Jett v. Com.

Decision Date31 January 1969
Citation436 S.W.2d 788
PartiesTex JETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited 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.

PALMORE, Judge.

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):

'The witness having answered in the negative the question propounded to her, it was improper to permit the Commonwealth to prove by the witness that he had heard her state the alleged threat by Walter Miller against the deceased. This was clearly incompetent, both as substantive evidence and for the purpose of contradiction. By its admission the Commonwealth was permitted to prove mere hearsay as substantive evidence of an alleged threat by the appellant against the deceased * * *.' (Citing cases.)

'The rule deducible from these cases is that a witness who fails to testify to substantive facts cannot be contradicted by asking him if he had not stated such facts to another person out of court, and then proving by such person that the witness had made the statements out of court. Such procedure transforms mere hearsay into substantive evidence.'

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.

'A distinct but somewhat cognate notion (cognate, that is, to the theory that a witness cannot be contradicted as to collateral matters elicited on cross-examination) is the view that if a party interrogates a witness about a fact which would be favorable to the examiner if true, and receives a reply which is merely negative in its effect on examiner's case, the examiner may not by extrinsic evidence prove that the first witness had earlier stated that the fact was true as desired by the inquirer. An affirmative answer would have been material and subject to be impeached by an inconsistent statement, but a negative answer is not damaging to the examiner, but merely disappointing, and may not be thus impeached. In this situation the policy involved is not the saving of time and confusion, as before (as in the case of collateral matters), but the protection of the other party against the hearsay use by the jury of the previous statement.' 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. 'In short, the prior statement is not primarily hearsay, because it is not offered assertively, i.e., not testimonially. The Hearsay Rule * * * simply forbids the use of extrajudicial utterances as credible testimonial assertions; the prior contradiction is not offered as a testimonial assertion to be relied upon. It follows, therefore, that the use of prior...

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