Ashton v. Anderson, No. 272S22

• Docket Nº: No. 272S22
• Citation: 258 Ind. 51, 279 N.E.2d 210
• Case Date: February 28, 1972
• Court: Supreme Court of Indiana

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279 N.E.2d 210 258 Ind. 51 Dorothy ASHTON, Appellant,
v.
William ANDERSON, Appellee. No. 272S22. Supreme Court of Indiana. Feb. 28, 1972.

[258 Ind. 52] Berry, Kincade & Miller, Terre Haute, for appellant.

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Dix, Patrick, Ratcliffe & Adamson, Terre Haute, Jack N. Cochran, Sullivan, for appellee.

HUNTER, Justice.

Petitioner, William Anderson, is before this Court on an Application for Transfer seeking review of the Appellate Court's opinion in Ashton v. Anderson (1971), Ind.App., 265 N.E.2d 719. The Appellate Court held that it was error for the trial court to disallow a question on cross examination concerning prior criminal convictions for the purpose of impeaching the credibility of the witness. The Appellate Court reversed the trial court's judgment and ordered that the appellant be granted a new trial.

[258 Ind. 53] At trial, counsel for Dorothy Ashton, plaintiff-appellant, attempted to cross examine one Lewis Ross, witness for defendant-appellee, as follows:

'Q. Have you ever been arrested before, Mr. Ross?

(Counsel for defendant-appellee:)

'Your honor, I am going to object to this. That has nothing to do with this. I don't know what the answer is but it is completely immaterial.

(The Court:)

'Sustained.

'Q. Let me ask you this, have you ever plead (sic) guilty or been convicted of any criminal offenses before?

(Counsel for defendant-appellee:)

'i am going to object to that question for exactly the same reason, it doesn't have anything to do with the issues here.

(Counsel for plaintiff-appellant:)

'Your Honor--

(The Court:)

'I don't see the materiality.

(Counsel for plaintiff-appellant:)

'Why, Your Honor, I feel I have a right to ask that question whatever the answer might be, to ask him if he has been arrested or plead (sic) guilty or been convicted of any criminal offenses before. I think that is within the law, I can ask him that question, maybe he can't (sic) but if he has that can be taken into consideration on the reliability of the witness' testimony.

(The Court:)

'Objection sustained.'

It is well established law that the first question relating to prior arrests was improper. See, Hensley v. State (1971), Ind., 268 N.E.2d 90; Petro v. State (1933), 204 Ind. 401, 184 N.E. 710. It is the objection to the letter question which was found by the Appellate Court to have been erroneously sustained. Thus the question before this Court is whether the trial court committed reversible error in refusing to allow counsel for appellant to question a witness on cross examination in regard to prior convictions for any [258 Ind. 54] criminal offense for the purpose of impeaching the witness' credibility.

The decision of the Appellate Court is based on the holding in McMullen v. Cannon (1958), 129 Ind.App. 11, 150 N.E.2d 765. In McMullen, the plaintiff, after testifying in his own behalf, was asked on cross examination whether he had been arrested and convicted of operating a motor vehicle while under the influence of intoxicating liquor. The question was objected to on the ground that it was wholly immaterial to the issues in the case. Counsel for the defendant replied that the question went solely to the plaintiff's credibility. The trial court sustained the objection. In reversing, the Appellate Court stated:

'In this state the rule is deeply entrenched in the case law that a witness, including a party to the action who takes the stand as a witness in his own behalf, may be required on cross-examination,

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as affecting his credibility, to answer as to previous convictions, whether such convictions were of felonies or misdemeanors. Among others which could be cited, see the following: Niemeyer et al. v. McCarty et al., 1943, 221 Ind. 688, 701, 51 N.E.2d 365; Fritch v. State, 1927, 199 Ind. 89, 155 N.E. 257; Parker v. State, 1894, 136 Ind. 284, 288, 35 N.E. 1105; Vancleave v. State, 1898, 150 Ind. 273, 49 N.E. 1060; Dotterer v. State, 1909, 172 Ind. 357, 365, 88 N.E. 689; Neal v. State, 1912, 178 Ind. 154, 158, 98 N.E. 872; Pierson v. State, 1919, 188 Ind. 239, 244, 245, 123 N.E. 118; Bolden v. State, 1927, 199 Ind. 160, 163, 155 N.E. 824; Way v. State, 1946, 224 Ind. 280, 284, 66 N.E.2d 608; Chambers v. State, 1946, 232 Ind. 349, 111 N.E.2d 816; Mitz, Jr. v. State, 1954, 233 Ind. 537, 543, 121 N.E.2d 874.

