McGee v. State

• Decision Date: 05 February 1960
• Citation: 332 S.W.2d 507,10 McCanless 230,206 Tenn. 230
• Court: Tennessee Supreme Court
• Parties: , 206 Tenn. 230 James McGEE, Plaintiff in Error, v. STATE, Defendant in Error.

Page 507

332 S.W.2d 507

10 McCanless 230, 206 Tenn. 230

James McGEE, Plaintiff in Error, v. STATE, Defendant in Error.

Supreme Court of Tennessee.

Feb. 5, 1960.

Cordell H. Sloan, Memphis, for plaintiff in error.

William D. Grugett, Asst. Atty. Gen., for the State.

SWEPSTON, Justice.

The plaintiff in error, hereinafter referred to as defendant James McGee, was convicted for rape and sentenced to 99 years in the State Penitentiary. He has appealed and assigned four errors.

The third assignment goes to the preponderance of the evidence and will require a reference to same but before considering it, we shall dispose of the first two assignments.

The first assignment is that the court erred in allowing the State, over the objection and exception of counsel for defendant, to impeach the defendant's character by asking him about his conviction of another offense about nine months prior to the one herein for which he was indicted, and being tried, which prior conviction was pending on appeal to this Court; and which, as alleged, did not involve moral turpitude.

The second assignment is based upon the same thing and is in substance that the court erred in allowing the assistant attorney general to make reference, over defendant's objection, to another separate and distinct offense, to-wit, the conviction above mentioned.

These two assignments present the question of whether or not, assuming that the subsequent offense involves moral turpitude, it was competent on cross-examination to impeach the defendant's credibility by asking him about said prior conviction which was pending on appeal.

The great majority of state courts hold it to be admissible to show a prior conviction, even though a motion or an appeal to reverse same is pending. 58 Am.Jur., 402, Sec. 745.

There is a conflict among the federal courts to the extent that in Campbell v. United States, 1949, 85 U.S.App.D.C. 133, 176 F.2d 45, it was Held, that the correct interpretation of the District of Columbia Code required a ruling that only final convictions are competent for impeachment as to credibility; whereas, in the case of United States v. Empire Packing Co., 7 Cir., 174 F.2d 16, it is Held, the question is proper even though the appeal be pending. Also Fenwick v. United States, 1958, 102 U.S.App.D.C. 212, 252 F.2d 124, especially note 3.

While certain valid arguments may be offered in opposition to the majority rule, we feel that for the sake of uniformity of the general law among the several states that we should rule in accordance with the majority holding and hence we hold that certainly the prior convictions are competent for the purpose stated.

The next question under this heading is whether or not the prior convictions involved moral turpitude. Defendant was indicted for assault to commit murder in the first degree and was found guilty of assault to commit murder in the second degree. Moral turpitude is defined in 58 Am.Jur., 401 Sec. 740, and 98 C.J.S. § 507, p. 407, under the heading of Witnesses.

This Court has adopted the accepted legal definition of the words 'moral turpitude' appearing in 2 Bouv.Law Dict., Rawle's Third Revision p. 2247 as:

'An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted rule or right and duty between man and man.' Brooks v. State, 187 Tenn. 67, 76, 213 S.W.2d 7, 11.

It is, therefore, evidence that moral turpitude can not be defined within definite boundaries but the definition given in American Jurisprudence in the section above referred to lends further light to the subject.

Some of the definitions found in the above texts are to the effect that moral turpitude is any offense which is malum in se and not merely malum prohibitum, regardless of whether prosecution may be brought therefor. In the note to C.J.S., supra, will be found a case holding that assault to murder involves moral turpitude under the rule in Alabama and this case cites the prior Alabama cases on the point. In 6 A.L.R. 1639-1641 are two cases holding that conviction for murder likewise involves moral turpitude. It is Held in Curtis v. State, 46 Tex.Cr.R. 480, 81 S.W. 29, that aggravated assault likewise involves moral turpitude, but in Stewart v. State, 100 Tex.Cr.R. 566, 272 S.W. 202, 203, which involved an aggravated assault upon a wife, the Court referred to the Curtis case, supra, and said:

'We are not called upon to decide whether an aggravated assault is in all cases a misdemeanor involving moral turpitude.'

We are of opinion that an assault to murder may involve moral turpitude, depending upon the facts and Posley v. State, 199 Tenn. 608, 288 S.W.2d 455, does not hold to the contrary, as insisted by counsel for defendant.

The prior conviction in the instant case was for pistol-whipping another young girl, but fortunately for the defendant, the trial judge did not let the detail of that former conviction get to the jury; we think it evident from the record that if this fact had been known to the jury the penalty in all probability would have been death instead of 99 years. We are satisfied that the prior conviction in this case did involve moral turpitude and there was no error in permitting it to be inquired about in order to affect the...