#### STATE v. HANIBAL WOOD.

(Filed 23 May, 1951.)

1. Criminal Daw § 40b—

Where defendant does not go upon the stand, bis evidence of good character is substantive evidence bearing directly on the question of bis guilt or innocence upon the theory that a man of good character is unlikely to do a dishonest or immoral act inconsistent with the record of his past life.

a. Criminal Daw § 42d—

Evidence of good character of witnesses for the prosecution is corroborative and relevant and material only as bearing upon the credibility of their testimony.

3. Criminal Daw § 58j—

A charge to the effect that the character evidence of defendant and the character evidence of witnesses for the prosecution constituted substantive, direct evidence, must be held for reversible error.

4. Criminal Daw § 77d—

The Supreme Court is bound by the record as certified.

Appeal by defendant from *Hatch, Special Judge,*October Term, 1950, OuMBERLAND.

New trial.

Criminal prosecution on bill of indictment charging the defendant with the commission of the crime of incest.

There was evidence the defendant committed the crime charged. The State offered evidence of the good reputation of the prosecutrix and her grandmother, witnesses for the State. While defendant did not testify in his own behalf, he likewise introduced evidence of his good reputation.

There was a verdict of guilty. The court pronounced judgment on the •verdict, and defendant appealed.

*Attorney-General McMullan, Assistant Atto.rney-General Moody, and Charles G. Powell, Jr., Member of Staff, for the State.*

*John H. Coolc, George S. Quillen, and Everette Doffermyre for defendant appellant.*

BaRNIiill, J.

In its charge the court instructed the jury as follows:

“Character testimony, gentlemen of the jury, is substantive testimony; that is, it is different than corroborative testimony. It is testimony that is direct from that person that testifies on the witness stand that a person has a good character and reputation, that is, direct to that point and that you should believe what that witness has testified to, whoever the witness might be.”

*637Tbis must be beld for error.

Tbe charge as it appears in tbis record makes no distinction between evidence of tbe good reputation of witnesses other than tbe defendant and of tbe defendant himself.

When tbe defendant does not go on tbe witness stand, but puts bis good reputation in issue, such testimony constitutes substantive evidence. Substantive evidence is direct evidence and direct evidence is that which immediately points to tbe question at issue. It is positive in character and is to be considered by the jury as bearing directly upon tbe issue of defendant’s guilt or innocence of tbe crime charged, upon tbe theory that .a man of good character who has pursued an honest and upright course of conduct is unlikely to deviate therefrom and do a dishonest or grossly immoral act, as here charged, inconsistent with tbe record of bis past life. *S. v. Bridgers, ante,*p. 577, and cases cited.

On tbe other band, evidence of tbe good reputation of witnesses, other than tbe defendant, is merely corroborative in nature and is relevant and material only as bearing upon tbe credibility of their testimony. It is offered for tbe sole purpose of aiding tbe jury in determining what weight, if any, shall be given tbe testimony of tbe witnesses about whom such evidence has been offered.

Tbe quoted instruction draws no such distinction. It characterizes evidence of good reputation as substantive evidence, without qualification. It fails to define correctly tbe meaning of direct evidence and seemingly directs tbe jury that it should believe tbe witness about whom such testimony was offered “whoever tbe. witness might be.”

It is entirely possible that tbe record is not an exact transcript of tbe charge as actually given by tbe court below. But we are bound by tbe record as it comes to tbis Court and must decide tbe questions presented as they appear therein.

On authority of *S. v. Bridgers, supra,*tbe quoted instruction must be beld for prejudicial error for which there must be a

New trial.