Chrisman v. Com., 0396-85

• Decision Date: 16 September 1986
• Docket Number: No. 0396-85,0396-85
• Citation: 348 S.E.2d 399,3 Va.App. 89
• Parties: Ronald Lewis CHRISMAN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 399

348 S.E.2d 399

3 Va.App. 89

Ronald Lewis CHRISMAN v. COMMONWEALTH of Virginia.

Record No. 0396-85.

Court of Appeals of Virginia.

Sept. 16, 1986.

E. Eugene Gunter, Winchester, for appellant.

Leah A. Darron, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and KEENAN, JJ.

JOSEPH E. BAKER, Judge.

Ronald Lewis Chrisman (appellant) appeals from an order of the trial court which approved jury verdicts finding him guilty of two charges of exposing his genital parts to a child in violation of Code § 18.2-370(1); two charges of proposing that a child feel or fondle his genital parts in violation of Code § 18.2-370(3); two charges of proposing that a child submit to anal sodomy in violation of Code § 18.2-370(4); and two charges of aggravated sexual battery in violation of Code § 18.2-67.3. We granted this appeal on the single issue whether the trial court erred in ruling that appellant's prior conviction for indecent exposure was a conviction of a crime involving moral turpitude for the limited purpose of impeaching his credibility as a witness while testifying at trial in his own behalf.

On the narrow ground upon which this appeal was granted, sufficiency of the evidence to support guilt is not in issue. The facts relevant to the controverted issue are that while testifying on his own behalf appellant was asked whether previously he had been convicted of a crime involving moral turpitude; that the trial court required appellant to respond; and that, as a result, it was disclosed that on a prior occasion he had been convicted pursuant to a warrant which accused him of making an obscene display or exposure of his person, or private parts in a public place, or in any place where others are present in violation of Code § 18.2-387. This crime is commonly referred to as the offense of "indecent exposure."

There is a wide variation among the states as to the admissibility of prior convictions for the purpose of impeaching the credibility of a witness. Some states refuse to admit any evidence of prior convictions, see State v. Camitsch, 626 P.2d 1250 (Mont.1981); State v. Santiago, 53 Hawaii 254, 492 P.2d 657 (1971); while others allow use of any conviction without limitation. See State v. Prather, 290 So.2d 840 (La.1974); Commonwealth v. West, 357 Mass. 245, 258 N.E.2d 22 (1970); State v. Rush, 248 Or. 568, 436 P.2d 266 (1968). The long-standing rule in Virginia is founded on the common law and lies between the two extremes.

An examination of the derivation of the rule that permits the admissibility of prior convictions of certain crimes discloses criticism of the rule and the limitations thereon. The theory for its existence is that persons who would commit those crimes are probably unworthy of belief.

By the common law a person convicted of an infamous offence was incompetent afterwards to be a witness. These offences were treason, felony and all offences founded in fraud, and which come within the general notion of the crimen falsi of the Roman law.

Mr. Bishop says, speaking of this incapacity of a witness because of conviction of an offence deemed infamous: "As a consequence of the final judgment for treason, or felony, or any misdemeanor of the sort known by the term crimen falsi, whereof all are commonly called infamous crimes, we have the doctrine that persons convicted of any of these are not permitted to testify, when objected to, as witnesses in our courts. They are supposed to be so regardless of truth that it would be unjust to compel litigants to suffer from what they assert even under oath. Some embarrassment attends the attempt to particularize the crimes which are infamous within this rule."

Barbour v. Commonwealth, 80 Va. 287, 288-89 (1885); see also Taylor v. Beck, 24 Va. (3 Rand.) 316 (1825). Wigmore traced the rule back to the 1600s. See 1 Wigmore, Evidence 933 (2d ed. 1923). Initially, persons convicted of such crimes were held to be totally incompetent to testify as witnesses in any capacity. Subsequently, the rule was modified by statute and convicts were permitted to testify; however, it could then be shown that they previously had been convicted of crimes which at common law made them incompetent witnesses.

Dean Dudley W. Woodbridge reviewed the Virginia statutory modifications of the common law rule beginning with the first enactment in 1748 through changes made in 1777, 1792, 1849 and 1919. ¹ See also Bell v. Commonwealth, 167 Va. 526, 532, 189 S.E. 441, 444 (1937).

