Smith v. Durant

• Decision Date: 01 April 1975
• Parties: Gary Arthur SMITH, Appellant, v. Eric Gerald DURANT, Respondent.
• Court: Oregon Supreme Court

Page 955

534 P.2d 955

271 Or. 643

Gary Arthur SMITH, Appellant, v. Eric Gerald DURANT, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 5, 1975.

Decided April 1, 1975.

James J. Damis, Portland, argued the cause and filed the briefs for appellant.

Walter J. Cosgrave, Portland, argued the cause for respondent. With him on the brief were Cosgrave & Kester, Portland.

TONGUE, Justice.

This is an action for damages for personal injuries sustained in an automobile accident involving a collision between plaintiff's car and defendant's car on a two-lane road. The case was tried before a jury, which returned a verdict in favor of defendant. Plaintiff appeals.

At the beginning of the trial defendant's attorney conceded that defendant was negligent, but contended that plaintiff's recovery was barred by his contributory negligence. ¹ Plaintiff testified that defendant's car was 'straddling' the center line when it hit his car. Defendant testified, on the contrary, that he was on his own side of the road. The principal issue to be decided by the jury was whether defendant or plaintiff or both were over the center line. Thus, although there was other evidence on that issue, the credibility of the testimony of both parties was of vital importance.

Plaintiff's primary assignment of error is that the trial court erred in refusing to permit plaintiff to impeach the defendant as a witness by offering in evidence the records of two prior convictions of the defendant for reckless driving, as provided by ORS 45.600 and as recently held by this court to be proper in Marshall v. Martinson, 268 Or. 46, 518 P.2d 1312 (1974).

Defendant contends that Marshall should be 'clarified' and 'qualified,' if not reconsidered and overruled, and should not be applied to this case because prejudice may result in that the jury may reason that because there was evidence of defendant's drinking before this accident and because defendant had been guilty of reckless driving on two previous occasions, it is probable that he was also driving recklessly at the time of this accident.

1. The contention that the admission in evidence of a prior conviction for reckless driving could result in unfair prejudice.

The provisions of what is now ORS 45.600 were originally enacted by the Oregon legislature in 1861 (§ 830 of Deady's Code 1845--64) and read as follows:

'Impeachment of adverse witness. A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but He may not be impeached by evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convicted of a crime.' (Emphasis added)

In considering the interpretation and application of ORS 45.600 it must be kept in mind that although this is a civil case, the rule permitting impeachment by proof of a prior conviction of any crime is one which has perhaps a greater impact in criminal cases.

It may be true, as contended by the defendant, that a defendant in either a criminal or civil case who is so impeached may be 'prejudiced' in that the jury may infer from such prior conviction that he is a 'bad man' and thus more likely to have committed the act charged. ² However, that danger would still be present even if the scope of impeachment were limited to crimes involving 'moral turpitude' or 'dishonesty,' as proposed by the dissent in Marshall. Thus, in a prosecution for any crime involving 'moral turpitude' or 'dishonesty,' such as forgery, the defendant could still be impeached by proof of prior convictions for the same crime and there would still be the possibility that the jury may infer that because he was previously guilty of crime it is more likely that he is guilty of the subsequent crime.

'Prejudice' is possible in both civil and criminal cases whenever a witness is impeached by the proof of conviction of any crime. However, the question of whether and how to limit the scope of permissible impeachment for prior conviction of crime is one of public policy. In this instance, the Oregon legislature not only has power to legislate but has adopted a statute on this subject. We can neither repeal nor amend that statute, but only endeavor to see that it is applied in accordance with the intent of the legislature.

In Marshall, as in our previous decisions, we held that where the legislature provided that a witness may be impeached by proof of the conviction of 'a crime,' without limitation or qualification, we were required to give those words their plain and natural meaning, so as to extend to 'any crime,' whether a felony or misdemeanor. If this court is to undertake to go behind the terms of this statute in an effort to seek the 'true' intent of the legislature, we must still bear in mind that in considering matters which are the objects of legislation, as in this case, such questions of public policy are primarily questions to be decided by the legislature, rather than by the courts.

