Dotterer v. State

Decision Date02 June 1909
Docket Number21,369
Citation88 N.E. 689,172 Ind. 357
PartiesDotterer v. The State of Indiana
CourtIndiana Supreme Court

From Howard Circuit Court; Leroy B. Nash, Judge.

Prosecution by The State of Indiana against Jacob Dotterer. From a judgment of conviction, defendant appeals.


Harness Moon & Voorhis, for appellant.

James Bingham, Attorney-General, J. Fenimore Cooper, Prosecuting Attorney, Alexander G. Cavins, Edward M. White and William H Thompson, for the State.


Myers, J.

Appellant was convicted upon a charge of assault and battery, and the only error assigned arises upon the motion for a new trial.

The prosecuting witness testified that on Sunday, July 19, 1908, at about 2:30 o'clock p. m., while on duty as a patrolman, dressed in full uniform, and having his star and mace, he saw one Moynahan go to the back door of appellant's saloon and knock on the door two or three times, and work the door latch; that the door opened, and Moynahan entered the saloon; that he (witness) went directly to the same door, imitated the knocking on the door and working of the latch as nearly as he could, and the door was partially opened by appellant; that he stated to appellant that he wanted to see who was in there, and was informed by appellant, with an oath, that it was none of his business who was there; that he got his hand inside the door, and was then assaulted both by Moynahan and appellant, his face was scratched by appellant, who also struck him in the face, Moynahan hit him with a beer bottle, and appellant threw him out; that as he went out he got hold of appellant's suspender, and pulled it partly off; that he remained at the back door two or three minutes, then went to the front door and found Moynahan there, and soon after procured a warrant for the arrest of appellant. The statement of witness, that his face was scratched, is corroborated by others. Appellant testified that he started out of the back door, and there met the officer; that the latter put his foot inside the door, and said: "I want in;" that appellant said: "You have not got any business in here," and that he shoved the officer back, and as he shoved him back the officer grabbed appellant's suspender; that Moynahan was not there; that when he asked the officer to step back he would not do it, and he shoved him away; that he did not strike the officer, or scratch him in the face, and that a crowd collected there. Moynahan testified that about 12:30 o'clock on July 19 he had knocked at appellant's side door, and failed to get an answer or to get in, and that he was not at the back door when the officer was; that he did not strike the officer, and did not see him until about half an hour after he (Moynahan) had tried to get into the saloon; that he had gone to appellant's place to get beer, but that he was not in or about the saloon after 2 o'clock.

It was in this connection that Moynahan was asked: "I will ask if you was ever convicted of assault and battery upon any person at a saloon--at the door of a saloon. The person upon whom the assault and battery was committed was Edward Meeker [the prosecuting witness in this case], an officer, and at the back door of Dotterer's saloon, and on Sunday, when it was illegal to allow persons in a saloon, and you were convicted on that charge?" Objection was made that "the conviction of the witness for assault and battery upon an officer is not proper evidence to be introduced on cross-examination, as affecting the credibility of the witness. If he has been convicted of assault and battery, the only proper evidence to be introduced, if it is competent at all, would be the record of his conviction." The objection was overruled, and exception reserved, and the witness answered: "Yes, sir, I paid a fine." Reliance is here placed on the cases of Farley v. State (1877), 57 Ind. 331, 334, and Glenn v. Clore (1873), 42 Ind. 60. See, also, §§ 530, 2110 Burns 1908, § 506 R. S. 1881, Acts 1905, p. 584, § 234; Commonwealth v. Walsh (1907), 196 Mass. 369, 82 N.E. 19; Bise v. United States (1906), 144 F. 374, 376, 74 C. C. A. 1; James v. United States (1907), 7 Indian Terr. 250, 104 S.W. 607. There is a diversity of holdings in the different courts upon the questions presented, and it will be useless to attempt to do more than to keep the line of cases in our own State upon a consistent course. Section 530, supra, is as follows: "Any fact which might, heretofore, be shown to render a witness incompetent, may be hereafter shown to affect his credibility." Section 2110, supra, is as follows: "The rules of evidence prescribed in civil cases and concerning the competency of witnesses shall govern in criminal cases, except as otherwise provided in this act." Section 2116 Burns 1908, Acts 1905, p. 584, § 240, is as follows: "In all questions affecting the credibility of a witness, his general moral character may be given in evidence." A like provision is contained in § 529 Burns 1908, § 505 R. S. 1881. Section 530, supra, was evidently enacted in view of, and to remove the ban of the provisions of section seventy-nine of R. S. 1843, p. 999, defining infamous crimes, and rendering those convicted of the defined crimes incompetent to testify even in civil causes. Assault and battery was not among the offenses. Section 2116, supra, applies to the cross-examination of a witness, for it is well recognized in the practice that, both as to parties and witnesses, the State may show on cross-examination as affecting the credibility of a party, or witness, that he had been arrested, prosecuted or convicted of similar offenses. Parker v. State (1894), 136 Ind. 284, 35 N.E. 1105; Vancleave v. State (1898), 150 Ind. 273, 49 N.E. 1060; Shears v. State (1897), 147 Ind. 51, 46 N.E. 331; Crum v. State (1897), 148 Ind. 401, 47 N.E. 833. This section is declaratory of a general rule, and was enacted in 1881 doubtless in view of the rule in Farley v. State (1877), 57 Ind. 331.

