ily, 24 years a resident and tax-payer of Cambridge, the place where the offense is alleged to have been committed, being a dealer in such articles, purchased those set forth of a neighbor at a fair market value; and that the offering them for sale would excite no suspicion that they had been dishonestly obtained; fair samples, actually junk, admitted by the government witnesses to be in as good condition as that bought of McCarty being produced in court from the junk-shop of a wholesale dealer. With this stands the testimony of the defendant, uncontradicted by McCarty, that the latter made a satisfactory explanation of his possession of the articles.

Opposed to this is the uncorroborated testimony of McCarty, a selfconvicted thief, attempting to escape punishment by putting the responsibility of his crime upon another, who says defendant induced him to procure the material.

The defendant produced as witnesses his near neighbors, old residents, representative members of the community, and other respectable citizens, all of whom had known and seen him, and those who knew and had seen him daily for many years, and the testimony of all was to the uniform good character of the defendant.

Such testimony in this relation should not be belittled.

The effect of the whole instruction of the court as to character was to make little of this testimony, and to cause the jury to believe that, as against the positive testimony of McCarty, it was of no weight or importance, and entitled to no consideration. The jury was told that defendant has a right to put in his character "by way of rebuttal of the inference that he might be likely to commit the act;" that "character may properly bé thrown into the scale to increase any reasonable doubt that the jury might have," but that it "is no answer against decisive evidence;" that it is only where "the mind of the jury is in doubt" that it is of any importance; that "where the evidence is strong, etc., of course it is not of the slightest consequence."

Good character is a fact relevant to the question of the guilt or innocence of the accused, and may alone create a doubt in the mind of a jury. Rex v. Stannard, 7 Car. & P. 673; 3 Greenl. Ev. § 25; 2 Russ. Cr. 785.

Good character alone should uniformly be allowed to outweigh the testimony of an accomplice. It should be allowed to rebut the presumption of guilt arising from such evidence. In cases like this character becomes important,-it is a perfect shield. People v. Vane, 12 Wend. 82; Townsend v. Graves, 3 Paige, 455, 456.

There should have been also a careful instruction as to the weight to be given the testimony of McCarty to qualify the instruction regarding the good character of the defendant.

E. J. Sherman, Atty. Gen., for the Commonwealth.

FIELD, J. The motion to quash was rightly overruled. The articles in cach count alleged to have been feloniously received are the articles in that count alleged to have been stolen. As testimony was introduced

that the defendant did not keep a junk-dealer's book, the testimony of Murray was competent for the purpose of showing that the defendant knew that the statute of the commonwealth, and the ordinances of the city of Boston, required him to keep such a book. See P. S. C. 102, § 29. If the defendant intentionally neglected to keep a book which was required by law manifestly for the purpose of tracing all articles purchased by him as a junk-dealer, the fact was competent to be considered by the jury.

The offense of receiving stolen property, knowing it to have been stolen, must be considered as distinct from the offense of receiving embezzled property, knowing it to have been embezzled, although embezzlement under our statutes has been held to be a species of larceny. Com. v. Pratt, 132 Mass. 246; P. S. c. 203, §§ 48, 51. The punishments of the two offenses may be different, as the offense of receiving embezzled goods may be punished by a fine without imprisonment. If the property had actually been stolen, as belief on the part of the defendant that it had been stolen is tantamount to knowledge; if the defendant knew all the facts, and the facts constituted larceny as distinguished from embezzlement,-it would be no defense that the defendant thought that the facts constituted embezzlement. If the defendant did not know the facts, but believed from the circumstances that the property had been either embezzled or stolen, and it had been actually stolen, it was competent for the jury to find the defendant guilty of the offense charged. The second request for instructions was therefore rightly refused.

The first request for instructions states the law with substantial correctness. It is contended that the instructions given on this point rightly construed are the same in effect. We find it unnecessary to decide whether the case called for a more careful definition of larceny as distinguished from embezzlement or from willful trespass.

