The fact of adultery can seldom be proven by direct evidence. For this reason proof of acts of adultery prior or subsequent to the act charged, or that the accused associated with prostitutes, is admissible to show the adulterous disposition and opportunity to commit the offense.3

If the intent or good faith of a person is in issue in a civil action, similar acts to those which are alleged may be proven to show the mental state or intention as, for example, in cases of fraudulent misrepresentations.

The practice of permitting proof of acts or crimes of a similar nature tending to prove knowledge or intention is doubtless partly due to the rule of the common law by which the party was debarred, because of interest, from testifying in his own behalf. This rule being now almost universally abrogated, a party may be called to testify to his intention 5 in doing a particular act, and such evidence, though perhaps suspicious because of interest, is relevant and may be taken by the jury for what it is worth."

The competency of the party as a witness has, on the other hand, rendered proof of surrounding circumstances to show knowledge, motive or intention by inference much more important than formerly, in view of the tendency of an interested. party to color the facts in his own favor. Evidence of circumstances is relevant in every instance to show the presence of a motive or of good or bad faith, or to prove that a party made preparations, i. e., intended to do any act which is itself relevant.' So in prosecutions for crime the purchase or collecting of murderous instruments or burglarious tools, the going to the place of the crime, the disguising of oneself, and on a trial for arson the prior insurance of the property, are relevant facts.2 So evidence of the behavior of a party subsequent to an act is relevant to show that his behavior is such as would be natural under the supposition that the act had been committed.3 Thus, in a criminal trial, evidence that the accused had attempted to escape, or was in possession of tools to effect an escape, or was living under an assumed name, or that he told a falsehood in denying the crime,' is relevant. But the mere fact that defendant left the county is not relevant unless it appears that he did so to avoid arrest. Nor can it be shown that defendant offered to surrender himself to the authorities."

6

In the trial of an indictment for murder the prosecution may introduce evidence of the former altercations, previous threats and menacing declarations of the prisoner against the deceased, to show the former's malice, or, if long prior to the killing, to show his premeditation - such evidence being rele

Jefferds v. Alvord, 151 Mass. 95;
Wilson v. Clark (Ind., 1892), 27 N. E.
Rep. 310.

1 State v. Brown, 75 Me. 456; Creswell v. State, 14 Tex. App. 1; Aaron v. State, 31 Ga. 167; Ten Eyck v. Witbeck, 69 Hun, 450; McCarthy v. Gallegher, 4 Misc. Rep. 188; Com. v. Hudson, 97 Mass. 565; Kelsoe v. State, 47 Ala. 573; Garber v. State, 4 Cold. (Tenn.) 161, 165; Foster v. Dickinson, 64 Vt. 233; 24 Atl. Rep. 253.

2 Whart. Cr. Ev., § 753.

3 Banfield v. Whipple, 10 Allen, 29; Furnis v. Durgin, 119 Mass. 500.

4 State v. Palmer, 65 N. H. 216; Baker v. Com. (Ky., 1892), 17 S. W. Rep. 625; Ryan v. State, 84 Wis. 368; Com. v. McMahon, 145 Pa. St. 413.

3 State v. Duncan (Mo., 1893), 22 S. W. Rep. 699.

6 State v. Whitson, 111 N. C. 695. 7 State v. Bradley, 64 Vt. 466. 8 State v. Marshall (Mo., 1893), 22 S. W. Rep. 45.

9 State v. Johnston, 94 Ala. 35; People v. Rathbun, 21 Wend. (N. Y.) 518 (refusal to escape irrelevant).

vant to show the prisoner's mental state. And in a prosecution for homicide, evidence that after the homicide the accused was nervous, excited or preoccupied, or was silent when accused of the crime, or manifested a lack of feeling at the death of deceased where great sorrow would naturally be expected," is relevant.

§ 10. Collateral facts bearing on character.- Evidence of the general character or reputation of the parties is always irrelevant in civil causes, except in cases where general character is involved in the issue on account of the peculiar nature of the cause of action. Even where the character for chastity of a wife or daughter is concerned, in an action brought to recover for her seduction, evidence of her general moral character is inadmissible, though evidence of facts tending to prove her previous chastity or lack thereof is relevant,' provided they occurred prior to the offense charged.

