#### McGuire, *et al. v.*The State.

*Assault and Battery.*

(Decided Dec. 21, 1911.

57 South. 51.)

*Evidence; General Reputation; Time.*— One charged with crime who has testified in his own behalf is entitled to the benefit of the rule that evidence of general reputation under such circumstances must refer to the period covered prior to the time of the charge against him, and it is error to admit evidence of reputation based upon reports concerning the crime under investigation.

*132Appeal from Tallapoosa Circuit Court.

Heard before Hou. A. H. Alston.

Freeman and Ernest McGuire were convicted of assault and battery, and they appeal.

Reversed and remanded.

Riddle, Ellis, Riddle &' Pruet, .for appellant. No brief reached the Reporter.

• R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the, State.

The evidence as to general character was properly admitted. First, because there Avas no motion to exclude the *testimony.*— A. *G. S. v. Frasier*93 Ala. 45; *Billingsley v. The*Stale-, 85 Ala. 323;. 2nd, Avhere the defendant testified it is permissible to shoAV his general character in the community in which he *lived.*— Mitchell *v. The*State, 148 Ala. 618; *Ross v. The*State, 139 Ala. 114; *Fields v. The Stale,*121 Ala.,, 16; *Fountain v. The State,*98 Ala. 40; *Mclnerny v. Ervin,*90 Ala. 275.

WALKER, P. J.

The defendants having testified as witnesses in their OAvn behalf, the prosecution sought to impeach them by testimony in rebuttal touching their general character or reputation. The bill of exceptions recites: “Cicero Bently was sworn and examined as a witness.in behalf of the State in rebuttal, and testified substantially as folloAVS: T knoAV the defendants. I know their general character in the community in Avhich they live. I live.tAvo miles from them; have knoAvn them ten years.’ The Solicitor asked the Avitness, “Is their character good or bad?’ The’Avitness made no answer and the court asked the Avitness, Won know their character.?’’ The Avitness ansAvered, £So far .as I was concerned, I didn’t knoAV more than these cases.’ Then *133the solicitor asked the witness: ‘You say yon know their general character? Is it good or had?’ The witness answered and said, ‘I hear lots, people talked about these cases’; and the solicitor asked the witness,. ‘Say whether it is good or bad, their general character in the community.’ Whereupon the court says to the witness, ‘That means the community around there; they circulate and range.’ The defendants then and there objected to the question in reference to their general character unless it is confined up until the time of the alleged offense for which these indictments were found. The court overruled the objection, and to this ruling of the court the defendants then and there reserved an exception, and the witness answered the question, and said, ‘There are lot of bad reports.’ The witness was-cross-examined by the defendants’ counsel, and testified substantially as follows: ‘The reports I have heard on the defendants are in reference to these indictments. I never heard anything against the defendants until they were indicted in these cases.’ ” The colloqy with the witness before the defendants made the objection which was overruled clearly indicated that whatever he might say in his ansAver that would be derogatory of the character of the defendants Avould be based upon reports circulated about them consequent upon their being charged with the criminal offense for which they were on trial. This fact Avas only the more clearly brought out by the statement of the witness on his cross-examination. The objection to the question was made under such circumstances as to make it apparent that the overruling of it was in disregard of the rule that evidence of the bad character of one charged with crime who has testified in his OAvn behalf must refer to a period prior to the making of the charge against him which is *134under *investigation.*—Griffith *v. The State,*90 Ala. 583; *Brown v. The State,*46 Ala. 175; Underhill on Criminal Evidence (2nd ed.), § 83. The shield of protection which the law furnishes to one charged with crime in the presumption of his innocence until his guilt has been proved beyond a reasonable doubt might be ©f little avail to him if it could be destroyed by evidence of his disrepute resulting from rumors or reports having their origin or brought to light as the result of discussion occasioned by the fact that the criminal charge which is under investigation had been made -against him.

Other questions presented by the record need not be considered, as they may not arise on another trial.

Reversed and remanded.