Peck v. State

• Citation: 6 S.W. 389
• Parties: PECK <I>v.</I> STATE.
• Decision Date: 14 January 1888
• Court: Supreme Court of Tennessee

Page 389

6 S.W. 389

PECK

v. STATE.

Supreme Court of Tennessee.

January 14, 1888.

Error to criminal court for district of Davidson and Rutherford; G. S. RIDDLEY, Judge.

W. T. Turley, Geo. A. Reid, and G. Smith, for plaintiff in error. Atty. Gen. G. W. Pickle, for the State.

FOLKES, J.

The plaintiff in error was convicted of murder in the second degree, and sentenced to the penitentiary for 10 years. He has appealed in error to this court.

The first point urged for reversal necessary to be noticed involves the construction of a recent act of the legislature not heretofore passed upon by this court. It is entitled "An act to prevent parties defendant in criminal causes to testify in their own behalf." Section 1 is as follows: "Be it enacted," etc., "that, in the trial of all indictments, presentments, and other criminal proceedings in any of the courts of this state, the party defendant thereto may, at his own request, but not otherwise, be a competent witness to testify therein." Section 2: "That the failure of the party defendant to make such request, and to testify in his own behalf, shall not create any presumption against him. But the defendant, desiring to testify, shall so do before any other testimony for the defense is heard by the court trying the case." This is the entire act. The plaintiff in error in the trial below availed himself of the privilege of the act, was called as a witness, and testified. The state, in presenting its proof in rebuttal, called one Turbeville, who said: "I know Price Peck, and have known him for six or eight years. I know his general character." Objected to by defendant's counsel, on the ground that the defendant's general moral character cannot be inquired into unless said defendant puts his character in issue first. The court overruled the objection, and counsel excepted. Witness, continuing: "It is bad; and from that general character I would not give him full credit and faith in a court of justice." The record, continuing, shows "defendant's counsel object to the above also, because the defendant's credibility is not only attacked as a witness, but he is attacked as a defendant by inquiring about his general moral character when it is not in issue, and when the inquiry should be directed alone to his character as to truth and veracity." Objections overruled, and defendant's counsel again excepts.

Before passing to the consideration of the question here presented, it may be well for us to see what the trial judge said to the jury on the subject when he came to deliver his charge. After laying down properly the various rules for the guidance of the jury in testing the credibility of witnesses in general, where there is a conflict in the evidence, the judge said: "I have permitted the state, in this case, to offer evidence as to the character of the defendant. You will bear in mind that this was done solely for the purpose of enabling you to determine what weight the defendant's testimony is entitled to as a witness, and not for the purpose of weakening the presumption of innocence which the law throws around him. In other words, you may weigh the proof which the state has introduced on the subject of his character, with all the other proof in the case, in estimating how far you will believe him as a witness; but must not consider the presumption of his innocence weakened by the evidence on the subject of his character which the state has introduced."

Was the action of the court in admitting the testimony, coupled with the instructions in relation thereto, erroneous? We think not. Under the act in question, he cannot be made a witness. He becomes such voluntarily; and, when he elects to place himself upon the stand as a witness, he can be treated in all respects as any other witness, with the same privileges and same burdens, — no more and no less, — except so far as the legislature has provided. The act undertakes to distinguish him from other witnesses in only three particulars: (1) He is not to be called except upon his own request; (2) his failure to take the stand is not to create any presumption against him; (3) he must be the first to testify for the defense when he proposes to become a witness. The first two are privileges not enjoyed by other parties; the last is a burden. The legislature having seen fit to make the three exceptions, the courts are not authorized to make any other. With the wisdom and the policy of the act we have nothing to do; this concerns the legislature only. It is a natural step in the line of progress that began with the removal of the disqualification of interest in civil suits, now removed by legislation in England, and in almost all of the American states, and to a large extent applied to criminal trials by most of the states of this Union. Speaking for myself, I agree with the views expressed by the learned writer quoted in the notes to Wharton's Criminal Evidence: "But though the new rule may tend, and very properly, to an increase in the number of convictions, there is not the slightest doubt that it will also prevent a number of wrongful convictions, if not make wrongful convictions almost impossible."

To return to the objections made to the evidence in the case at bar. It is earnestly insisted that such ruling operates to destroy the elementary principle of law that the state cannot go into proof of the general character of the accused until he first opens the door. The contention is not logical; the general rule remains unaffected. The accused is still safe from such an attack so long as he remains the accused only; but, when he voluntarily places himself upon the stand, he assumes the character of a witness, and, as such, must expose himself to be attacked to the same extent as other witnesses. Surely the courts would be slow to place a construction upon an act of the legislature (if there were room for construction) that would allow a witness to be sworn and give his testimony against that of good and true men, when the state's attorney knows and is ready to prove him wholly devoid of moral sense, and utterly unworthy of belief, and at the same time prevent the state from showing the character of the witness as affecting his credit. Under this act, a man repeatedly convicted of the crime of perjury can go before the jury, in a community where he is unknown, and with a good manner and fair exterior give evidence in his own behalf, and the state remain powerless to impeach him, if the position contended for were tenable. Prior conviction of an infamous crime, it would seem, does not incapacitate him, as the statute gives him the right to testify on his own behalf, as was held by the courts of New York, under a statute in the main similar to our own. Newman v. People, 63 Barb. 630. But, under the rule contended for, the record of such conviction could not be introduced,...