1 Harrison v. State, 79 Ala. 29; State v. Bradley, 64 Vt. 466; Hardy v. State, 31 Tex. C. Rep. 289; Pitman v. State, 22 Ark. 354; State v. Hoyt, 47 Conn. 518; State v. Green, 1 Houst. Cr. Cas. (Del.) 217; Dixon v. State, 13 Fla. 636; Everett v. State, 62 Ga. 65; State v. Walsh, 44 La. Ann. 1122; Goodwin v. State, 96 Ind. 550; State v. McCahill, 72 Iowa, 111; Reily v. Com. (Ky., 1893), 22 S. W. Rep. 222; State v. Birdwell, 36 La. Ann. 859; Riggs v. State, 30 Miss. 635; State v. Partlow, 90 Mo. 608; State v. Hymer, 15 Nev. 49; Pittman v. State (Ga., 1893), 17 S. E. Rep. 856; State v. Rash, 12 Ired. (N. C.) L. 382; Mimms v. State, 16 Ohio St. 221; Hopkins v. Com,, 50 Pa. St. 9; May v. State (Ga., 1893, 17 S. E. Rep. 108; Wilson v. State, 30 Fla. 234; Benedict v. State, 14 Wis. 423; People v. Curtis, 52 Mich. 616; State v. Downs, 91 Mo. 19; State v. Taylor, 44 La. Ann. 783; 11 S. Rep. 132; Hall v. State, 31 Tex. C. Rep. 565.

In a

3 Noftsinger v. State, 7 Tex. App. 301.

4 State v. Reed, 62 Me. 129.

5 Greenfield v. People, 85 N. Y. 75. 6 Fowler v. Insurance Co., 6 Cowen, 673, 675; Halley v. Gregg (Iowa, 1891), 48 N. W. Rep. 974; Dudley v. McCluer, 65 Mo. 241; Home Lumber Co. v. Hartman, 45 Mo. App. 647; McCarty v. Leary, 118 Mass. 509; Scruggs v. State, 15 S. W. Rep. 1074; 90 Tenn. 81; Goldsmith v. Picard, 27 Ala. 142; Porter v. Seiler, 23 Pa. St. 424; Corning v. Corning, 6 N. Y. 97; Thompson v. Brown, 4 Wall. 471; Leary v. Leary, 18 Ga. 696; Wright v. McKeo, 37 Vt. 161. See 1 Greenl. on Evid., § 54.

State v. Curran, 51 Iowa, 112; Badder v. Kiefer, 91 Mich. 611; 52 N. W. Rep. 60; State v. Eckler, 106 Mo. 585; Showalter v. Bergman, 23 N. E. Rep. 686.

8 Clifton v. Granger (Iowa, 1893). 53 N. W. Rep. 316; Hallock v. Kinney (Mich., 1892), 51 N. W. Rep. 706.

2 State v. Baldwin, 36 Kan. 1; Evidence of plaintiff's adultery with Miller v. State, 18 Tex. 232.

others than defendant is irrelevant. Morris v. State, 31 Tex. App. 597.

criminal prosecution for rape or for an indecent assault, the prior chastity of the prosecuting witness is a material fact, and evidence of previous acts of unchastity, committed with the accused but with no other man, is relevant.' But evidence that the prosecuting witness had a bad reputation for chastity or was unchaste is irrelevant.2

Whether or not an allegation of fraud in a civil action to recover damages for a tort puts the character of a party in issue to the extent that general evidence of good character is relevant depends more upon the nature of the action than upon the character or form of the charge of fraud. It was formerly held that where a person is charged with constructive fraud, evidence of his good character is relevant to rebut the presumption. This rule is limited to cases where intention is sought to be proven circumstantially, and does not apply where the allegation of fraud is merely formal, or, in other words, where from the nature of the action reputation is not actually and necessarily drawn in issue. If the plaintiff bases his cause of action upon an injury to his general reputation or character, as he does in an action to recover damages for malicious prosecution or false imprisonment, or in an action of slander or libel, his reputation becomes material in view of the alleged damage it has received. Then evidence is relevant that plaintiff's general reputation was bad prior to the alleged injury, and this fact, if proved, should be considered by the jury in mitigation of damages. It is very unlikely that a man or woman of bad reputation would receive the same injury as one of an unblemished life and high moral standing.5 Where a peculiar trait of character is in

1 State v. Cassidy (Iowa, 1892), 52 N. W. Rep. 1; State v. Patrick (Mo., 1892), 17 S. W. Rep. 666; O'Blenis v. State, 47 N. J. L. 279; Com. v. Kendall, 113 Mass. 210.

