Dotterrer v. State

• Citation: 88 N.E. 689,172 Ind. 357
• Decision Date: 02 June 1909
• Docket Number: No. 21,369.,21,369.
• Parties: DOTTERRER v. STATE.
• Court: Supreme Court of Indiana

172 Ind. 357

88 N.E. 689

DOTTERRER

v.STATE.^*

No. 21,369.

Supreme Court of Indiana.

June 2, 1909.

Appeal from Circuit Court, Howard County; James F. Elliott, Judge.

Jacob Dotterrer was convicted of assault and battery, and he appeals. Affirmed.Harness, Moon & Voorhis, for appellant. James Bingham, Cavins, Thompson & White and J. Fenimore Cooper, 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 July 19, 1908, on Sunday, at about 2:30 p. m., while on duty as a patrolman, and in full uniform and with 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 went directly to the same door and imitated the knocking and working of the latch as nearly as he could; that the door was partially opened by appellant, and the officer stated to appellant that he wanted in to see who was 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, and his face scratched by appellant, who also struck him in the face, and 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, and then went to the front door, and found Moynahan there, and soon after procured a warrant for the arrest of appellant. The witness is corroborated by others as to his face being scratched up. Appellant testified: That he started out of the back door, and there met the officer; that the latter put his foot in the door, and said, “I want in”; that appellant said, “You have not got any business in here”; that he shoved the officer back, and when he shoved him back he grabbed appellant's suspender; that Moynahan was not there; that, when he asked the officer to get back, he would not do it, and he shoved him away; that he did not strike the officer, or scratch him in the face; that a crowd collected there.

Moynahan testified: That about half past 12 o'clock of July 19th he had knocked at appellant's side door and failed to get an answer or to get in; 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, the witness, 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 you 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 one Edward Meeker [the prosecuting witness in this case], an officer, and at the back door of Dotterrer'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 convictions.” The objection was overruled, and exception reserved, and the witness answered, “Yes, I paid a fine.” Reliance is here placed on the cases of Farley v. State, 57 Ind. 331, 334;Glenn v. Clore, 42 Ind. 60; sections 530 and 2110, Burns' Ann. St. 1908; Commonwealth v. Walsh, 196 Mass. 369, 82 N. E. 19;Bise v. United States, 144 Fed. 374, 376, 74 C. C. A. 1;James v. United States, 7 Ind. T. 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 keep the line of cases in our own state upon a consistent course. Section 530, Burns' Ann. St. 1908, of the Civil Code, is as follows: “Any fact which might heretofore be shown to render a witness incompetent, may be hereafter shown to affect his credibility.” Sections 2110 and 2116, Burns' Ann. St. 1908, of the Criminal Code, are as follows, respectively: “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.” “In all questions affecting the credibility of a witness, his general moral character may be given in evidence.” And the like provision is contained in the Civil Code. Burns' Ann. St. 1908, §§ 529, 530, was evidently enacted in view of, and to remove, the ban of the provisions of section 79, p. 999, Rev. St. 1843, defining infamous crimes, and rendering those convicted of the defined crimes incompetent to testify even in civil cases. Assault and battery were not among the offenses. Section 2116 does not apply 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 that he had been arrested and prosecutedor convicted of similar offenses as affecting his credibility, and he may be cross–examined as to these matters. Parker v. State, 136 Ind. 284, 35 N. E. 1105;Vancleave, v. State, 150 Ind. 275, 49 N. E. 1060;Shears v. State, 147 Ind. 55, 46 N. E. 331;Crum v. State, 148 Ind. 401, 411, 47 N. E. 833. This section is declaratory of a general rule, and was doubtless enacted in 1881, in view of the rule in Farley v. State in 1877.

In People v. Cascone, 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 his credibility”—citing cases. And if he had been convicted, he cannot prove that he was not in fact guilty. Commonwealth v. Galligan, 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 & Collateral Evidence, § 90. And when the fact goes to the weight of the testimony, it is admissible. Id. § 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. It is always proper to introduce evidence of identity, though it may involve a collateral crime. Gillett, Criminal Law, § 653; Abbott, Trial Briefs, § 349; Roscoe, Criminal Evidence (7th Ed.) 90; Frazier v. State, 135 Ind. 38, 41, 34 N. E. 817. Also evidence of other similar crimes, or conviction thereof, may be shown. Crum v. State, 148 Ind. 401, 411, 47 N. E. 833;Shears v. State, 147 Ind. 55, 46 N. E. 331;Vancleave v. State, 150 Ind. 275, 49 N. E. 1060. If the evidence tends to prove a material fact, it is admissible. 3 Rice on Evid. § 155; 1 Elliott, Evid. §§ 174, 175; Higgins v. State, 157 Ind. 58, 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, Evid. § 567; City of South Bend v. Hardy, 98 Ind. 577, 49 Am. Rep. 792;Parker v. State, 136 Ind. 284, 286, 35 N. E. 1105;Spencer v. Robbins, 106 Ind. 586, 5 N. E. 726. In People v. Molineux, 168 N. Y. 264, 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 to connect the witness 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, for the purpose of impeaching him, discrediting him. The prosecuting witness had testified that Moynahan was present, and struck him with a beer bottle on the occasion mentioned. 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 a material fact, and as showing the witness' bias and prejudice, or at least grounds for them. The witness had not put his moral character in issue, but his credibility was a matter to be considered, and was to be tested by his cross–examination within proper limits, and in view of his testimony that he was not present when the prosecuting witness said he was, and when appellant said he was not, the fact went directly to affect his credibility, and the fact of his...