Latham v. State

• Decision Date: 29 December 1949
• Docket Number: No. 32634,32634
• Citation: 40 N.W.2d 522,152 Neb. 113
• Parties: LATHAM v. STATE.
• Court: Nebraska Supreme Court

Page 522

40 N.W.2d 522

152 Neb. 113

LATHAM v. STATE.

No. 32634.

Supreme Court of Nebraska.

Dec. 29, 1949.

Syllabus by the Court.

1. A witness may be asked on cross-examination if he has been convicted of a felony.

2. The inquiry on cross-examination of a defendant in a criminal case when he is a witness whether he has been convicted of a felony is permissible, and if the answer is in the affirmative he may then be asked the number of his convictions, and if an answer is correctly given, the inquiry must end there.

3. If any answer of defendant in such examination is untrue or if he claims he does not know, the fact of his conviction or convictions may be shown, but only by the record thereof. It is error to explore on cross-examination of defendant the details of any charge of which he has been convicted or the sentence imposed because thereof.

4. The purpose of the narrow inquiry permitted in this regard is for impeachment of the defendant as a witness and not to show he is prone to criminal acts, and it should be strictly confined to the limits fixed by the statute as interpreted by this court.

5. Error may not be claimed because of the nature of cross-examination if it was not on the trial challenged by timely and proper objection thereto.

6. When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question.

7. The denial of a motion for a new trial on the ground of newly discovered evidence will not generally be disturbed when based upon conflicting evidence and there is an absence of abuse of legal discretion.

8. An instruction in a criminal case that the jury has no right to reject the testimony of any of the witnesses without good reason, and should not do so unless it finds it irreconcilable with the other testimony which it finds to be true, is erroneous and ordinarily prejudicial.

Edward T. Hayes, Omaha, Joseph M. Lovely, Omaha, for plaintiff in error.

James H. Anderson, Atty. Gen., Walter E. Nolte, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

John Latham, referred to herein as defendant, was convicted of and sentenced for the crime of robbery by force and violence, and prosecutes error to review the record of his conviction and sentence.

The defendant claims error because of the inquiry made of him by the State during the trial in reference to his previous convictions for felonies, after, as he claims, he had truthfully and without equivocation answered the question asked him by counsel for the State in reference to his previous convictions. The defendant was a witness in support of his defense of the charge made against him, and on direct examination by his counsel testified that he had been four times convicted of crime. The defendant on cross-examination answered the inquiry if he had been convicted of four felonies directly and unequivocally in the affirmative. The cross-examination was pursued further in an irregular manner but without proper objection by the defendant, and it developed his conviction of conspiracy in Iowa, the duration of two sentences imposed upon the defendant of four and five years respectively, and that he had been convicted twice of jail breaking, but the sentences imposed because thereof ran concurrently with those being served by him at the time he wrongfully left the place of his confinement.

The statute, § 25-1214, R.S.1943, provides that: 'A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record thereof.' A defendant in a criminal case who becomes a witness subjects himself to the rules applicable to other witnesses. Crawford v. State, 116 Neb. 629, 218 N.W. 421; Swogger v. State, 116 Neb. 563, 218 N.W. 416; Dunlap v. State, 116 Neb. 313, 217 N.W. 89. The statute prescribes and limits the scope of any inquiry initiated by the State that may be made on cross-examination of a defendant in a criminal case. It permits inquiry of the defendant when he is a witness if he was previously convicted of a felony. If the answer is in the affirmative, he may be asked the number of such convictions, and if an answer is correctly given, the inquiry must end there. If any answer of the defendant in this regard is incorrect or if he claims he does not remember, the fact of his conviction or convictions may only be shown by 'the record thereof.' The statute does not permit exploration of the charge or charges of which the defendant was previously convicted, the details thereof, or the sentence imposed upon the defendant. The purpose of the restricted inquiry permitted by the statute is for whatever effect the fact of a previous conviction may have on the credibility of the defendant as a witness, and not for the purpose of tending to show that he is prone to engage in criminal actions. Bosteder v. Duling, 115 Neb. 557, 213 N.W. 809; Mortensen v. State, 127 Neb. 446, 255 N.W. 557; Keating v. State, 67 Neb. 560, 93 N.W. 980. The inquiry made by authority of this statute should be confined to a question or questions in proper form, and the witness should be required to answer specifically and directly. Neither the cross-examiner nor the witness should be allowed to wander or explain, but should be confined to the narrow limits fixed by the statute. Vanderpool v. State, 115 Neb. 94, 211 N.W. 605; Bosteder v. Duling, supra; Sulley v. State, 119 Neb. 783, 230 N.W. 846. The defendant by his testimony introduced the subject of his convictions for crime and thereby exposed himself to cross-examination in reference thereto. Any inquiry concerning the matter which is the subject of the direct examination may be explored on cross-examination of the witness. Zelenka v. Union Stock Yards Co., 82 Neb. 511, 118 N.W. 103; In re Estate of Potts, 144 Neb. 729, 14 N.W.2d 323. Defendant failed to properly or sufficiently challenge by objection the cross-examination. His claim of error because of the cross-examination is without substance.

The defendant on cross-examination was asked about matters collateral and immaterial to the issues in the case, and the State was permitted to introduce evidence to disprove what the defendant had said the facts were. This was improper procedure. The apparent purpose of such question by the State was to lay a foundation for an impeachment argument to the jury based upon false testimony with respect to immaterial matters to prove the defendant unworthy of belief in other matters testified to by him vital to his liberty. When a witness is cross-examined on a matter collateral to the issue, he cannot as to his answer be subsequently contradicted by the party putting the question. Vanderpool v. State, supra; Swogger v. State, supra.

The defendant challenges the correctness of the action of the district court denying his motion for a new trial, which motion was made on the ground of newly discovered evidence material to his defense, which he claims he could not with reasonable diligence have discovered and produced at the...