Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
Appellant was convicted of larceny. His appeal concerns itself primarily with an attack upon the legal propriety of the prosecutor's cross-examination of his character witnesses. Both the form and substance of the interrogation are questioned.
In order to gain perspective for the study of the problem, recourse must be had to certain fundamentals. In the trial of a criminal case the primary proof presentation of the State cannot include evidence of the defendant's bad character. State v. Hauptmann , 115 N.J.L. 412, 436 (E. & A. 1935), certiorari denied 296 U.S. 649, 56 S. Ct. 310, 80 L. Ed. 461 (1935); Michelson v. United States , 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948); 1 Wigmore, Evidence (3 rd ed. 1940), § 56, p. 450, 454. But the defendant may offer evidence of his general good reputation in the community or neighborhood for the specific trait in issue -- reputation being synonymous with character for this purpose. Michelson v. United States, supra , 335 U.S. , at page 477, 39 S. Ct. 213; State v. Baldanzo , 7 N.J. Misc. 421 (Sup. Ct. 1929), reversed 106 N.J.L. 498 (E. & A. 1930); State v. Brady , 71 N.J.L. 360 (Sup. Ct. 1904). Such evidence is admitted because of its tendency to demonstrate the improbability of his commission of the offense charged. 1 Wigmore, supra , at page 450.
Once the defendant has undertaken to establish his good character, the door opens for rebuttal by the State. However, the same limitation applies as to the type proof receivable, namely, that it must be adapted to the charge made; it must involve the specific trait in issue. State v. Villano , 6 N.J. Misc. 713 (Sup. Ct. 1928), affirmed 106 N.J.L. 601 (E. & A. 1929); State v. Williams , 16 N.J. Super. 372 (App. Div. 1951); Michelson v. United States,
supra , 335 U.S. , at page 479, 69 S. Ct. 213; 1 Wigmore, supra , §§ 58, 59. The restriction finds its justification substantively in the necessity of avoiding proof of a multiplicity of irrelevant events of a defendant's life which the prosecutor may think cast disparagement on his general reputation as a good citizen. And from the standpoint of trial practice it conforms with the ordinary rule which limits the cross-examination of a witness to the matters discussed on direct examination, and with the rule which confines rebuttal to contradiction of specific subjects introduced on direct or cross-examination of defense witnesses.
Wigmore points out that the courts often are liberal in allowing a defendant to offer his general good character, such as for being a law-abiding citizen. Id. § 59, p. 462. In our judgment, in the interest of confining the attention of the jury on the basic issue of guilt or innocence and avoiding possible excursions into a multitude of collateral matters, the doctrine of limitation to the specific trait in issue should be respected, except where the crime charged is such as to make difficult, or perhaps impossible, specification of the precise trait of character, good reputation for which would tend to indicate unlikelihood of its commission by the defendant.
Out of the general rule, to which we have adverted, has grown the practice involved in this case. When a defendant produces witnesses who testify to his good reputation for the relevant facet of character, they may be cross-examined as to whether they have heard rumors in the community or neighborhood as to acts or conduct or charges prior to the offense presently asserted by the State which tend to negative such reputation. State v. Williams, supra; State v. Von Der Linden , 105 N.J.L. 618, 620 (E. & A. 1929); Michelson v. United States, supra , 335 U.S. , at page 479, 69 S. Ct. 213; Annotation , 71 A.L.R. 1504. Wigmore says such inquiries are almost universally admitted (vol. 3, § 988, p. 619).
This examination is sanctioned as a test of the witness' credibility, the theory being that if he has heard such disparaging
rumors his standards as to what constitutes good repute may not be sound or he lacks good faith, or that if he has not heard the rumors (which did in fact circulate), then he is not actually familiar with defendant's reputation. State v. Williams, supra , 16 N.J. Super. , at page 377; 71 A.L.R., supra , at page 1514. Justice Jackson explained the matter for the United States Supreme Court in the Michelson case, supra:
"Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans." (335 U.S. , at page 479, 69 S. Ct. , at page 220.)
The purpose is not to establish the fact of the conduct which is the subject of the rumor but merely the fact of the existence of the rumor. 71 A.L.R., supra , at 1514; Wigmore, supra, vol. 1, § 197, vol. 3, § 988, p. 624.
The rule has come in for substantial criticism as fundamentally unfair. 3 Wigmore, supra , § 988, cited in State v. Williams, supra , 16 N.J. Super. , at page 378. In the Michelson case, the Supreme Court said:
"To thus digress from evidence as to the offense to hear a contest as to the standing of the accused, at its best opens a tricky line of inquiry as to a shapeless and elusive subject matter. At its worst it opens a veritable Pandora's box of irresponsible gossip, ...