Compton v. Jay
| Decision Date | 14 April 1965 |
| Docket Number | No. A-10295,A-10295 |
| Citation | 389 S.W.2d 639 |
| Parties | Ralph COMPTON, Petitioner, v. Robbie Cecile JAY, Respondent. |
| Court | Texas Supreme Court |
Kenley, Ritter & Boyland, Jack N. Price, Longview, for petitioner.
Jones, Brian, Jones & Baldwin, Marshall, for respondent.
Robbie Cecile Jay recovered a judgment against Ralph Compton for personal injuries suffered in an automobile collision. The Court of Civil Appeals affirmed. 379 S.W.2d 933.
Petitioner Compton presents one point of error in which he contends that the trial court committed reversible error by receiving in evidence (in a jury case) proof of his prior felony convictions for driving a motor vehicle while intoxicated. Respondents contend that such convictions were admissible (a) to impeach the credibility of Compton as a witness and (b) to corroborate other evidence in the case which tended to show that Compton was intoxicated when the collision giving rise to the present action occurred.
Respondent does not contend that the offenses of which petitioner was convicted involved moral turpitude, but does say that proof of any felony is admissible for impeachment purposes as bearing upon the witness' credibility. Cf. Traders & General Ins. Co. v. Russell, 99 S.W.2d 1079 (Tex.Civ.App., wr. dis. 1936); Drazen v. New Haven Taxicab Co., 95 Conn. 500, 111 A. 861.
In our opinion the prior convictions of the petitioner were not admissible either for impeachment or corroborating purposes as contended by respondent. We are further of the opinion that the error in admitting such convictions was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Casualty Ins. Co. of California v. Salinas, 160 Tex. 445, 333 S.W.2d 109, 90 A.L.R.2d 1056 (1960).
Before the trial, petitioner was required to answer written interrogatories concerning previous violations of traffic regulations. His answers revealed three convictions of the felony offense of driving while intoxicated-one in April, 1962, another in August, 1962, and a third in January, 1963, (the date of the collision involved here). He filed a motion in limine to restrain respondent from introducing evidence of the two prior convictions not directly connected with the suit. The trial court first granted the motion, but reversed its ruling just before the close of evidence, and allowed petitioner to be recalled and questioned concerning the admitted convictions.
(1) At common law convictions of a felony or other 'infamous crime' rendered a witness wholly incompent to testify. This rule obtained in Texas in both civil and criminal cases until the enactment in 1925 of Art. 3717, Vernon's Ann.Tex.Stats., removing the incompetency in civil cases of those who have been convicted of felonies. See, McCormick & Ray, 'Texas Law of Evidence' (2d ed.) § 301. During the early development of Texas law the Supreme Court also formulated the rule that the credibility of a witness could be attacked only by showing his general reputation for lack of truth and veracity. Boon v. Weathered's Adm'r, 23 Tex. 675 (1859). This is still the general rule, but it is now quite clear that in Texas, as in most other jurisdictions, convictions of certain specific crimes are admissible for the purpose of impeaching a witness. The difficult question, and one which is the subject of much confusion both here and elsewhere, is what types of crimes may be used for this purpose.
Dean Wigmore in his treatise on Evidence (3rd ed.) § 926 says:
'In those jurisdictions in which veracity-character alone is allowed to be used to impeach, it would logically follow that when particular instances of misconduct are allowed to be used as throwing light on credibility-that is to say, convictions of crime, when shown by extrinsic evidence * * *-only such instances should be used as are relevant to show a lack of truthfulness of desposition,-for example, forgery, cheating and the like.
'Entire consistency, however, is not shown in thus carrying out the strict principle * * * although logic and policy alike require such a restriction.'
Perhaps the earliest Texas case to uphold admission of proof of conviction to impeach a witness was Gulf, Colorado & Santa Fe Ry. Co. v. Gibson, 42 Tex.Civ.App. 306, 93 S.W. 469 (wr. ref., 1906). In that case the witness had been convicted of a felony, but had been pardoned by the Governor after agreeing to testify in the case. The court upheld the admission of the conviction on the ground that the traditional reasons for exclusion-unfair surprise and confusion of the issues-are absent when the record of judgment of conviction is introduced. The court did not indicate the nature of the crime involved, nor did it attempt to distinguish felonies from misdemeanors, but held only that 'proof by the record of conviction of crime is universally conceded to be a proper mode of impeachment.'
