Conway v. The State

• Decision Date: 25 April 1889
• Docket Number: 14,592
• Citation: 21 N.E. 285,118 Ind. 482
• Parties: Conway v. The State
• Court: Indiana Supreme Court

21 N.E. 285

118 Ind. 482

Conway v. The State

No. 14,592

Supreme Court of Indiana

April 25, 1889

From the Delaware Circuit Court.

Judgment affirmed.

J Brown, W. A. Brown and G. H. Koons, for appellant.

L. T Michener, Attorney General, J. H. Gillett and W. A Kittinger, for the State.

OPINION

Elliott, C. J.

The appellant prosecutes this appeal from a judgment sentencing him to prison for the crime of manslaughter.

He was jointly indicted with one George Melrose, and the latter was permitted to testify as a witness. In this there was no error. At common law the weight of modern authority is, that an accomplice may testify for the prosecution, if he consents to do so. A recent writer says: "A few cases decide that an accomplice who has not been indicted is competent; but the great weight of authority raises no distinction between accomplices who have been, and those who have not been indicted." Law of Witnesses, section 21. But our statute dispels whatever doubt may have existed before its enactment. It radically changes the old and original common law rule and establishes an essentially different policy. It permits the accused to be a witness in his own behalf. It declares that the conviction of an infamous crime shall not disqualify a witness. It goes further, for it declares that in criminal prosecutions "The following persons are competent witnesses: All persons who are competent to testify in civil actions. * * Accomplices, when they consent to testify." R. S. 1881, section 1798. In civil actions parties may be witnesses, and no witness is disqualified because he conspired with another to commit a tort or assisted him in its commission, and it seems difficult to perceive why, even if the first provision quoted stood alone, an accomplice would not be competent. But it is not necessary to act upon that provision alone, for it must be taken in connection with the other that we have quoted, and, thus taken, no doubt can exist as to the meaning of the statute. The statute declares that all accomplices may testify. It imposes no limitations and creates no exceptions. The courts have no authority to do either. The question, however, is not a new one in this court, for it has always been held that an accomplice is a competent witness. Johnson v. State, 2 Ind. 652; Stocking v. State, 7 Ind. 326; Ulmer v. State, 14 Ind. 52; Johnson v. State, 65 Ind. 269: Ayers v. State, 88 Ind. 275. In Ulmer v. State, supra, and in Johnson v. State, supra, the witness was jointly indicted with the accused. In Stocking v. State, supra, the court said of the testimony of an accomplice that: "It is very true that the evidence of persons standing in such a relation to each other, should be carefully scrutinized by the court and jury. Yet to exclude it altogether, would often exclude the only means of disclosing guilt. For this reason, the revised statutes abolished the distinction which the pronouncing of judgment formerly made in regard to a witness that was infamous. 2 R. S. (1852), p. 80, and section 243, p. 83. What before affected his competence, under that enactment goes only to his credibility."

Alexander Davis, a witness for the State, was asked to detail a conversation which took place, shortly after the fatal wound was inflicted, at the house of Rybolt between himself, Elmer Conway and Charles Conway, the appellant. The question was competent, and even if the answer had been incompetent, the objection to the question could not be considered as extending to the answer. An objection to a question does not reach further than the question. Gould v. Day, 94 U.S. 405, 24 L.Ed. 232; Barnes v. Ingalls, 39 Ala. 193. But we think the answer was not objectionable. The accused was present, and we can not say that he was not within hearing distance, or that he did not hear what was said. It is enough, to render testimony of a conversation competent, if the witnesses detail statements tending to charge the accused with the crime, and there are circumstances making it natural for him to speak, and none requiring him to remain silent. Puett v. Beard, 86 Ind. 104; Johnson v. Holliday, 79 Ind. 151; Blessing v. Dodds, 53 Ind. 95; Pierce v. Goldsberry, 35 Ind. 317. An admission by silence may be competent, and yet not be of such a character as to be entitled to much weight; still, if competent, it must be admitted. Pedigo v. Grimes, 113 Ind. 148, 13 N.E. 700. In the case before us, the accused, it is inferable from the record, participated in part at least of the conversation, and as part of the conversation was admissible, the whole was competent. In deciding that testimony is competent, the court is not confined to the testimony of one witness, but may look to other evidence, whether direct or circumstantial, to determine the competency of the particular testimony.

What we have said as to the testimony of Davis applies to that of the witness Butler, for the accused not only heard the conversation between Butler and Elmer Conway, but participated in it. The testimony of Butler was competent, not solely because it tended to contradict Elmer Conway, but for the reason that, as original evidence, it tended to establish a criminating admission on the part of the appellant. The testimony of Davis and of Butler was competent, even if the accused had taken no part in it. He had joined Elmer Conway at a point not far from the place where the wound was inflicted. Elmer had witnessed the rencounter, he was speaking of it to Davis, he was in company with the accused, and he was seeking to obtain information that might enable the accused to escape. Under these circumstances the silence of the accused, had he been silent, would have entitled the testimony to admission. Of course the declarations of Elmer Conway did not conclude the appellant, but that does not determine the question of their competency. There is some conflict in the cases as to the effect of silence where criminating statements are made, but even under the decisions, such as Drury v. Hervey, 126 Mass. 519, and Com. v. McDermott, 123 Mass. 440, which much restrict the rule as elsewhere enforced, the testimony here given was competent as a tacit admission, even if it be conceded that the accused took no part in the conversation. But this concession the record forbids.

Questions intended, in good faith, to refresh the memory of a witness by directing his attention to persons and occurrences, are competent even where the witness is friendly to the party examining him. Dr. Wharton says: "Nor does the rule preclude a party from refreshing the memory even of friendly witnesses when the tendency of the question is to lead the witness to the topic rather than to exhibit the topic to the witness." 1 Wharton Evidence (3d ed.), section 501. If this is the rule where the witness is favorably disposed to the examiner, much the more reason is there for it where the witness is unfriendly. It is, indeed, no more than fair that any witness, friendly or hostile, should have his memory aided by the mention of time, place and circumstances, for this mention might often prevent mistakes and keep a witness from departing from the truth. To be sure, it would be subversive of principle to permit counsel, under the guise of refreshing the memory of a witness, to suggest the desired answers to a willing or friendly witness; but where the witness is a hostile one, as was Elmer Conway, there is no fear of evil result from suggestive questions.

A hostile witness may, as the authorities all agree, be treated in a very different manner from a friendly one. The method of examination is almost entirely a matter within the discretion of the trial court, and the appellate court will not interfere unless there was a clear abuse of discretion, leading to manifest injustice. Law of Witnesses, section 242. The complaint of counsel that the questions propounded to Elmer Conway were such as to "place the witness in an awkward position," and to embarrass him, even if well founded, would not supply a sufficient reason for a reversal. We can not, however, say that the complaint of counsel is well founded in fact, for, after carefully studying the testimony, we are satisfied that the questions sought only the truth, and that they were not asked for the sole purpose of disgracing or embarrassing the witness, although some of the answers may have placed him in an unenviable position. It was entirely proper for the examining counsel to ascertain, if he could, what Elmer Conway actually saw and heard, and to discover and develop his opportunities for acquiring knowledge, and his inclination or disinclination to communicate it.

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