In People v. Cascone (1906), 185 N.Y. 317, 78 N.E. 287, it is said: "The defendant in an action, whether civil or criminal, cannot be asked on cross-examination whether he has been indicted, for an indictment is merely an accusation and no evidence of guilt. * * * He cannot be asked if he was tried for a crime, unless it appears that he was convicted, because a trial followed by an acquittal is but an accusation successfully met. A conviction for crime may be proved, or, on cross-examination, actual guilt without a conviction, for either implies moral obliquity, and, hence, affects credibility." Citing cases. And if he was convicted he cannot prove that he was not in fact guilty. Commonwealth v. Galligan (1891), 155 Mass. 54, 28 N.E. 1129.

"The cross-examination may go far enough, not only to overthrow the direct evidence of the witness, but also to rebut inferences." Gillett, Indirect and Collat. Ev., § 90. And when the fact goes to the weight of the testimony, it is admissible. Gillett, Indirect and Collat. Ev., § 91. "A series of mutually dependent crimes may be shown where they tend to prove that they were committed under a system which becomes relevant to the inquiry." Gillett, Crim. Law (2d ed.), p. 653. It is always proper to introduce evidence of identity, though it may involve a collateral crime. Abbott, Trial Briefs (crim. cases), p. 349; Roscoe, Crim. Ev. (7th ed.), 90; Frazier v. State (1893), 135 Ind. 38, 41, 34 N.E. 817.

Also evidence of other similar crimes, or conviction thereof, may be shown. Crum v. State, supra; Shears v. State, supra; Vancleave v. State, supra. If the evidence tends to prove a material fact, it is admissible. 3 Rice, Evidence, § 155; 1 Elliott, Evidence, §§ 174, 175; Higgins v. State (1901), 157 Ind. 57, 60 N.E. 685.

It is a well-recognized rule that any fact tending to impair the credibility of the witness, by showing his interest, bias, ignorance, motives, or that he is depraved in character, may be shown on cross-examination, but the extent to which such cross-examination may be carried is within the sound discretion of the court. 1 Wharton, Evidence (3d ed.), § 567; City of South Bend v. Hardy (1884), 98 Ind. 577, 49 Am. Rep. 792; Parker v. State (1894), 136 Ind. 284, 286, 35 N.E. 1105; Spencer v. Robbins (1886), 106 Ind. 580, 5 N.E. 726.

In People v. Molineux (1901), 168 N.Y. 264, 313, 61 N.E. 286, 302, 62 L. R. A. 193, it is said with regard to the rule as to showing the guilt or conviction of a party of a crime: "Another exception to the general rule is, that when the evidence of an extraneous crime tends to identify the person who committed it as the same person who committed the crime charged in the indictment, it is admissible."

Within this rule, it was clearly competent, for the purpose of impeaching and discrediting the witness, to connect him with the transaction, by showing his conviction for the same offense, at the same time, and as a part of the same assault when he had denied being present. The prosecuting witness had testified that Moynahan was present on the occasion mentioned, and struck him with a beer bottle. Appellant and Moynahan had both testified that Moynahan was not present. It is not made directly to appear that the occasion referred to in the question was the same as the one on which the assault is charged to have been committed, or that it was on the same person, though the name of the officer was given as "Edward Meeker," the name of the prosecuting witness, but no objection was made on either of those grounds, but on the ground that the question was not proper on cross-examination. It is quite clear to us that if it was on the same occasion, and on the same person, the fact of conviction not only had a direct tendency, but was conclusive as to Moynahan upon that question, both as to...

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