A distinction between misdemeanors and felonies was made in Huff v. McMichael, 60 Tex.Civ.App. 379, 127 S.W. 574 (no wr. hist., 1910). A witness had been convicted of mail fraud and the court, being of the impression that it was a misdemeanor due to the fine involved, held it inadmissible for impeachment. When, on motion for rehearing, it was shown that the conviction was of a felony, the court held that it was admissible, citing the Gibson case as controlling.
The Gibson and McMichael cases were cited with approval when, in Kennedy v. International-Great Northern R. Co., 1 S.W.2d 581 (Tex.Com.App., 1928), it was held to be error to exclude evidence that Kennedy, a party-witness, had been convicted of felony theft. After reviewing a number of cases, the Commission determined 'that in no instance has the Supreme Court decided that proof of conviction of a felony, or even proof of conviction of a misdemeanor, is irrelevant or otherwise inadmissible for purposes of impeachment.' It was, however, further stated in the opinion that:
The importance of the element of moral turpitude was emphasized in Texas & New Orleans Ry. Co. v. Parry, 12 S.W.2d 997 (Tex.Com.App., approved, 1929) which more precisely defined the limited rule of admissibility. The trial court had excluded evidence concerning four thefts which an important witness had 'practically admitted' in court, but for which no convictions were shown. While the Commission did not hold that such exclusion was erroneous upon the record before it, it did say in view of a reversal upon another point that:
'The rule is that where the witness has been legally charged by indictment, complaint, or information and complaint, with an offense involving moral turpitude, and has been legally convicted of such offense in a court of competent jurisdiction, or where the witness has been so legally charged with such offense, and presently admits his guilt, then such matters are admissible in evidence touching his credibility as a witness.' (Italics added.)
Although this statement is by way of dictum, it has been cited in most subsequent cases which consider the question. It is the basis for the analysis by two eminent writers that the Texas rule in civil cases is that proof of conviction of any crime-whether a felony or misdemeanor-may be shown only if it involves moral turpitude. See McCormick & Ray, Texas Law of Evidence (2d ed.) § 660; Lieck's Legal Trial Aid, 2d ed., p. 142.
The decisions of the Courts of Civil Appeals upon the point have not been uniform. Some have indicated that conviction of any felony is admissible for impeachment. See, Transport Ins. Co. v. Cossaboon, 291 S.W.2d 746 (); General Ins. Co. v. Handy, 267 S.W.2d 622 (); York v. Glenn, 242 S.W.2d 653 (). The great majority of the cases, however, have adhered to the Parry rule, and have limited impeachment to those crimes involving moral turpitude. Travelers Ins. Co. v. Jordan, 339 S.W.2d 235 (); Fenton v. Wade, 303 S.W.2d 816 (); Texas Employers' Ins. Ass'n v. Curry, 290 S.W.2d 767 (); Evans v. Jacobs, 228 S.W.2d 545 (); Associated Employers Lloyds v. Tullos, 197 S.W.2d 210 (); Kansas City, M. & O. Ry. Co. of Texas v. Foster, 38 S.W.2d 391 ().
(2) While the term moral turpitude is not always explicitly defined by the cases, we believe that it represents a preferable standard to the arbitrary rule urged by respondent which would allow admission of any felony for purposes of impeachment. The term includes more than crimes of perjury, forgery and the like. See, Drazen v. New Haven Taxicab Co., 95 Conn. 500, 111 A. 861 (1920). And while the view which would limit attacks on credibility to proof of such logically relevant crimen falsi is very persuasive we do not feel disposed toward overturning a rule which originated with the approval of this Court and which has enjoyed wide acceptance in this state for many years. On the other hand, we are not disposed to relax the accepted rule so as to admit evidence which might have a highly prejudicial effect, although it would have little or no logical bearing upon the issue of credibility.
(3) We are unable to agree with the holding of the Court of Civil Appeals that proof of petitioner's prior convictions was admissible to corroborate evidence tending to show that he was intoxicated at the time of the collision upon the theory that a 'habit of intemperance' was shown...
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