McLaughlin v. Mencke

• Decision Date: 22 November 1894
• Citation: 30 A. 603,80 Md. 83
• Parties: MCLAUGHLIN v. MENCKE.
• Court: Maryland Court of Appeals

30 A. 603

80 Md. 83

MCLAUGHLIN v. MENCKE.

Court of Appeals of Maryland

November 22, 1894

Appeal from Baltimore city court.

Action by August C. Mencke against Philip S. McLaughlin, trading as the Baltimore Transfer Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BRYAN, McSHERRY, ROBERTS, PAGE, BRISCOE, and FOWLER JJ.

Miller & Bonsal, for appellant.

Saml. Regester and S. S. Field, for appellee.

FOWLER J.

The record in this case is very unsatisfactory, and does not properly, if at all, present the question which was argued inasmuch as it does not appear whether the appellant was injured by the ruling complained of. The only exception taken by him, so far as the record discloses, is to certain questions addressed during cross-examination to the witness Jacob Lutz. These questions were asked for the purpose of discrediting the witness; and in answer to them he admitted that he had been tried and sentenced by a magistrate, within a month preceding, to serve a short term in jail for drunkenness. The only evidence set forth in the bill of exceptions is contained in an extract from the cross-examination of the witness. What his testimony in chief was we are not informed, and it is impossible to say whether it was relevant and material or not. If not, the appellant was not injured by the ruling of the court. For aught we can see, the testimony in chief may have been of no value whatever to the appellant, and its entire exclusion may have been beneficial, rather than injurious, to him. In order to justify a reversal, as we have often said, there should be a concurrence of error on the part of the court and injury thereby resulting to the appellant, and this must be apparent from the record. As the case was fully argued, we will briefly consider the question which was intended to have been presented. We have seen there was no injury, and we think it is clear the court below committed no error.

The appellant contends that, by the ruling complained of irrelevant testimony was introduced on the cross-examination of his witness, which damaged his case before the jury, and that, even if the appellee had the right to show that the witness had been convicted of drunkenness in order to discredit him, it was error not to produce the best evidence thereof, namely, the record of conviction. We think, however that the case of Smith v. State, 64 Md. 25, 20 A 1026, fully disposes of any doubt as to the relevancy of the evidence brought out on cross-examination, and the propriety of the question by which it was elicited. The question in the case just cited was, "State if you have ever been confined in the Baltimore city jail;" and the question here was, "Have you ever been in jail?" which was followed by the question, "What were you sent there for?" In Smith v. State, supra, we held that the theory upon which such inquiry has been allowed is that the credibility of a witness is always in issue, and therefore anything which will tend to throw light upon his character in that regard may always be inquired into; and we cited Real v. People, 42 N.Y. 270, quoting the following language of the court of appeals of New York: "A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary, or the state prison, or any other place that would tend to impair his credibility." The object of the question here asked was the same as that in...