Drazen v. New Haven Taxicab Co.

• Court: Supreme Court of Connecticut
• Writing for the Court: WHEELER, C.J.
• Citation: 95 Conn. 500,111 A. 861
• Parties: DRAZEN v. NEW HAVEN TAXICAB CO. et al.
• Decision Date: 22 December 1920

111 A. 861

95 Conn. 500

DRAZEN
v.
NEW HAVEN TAXICAB CO. et al.

Supreme Court of Errors of Connecticut.

December 22, 1920

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Action by Samuel Drazen against the New Haven Taxicab Company and others to recover damages for injuries to plaintiff's automobile. Judgment for plaintiff on the verdict of a jury, and defendants appeal. No error. [111 A. 862]

[95 Conn. 502] Prentice W. Chase and Ernest L. Averill, both of New Haven, for appellants.

Philip Pond, of New Haven, for appellee.

WHEELER, C.J.

This action was brought to recover damages for injuries to the plaintiff's automobile, resulting from a collision with the automobile of defendants, caused by the negligent operation of their servant. The principal question at issue was as to whether the accident was due to the negligence of the driver of defendants or of plaintiff.

The defendants produced as a witness in chief Monashkin, the operator of the automobile at the time of the accident, and he testified as to the occurrences at that time. In his rebuttal plaintiff offered a record of the conviction of the witness of the crime of statutory burglary. Objection was made on the ground that the record of this crime did not tend to affect the character of the witness as to truth and veracity. The objection was overruled, and the record marked as an exhibit, and to this ruling the defendants excepted.

At a subsequent point in the trial, the court stated that, inasmuch as the question of the identification of the person convicted by the record introduced with the witness was not entirely clear, it would reverse the ruling and sustain the objection to the admission of the record. No objection upon the ground of want of adequate identification had been made by the defendants. Despite this, the exclusion of the offer already admitted was within the discretion of the court.

" An error in admitting testimony can be cured by suitable directions to the jury subsequently given; any other doctrine would seriously impair the value of the jury system." Gorman v. Fitts, 80 Conn. 534, 69 A. 357. Unless it clearly appears that prejudice has come [95 Conn. 503] to the party ruled against in the first instance, which the reversal of the ruling will not remove, error cannot be successfully based upon the erroneous admission of the evidence.

In this case it does not appear that the record of conviction was read, and it does appear the court gave the basis of its ruling as the inadequacy of the identification of the witness with the person named in the record of conviction, and that the court duly cautioned the jury that the record of conviction should not in any way be considered by it. Under these circumstances we do not see how the action of the court could have prejudiced the defendants' case, unless we assume that the jury deliberately disregarded the caution of the court, and the record does not permit such a deduction.

In withdrawing this record from the consideration of the jury, the court said, among other things, that he recalled his ruling somewhat against his own better judgment, and this expression counsel insist discredited the court's ruling. The jury unquestionably understood the situation. They would, as it seems to us, be more apt to follow the caution of the court to disregard the evidence, withdrawn because of its reluctance to follow this course, than if the ruling had been made without this expression. Frankness on the part of the court suggesting the questionableness of its ruling cannot be made a ground of error. Gorman v. Fitts, 80 Conn. 534, 69 A. 357. But if this were otherwise, and harmful prejudice might have resulted from the admission and subsequent rejection of the evidence, if originally inadmissible, we still think no harmful error was committed except in the reversal of the ruling. The record was admissible to discredit the witness.

The statute of 1848 (chapter 44) now G. S. 1918, § 5705, provides that-

" No person shall be disqualified as a witness in any action by [95 Conn. 504] reason *** of his conviction of crime; but such *** conviction may be shown for the purpose of affecting his credit."

This statute was intended to remove the bar of disqualification from witnesses who had been convicted of crimes known as infamous crimes, and render such persons competent witnesses; but it provided that the record of conviction might be shown " for the purpose of affecting their credit." Card v. Foot, 57 Conn. 427, 18 A. 713. The infamous crimes, conviction for which might be shown for the purpose of affecting the credibility of witnesses, were those crimes which were known to our law as infamous, and not merely those so known to the common law. Infamous crimes at common law were treason, felony, and the crimen falsi.

Felonies are those crimes which were such by our common law or have been made such by our statutes. Fimara v. Garner, 86 Conn. 434, 435, 85 A. 670. It has never been clear just what classes of crimes are included within the term " crimen falsi." But it is certain that every species of the crimen falsi come within the term infamous crimes. Wick Co. v. Baldwin, 51 Ohio.St. 51, 56, 36 N.E. 671. In State v. Randolph, 24 Conn. 363, 365, we said:

" So far the courts have gone, and from these decisions it may be deduced that the crimen falsi of the common law not only involves the charge of falsehood, but also is one which may injuriously affect the administration of justice, by the introduction of falsehood and fraud."

It was thus the nature of the crime...