Marshall v. Carr

• Decision Date: 01 July 1921
• Docket Number: 24
• Citation: 271 Pa. 271,114 A. 500
• Parties: Marshall v. Carr, Appellant
• Court: Pennsylvania Supreme Court

114 A. 500

271 Pa. 271

Marshall v. Carr, Appellant

No. 24

Supreme Court of Pennsylvania

July 1, 1921

Argued May 10, 1921

Appeal, No. 24, Jan. T., 1921, by defendant, from judgment of C.P. Luzerne Co., Nov. T., 1915, No. 759, on verdict for plaintiff, in case of Furman Marshall v. Frank L. Carr. Reversed.

Ejectment. Before WOODWARD, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were various rulings and instructions, as stated in the opinion of the Supreme Court, quoting the bills of exceptions.

The first and second assignments of error are sustained and thereupon the judgment is reversed and a venire facias de novo awarded.

S. S Herring, for appellant. -- Statements made by Clarissa Marshall Carr after her marriage to the defendant, to the effect that she was a widow, or not married to the defendant were inadmissible: Hill v. Hill, 32 Pa. 511; Moore's Est., 9 Pa. C.C.R. 338.

The finding or statement made by the Board of Pardons to the Governor that she was a widow, was inadmissible.

The court must not omit or slur over the strong points on either side: Borham v. Davis, 146 Pa. 72; Ensminger v. Hess, 192 Pa. 432; Stokes v. Miller, 10 W.N.C. 241.

Q. A. Gates, with him F. A. McGuigan, for appellee.

Before FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

This appeal is by defendant from judgment entered for plaintiff upon a verdict in an action of ejectment, in which plaintiff claimed title as sole heir of Clarissa Marshall, who died seized in September, 1915; while defendant claimed a life estate, as her surviving husband, and also that her name was Clarissa Marshall Carr. She and defendant lived together at Wilkes-Barre and cohabited practically as husband and wife from about the year 1900 until her death, and defendant testified that they were married by a magistrate in Scranton on September 25, 1911, and he is corroborated by a marriage license and certificate. Plaintiff's evidence tends to show that it was another woman, who impersonated his mother, to whom defendant was married at Scranton.

Clarissa kept a house of prostitution and, on cross-examination defendant was asked if about the year 1892 he had not lived with another woman named Eagler, who also kept a house of prostitution at Wilkes-Barre. The objection of plaintiff's counsel to this line of cross-examination was overruled and defendant answered in the affirmative. This forms the basis of the first and second assignments of error, which must be sustained. Defendant's intimacy with the Eagler woman was entirely foreign to the questions here at issue and occurred years before he went to live with Clarissa. The only possible object of bringing it out was to discredit the defendant and his testimony, and for that purpose it was incompetent. It is well settled in this State that a witness may not be cross-examined as to his alleged misconduct, or even criminal acts, entirely disconnected with the case on trial. A witness may be interrogated as to his conviction of such an offense as affects his credibility: Com. v. Racco, 225 Pa. 113. But it is not proper practice to ask him as to his guilt of some alleged crime not connected with the case on trial and for which he was never convicted: Stout v. Rassel, 2 Yeates 334; Elliot v. Boyles, 31 Pa. 65; Com. v. Varano, 258 Pa. 442, 446. A witness may not, to affect her credibility, be cross-examined as to whether she is running a house of ill-repute in which gambling is carried on and liquor sold contrary to law: Com. v. Williams, 209 Pa. 529, 530, and cases there cited. To like effect are Ramsey v. Johnson, 3 P. & W. 293; Hoffman v. Kemerer, 44 Pa. 452; Com. v. Shanor, 29 Pa.Super. 358. The rule is the same in California (Estate of James, 124 Cal. 653), although in some states it is otherwise. The natural result of this improper cross-examination was to prejudice defendant with the jury and, hence, a new trial should be granted. The case does not fall within the rule that it is the personal privilege of the witness to decline to answer such questions as may tend to criminate him; a witness is disgraced rather than criminated by being compelled to admit he had lived in a state of fornication with a lewd woman twenty-six years before. Moreover, without deciding whether such misconduct would affect the credibility of a witness, it certainly should not be admitted for that purpose when committed so long before he was...