Burdette v. Com.

• Decision Date: 24 March 1892
• Parties: Burdette v. Commonwealth.
• Court: Kentucky Court of Appeals

18 S.W. 1011

93 Ky. 76

Burdette v. Commonwealth.

Court of Appeals of Kentucky.

March 24, 1892

Appeal from circuit court, Fayette county.

"To be officially reported."

Prosecution against David Burdette for larceny. From a judgment on conviction he appeals. Affirmed.

Lewis J.

The only ground relied on for reversal of judgment against appellant, indicted and convicted for the crime of larceny is that the commonwealth's attorney was permitted to ask and he was required to answer, the following questions on cross-examination of himself as a witness in his own behalf (1) Whether he had ever before been convicted of stealing (2) whether he had been arrested for breaking into a house and stealing coffee, and sent to the workhouse therefor. It has been settled by this court that when a defendant in a criminal prosecution voluntarily becomes a witness in his own behalf he is to be treated in the same way as any other witness, and his testimony subjected to the same test by cross-examination, impeachment, or otherwise as is the testimony of another called as a witness. It is, however, a rule without exception that a witness cannot be compelled to answer any question that would tend to expose him to any kind of punishment or to a criminal charge. But whether a witness can be compelled to make answer to a question having a direct tendency to degrade his character seems, according to Greenleaf on Evidence, (section 450, vol. 1,) not to have been perfectly settled by authority; though in section 456 it is said to be "generally conceded that when the answer which the witness may give will not directly and certainly show his infamy, but will only tend to disgrace him, he may be compelled to answer." It seems to us, however, that whether looking to the rights and interest of the witness, or ascertainment of truth, he would be less likely to suffer injustice or injury, and his credibility more certainly determined, by showing the existing fact of his infamy, than by clouding his character with suspicion probably unfounded. In the same section it is said there does not seem to be any good reason why a witness should be privileged from answering a question touching his present situation, employment, or associates, if they are of his own choice,-as, for example, in what house or family he resides, what is his ordinary occupation, and whether he is intimately acquainted and conversant with certain persons, and the...