Dean Woodbridge noted that the initial statutes provided that certain persons were deemed unworthy of belief and, therefore, were barred from giving evidence in any cause, criminal or civil. See 5 Henings Statutes at Large 546-47. He further reported that later statutes limited disqualifications to persons convicted of perjury, treason, murder or other felony, unless they had been pardoned or had served the prescribed punishment; still later, perjury was removed from the pardoned or time served alleviation. Acts of Assembly 1847-48, p. 124. See also Patterson v. Commonwealth, 139 Va. 589, 123 S.E. 657 (1924).

Felons could not, as a rule, testify unless pardoned or punished, and a person convicted of perjury could not testify although pardoned or punished.

Epes' Administrator v. Hardaway, 135 Va. 80, 87, 115 S.E. 712, 715 (1923).

The modern statutory rule was enacted by the General Assembly of Virginia in 1919:

Conviction of felony or perjury shall not render the convict incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.

Code of 1919, § 4779.

That section remains basically the same today.

A person convicted of a felony or perjury shall not be incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.

Code § 19.2-269.

It was not necessary for the General Assembly to statutorily state that those convicted of misdemeanors would not be incompetent as witnesses because the common law did not disqualify misdemeanants. See Burford v. Commonwealth, 179 Va. 752, 764, 20 S.E.2d 509, 514 (1942).

There is no statutory provision which permits an advocate to inquire as to whether the witness previously has been convicted of a misdemeanor involving moral turpitude. The phrase "involving moral turpitude" was developed in the common law and applied only to crimes deemed "infamous."

"At common law, persons convicted in courts of record of crimes which render them infamous are excluded from being witnesses. 'Infamous' crime in this sense is regarded as comprehending, treason, felony, and crimen falsi."

Bell v. Commonwealth, 167 Va. at 530, 189 S.E. at 443 (1937) (quoting 1 Wharton's Criminal Evidence 30). Justice Holt, in Bell, discloses the relationship between an "infamous crime" and one which "involves moral turpitude":

An 'infamous' crime is one which works infamy in the person who commits it. At common law it was one which involved moral turpitude and which rendered the party convicted thereof incompetent as a witness. (emphasis added).

Id. at 531, 189 S.E. at 443. Thus, it was only those crimes deemed "infamous" that also would be considered to involve moral turpitude, and only those crimes cast doubt on the veracity of the convict.

In Virginia, the phrase "involving moral turpitude" as applied to prior convictions of misdemeanors appears to have grown from the seeds sown in Bell. Justice Holt there made an exhaustive examination of the common law, subsequent English and Virginia statutes, and previously decided Virginia cases, relating to impeachment of witnesses by inquiring as to prior convictions. To show the seriousness of the common law conception of the word misdemeanors, Justice Holt said:

When Hastings stood before the House of Lords, charged with high crimes and misdemeanors, certainly that tribunal did not for seven years mill over inconsiderable offenses.

Id. at 530, 189 S.E. at 443. As applied to character for veracity, Justice Holt demonstrated the relationship between the concept of moral turpitude and the concept of infamous crime. And so have others.

[A]s all treasons and almost all felonies were punishable with death, it was very natural that crimes deemed to be of so grave a character as to render the offender unworthy to live should be considered as rendering him unworthy of belief in a court of justice.

Whether or not an offense is infamous, it seems, is to be determined by the character of the crime and not by its punishment.

Davidson v. Watts, 111 Va. 394, 397, 69 S.E. 328, 329 (1910).

Justice Holt agreed that it was not the punishment which makes a crime infamous, but rather the nature of the crime. Bell v. Commonwealth, 167 Va. at 530, 189 S.E. at 443.

Now, however, by statute in Virginia, Code, section 4758, the grade of the offense is fixed by the punishment. Those offenses punishable by death or confinement in the penitentiary are felonies and other offenses are misdemeanors, but no statute could affect their inherent nature, and so larceny, either grand or petit, is shot through with moral turpitude, and this outstanding characteristic is not changed whether the thief steals forty-nine or fifty-one dollars. Indeed by statute now, Code, section 4785, one three times convicted of petit larceny must be sentenced to the penitentiary. Of course repetition of an offense does not change its nature.

At common law simple larceny of goods above the value of twelve pence is called grand larceny; of that value or under it is petit larceny. Both were felonies. Bouvier's Law Dictionary, "Felony;" People ex rel. Cosgriff v. Craig, 195 N.Y. 190, 88 N.E. 38; 36 C.J., page 800.

If it be conceded that petit larceny at common law was a misdemeanor, we reach the same results. "An 'infamous' crime is one which works infamy in the person who commits it. At common law it was one which involved moral turpitude and which rendered the party convicted thereof...