Ochsner v. Commonwealth

• Decision Date: 17 April 1908
• Citation: 109 S.W. 326,128 Ky. 761
• Parties: OCHSNER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

109 S.W. 326

128 Ky. 761

OCHSNER v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 17, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

John Ochsner was convicted of robbery, and he appeals. Affirmed.

H. D Gregory, for appellant.

James Breathitt, Atty. Gen., and Theo. B. Blakey, Asst. Atty. Gen for the Commonwealth.

O'REAR C.J.

Appellant was convicted of the crime of robbery. His punishment was fixed at confinement in the penitentiary for the term of 10 years. On his appeal he relies on three principal alleged errors: One because the court permitted the commonwealth to require the appellant, while on the witness stand, to testify in detail as to the facts of a former conviction of a felony over the objection of the defendant; the other because the court erred in failing to instruct the jury that they should only consider the fact of his former conviction as affecting his credibility as a witness; and, third, "because the court erred in failing to instruct the jury that the evidence of the commonwealth's witnesses Gausepohl and Bush should not be considered unless corroborated by other testimony connecting defendant with the crime."

As to the first assignment: Appellant offered himself as a witness in his own behalf. On cross-examination he was asked if he had not previously been convicted of a felony. He admitted that he had been. He was then asked if he had not been charged in that matter with holding up Joe Rehling, in Austinburg, and taking from him $80.50. The proceedings from this point were as follows: "Counsel for Defendant: I now move that what Mr. Galvin has stated before the jury be excluded. The Court: He has not said anything except to ask a question. Witness: Judge, your honor, I don't like to answer anything that is done past or anything like that. I was guilty of that one. Yes, sir." The complaint is that, by requiring the defendant to answer the questions concerning the particular transactions as to his former conviction of a felony, the court allowed the prosecution to go too far in that matter. Section 151, Cr. Code Prac adopts the provisions of the Civil Code of Practice in criminal cases touching the production of evidence except as limited in the former. By section 597, Civ. Code Prac., a witness may be impeached in four ways: (1) By contradictory evidence; (2) by showing that he had made statements different from his present testimony; (3) by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; and (4) by showing "by the examination of a witness, or record of a judgment, that he had been convicted of felony." The last ground is in itself an exception to the general rule that evidence of particular wrongful acts is inadmissible to impeach a witness. The party desiring to impeach an adversary witness may resort to two methods under the last ground: One by proving the fact of a former conviction of felony by any witness (which of course includes the witness to be impeached); or the other by the production of the record containing the judgment of conviction. If the latter had been resorted to, the indictment, verdict and judgment of conviction would have been admissible. In that event, the record would have disclosed the identical facts detailed in the foregoing quotation from appellant's testimony. That which could have been shown by the record it was equally competent to show by parol under section 597, Civ. Code Prac. That a party is himself the witness to be impeached makes no difference, as when he offers himself as a witness he is subject to the same rules as any other witness.

The trial court did not admonish the jury that the sole effect they could give the impeaching evidence was such bearing as it might have upon the credibility of the witness. That the defendant was entitled to, as otherwise it might have been received by the jury as substantive evidence of his guilt of the principal charge. Fueston v. Commonwealth, 91 Ky. 230, 15 S.W. 177. It is never permissible to prove that one on trial charged with a particular offense has committed some other offense, except to show motive, or where it is part of the res gestæ, unless the defendant has offered himself as a witness, when he may be impeached by evidence of his having been convicted of another crime that is a felony. Section 954, Roberson's Cr. Law; Commonwealth v Welch, 111 Ky. 530, 63 S.W. 984; Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 63 S.W. 976, 53 L. R. A. 245; Howard v. Commonwealth, 110 Ky. 356, 61 S.W. 756; Pennington v. Commonwealth, 51 S.W. 818, 21 Ky. Law Rep. 406. But in this case the defendant did not request the court to admonish the jury as to the proper effect to be given the evidence objected to, nor did he except to the ruling of the court on the subject. His objection to the evidence, as we have indicated, was not well taken. It was admissible for a particular purpose. When received, the court should have admonished the jury as to its legal effect. Either party may except to any decision of the court by which his substantial rights are prejudiced except challenges to the panel and for cause upon motion to set aside an indictment, and upon motions for new trial. Sections 280, 281, Cr. Code Prac. All exceptions at the trial must be shown upon the record by bill of exceptions. Section 282, Cr. Code Prac. A party cannot rely for reversal upon an erroneous decision...