It follows that this court must give consideration to the reasons why, as a matter of public policy, the Oregon legislature may have deliberately chosen to adopt a statute permitting impeachment of a witness by proof of prior conviction of Any crime in both criminal and civil cases.

Suppose, to take a hypothetical case, that a defendant is charged with the crime of assault and testified that at the time of the assault he was playing cards with two friends; that both of his friends appear as witnesses and testify that they were playing cards with him at that time, and that all three had been previously convicted for assault on at least three previous occasions. To adopt the reasoning of the dissent by O'Connell, C.J., in Marshall, would require us to hold that in 1861 the Oregon legislature, by adopting a statute permitting impeachment of a witness for 'a crime,' intended to withhold from the jury in such a case the fact that both the defendant and his alibi witnesses had been previously convicted for assault because it is not a crime involving 'moral turpitude.' Ex parte Mason, 29 Or. 18, 22, 43 P. 651 (1896). If, however, the assaults resulted in robbery, a crime involving moral turpitude, the fact that the defendant and his three alibi witnesses had been previously convicted of robbery could be shown to impeach them, according to the reasoning of the dissent, despite the fact that the jury might infer that having been previously convicted of robbery it is more likely that defendant was guilty of the subsequent robbery.

We do not believe that we can divine such an intent from the legislative history of ORS 45.600, for reasons discussed separately below. On the contrary, we cannot say that in 1861 it would have been unreasonable, as a matter of public policy, for the legislature to deliberately provide that in both criminal and civil cases in which the defendant testified on his own behalf the jury, in determining the credibility of his testimony, may consider whether he has been previously convicted of Any crime, regardless of whether the crime is one involving 'moral turpitude.' The legislature may have reasoned:

(1) That, as stated in the frequently quoted case of State v. Duke, 100 N.H. 292, 293, 123 A.2d 745, 746 (1956):

'No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know.'

(2) That in a criminal case a defendant who is a 'three-time-loser' is more apt to lie in an effort to avoid a further conviction, with a heavy penalty, than a defendant with a 'clean' record.

(3) That this is true whether the previous convictions were for crimes involving 'moral turpitude' or for other crimes.

We may disagree with these reasons. In our opinion, however, we cannot properly say that the legislature, in adopting a statute which, by its terms, permits the impeachment of a witness by proof of conviction of 'a crime,' did not consider these and other similar reasons in deciding, as a matter of public policy, how wide or how narrow should be the scope of the statute.

2. The contention that we should overrule our previous decisions because they 'rest upon an unsatisfactory analysis of the statute.'

This court has previously held that what is now ORS 45.600, providing that a witness may be impeached by proof 'that he has been convicted of a crime,' is not limited to crimes involving 'moral turpitude' or 'dishonesty.' In Marshall we repeated, with approval, the following statement in State v. Rush, 248 Or. 568, 570--71, 436 P.2d 266, 268 (1968):

'From the time of the decision in State v. Bacon, Supra (13 Or. 143, 9 P. 393 (1886)), this court has consistently held that ORS 45.600 permits, as it clearly states, that 'A witness may be impeached by the party against whom he was called * * * by his examination or by the record of the judgment, that he has been convicted of a crime.' Whatever the logic may be of arguing that no evidence should be received concerning conviction of a crime which would not by its nature be thought of as a basis for questioning credibility, the rule is nonetheless clearly established. (Cases cited)'

The previous decisions by the court to the same general effect are numerous. ³

Defendant contends, however, that ORS 45.600 is 'declaratory of the common law'; and that at common law witnesses were disqualified only if convicted of 'infamous crimes.' Similarly, the dissent by O'Connell, C.J., in Marshall, contended that this court should have overruled this entire line of cases because 'they rest upon an unsatisfactory analysis of the statute,' in that ORS 45.600 is recognized by some of such cases as 'declaratory of the common law'; and that at common law witnesses were...