Ashton v. Anderson

• Decision Date: 25 January 1971
• Docket Number: No. 2,No. 969A162,969A162,2
• Citation: 265 N.E.2d 719
• Parties: Dorothy ASHTON, Appellant, v. William ANDERSON, Appellee
• Court: Indiana Appellate Court

Page 719

265 N.E.2d 719

Dorothy ASHTON, Appellant, v. William ANDERSON, Appellee.

No. 969A162.

Appellate Court of Indiana, Division No. 2.

Jan. 25, 1971.

Rehearing Denied Feb. 22, 1971.

Opinion Superseded 279 N.E.2d 210.

Don G. Brooks, Berry, Kincade & Miller, Terre Haute, for appellant.

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

SHARP, Judge.

The plaintiff-appellant brought her action for personal injury damages against the defendant-appellee. The jury returned a verdict for defendant-appellee.

The only specification of error here which merits our consideration relates to the cross examination of Lewis Ross, a non-party witness appearing for the defendant-appellee. The pertinent part of the cross examination is as follows:

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

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

'MR. BROOKS: Your Honor--

'THE COURT: I don't see the materiality.

'MR. BROOKS: 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 guilty or been convicted of any criminal offenses before. I think that is within the law, I can ask that question, maybe he can't but if he has that can be taken into consideration on the reliability of the witness' testimony.

'THE COURT: Objection sustained.'

Appellant contends that the question and the reason for the same met the criteria for allowing such cross examination, as stated by this court in McMullen v. Cannon (1958), 129 Ind.App. 11, 12, 150 N.E.2d 765, 766, as follows:

'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, as affecting his credibility, to answer as to previous convictions, whether such convictions were of felonies or misdemeanors.'

The last word on this subject from this court is Andrews v. McNaughton (Alleshouse) (1967), 141 Ind.App. 1, 7, 226 N.E.2d 167, 171, in which Judge Cook, speaking for the court, stated:

'Appellant testified on cross examination, over an objection, that 'this is irrelevant and immaterial,' that he was convicted of eleven traffic offenses during the period from April 26, 1960, to June 18, 1962, growing out of a variety of charges including failing to stop for a main throughfare, speeding and reckless driving; that after the present incident he was convicted twice for speeding and finally for reckless homicide on charges arising from this happening.

'Appellant's objection to these questions was too general, and we do not know of any valid reasons for excluding such testimony. Appellant's testimony conflicted with other evidence on material matters. Under such circumstances a party may be required, on cross examination, to answer as to convictions under the criminal laws as affecting his credibility. McMullen v. Cannon (1958), 129 Ind.App. 11, 150 N.E.2d 765, Topper v. Dunn (1961), 132 Ind.App. 306, 177 N.E.2d 382.'

In Black v. Wachs (1959), 130 Ind.App. 293, 298, 299, 163 N.E.2d 894, 896, this court stated:

'However, we may note that appellant argues that the question asked was proper as affecting appellee's credibility, and that the trial court prejudicially erred in sustaining the objection. She cites the recent case of McMullen v. Cannon (1958), 129 Ind.App. 11, 150 N.E.2d 765, as authority. In that case, which was a suit for personal injuries and property damages arising out of an automobile collision, the appellee (plaintiff) was a witness on his own behalf. On cross-examination, he was asked by appellant if he had been arrested and convicted of operating a motor vehicle while under the influence of intoxicating liquor. Objection was made by appellee's counsel on the ground that the question was immaterial and prejudicial. Appellant then stated that the question went to appellee's credibility and that was the only reason for asking it. The trial court sustained the objection. This court reversed, Judge Kelley stating (at page 13 of 129 Ind.App., at page 767 of 150 N.E.2d):

"It would seem, therefore, that our Supreme Court is committed to the doctrine that * * * the witness should be required to answer as to previous convictions as affecting his credibility.'

