Lewis v. Territory of Arizona

• Decision Date: 28 March 1900
• Docket Number: Criminal 141
• Parties: EDWARD LEWIS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

60 P. 694

7 Ariz. 52

EDWARD LEWIS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 141

Supreme Court of Arizona

March 28, 1900

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan Judge. Reversed.

The facts are stated in the opinion.

G. A Allen, J. E. Morrison, and Herndon & Norris, for Appellant.

C. F Ainsworth, Attorney-General, for Respondent.

OPINION

DAVIS, J.

-- The defendant, Edward Lewis, was tried and convicted, at the June term, 1899, of the district court of Yavapai County, of the crime of murder in the first degree, and is under sentence of death. From the judgment of conviction he prosecutes this appeal. On the trial the defendant was placed upon the stand as a witness in his own behalf, and testified concerning the circumstances of the killing and in relation to his movements immediately before and after the homicide. Upon cross-examination, and against the objection of the defendant, the court permitted the district attorney to ask and required the defendant to answer, the following questions: "Were n't you tried and convicted at Flagstaff, under the name of Lovell, for the crime of burglary?" "Were n't you sentenced by Judge Hawkins, here, to one year in the penitentiary?" "Is n't it true that you were tried, convicted, and sentenced by Judge Hawkins, at Tucson, for the crime of forgery, and that you served a term of eighteen months after that; that you escaped from the penitentiary, and were recaptured under the name of Ed Lewis?" These questions were asked for the purpose of affecting the credibility of the defendant as a witness. They were all answered in the affirmative, and no other evidence was offered relative to such former convictions. It is claimed that the court's ruling in allowing this cross-examination was an invasion of the defendant's legal rights, and prejudicial error, for the reason that the statute of the territory limits the cross-examination of a defendant in a criminal case to the matters about which he was examined in chief. The provision of our Penal Code in this regard is as follows: "A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offer himself as a witness, he may be cross-examined by the counsel for the territory as to all matters about which he was examined in chief." Par. 2040. At common law the defendant in a criminal case was not a competent witness, and the constitution ordains that he shall not be compelled to be a witness against himself. The rule of the common law which prevented the prisoner from testifying on his own trial was considered to be oppressive, and in nearly all of the states there is now some form of statute which permits the accused to be a witness in his own behalf, but shields him from any unfavorable presumption which his refusal to testify might create. In general, these enactments contain no restriction upon the cross-examination of the defendant as a witness, such a limitation being found only in the statutes of California, Oregon, Missouri, Louisiana, and Arizona. In those jurisdictions where the cross-examination of the accused is not by the statute expressly bounded by the examination in chief, it has been generally held that he occupies the same footing as any other witness when he takes the stand, although there is some eminent judicial authority to the contrary. "These statutes," said Judge Cooley, "confer a privilege, which the defendant may use at his option. If he does not choose to avail himself of it unfavorable inferences are not to be drawn to his prejudice from that circumstance; and, if he does testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to make a full one, such weight as, under the circumstances, they think it entitled to; otherwise, the statute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger." Cooley on Constitutional Limitations, 5th ed., p. 386. In Massachusetts the provision is, that the accused "shall at his own request, and not otherwise, be deemed a competent witness." Pub. Stats. c. 169, sec. 18. Under this statute it has been held that when the defendant offers himself as a witness he waives all protection guaranteed by the constitution, and becomes a competent witness as to the whole case; which has induced the observation by a distinguished jurist that "confessions are thus forced from him with the sanction of the law, and the inquisition of torture is restored, only without the rack and thumbscrew." But it is conceded to be the general holding, in those states which impose no restriction upon the cross-examination of the accused, that impeaching questions of the character disclosed in this case violate no constitutional right. In Arizona, however, the scope of the cross-examination of a defendant in a criminal case is restricted to the "matters about which he was examined in chief." It is not correct to say that this is merely a reiteration of the rule applicable to all witnesses; for witnesses, under the general rule, can, for various purposes, be asked concerning matters about which they had not been examined in chief. 2 Phillips on Evidence, p. 895 et seq. The limit of the cross-examination of ordinary witnesses is not marked with any great accuracy or distinctness, but the range and extent thereof is left to the discretion of the trial court, subject to the requirement that it must relate to facts pertinent to the issue, or which tend to discredit the witness or impeach his moral character. A cardinal rule of construction makes it the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed. Montclair v. Ramsdell, 107 U.S. 147, 2 S.Ct. 391, 27 L.Ed. 431. If the legislature had intended to put a defendant in a criminal case, testifying for himself, upon the same footing as other witnesses, it could easily have signified that intention in one of two ways -- First, by saying nothing about it; or, second, by saying, affirmatively, that he should be subject to cross-examination as other witnesses. But the language of our code is, that he may be cross-examined "as to all matters about which he was examined in chief," and either these words are entirely without signification, or else they prescribe a definite boundary within which the cross-examination of a defendant must be confined. That the latter is the true...