The third request was, we think, a correct statement of the law as it must now be held in this commonwealth. The case was peculiarly one where evidence of the defendant's general reputation for honesty in his business deserved consideration. Such evidence is always competent in the trial of offenses of this character. It is not now the law, we think, that evidence of character can only be considered by the jury where the other evidence is doubtful, and that "it is not of the slightest consequence" where the other "evidence is strong," and the guilt of the defendant "is impressed on the minds of the jury.". In Com. v. Hardy, 2 Mass. 317, it was said that "in doubtful cases a good general character clearly established ought to have weight with a jury, but it ought not to prevail against the positive testimony of credible witnesses;" and in Com. v. Webster, 5 Cush. 295, a distinction was taken between crimes "of great and atrocious criminality" and "smaller offenses," and it was said that "against facts strongly proved good character cannot avail," and that in the smaller offenses, such as "pilfering or stealing," when the evidence is doubtful, proof of character may be given with good effect.

Both these decisions were before G. S. c. 115, § 5, (P. S. c. 153, § 5,) which provided that "the courts shall not charge juries with respect to matters of fact, but may state the testimony and the law." The distinction taken in Com. v. Webster, if it be regarded a matter of law, has been expressly disapproved of in Cancemi v. People, 16 N. Y. 501; Harrington v. State, 19 Ohio St. 264; People v. Garbutt, 17 Mich. 9. The old rule that evidence of the good character of the defendant is not to be considered by the jury unless the other evidence leaves their minds in doubt has been much criticised, and the weight of authority is now against it. Bish. Crim. Proc. (3d Ed.) §§ 1115, 1116; 2 Russ. Cr. (5th Ed.) 391; 3 Greenl. Ev. § 25; Whart. Crim. Ev. (9th Ed.) § 66; Stewart v. State, 22 Ohio St. 477; People v. Ashe, 44 Cal. 288; State v. Henry, 5 Jones, (N. C.) 65; Remsen v. People, 43 N. Y. 6; State v. Lindley, 51 Iowa, 343; S. C. 1 N. W. Rep. 484; Heine v. Com., 91 Pa. St. 145; State v. Daley, 53 Vt. 442; Coleman v. State, 59 Miss. 484; Cancemi v. People, ubi supra; Harrington v. State, ubi supra; People v. Garbutt, ubi supra.

If evidence of reputation is admissible at all, its weight should be left to be determined by the jury in connection with all the other evidence in the case. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt in the minds of the jury, although without it the other evidence would be convincing. To instruct a jury that they are first to consider the other evidence in the case, and that if they are thereby convinced beyond a reasonable doubt of the guilt of the defendant they are to disregard the evidence of good character, and that they are only to consider this evidence when their minds are left in doubt by the other evidence, and when perhaps the defendant does not need the evidence of character for his acquittal, is a practice that finds even less support in reason than in authority. The old practice of charging juries that evidence of character was of little or no weight, except in doubtful cases, undoubtedly grew up when judges were accustomed to express their opinions to jurors upon matters of fact, and the weight to be given to evidence, and was perhaps just enough in particular cases; but we think it ought not to have been made a rule of universal application,that is, a rule of law,-and since the passage of G. S. c. 115, § 5, it is open to the objection that it is charging juries upon the weight to be given to evidence, when the law, as we think, does not define the degree of weight to be attached to it. Exceptions sustained.

(101 N. Y. 71)

COURT OF APPEALS OF NEW YORK.

BUTLER V. SMALLEY and another.1

Filed January 19, 1886.

1. MANUFACTURING CORPORATIONS-LAWS 1848, CH. 40, § 12-FILING OF REPORT -PERSONAL LIABILITY OF TRUSTEES.

The limitation of "twenty days," in section 12, c. 40, Laws 1848, applies only to the act of making the annual report, and not to the filing and publishing; but the latter acts should be done within a reasonable time after the 20 days. And where the report was made and delivered to the secretary, who published it the next day, the eighteenth of January, but by his mistake it was not filed until the thirteenth day of February, it is not such a default as will make the trustees personally liable.

As to what would be a reasonable time, depends upon the circumstances of the case.

3. SAME-ORDER FOR FILING NUNC PRO TUNC.

.

Where the order has not been filed within the 20 days, the procuring of an order directing its filing nunc pro tune would not relieve the trustees of liability, if the statute had required that the filing be within the 20 days.

Mr. Winsor, for appellant.