'However, in the case at bar, appellant gave no such reason for urging that the question be answered as appellant did in the McMullen case. In fact, no reason was given at all. The trial court could properly have been under the impression that appellant was attempting to bring into evidence a conviction of driving under the influence of intoxicating liquor, reckless driving or some other criminal offense or traffic violation which could have arisen as a result of the accident involved herein. Such convictions are not admissible for the purpose of establishing the facts upon which they were rendered. Seibold v. Welch (1922), 78 Ind.App. 238, 135 N.E. 258; Beene v. Gibralter Industrial Life Ins. Co. (1945), 116 Ind.App. 290, 63 N.E.2d 299.

'Upon the record here before us, we cannot assume that the only purpose of appellant's stated question was to affect the credibility of the witness. In fact, to have done so would have affected adversely appellant's case, since, according to appellee's testimony taken from the record, he admitted practically all charges set forth in the complaint. He testified that he and appellant had been drinking from 2:00 p.m. until 8:35 p.m. of the day of the accident; that the went imbibed nine or ten beers: that after he and appellant had gotten into his automobile and started to drive, he had not turned on his headlights; that the beer had affected his driving; that he went through several intersections without remembering whether the lights were green or red; that he struck the parked car at about a speed of twenty miles per hour. We fail to appreciate how appellant would be benefited by questioning the credibility of the appellee, since his testimony was so favorable to her cause.'

The rule announced in McMullen and followed in Black and Andrews permits any witness, including but not limited to a party, to be impeached by reference to previous convictions whether such convictions were felonies or misdemeanors. The appellee would limit McMullen to a party witness and in this he is incorrect.

Appellant argues that McMullen applies as there was a cross examination of a defense witness concerning prior criminal convictions and appellant gave a timely explanation that said cross examination was concerned solely with the reliability of the witness' testimony. In this the appellant is correct. In this case appellant's counsel stated as his only reason that said cross examination related to reliability. In doing so he appropriately filled in the element that was missing in the Black case. Indeed, since the witness was not a party, the only possible reason for the question related to credibility or reliability of the witness.

As in McMullen, the failure of the trial court to permit such cross examination is reversible error. This cause should be and hereby is reversed and remanded with instruction to sustain appellant's motion for new trial.

Reversed and remanded.

HOFFMAN, C. J., concurs.

WHITE, J., dissents with opinion.

STATON, J., no participating.

WHITE, Judge (dissenting).

To say that the trial judge should have overruled the objection to the question ¹ is one thing. To say that because he sustained the objection the case must be retried is quite another matter.

The retrial of any case is a costly and time consuming process which cannot be accomplished without adding to the burden of an already over-loaded trial court, further delaying the ultimate resolution of a controversy already over six years old. For at least eighty-nine years we have been enjoined first by statute ² and now by rule ³, not to reverse any judgment 'where it shall appear * * * that the merits of the cause have been fairly tried and determined in the court below.' Yet the majority gives no heed to whether the trial judge's mistake (if, indeed, it was a mistake) rendered the trial unfair.

There exists a possibility (until the contrary is shown) that any witness may have some place in his background a conviction which, if known to the jurors, would completely discredit him. Conceding the possibility of such a disclosure at this trial, had the objection been overruled, it does not follow that the result would have been any different had all twelve jurors been convinced beyond any doubt that this witness was lying. There were several other wholly unimpeached witnesses who testified to the same facts.

Furthermore, although there is ample precedent in this state for holding that any conviction may be inquired into on cross-examination for the purpose of impeaching the witness' credibility, it flouts all reason and common sense to assume that any juror will be persuaded to disbelieve a witness merely because he has been convicted of speeding, jay-walking, or any of a host of other malum prohibitum type misdemeanors. Which brings us to the form of this question.

At best, the question required the witness to search back through his past (we are not told his age nor anything to indicate how many decades he may have been required to remember in order to answer correctly) to recall and recount every conviction he may have sustained regardless of whether it had any actual bearing on his credibility or was of sufficient importance to long endure in his memory. A long forgotten 'judgment, withheld' could easily entrap an unwary witness.

At worst, the question is confusing. Even the interrogator himself was unable to explain in oral argument the purpose or meaning of the last word of the question, the word 'before'. The witness...