Opinion
No. 28419
Decided March 26, 1941.
Criminal law — Good character presumed — Prosecution cannot inject character unless accused first introduces evidence thereon — Argument to jury — Comment upon failure to produce evidence of good character, improper — Prejudicial error not to promptly sustain objection and admonish offender, when.
1. Every person is accorded the presumption of good character. The bad character of an accused cannot be injected into a criminal case by the prosecution unless the accused first introduces evidence of good character.
2. Counsel for the prosecution in argument to the jury may not comment on the failure of the accused to produce evidence of good character, and to do so is improper and erroneous.
3. An accused, not having placed his character in issue, prejudicial error intervenes when the prosecuting attorney, in argument to the jury, comments on the failure to call character witnesses, when immediate objection thereto is not promptly sustained and the offender admonished, and when no corrective measures are taken by the prosecuting attorney, or the court within a reasonable time.
APPEAL from the Court of Appeals of Cuyahoga county.
The defendant, appellant herein, Philip Markowitz, a Cleveland pawnbroker, was tried and convicted in the Court of Common Pleas of Cuyahoga county of the crime of receiving stolen property of the value of $75. There was an affirmance in the Court of Appeals and the case reached this court for determination on its merits by reason of the granting of the motion for leave to appeal.
At his trial the defendant offered no evidence as to his character or reputation. However, in argument to the jury at the close of the case, an assistant prosecuting attorney remarked:
"Isn't it significant that a man who has been in the pawn business for so long, twenty-five or thirty years, could not find one decent, respectable citizen that would come here and tell you, 'I know the man, his reputation is good, his character is good, and he does a legitimate business.' "
Counsel for the defendant immediately registered an objection, asked that a juror be withdrawn and the cause continued because of prejudicial argument. Discussion followed, in the absence of the jury, between the court on the one hand and counsel for the state on the other, during which the court observed that "the state cannot put in issue the character of the defendant unless he first puts on witnesses to establish his good character." The assistant prosecutor, who had made the comment objected to, then said, "I will withdraw the remark, your Honor." Whereupon, the jury was recalled and the court stated, "The record may show the motion overruled at this time. Proceed with your argument."
Argument then continued until adjournment for the day.
On the following morning, the assistant prosecutor first mentioned presented himself before the jury and addressed it as follows:
"The state has presented its argument fully. We have nothing further to add, excepting that I wish to make a statement to you in reference to a remark I made in the course of my argument inadvertently and unintentionally, and the remark was this: * * * [The language first quoted above was repeated verbatim, to which was added] I urgently request you to disregard that remark I have used in my argument. Inasmuch as the court will charge you on the law applicable to that remark, I request that you not consider it for any purpose at any time in the course of your deliberations."
In the general charge reference was made to the part of the argument challenged, in the following words:
"The statement made in argument by the prosecutor in respect to the character of the defendant has been called to your attention by him and withdrawn. I say to you, that under the law, a person charged with crime is presumed to be a person of good character, and neither his character nor his general reputation can be attacked by the state unless his character or general reputation is made an issue by him. So that in determining this case you will conform to the last statement of the prosecutor in which he withdraws his attack on the character of the defendant, and will give no consideration to what was said in his first argument, and you will presume that this defendant is of good character and good reputation in your deliberations and determination of the facts herein."
Mr. Frank T. Cullitan, prosecuting attorney, Mr. Neil W. McGill and Mr. John P. Butler, for appellee.
Mr. A.L. Kearns and Mr. Alfred A. Frost, for appellant.
Is the defendant entitled to a now trial upon the facts as outlined?
Under our system of jurisprudence every person is accorded the presumption of good character. Consequently, a general rule, almost universally recognized by the courts of this country, is that the character of an accused cannot be injected into a criminal case by the prosecution, unless the accused first introduces evidence of good character. 12 Ohio Jurisprudence, 325, Section 316; 20 American Jurisprudence, 304, Section 325; 22 Corpus Juris Secundum, 1069, Section 676. Hence, counsel for the prosecution in argument to the jury may not comment on the failure of the accused to produce evidence of his good character, and to do so is improper and erroneous. 80 A. L. R., 227, annotation; Duke v. State (Fla.), 185 So. 422, 427; State v. Pinkston, 336 Mo., 614, 79 S.W.2d 1046; State v. Navone, 186 Wn. 532, 58 P.2d 1208.
There is a division of authority on the question of whether prejudice resulting to the accused from comment by the prosecution on the failure to call character witnesses is sufficiently counteracted by an instruction to the jury to disregard such comment, so as to avoid a reversal. 80 A. L. R., 233, annotation. In at least two cases it has been flatly held that it is reversible error on the part of the prosecution to comment to the jury on the fact that the accused has called no witnesses to testify as to his character, and that such error is not cured by a subsequent instruction to ignore such comment. People v. Evans, 72 Mich. 367, 40 N.W. 473; State v. Blodgett, 50 Ore., 329, 92 P. 820.
The prosecutor is a public officer, acting as a representative of the people, and in argument to the jury he should be careful to observe the rules and proprieties of argument. Certainly, it is the better and safer course.
In the present case the comment of the assistant prosecutor as to the absence of character witnesses for the defendant was unjustified and should not have been made. It was of a damaging nature, reasonably calculated to cause injury. Timely objection being interposed by counsel for the defendant, the court should have told the jurors at once to obliterate the statement from their minds and should have admonished the offender. If this had been done, the gravity of the breach would have been minimized and a reviewing court might well be reluctant to interfere.
Instead, the trial court did not rule directly on the objection or reprove the assistant prosecutor in the presence of the jury, but proceeded to overrule the motion to withdraw a juror and continue the cause, and directed the state to resume argument. While on the next morning the improper remarks were withdrawn, they were also emphasized by repetition. The implanted virus had remained with the jury over night, and the corrective measures employed by the prosecuting attorney and the court were too long delayed.
Under the circumstances recounted it is our opinion that such prejudice is apparent as to constitute a denial to the defendant of his right to a fair and impartial trial. He is therefore entitled to a new trial.
Because of the conclusion announced, it becomes unnecessary to discuss other errors alleged by the defendant. They have been considered and are deemed not to have been of such a serious character as to call for a reversal.
For the reasons given, the judgment of the Court of Appeals is reversed and the cause remanded to the trial court for further proceedings.
Judgment reversed.
TURNER, WILLIAMS, MATTHIAS, HART and BETTMAN, JJ., concur.