Commonwealth v. Welch

• Decision Date: 22 June 1901
• Citation: 111 Ky. 530
• Parties: Commonwealth v. Welch.
• Court: Kentucky Court of Appeals

111 Ky. 530

Commonwealth v. Welch.

Court of Appeals of Kentucky.

June 22, 1901.

APPEAL FROM HENRY CIRCUIT COURT.

MOTION OF ATTORNEY-GENERAL DENIED.

OPINION OF THE COURT BY JUDGE Du RELLE — DENYING MOTION.

In this case there has been filed by the attorney general a motion to modify the response to the petition for rehearing. No authority is cited in support of the motion, and the argument urged to sustain it is as follows: "I have read the `response' with great care, and it seems to me that it overrules not only the opinion in the three cases mentioned, but changes entirely the reach and extent to which cross-examination of witnesses has been for many years permitted both by precedent and authority, and so limits the cross-examination as almost to preclude any inquiry as to the past life and conduct of the witness, and this may permit the greatest criminal to escape, or the innocent to be convicted. The innocent should not be convicted, nor the guilty allowed to escape, on the evidence of witnesses whose past life and conduct will not bear such scrutiny as will give a jury a fair opportunity to judge of their credibility." The three cases referred to are Mitchell v. Com. (12 L. R., 458) 14 S. W., 489; Roberts v. Com. (14 R., 219) 20 S. W., 267; and Burdette v. Com., 93 Ky., 76 13 R., 960) 18 S. W., 1011. So broad a statement from the chief law officer of the State government would seem to call for some attention from the court.

In the first place, there is no question in the mind of any member of the court that the ruling of the original opinion upon the question of evidence therein stated was absolutely correct. To impeach or discredit or disparage a witness for the defense, a deputy sheriff was allowed to testify that he had a warrant for the arrest of the witness; and the Commonwealth's attorney was allowed to read the warrant to the jury, charging the witness with the offense of detaining a female under twenty-one years of age, with intent to have carnal knowledge of her. There never has been a day in the history of the Commonwealth when such evidence was admissible for such purpose. By petition for rehearing, the Commonwealth relied on the three cases above-mentioned, as sustaining the admissibility of the testimony complained of on the appeal. In its response to the petition, and in answer to the doctrine therein stated and contended for, the court took occasion to comment on those cases, and to expressly overrule them, to the extent — and no further — to which they had been already, in substance, overruled in various opinions. The question whether section 597 of the Civil Code of Practice was applicable to cross-examination was brought before the court by the petition for rehearing, and in its response the court simply reiterated the rule which it had on several occasions followed. The question was not presented or argued upon the hearing of the case, but, having been presented and argued by the petition for rehearing, it was thought best, for the guidance of the circuit courts, to announce the views of this court upon a question of such frequent occurrence. It may be that it was unnecessary to state the opinion of the court upon this question in this case. But, if the statement be a correct one of the views of the court upon the question, it should not be withdrawn, lest its withdrawal should mislead the circuit courts.

Section 597 of the Code, which is the same as section 661 of the old Code, except that the word "untruthfulness" has been substituted for "truth," is as follows: "A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony." Section 598 provides a limitation upon the mode of impeachment by contradiction. The question before the court is, how far, if at all, does the Code provision affect the right of cross-examination? In considering this question, it may be regarded as settled law that the same rule applies to a person accused, when testifying in his own behalf, as to any other witness. This has been the uniform rule in this State. McDonald v. Com., 86 Ky., 13 (9 R., 230) 4 S. W., 687; Parker v. Com. (21 R., 405), 51 S. W., 573; Lockhard v. Com., 87 Ky., 201, 10 R., 102; 8 S. W., 266; Pace v. Com., 89 Ky., 204; 14 R., 407, 12 S. W., 271; Burdette v. Com., 93 Ky., 76, 13 R., 960; 18 S. W., 1011; Saylor v. Com., 97 Ky., 184, 17 R., 100, 30 S. W., 390. It may be assumed, also, that before the adoption of the Code of 1854 the doctrine indicated by Chief Justice Robertson, in 1830, in Sodusky v. McGee, 5 J. J. Marsh. 622, 625, as to the proper limits of cross-examination had been considerably modified by the current of authority. In that case it was said: "A witness should not be compelled to prove his own general character; nor should he be required to prove any special fact reflecting on his character, unless it be pertinent to the issue independently of its tendency to affect character. His character could not be assailed by proof by other witnesses of particular facts, and certainly it would be improper to compel him to prove facts relating to his character which others would not be permitted to prove." In that case the witness was asked "if he was not engaged at the time or shortly before the commencement of that fight, some distance off, playing cards with a negro fellow." The court held that: "It was, of course, immaterial with whom he was engaged, unless the object of the question was to affect the character of the witness; and then, as already shown, the counsel for appellee, as well as the witness, had a right to object to it, because that was not the legal mode of attacking his character."

