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grant to the Broadway Surface Railway of the right to construct, a street railway, and, on the trial, the prosecution was allowed to show that a year previous the defendant had proposed to the engrossing clerk, in the lower house of the legislature, to give the latter $5,000 if he would alter a bill then pending, so that it would authorize the construction of a street railroad on Broadway. appeal the evidence was held improper, and the judgment of conviction was reversed (9). There can be no question that the fact, that the prisoner had previously offered a bribe, showed a willingness to resort to corrupt methods, and to that extent rendered it more probable that he was guilty of the crime charged. But the law regards the inference, that because a man has committed a crime once therefore he is likely to do it again, as too inconclusive to be allowed when his liberty or life is at stake. Accordingly, he is permitted to make his defense to the specific crime charged, without fear that his former misdeeds will be brought up against him.
§ 24. Evidence of similar acts admissible to show intent or motive. Even in criminal cases, however, evidence of similar acts is sometimes admissible to show, not ordinarily the commission of another act of the same kind, but the intent or motive with which such other act, which must be proved by other evidence, was committed. Thus, where the defendant was charged with pawning as a diamond ring one which was only imitation, he pleaded in defense that he did not know that the ring was false, but believed the assertion of a man who employed him that it was
(9) People v. Sharp, 107 N. Y. 427.
genuine. To prove the prisoner's guilty knowledge, the prosecution then offered evidence that he had shortly before offered other false articles to other pawn brokers, and the evidence was held admissible (10). The pawning of the ring as genuine and its baseness were shown by other evidence, and the evidence of similar transactions had a legitimate tendency to show that the prisoner had acted deliberately, with a purpose to deceive, and not under mistake as he averred. The court well stated the force of such evidence as follows: "It is not conclusive, for a man may be many times under a similar mistake, or may be many times the dupe of another; but it is less likely he should be so often, than once, and every circumstance, which shows he was not under a mistake on any one of these occasions, strengthens the presumption that he was not on the last."
On the same theory, where suit was brought for the amount of a note, and the maker pleaded that the note was given for a balance due on gambling transactions in grain and was therefore illegal, it was held proper to show that there was a continuous chain of similar transactions between the same parties (11). The fact that the parties had been gambling for a considerable period, and adjusting balances from time to time, was certainly corroborative of the defendant's statement that the note in suit was given in settlement of such an account.
§ 25. Evidence of similar acts admissible in case of a common scheme. Generally, where two transactions are shown to be parts of a common scheme, evidence of one
is admissible to show the prisoner's guilt of another for which he is on trial (12), although, as has been shown, evidence of an independent criminal act, notwithstanding it may be in certain respects similar, is not admissible. Thus, if a prisoner is charged with selling spurious railroad stock with intent to defraud, it could hardly be allowed in evidence that, at another time, he passed counterfeit money, because the one act has little relation to the other; but it certainly could be shown that he offered the spurious stock at about the same time to other persons than the one named in the indictment; and it probably could be shown also that, with the stock, he offered to the same persons bogus deeds to valuable city property. The two acts would be simply different branches of one scheme to amass wealth by fraud, or in other words, to "get rich quick."
§ 26. Evidence of similar occurrences admissible to show notice. We have just seen that evidence of similar acts is admissible to show the intent with which another act is committed. On the same principle, where, as frequently happens in personal injury cases, it is necessary to show, not only that the accident was due to a lack of safety in premises under the control of the defendant, but that the defendant knew or ought to have known of the danger and guarded against it, evidence of other accidents due to the same cause is admissible on the latter branch of the case. When the District of Columbia was sued, on account of a death resulting from a fall at night on a sidewalk where there was an unguarded descent of two feet,
(12) Frazer v. State, 135 Ind. 38.
it was held proper to show that other persons had stumbled at the same place, and one woman had fallen and been sent home in a carriage (13). Possibly this evidence did not show that the place was dangerous; the persons who stumbled might have been careless. But the occurrence of these other accidents was certainly sufficient to put the defendant on notice that accidents might happen, and require it to repair the sidewalk if, in fact, it was dangerous to persons of ordinary care.
§ 27. Evidence of custom: Admissibility and weight. In determining the rights of parties in any particular transaction, it is natural to inquire what is customary under such circumstances, and such evidence is usually admissible, because the standard of conduct of men in general is a fair criterion of what is required of any particular man. It is not, however, conclusive. For instance, in a personal injury case, one of the issues is whether the acts or omissions of the defendant constitute negligence. This depends upon whether he exercised the degree of care which reasonable prudence would require; if he is a driver of an automobile, not whether he drove his machine as carefully as many other men drove theirs, or even as it was customary to drive, but whether he drove it as carefully as a reasonably careful man would drive it. The second degree may very conceivably be higher than the first. It is well known that many chauffeurs drive automobiles recklessly, and, if their acts, frequent though they may be, could be put in evidence under the cloak of custom as the absolute measure of care required by the law, the dan
(13) District of Columbia v. Armes, 107 U. S. 519.
ger to the public from automobiles would be even greater than it is. In other words, a man's duty to refrain from imperiling his neighbors depends not on what other people actually do, but on what a man of ordinary prudence would do in his situation. The first, that is custom, is not necessarily decisive of the second, which is duty. It is, however, usually an indication which is proper to go to the jury for such weight as they may give it. It is only necessary to impress the idea that it is not conclusive evidence, and that, if customary conduct, which may be customary carelessness, falls short of the standard of conduct which ordinary prudence requires, custom will not excuse a breach of the higher standard.
§ 28. Same: Illustrations. Thus, in a suit against a railway company for damages sustained in a collision, it was contended by the railroad that it was required to exercise only that degree of diligence which was customary and sanctioned by the general usage of railroads. But the court held that, while evidence of custom might bear on the question of whether or not the defendant exercised due care, "such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised. A degree of care ordinarily exercised in such matters may not be due, or reasonable, or proper care, and therefore not ordinary care, within the meaning of the law" (14). In another railroad case, damages were claimed for the death of a conductor who fell from a train as he was climbing a ladder on the side of a box car. It appeared in the evidence that, just as he reached up one hand for
(14) Wabash Railway Company v. McDaniels, 107 U. S. 454.