2 Fry v. Com., 82 Va. 334; Linecum v. State, 29 Tex. App. 328; People v. McLean, 71 Mich. 309.

31 Greenl. on Evid., SS 54, 55, citing Ruan v. Perry, 3 Caines, 120; Fowler v. Insurance Co., 6 Cowen, 675; Townsend v. Graves, 3 Paige, 455,

456. See, contra, Gough v. St. John, 16 Wend. 646; Pratt v. Andrew, 4 N. Y. 493. Cf. Porter v. Seiler, 23 Pa. St. 324.

4 Nash v. Gilkerson, 5 S. & R. 352; Anderson v. Long, 10 id. 55; Porter v. Seiler, 23 Pa. St. 424; Zitzer v. Merkel, 24 Pa. St. 408; Givens v. Bradley, 3 Bibb, 192; Gregory v. Thomas, 2 id. 286, cited in 1 Greenl on Evid., § 55.

5 As to malicious prosecution, see

issue, as, for example, a person's habitual disregard of his financial obligations or his skill in the management of the affairs intrusted to him, evidence of reputation bearing upon these particular personal qualifications becomes relevant.1 But evidence of reputation is always required, and proof of particular immoral acts or any specific bad conduct cannot be relevant to show character.2

In prosecutions for crime the defendant may always give or offer evidence of his previous good character and peaceable disposition as relevant to rebut any presumption of criminal intent which may arise from the circumstances against him.3 The good character of defendant, however, cannot be attacked or impeached by the state in the first instance; but where he attempts to prove good character, evidence of his general bad character, but not of any specific or particular vicious or criminal act, becomes relevant in rebuttal.1

Gee v. Culver, 13 Oreg. 598; McIntire v. Levering, 148 Mass. 546; Blizzard v. Hays, 46 Ind. 166; Israel v. Brooks, 23 id. 575; Finley v. St. Louis Ref. Co., 99 Mo. 559. Libel and slander, see Insurance Co. v. Hazen, 110 Pa. St. 537; Treat v. Brown, 4 Conn. 408; Nelson v. Wallace, 48 Mo. App. 193; Sanford v. Rowley, 93 Mich. 119; Hallam v. Post, 55 Fed. Rep. 456; Morey v. Morning Journal, 123 N. Y. 207; Jones v. Duchow, 87 Cal. 109.

1 Buswell v. Trimmer, 144 Mass. 350; Monahan v. Worcester, 150 id. 440; Hatt v. Nay, 144 id. 186.

2 Leonard v. Allen, 11 Cush. 241, 245; State v. Donellon, 12 La. 1292; Frazier v. Railroad, 38 Pa. St. 104; Nelson v. State (Fla., 1893), 13 S. Rep. 361.

3 Hinch v. State, 25 Ga. 699; Warren v. State, 31 Tex. Cr. App. 573; Dupree v. State, 33 Ala. 380; State v. Cross, 68 Iowa, 180; Wesley v. State, 37 Miss. 327; Stephens v. People, 4 Park. Cr. Cas. (N. Y.) 396; People v. Harrison, 93 Mich. 594; Murphy v. People, 9 Colo. 435; McCarty v. Peo

ple, 51 Ill. 231; Hall v. State, 132 Ind. 317; State v. Dumphy, 4 Minn. 438; State v. Grate, 68 Mo. 22; Warren v. Com., 37 Pa. St. 45; Walker v. State, 102 Ind. 502; State v. Parks, 109 N. C. 813; State v. Sterritte, 68 Iowa, 761; McDaniel v. State, 16 Miss. (8 Smed. & M.) 401; State v. Schleagel, 50 Kan. 225; People v. Stewart, 28 Cal. 395; People v. Mills, 94 Md. 630; State v. Moelschen, 53 Iowa, 310; People v. Garbutt, 17 Mich. 9; Thomas v. People, 67 N. Y. 218; Gibson v. State, 23 Tex. App. 414; Carr v. State (Ind., 1893), 34 N. E. Rep. 593; Cathcart v. Com., 37 Pa. St. 108; Hopps v. People, 31 Ill. 385. The rule that a defendant may introduce evidence of good character has been sometimes confined in its operation to those crimes the commission of which involves moral turpitude and not mere statutory offenses not malum in se. Com. v. Nagle (Mass., 1893), 32 N. E. Rep. 861.

4 State v. Merrill, 2 Dev. (N. C.) L. 269; Spies v. People (Anarchist Case), 122 Ill. 1; Gibson v. State, 23 Tex.