Mr. Irish, for respondent.

DANFORTH, J. The Lathrop Anti-frictionate Company was organized under the manufacturing law of 1848. Chapter 40. It made and published a report of its affairs, as required by section 12 of that act, within 20 days after the first day of January, 1878, but the report was not filed until February 13th. The defendants were its trustees, and the plaintiff, claiming to be a creditor of the company, brought this action to fix a liability upon them for his debt, on the grounds (1) that the report was false in fact, and (2) was not filed within the same 20 days, "nor as soon as practicable thereafter." The first ground seems now to be abandoned by the counsel for the respondent, and, indeed, could not well be insisted upon. There is no finding that the report was false, nor that the defendants signed it knowing it to be false, but only that it omitted from the aggregate of indebtedness certain liabilities of the company, and that this was known to the defendants at the time the report was made and filed; nor is there any finding either of bad faith or of willful or fraudulent purpose on the part of the trustees, nor of any fact showing actual fraud; and, without one or the other of these things, the penalty imposed for signing a report "false in any material representation" (section 15 of the act of 1848, supra) is not incurred. Pier v. Hanmore, 86 N. Y. 95; Bonnell v. Griswold, 89 N. Y. 122.

The other point is disposed of by the construction given to section 12, supra, in Cameron v. Seaman, 69 N. Y. 396. In that case the precise question was whether the report must be filed and published as well as

'Reversing 49 N. Y. Super. Ct. 492.

made within the 20 days from the first of January, in order to meet the exigency of this section; and it was held that the limitation of 20 days. applied only to the act of making, and did not apply to the acts of filing and publishing; that, as to those acts, the section was directory; but, as the object of the act was to insure a speedy and public disclosure of the contents of the report, it was said that the law, in the absence of an express provision on the subject, implies that both filing and publication should be within a reasonable time after the 20 days, and that this requirement exacted prompt performance and diligent action on the part of the trustees. This rule was laid down as most consistent with reason and a due regard to convenience and justice, and leads to an inquiry in any given case whether the party on whom the duty is imposed is shown to be in default. In that case, the report was made within the 20 days, sent by mail to the county clerk and to the newspaper on the twentyfirst day, and was in fact both filed and published, but of course not until after the expiration of the 20 days.

Now, in the case before us, it is conceded that the report was made within the 20 days, viz., on the seventeenth of January. It was conclusively proven that, at the moment of making, the report was delivered to the secretary for filing and publication. He caused its publication the next day; and the plaintiff himself proved that it was owing to the mistake of the secretary that it was not then filed. At the outset of the case the plaintiff introduced and put in evidence the annual report of the company, dated January 17, 1878, and a petition dated February 8th, addressed to the supreme court, and its order therein. The report was in form sufficient, and the petition, verified by the secretary, stated that the report was published on the eighteenth of January, but "by mistake was not filed in the office of the clerk of the county of New York." The prayer of the petition was granted, and the court, on the thirteenth day of February, ordered the report filed as of January 17th. In the course of the trial, the defendant John Smalley had testified that the report was filed in the clerk's office January, 1878, and, upon crossexamination, the plaintiff's counsel called his attention to that evidence, saying: "And that you still affirm? is that so? Answer. That is so, in

one respect." And being further pressed, said: "That report was made out and given to my son, [meaning the secretary,] and I supposed he took it there." This answer was, on motion of the examining counsel, stricken out; but subsequently, on the same examination, the question was repeated, the plaintiff's counsel saying:

Question. I now repeat my former question, did you swear on your direct examination as follows: Q. Do you know whether there was any report of the Lathrop Anti-frictionate Company filed in 1878, in January of that year? A. Yes, sir; there was? Answer. I did.Q. You did not file it yourself? A. No, sir. Q. Don't you know that your son William W. Smalley subsequently, and as late as February 8th, made an application to the court upon a petition, in which he swore that through some mistake or other that report had not been filed within the first twenty days of the year, as required by law? A. I think I did. Q. Why did you swear as you did that the report was filed in January, when you knew that your son had made a petition under oath that it was not? A. As far as I was concerned, it was filed. I did everything in my power. I had helped him to make out a report, and he took it, and I was not aware at the time but what it was filed."