, as well as evidence that the deceased had the general reputation of being a quarrelsome and dangerous person, was competent, especially if his character in this respect was known to the defendant, which there was evidence in this case tending to show. Wiggin v. People, 93 U.S. 465; Allison v. United States, 160 U.S. 203, 215; State v. Benham, 23 Iowa, 154; Commonwealth v. Barnacle, 134 Mass. 215; Hurd v. People, 25 Michigan, 405; State v. Bryant, 55 Missouri, 75; Marts v. State, 26 Ohio St. 162; State v. Nett, 50 Wisconsin, 524; State v. Turpin, 77 No. Car. 473; Wharton on Homicide, (2d ed.) §§ 606-623, and cases cited. In Wiggin v. People, above referred to, evidence that "the deceased's general character was bad, and that he was a dangerous, violent, vindictive and brutal man," was admitted at the trial; and was assumed to be competent, both in the opinion of this court delivered by *89 Mr. Justice Miller, and in the dissenting opinion of Mr. Justice Clifford. 93 U.S. 466, 470, 474.

The testimony introduced by the defendant to the character of the deceased was therefore competent and material.

All that was shown, by way of impeaching the credibility of any of the five witnesses who testified to this point, was that one of them had been arrested, tried and acquitted for murder, and had been arrested for gambling, and discharged; another had been arrested for fighting and gambling; another arrested for fighting and for selling whiskey; and another arrested, convicted and imprisoned for selling whiskey. There was no evidence that any of the witnesses, except this one, had been convicted of any offence whatever, or that any one of the five had anything to do with keeping a gambling place.

Yet the court, in instructing the jury as to the weight to be given to the evidence of the character of the deceased, told them that reputation was the reflection of character, and, in order to be entitled to consideration, must "come from a pure source," and be "the reflection of honest and conscientious men, of men who possess character themselves, men of integrity, men whose judgments make up in your community your character that you prize so highly, because it is the opinion of honest, intelligent, judicious and just men and women in your community;" and that "if a man is without character himself, if his action has been characterized by crime, if his conscience has been seared by criminal conduct, he is thus rendered incompetent to know what character is; he has none himself, and he is incompetent to determine when other men have one;" and charged the jury "to see to it that it is the reflection not by keepers of dives and gambling hells, and violators of law, and prison convicts," and, if it comes from that source, to "cast it aside as so much worthless matter invoked wrongfully in cases of this character."

This heaping up of injurious epithets upon the witnesses, coupled with the injunction (which could have no application to anything before the court except their testimony) to "cast it aside as so much worthless matter invoked wrongfully," could not have been understood by the jury otherwise than as *90 a command to disregard all the testimony introduced in behalf of the defendant, bearing upon the character of the deceased as a quarrelsome and dangerous man.

The character of a quarrelsome and dangerous man is not always so well known to peaceable and law-abiding citizens, that their testimony upon the subject can be had. In this, as in other matters involved in the administration of the criminal law, it is often necessary to resort to those who are more familiar with the persons between whom, and the places in which, quarrels and affrays are apt to take place.

No doubt has been suggested as to the competency of any of the witnesses in question; and their credibility was a matter to be determined by the jury. The judge having, in effect, peremptorily withdrawn this matter from their consideration, the defendant is entitled to a new trial. Hicks v. United States, 150 U.S. 442; Starr v. United States, 153 U.S. 614; Allison v. United States, 160 U.S. 203.

It is, to say the least, doubtful whether evidence of an arrest only, not followed by a conviction, is competent to affect the credibility of a witness. Ryan v. People, 79 N.Y. 593; Van Bokkelen v. Berdell, 130 N.Y. 141. But such evidence having been admitted without objection as to these witnesses, and having been previously introduced by the defendant's counsel in cross-examining the witnesses for the government, the expression of a decisive opinion upon it would be out of place.

It becomes unnecessary to consider the other exceptions to the rulings and instructions of the court.

Judgment reversed, and case remanded with directions to set aside the verdict and to order a new trial.