Caulder v. Com.
| Decision Date | 28 October 1960 |
| Citation | 339 S.W.2d 644 |
| Parties | Nathaniel CAULDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
J. E. Johnson, III, and Kent P. Hollingsworth, Lexington, for appellant.
John B. Breckinridge, Atty. Gen., and Troy D. Savage, Asst. Atty. Gen., for appellee.
CLAY, Commissioner.
Appellant defendant was convicted of assault with a deadly weapon with intent to rob, and was sentenced to 21 years in the penitentiary.
The prosecuting witness could not identify the defendant and the Commonwealth sought to do so by introducing one Norma Jean Brown, who apparently had been present when the crime was committed. She was non-cooperative and attempted to absolve defendant of blame. The Commonwealth thereupon cross-examined her and introduced a contradictory written statement she had made. No complaint is made of this method of impeaching the witness.
Defendant's attorney brought out from Miss Brown that her statement was just like a written statement made by one Mathews at the same time. Her testimony indicated that she did not in her statement give an independent version of what occurred. The Commonwealth, ostensibly to further contradict the witness, thereupon introduced in its entirety the statement made by Matthews (which incriminated defendant). Matthews did not testify.
Defendant contends the introduction of this statement in evidence over his objection was highly improper and prejudicial because it was hearsay, concerned a collateral and immaterial matter (i, e., similarity of the statements), and must have been considered by the jury as substantive evidence of guilt.
Under CR 43.07 a witness may be impeached by showing he made prior contradictory statements or by contradictory evidence. Obviously the writing signed by Matthews is not a contradictory statement of the witness and was not admissible on that ground. The Commonwealth takes the position that the written document constituted proper contradictory evidence even though its content was hearsay. We find it unnecessary to draw the fine line between the competency of the writing as a physical fact and the incompetency of its content.
Assuming the statement could be competent under certain circumstances as contradictory evidence, it is not admissible for that purpose unless pertaining to a material matter. In Commonwealth v. Jackson, Ky., 281 S.W.2d 891, we discussed at length the methods of impeaching a witness in a criminal case, and pointed out that interrogation of the witness and contradictory evidence for impeachment purposes must be so confined. (For example, if a witness testified he was born in 1897 it would not be permissible to introduce contradictory proof that he was born in 1898, assuming the suit did not involve his birth date.) Here the Commonwealth was trying to show that the witness' statement and Mattews' statement were not...
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