Jett v. Com.
Decision Date | 31 January 1969 |
Citation | 436 S.W.2d 788 |
Parties | Tex JETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Court | United States State Supreme Court — District of Kentucky |
John Swinford, Cynthiana, for appellant.
John B. Breckinridge, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.
Tex Jett, indicted for detaining Nancy Williams, his 15-year-old sister-in-law, against her wil with intent to have carnal knowledge of her, KRS 435.110, was found guilty of assault and battery and sentenced to a year in jail. KRS 431.075. On this appeal he makes one contention, that the trial court committed a prejudicial error by allowing the county sheriff, in rebuttal, to give hearsay evidence consisting of what the appellant's wife had reported to him on the telephone when she summoned his assistance during the night when the offense took place.
Nancy testified that for about two or three hours Tex annoyed her while she was in bed, that he prevented her from getting up and removed some of her clothing.
The appellant's wife testified in his behalf. Under direct examination she related that on the night in question she telephoned the sheriff of Pendleton County once and the sheriff of Harrison County three times because her husband 'was drinking and carrying on and things.' In describing the events of the evening she did not, however, mention having observed the appellant make any improper advances toward or attempt to molest her little sister. So, on cross-examination the Commonwealth's Attorney asked if she had not told the sheriff of Harrison County over the telephone 'that your husband, Tex Jett, was fooling around with or taking advantage of your sister,' to which she replied that what she had said to the sheriff was that 'We was having trouble and Tex was drunk and wouldn't listen to me.' She denied having said that Tex was taking advantage of her sister.
To impeach the testimony given by appellant's wife the Commonwealth's Attorney called the sheriff on rebuttal and asked him what the appellant's wife had told him over the telephone. The sheriff's answer was, 'She said Tex was drunk, unruly, wanting to fight and was mistreating her sister on the bed.' The trial court duly admonished the jury that this testimony was limited to the purpose of impeaching that of the appellant's wife.
It is vigorously contended that the admission of this evidence violated the principle stated as follows in Miller v. Commonwealth, 241 Ky. 818, 45 S.W.2d 461, 462 (1932):
(Citing cases.)
That the credibility of any and every witness may be impeached 'by showing that he has made statements different from his present testimony' was the law in this state as long ago as 1851. See Johnson, Harlan and Loughborough's Code of Practice in Civil Cases for the State of Kentucky (1851), sections 558 (party's own witness) and 559 (adverse party's witness). These provisions (now embodied in CR 43.07) seem always to have been held applicable to criminal as well as civil proceedings. Cf. Champ v. Commonwealth, 59 Ky. (2 Metc.) 17, 23, 74 Am.Dec. 388 (1859); Patterson v. Commonwealth, 252 Ky. 285, 66 S.W.2d 513, 515 (1934); and note in 47 Ky.L.J. 253 (1959).
There is a long line of cases holding, however, that there can be no contradiction when the witness merely fails to say something he has said outside of court.
'But a case like the present, where the witness does not state any fact prejudicial to the party calling him, but only fails to give facts supposed to be beneficial to the party, it is not within the reason or policy of the rule, and the witness can not be contradicted in such case by evidence that he had previously stated the same facts to others.' (Emphasis added.) Champ v. Commonwealth, 59 Ky. (2 Metc.) 17, 24, 74 Am.Dec. 388 (1859). See also McQueen v. Commonwealth, Ky., 393 S.W.2d 787, 791 (1965); Thacker v. Commonwealth, Ky., 401 S.W.2d 64, 67 (1966); and note in 47 Ky.L.J. 253 (1959).
The Champ case, quoted above, was one in which the party sought to contradict his own witness, and for some strange reason that seems to be the case in which the question usually has arisen in this state. Hence the frequent expression that a party may thus impeach his 'own witness' only when the testimony to be contradicted is 'positive.' Cf. McQueen v. Commonwealth, Ky., 393 S.W.2d 787, 791 (1965), supra. But, upon the same reasoning, the same rule has been applied also to witnesses for the adverse party:
'Nor can a witness who fails to testify to substantive facts be asked if he has not made statements to others out of court that such facts exist, for the purpose of proving that he had made such statements, as that would transform declarations made out of court, and not under the sanction of an oath, into substantive testimony.' Loving v. Commonwealth, 80 Ky. 507, 511, 4 K.L.R. 457 (1882). 1 See also Saylor v. Commonwealth, 17 K.L.R. 959, 33 S.W. 185, 186 (1895); Bergman v. Solomon, 143 Ky. 581, 136 S.W. 1010, 1011 (1911), and Miller v. Commonwealth, 241 Ky. 818, 45 S.W.2d 461, 462 (1932), supra.
McCormick on Evidence, § 36, p. 67, citing Miller v. Commonwealth, 241 Ky. 818, 45 S.W.2d 461 (1932), supra.
That the out-of-court statement is hearsay, and not given under oath, is the traditional reason why it is generally held not admissible as substantive testimony. That cannot, however, be the reason for denying its admission for purposes of impeachment, because even in those cases where proof of contradictory statements is clearly admissible they are still secondhand. ...
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