'In the Neal v. State case, supra, it was held that it rested within the sound discretion of the court as to whether the matter inquired about tended to affect the credibility of the witness. Such, also, was the practical holding of the court in City of South Bend v. Hardy (1884), 98 Ind. 577, 580. However, in the Niemeyer et al. v. McCarty case, supra, the court held that 'the statement that 'the extent to which such cross-examination may be carried is within the sound discretion of the court' must not be construed as authorizing the entire exclusion of such testimony in the trial court's discretion, and the cases referred to do not so hold.'

[258 Ind. 55] 'It would seem, therefore, that our Supreme Court is committed to the doctrine that, without reference to the materiality or relevancy of the subject matter of the offense of which the witness was convicted to the issues of the particular case being tried, the witness should be required to answer as to previous convictions as affecting his credibility. Notwithstanding that we may consider, under the circumstances of this case in which there is no issue of intoxication or operating a motor vehicle while under the influence of intoxicating liquor nor any direct examination on any such matter, that the trial court, upon the whole record and evidence before him, acted soundly and did not abuse his discretion in sustaining the objection to the said question put to the witness, we, nevertheless, consider that we are bound by the said holdings of our Supreme Court.' 129 Ind.App. at 12--14, 150 N.E.2d at 766--767.

It is well recognized that a witness may be required on cross examination to answer as to prior convictions for the purpose of impeaching his credibility. Furthermore, it is unimportant whether the criminal convictions are of felonies or misdemeanors. See, McMullen v. Cannon, supra, and cases cited therein. However, this Court has never specifically decided whether a witness should be required to answer as to any prior conviction for any criminal offense without regard to the nature of the offense and its tendency to reflect on the credibility of the witness.

An examination of our prior case law in this area does not provide us with a definite answer as to what the rule should be. In Glenn v. Clore (1873), 42 Ind. 60, the Court, in holding it was error to admit in evidence the record of a conviction of the crime of assault and battery for the purpose of affecting the credibility of the witness, stated:

'We know of no law by which this evidence could legally be admitted. It is provided by sec. 243 of the civil code, that any fact which might theretofore have been shown to render a witness incompetent, may be thereafter shown to affect his credibility. To determine what crimes rendered a witness incompetent at the date of the civil code, we must refer to the statute previously in force, which is sec. 79, p. 999, Revised Statutes of 1843, and which declared that any [258 Ind. 56] person who might thereafter be duly

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convicted of the crime of treason, murder, rape, arson, burglary, robbery, man-stealing, forgery or wilful and corrupt perjury, should ever after such conviction be deemed infamous, and, among other disabilities, be incapable of giving evidence in any court of justice. It will be seen that neither the crime with which the witness was charged nor that of which he was found guilty rendered him incompetent as a witness prior to the code, and could not therefore be shown to affect his credibility under the code.' 42 Ind. at 61--62.

The statute relating to impeachment, referred to in Glenn v. Clore, supra, is IC 1971, 34--1--14--14, (Ind.Ann.Stat. § 2--1725 (1968 Repl.)). In Niemeyer v. McCarty (1943), 221 Ind. 688, 51 N.E.2d 365, the Court construed this statute similarly to the court in Glenn v. Clore, supra.

'The court sustained an objection to the introduction in evidence of certain records of a contempt proceeding in which it is said that the plaintiff was convicted of contempt of court for perjury. This evidence was offered for the purpose of affecting the credibility of the plaintiff as a witness. It is well settled that ordinarily a witness cannot be impeached by proof of particular extraneous acts of misconduct. Section 2--1725, Burns' 1933, § 312, Baldwin's 1934, Acts 1881 (Sp.Sess.), ch. 38, § 284, p. 240, provides: 'Any fact which might, heretofore, be shown to render a witness incompetent, may be hereafter shown to affect his credibility.' This has reference to § 79, p. 999, Rev.St.1843, which defined infamous crimes and rendered those convicted of such incompetent as witnesses. See Dotterer v. State, 1909, 172 Ind. 357, 88 N.E. 689, 30 L.R.A.,N.S., 846. Among the crimes defined was 'wilful and corrupt perjury.' In this state all crimes are statutory, and all who are accused of crime are entitled to a trial by jury, and there can be no conviction of crime except by a jury unless a jury is waived. Contempt of court is not a crime, although the same act may be a crime and may also be a contempt of court. It follows that the statute quoted above furnishes no basis for the admission of the record of the contempt proceedings even if it is a final judgment which is questioned. There was no error in excluding this record.' 221 Ind. at 692, 51 N.E.2d at 367. (Our emphasis.)

[258 Ind. 57] Thus it is quite clear that IC 1971, 34--1--14--14, (Ind.Ann.Stat. § 2--1725 (1968 Repl.)), permits, for purposes of impeachment, the introduction of the record of convictions for the crimes of treason, murder, rape, arson, burglary, robbery, kidnapping, forgery and wilful and corrupt perjury. Furthermore,...