It may be safely assumed, however, that even as early as the adoption of the old Code the trend of the authorities in this country, in the absence of statutory regulation, was at least in the direction of the doctrine as laid down in Greenl. Ev., sections 447-460; and much greater latitude was allowed on cross-examination than would be indicated by the extract given from the opinion in the Sodusky case. If we examine the statute, we find that the word "impeach," as there used, has evidently a more comprehensive sense than that which would be attached to it by a strict and literal definition. Strictly speaking, the word "impeach" imports a successful attempt to establish the charge of want of veracity. It imports destruction of the witness' testimony. But, as generally used, it comprehends also, the attempt to establish such a charge, whether unsuccessful or successful, in whole or in part. 15 Am. & Eng. Ency. Law, 1060. It not only means destruction, but it means attack, and it includes disparagement and discredit, which may be considered degrees of impeachment. A witness may be impeached or attacked, under the Code, whether the attack results in the rejection of his testimony, or in the rejection of such part only as is not supported by corroborative testimony. And it would seem, if we are guided by the language of the statute alone, to apply not only to the attack by the testimony of others, but to attack upon cross-examination. Section 598 prescribing the mode of impeachment by contradiction, has it distinctly in view that the foundation should be laid upon cross-examination, and has been uniformly so construed. And the provision in section 597 "that it may be shown by the examination of a witness . . . that he has been convicted of a felony" has uniformly received the construction that such conviction may be shown by the cross-examination of the witness himself whose testimony is attacked. It would seem, therefore, that, so far as the language of the statute itself is to be our guide, there is nothing in it which prevents its application both to attack or impeachment by the testimony of other witnesses, and to attack or impeachment by the cross-examination of the witness himself, or, as it is usually termed, "cross-examination as to credibility." Now the statute may be divided into two parts, — one part declaratory and permissive, and the other part prohibitory. It declares that the witness may be impeached by showing previous contradictory statements made by him. This is merely declaratory, except in so far as the mode is regulated by the succeeding section, which looks to cross-examination for he could have been impeached or attacked in that manner without the permission of the statute. The statute declares and permits that he may be impeached by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief. This may be considered to be both declaratory of the existing law and permissive; for the cases before the old Code had been somewhat in conflict as to the right to show a witness' general bad moral character, though the doctrine was reasonably well settled that it might be done. Mobley v. Hamit, 1 A. K. Marsh., 591; Hume v. Scott, 3 A. K. Marsh., 261; Blue v. Kibby, 1 T. B. Mon., 195, 15 Am. Dec., 95. Then follows a prohibition, — "but not by evidence of particular wrongful acts." This seems to be declaratory of the existing law, at least as to the testimony of witnesses other than those under attack. Evans v. Smith, 5 T. B. Mon., 365, 17 Am. Dec., 74; Hart v. Reed, 1 B. Mon., 170, 35 Am. Dec., 179. Then follows an exception to the prohibition, which is in terms permissive, — "except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony." This is both declaratory and permissive. By the law aforetime the infamy of a witness could be shown by the production of the record of the...