Broyles v. Com.

• Decision Date: 19 February 1954
• Parties: BROYLES v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 73

267 S.W.2d 73

47 A.L.R.2d 1252

BROYLES v. COMMONWEALTH.

Court of Appeals of Kentucky.

Feb. 19, 1954.

Rehearing Denied May 7, 1954.

W. Clarke Otte, Harry F. Poynter, Louisville, for appellant.

J. D. Buckman, Jr., Atty. Gen., Earle V. Powell, Asst. Atty. Gen., for appellee.

COMBS, Justice.

George Richard Broyles appeals from a sentence of life imprisonment imposed after a jury found him guilty of the murder of Billy D. Smithers. He urges as grounds for reversal: (1) Improper cross-examination of defense witnesses by the Assistant Commonwealth's Attorney; (2) erroneous instructions; (3) improper argument by the Assistant Commonwealth's Attorney.

The appellant introduced several witnesses who testified that his reputation for peace and quietude was good. These witnesses were asked on cross-examination if they knew appellant had been arrested and convicted on separate occasions for drunken driving, for reckless driving, and for disorderly conduct. One witness admitted to having knowledge of these convictions; the others disavowed such knowledge. Appellant contends the questions were improper because they related to a trait of charactor not involved in the crime with which he was charged.

Broadly speaking, it is the rule in this state that where the defendant introduces evidence of his good reputation, the witness so testifying may be asked on cross-examination whether he has heard reports of particular acts of misconduct by the defendant. Fugate v. Commonwealth, 211 Ky. 700, 277 S.W. 1029; Wigmore on Evidence, 3rd Edition, Vol. 3, section 999. But the rule is not absolute. When there is an objection to such evidence or a motion to limit its effect, the court is required to admonish the jury that it is admitted only for the purpose of testing the accuracy and credibility of the witness' testimony and not as substantive evidence of defendant's guilt. Copley v. Commonwealth, 184 Ky. 185, 211 S.W. 558. Moreover, inquiry may be made only about those acts of misconduct having some relation to the particular trait of character which the defendant has put in issue. Smith v. Commonwealth, 206 Ky. 728, 268 S.W. 328; Annotation 71 A.L.R. 1504, at page 1519.

Another limitation to the rule, but one with which we are not here concerned, is that the attorney for the Commonwealth may not deliberately inject into the case the issue of previous acts of misconduct by the defendant without some basis for his questions. Taylor v. Commonwealth, 269 Ky. 656, 108 S.W.2d 645; Mannix v. United States, 4 Cir., 140 F.2d 250.

The question here is whether one who is guilty of drunken driving, reckless driving, and disorderly conduct thereby evinces a trait of character inconsistent with a good reputation for peace and quietude. Courts in other jurisdictions have answered the question in the affirmative and have permitted questions designed to test the witness' knowledge of the other offenses. Adams v. State, Tex.Cr.App., 255 S.W.2d 513; Johnson v. State, 151 Tex.Cr.R. 110, 205 S.W.2d 773; Lowrey v. State, 87 Okl.Cr. 313, 197 P.2d 637; State v. Cyr, 40 Wash.2d 840, 246 P.2d 480; Vaughan v. State, 201 Ala. 472, 78 So. 378; Weakley v. State, 168 Ark. 1087, 273 S.W. 374; State v. Steele, 280 Mo. 63, 217 S.W. 80.

We find no Kentucky case directly in point, but an examination of related cases reveals that this court has taken a cautious attitude toward the introduction of such testimony. In Smith v. Commonwealth, 206 Ky. 728, 268 S.W. 328, the defendant, being tried for murder, introduced witnesses who testified that his reputation for peace and quietude was good. The witnesses were asked on cross-examination if they had heard that defendant had an illegitimate child by his sister-in-law; that he had taken another man's wife to Tennessee and lived with her, and that he had been convicted for the illegal sale of whisky. It was held that the questions should not have been permitted because responsive answers would have thrown no light on defendant's reputation for peace and quietude.

In Albertson v. Commonwealth, 312 Ky. 68, 226 S.W.2d 523, the defendant, under charge of murder, introduced witnesses who testified to his good reputation for peace and quietude. The witnesses were asked on cross-examination if they knew the defendant had engaged in the illegal traffic of whisky. This was held to be reversible error on the ground that a responsive answer to the question would have had no bearing on defendant's reputation for peace and quietude.

Although we are of the opinion the practice should be indulged in cautiously and that the rule should be kept within strict limitations, it seems to us that a conviction for drunken driving, or reckless driving, or disorderly conduct has some reasonable connection with a man's reputation for peace and quietude. In the legal sense, peace and quietude signify obedience to law, public quiet, good order and tranquility. A jury might reasonably infer that a propensity to drunken driving, reckless driving, or disorderly conduct is evidence of an attitude of disrespect for the law inconsistent with a good reputation for peace and quietude. It should be kept in mind that such evidence is never competent unless the defendant himself puts his reputation in issue; and even then it is competent only for the purpose of testing the witness' credibility, and not as substantive evidence. It is noted that proper admonition to this effect was given by the trial judge in this case. We conclude that the court properly permitted the attorney for the state to ask the defendant's character witnesses whether they had heard reports of his previous conviction for drunken driving, reckless driving, or disorderly conduct.

The Assistant Commonwealth's Attorney, in his argument to the jury, made these remarks: 'You must bring in a conviction of at least life, and I want to say here and now that if you sentence him to life he is eligible for parole at the end of eight years.' And again, 'If you sentence him to 21 years on manslaughter, he is eligible for parole at the end of six years.' And, 'If you sentence him to anything less than ten years, he is eligible for parole at the end of one-third the time.' Timely objection having been made and proper exception taken by the appellant, we are faced with the question whether this argument is sufficiently prejudicial to require reversal of the judgment.

This court has been condemning such arguments for more than 30 years. Estepp v. Commonwealth, 1919, 185 Ky. 156, 214 S.W. 891. As early as 1917 it was held in Postell v. Commonwealth, 174 Ky. 272, 192 S.W. 39, that it was reversible error for the court to tell the jury that a defendant, sentenced to imprisonment for life, could be paroled by the board of prison commissioners. In Seymour v. Commonwealth, 1927, 220 Ky. 348, 295 S.W. 142, 145, the argument of the...