The Central Railroad and Banking Company vs. Nash. defendant was not negligent in refusing to take and obey the signal, or in failing to do so, or in the speed at which the engine came back to make the coupling, the plaintiff could not recover. And immediately after the sentences complained of, the court instructed the jury, in substance, that the court could not state certain facts and tell the jury that they constituted negligence, or that the absence of them constituted diligence. In the next sentence he instructs them that the question of negligence and diligence is to be tested by the jury, under the evidence, and that there is no procrustean rule defining what ordinary care and diligence is; and that if the defendant exercised ordinary care and diligence at the time of the killing, the plaintiff could not recover; if it failed to exercise such care and diligence, she was entitled to recover. The whole context of the charge shows that the court meant to tell the jury that they were the judges of whether the defendant was diligent or negligent; that it was not for the court to tell them what diligence or negligence was. 4. The 4th ground complains that the court erred in charging the jury as follows: "If the defendant failed. to exercise such care and diligence, in view of the actual situation as disclosed by the evidence, and such negligence occasioned the accident, or contributed to produce it, and Mr. Nash was without fault, his wife would be entitled to recover the full value of his life, that is, the full pecuniary value." The exception to this charge is, that it failed entirely to present to the jury the law contained in sections 2972 and 3034 of the code of 1882, as follows: "If the plaintiff, by ordinary care, could have avoided the consequences to himself, caused by the defendant's negligence, he is not entitled to recover. No person shall recover damage from a railroad company for injury to himself or his property, where the same is The Central Railroad and Banking Company vs. Nash. done by his consent, or is caused by his negligence." This complaint is not well-founded. Almost immediately following the words excepted to, the court gave in charge these identical sections of the code. 5. The 5th ground complains that the verdict is contrary to the evidence, to the principles of justice and equity, and is without any evidence to support it. We think the verdict is fully authorized by the evidence. 6. The 6th ground is, that the verdict is so contrary to the evidence and so excessive in amount as to shock the moral sense. The plaintiff in error failed to show us that the verdict was so excessive as to shock the moral sense. In his argument counsel for the plaintiff in error only contended that the verdict was two or three hundred dollars too large, if a certain rate per cent. was used in making the calculation; and taking the other rate per cent. as laid down in the tables, with interest added to the verdict, which the jury had a right to give if they saw proper, the verdict was about right, according to the calculations of counsel for the plaintiff in error. On the other hand, counsel for defendant in error, by his calculation, showed that the verdict was too small. According to this calculation, made, as he claims, upon the basis of the testimony given in the case, the amount should have been between eight and ten thousand dollars. The error not being shown, and the verdict, according to the evidence, not being, in our opinion, so excessive as to shock the moral sense, we decline to grant a new trial upon this ground. The 7th ground was not insisted on before us. Shropshire vs. The State of Georgia. SHROPSHIRE vs. THE STATE OF GEORGIA. 81 589 99 210 81 589 102 805 81 589 1. In a criminal case, it was error to instruct the jury, in substance, that they must consider all the other evidence in the case, and after 107 688 doing so, if they were doubtful as to the guilt of the defendant, then they might consider proof of good character; but if the other evidence introduced did not make it a doubtful case, they could not consider the good character of the accused. 2. If what Pritchett testified to was a part of the res gesta, it was admissible; if not, it was too vague and uncertain to be admissible. December 19, 1888. Criminal law. Charge of court. Good character. Evidence. Res gesta. Before Judge MADDOX. Floyd superior court. March term, 1888. In connection with the second part of the decision, it is proper to state that the testimony of Pritchett was to the effect that, on the night of the robbery, at a distance not specified from it, he was passed by two negroes, whom he did not know, who were running, and one of them said there was a darkey knocked in the head up under the trestle, that the persons who knocked him down took his rations from him, and that somebody got after him (the speaker) and he ran. Could not swear that he was either of defendants. One of the persons he saw looked like one of the prisoners. Knew both of defendants; Robinson worked for him about eighteen months. Did not think Robinson was one of the persons he saw; nor could he say Shropshire was one of them. The eighth ground of the motion for new trial was, that the court erred in overruling a motion of defendants to exclude the entire testimony of Pritchett, for it in no way connected either defendant with the crime, and was so negative in its nature, and based so exclusively on the uncertain opinion of the witness, as to have no legal bearing on the guilt of defendants. Shropshire vs. The State of Georgia. GEORGE & WALTER HARRIS and WRIGHT, MEYERHARDT & WRIGHT, for plaintiff in error. C. T. CLEMENTS, solicitor-general, by HARRISON & PEEPLES, for the State. SIMMONS, Justice. Howard Shropshire and Jack Robinson were indicted for the offence of robbery. On the trial of the case, the jury returned a verdict of guilty as to both defendants. The defendants made a motion for a new trial, upon the several grounds stated therein, which motion was granted as to Jack Robinson, and refused as to Shropshire; whereupon Shropshire filed his bill of exceptions, alleging error in the overruling of his motion for new trial. 1. The 5th ground of the motion for a new trial complains that the court erred in charging the jury as follows: "You have the right to take into consideration the character of the defendant, in the event you are at all doubtful as to whether the defendant committed this crime or not. If you have any doubt about it, you may take into consideration the character of the defendants; but if, on the other hand, you believe this case has been made out; if you believe these parties have committed the crime, it makes no matter what their character is, it is your duty to convict them." The error assigned upon this charge is, that the court took away from the consideration of the jury the good character of the defendants, unless the jury should be doubtful as to whether they committed the crime or not; in other words, that he instructed the jury, in substance, that they must consider all the other evidence in the case, and after doing so, if they were doubtful as to the guilt of the defendant, then they might consider proof of good character; but if the other evidence introduced Shropshire vs. The State of Georgia. did not make it a doubtful case, they could not consider the good character of the accused. We think the court restricted the jury too much in this instruction. Evidence of good character, when offered by the defendant in a criminal case, is always relevant, and therefore is always material; and if it is material, in our opinion it should go to the jury and have such weight as the jury see proper to give it. If it is material, it should be considered by the jury, not merely where the balance of the testimony in the case makes it doubtful whether the defendant is guilty or not, but where such evidence of good character may of itself generate a doubt as to the defendant's guilt. Good character is a substantive fact, like any other fact tending to establish the defendant's innocence, and ought to be so regarded by the court and jury. Like all other facts proved in the case, it should be weighed and estimated by the jury, for it may render that doubtful which otherwise would be clear. Of course if the guilt of the accused is plainly proved to the satisfaction of the jury, it is their duty to convict, notwithstanding proof of good character; but where the evidence is doubtful and conflicting, the importance of the character of the accused is increased. We think this is the meaning of the cases where this subject has heretofore been treated of by this court: Epps vs. State, 19 Ga. 102; Thomas vs. State, 59 Ga. 784; Coxwell vs. State, 66 Ga. 309; Jackson vs. State, 76 Ga. 551. We think the proper construction of these cases is, that where the guilt of the accused is made by proof to appear to the satisfaction of the jury, they are authorized to convict, regardless of the good character of the accused; but that the jury have a right to consider the good character of the defendant, not merely where his guilt is doubtful under the other testimony in the case, |