McMullen v. Cannon, 18876

• Decision Date: 02 June 1958
• Docket Number: No. 18876,18876
• Citation: 150 N.E.2d 765,129 Ind.App. 11
• Parties: Harry McMULLEN, Appellant, v. Joe Wesley CANNON, Appellee.
• Court: Indiana Appellate Court

Page 765

150 N.E.2d 765

129 Ind.App. 11

Harry McMULLEN, Appellant, v. Joe Wesley CANNON, Appellee.

No. 18876.

Appellate Court of Indiana, In Banc.

June 2, 1958.

Rehearing Denied June 30, 1958.

Transfer Denied Oct. 23, 1958.

Frank A. Symmes, Charles W. Symmes, Owen S. Boling, Indianapolis, Grant Rogers, Franklin, for appellant.

Harry D. Hatfield, Indianapolis, Ivan D. Pogue, Franklin, for appellee.

KELLEY, Chief Judge.

Appellee brought this action to recover for personal injuries and property damages allegedly sustained in an automobile collision occurring in the city of Indianapolis, Indiana, on or about the 27th day of February, 1951. Trial was had by jury which assessed his damages for personal injuries at $5,750 and for property damage at $425.

The error assigned is the overruling of appellant's motion for a new trial. The motion contains fifteen specifications of error but only fur thereof are urged. For the purpose of this appeal it is necessary for us to consider only one of the advanced specifications.

Appellee testified as a witness in his own behalf. On cross-examination he was asked by appellant's counsel as to whether he 'had been arrested and convicted of operating a motor vehicle under the influence of intoxicating liquor.' The question was objected to on the ground that it 'is wholly immaterial to the issues in the case now on trial, it is prejudicial and the jury should be instructed to disregard that remark.' Appellant then stated that 'it goes to his credibility and that's the only reason.' The court said that it was 'going to sustain the objection and instruct the jury to disregard the question and draw no conclusions from it.' Appellant then asked this question: 'On this particular date were you operating your motor vehicle under the influence of liquor?' To which appellee replied 'I was not.'

In this state the rule is deeply entrenched in the case law that a witness, including a party to the action who takes the stand as a witness in his own behalf, may be required on cross-examination, as affecting his credibility, to answer as to previous convictions, whether such convictions were of felonies or misdemeanors. Among others which could be cited, see the following: Niemeyer v. McCarty, 1943, 221 Ind. 688, 701, 51 N.E.2d 365, 154 A.L.R. 115; Fritch v. State, 1927, 199 Ind. 89, 155 N.E. 257; Parker v. State, 1894, 136 Ind. 284, 288, 35 N.E. 1105; Nancleave v. State, 1898, 150 Ind. 273, 49 N.E. 1060; Dotterer v. State, 1909, 172 Ind. 357, 365, 88 N.E. 689, 30 L.R.A.,N.S., 846; Neal v. State, 1912, 178 Ind. 154, 158, 98 N.E. 872; Pierson v. State, 1919, 188 Ind. 239, 244, 245, 123 N.E. 118; Bolden v. State, 1927, 199 Ind. 160, 163, 155 N.E. 824; Way v. State, 1946, 224 Ind. 280, 284, 66 N.E.2d 608; Chambers v. State, 1946, 232 Ind. 349, 111 N.E.2d 816; Mitz, Jr. v. State, 1954, 233 Ind. 537, 543, 121 N.E.2d 874.

In the Neal v. State case, supra, it was held that it rested within the sound discretion of the court as to whether the matter inquired about tended to affect the credibility of the witness. Such, also, was the practical holding of the court in City of South Bend v. Hardy, 1884, 98 Ind. 577, 580. However, in the Niemeyer v. McCarty case, supra [221 Ind. 688, 51 N.E.2d 370], the court held that 'the statement that 'the extent to which such cross-examination may be carried is within the sound discretion of the court's must not be construed as authorizing the entire exclusion of such testimony in the trial court's discretion, and the cases referred to do not so hold.'

It would seem, therefore, that our Supreme Court is...