State v. Bacon

• Decision Date: 11 January 1886
• Citation: 9 P. 393,13 Or. 143
• Parties: STATE v. BACON.
• Court: Oregon Supreme Court

9 P. 393

13 Or. 143

STATE v. BACON.

Supreme Court of Oregon

January 11, 1886

R. Citron, for appellant.

J.M Gearin, for the State.

LORD J.

The defendant was indicted, tried, and convicted of the crime of larceny. His appeal is based upon three exceptions to evidence alleged to have been illegally admitted, whereby he was prejudiced at his trial. By the bill of exceptions it appears that on the cross-examination of a witness for the defendant he was asked by the state "if he had not been convicted of a crime, and confined in the county jail," which was objected to on the ground that it was not a proper way to impeach the credibility of the witness. On the subject of the impeachment of a witness, the Code provides "that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a crime." Code, § 830, p. 274. And the word "crime," as defined by the Code, includes both felonies and misdemeanors. Crim.Code, §§ 1, 2, p. 340. It may therefore be shown by the examination of the witness that he has been convicted either of a felony or a misdemeanor, and the record may also be introduced to prove that fact. Section 2051 of the California Code, and section 830, supra, are identical in language as to the particular matter here referred to, except in the former the word "felony" is used instead of the word "crime," as in our section. And under section 2051, supra, it has been held that a witness may be asked if he has been convicted of a felony or that fact may be proved by the record of his conviction. People v. Chin Mook Sow, 51 Cal. 597. Prior to the adoption of the Code, to discredit a witness by conviction it was necessary to produce the record to show such conviction. It seems it would have been objectionable to ask him whether he had been so convicted, because it would not have been the best evidence. 1 Greenl.Ev. 457; People v. Reinhart, 39 Cal. 449; People v. Melvane, Id. 614; People v McDonald, Id. 697. But the Code has worked a change in the common-law rule, and under the provisions of our section, as it includes both felonies and misdemeanors, the question was admissible, and there was no error in the ruling of the court.

The next objection is to another question asked the witness on the same cross-examination, "whether he and the defendant had not at one time been arrested on a charge of robbery." The question was objected to on the ground that the credibility of the witness could not be impeached by the charge of a crime. The court overruled the objection, and admitted the testimony, but only, as the record states, for the purpose of showing the relations of the witness to the defendant. There is no doubt that the state of feeling and relationship of a witness towards the party for or against whom he testifies may properly be shown, to be weighed with his testimony. 1 Greenl.Ev. § 450; Thomas v. David, 7 Car. & P. 350; Atwood v. Welton, 7 Conn. 66.

Mr Greenleaf says:

"The situation of the witness with respect to the parties and to the subject of the litigation, his intent, his motives, his inclinations, and prejudices, *** are all fully investigated and ascertained, and submitted to the consideration of the jury before whom he has testified, and who have thus had an opportunity of observing his demeanor, and of determining the just weight and value of his testimony." 1 Greenl.Ev. § 446.

And in Ryan v. People, 79 N.Y. 593, it was held upon the trial of an indictment for an assault and battery, when the offense was alleged to have been committed during an affray at a town meeting, and a witness for the prisoner was asked on his cross-examination whether he had been indicted for assault and battery committed on that day, which was objected to and overruled, that it was a fair inference that the witness was indicted as one of the participants in the affray, and that the question was competent to show the position he occupied in respect to the controversy out of which the affray arose, and his interest in the litigation, and as showing prejudice and bias. It was upon the fact that the testimony tended directly to connect the witness as a participant in the subject-matter in controversy that it was held admissible for the purpose of showing his relationship to it and interest in the litigation. But here the avowed purpose of the testimony is to show the relationship of the parties as revealing the interest of the witness in the litigation, his motive, and the state of his feelings; the right to do which, it is claimed, the state cannot be deprived of, because the evidence tends to impeach his good character. And in Ryan v. People, supra, FOLGER and EARL, JJ., concurred only in the result, thinking that the question put as asked on cross-examination was properly within the discretion of the court. And, looking at the previous decisions in that state, it seems to me this is the result properly deducible from them. And if this be so, the question was admissible in the case under consideration, as against the objection made.

This leads us directly to the consideration of the question whether a witness introduced by the defendant may be asked on cross-examination concerning any offense or serious charge brought against him. In People v. Elster, (Cal.) 3 Pac.Rep. 884, it was held that the credibility of a witness cannot be impeached by evidence that he has been rested for a felony. The court say:

"Fagan, a witness called by the defendant, was examined, and gave material evidence in the case. On his cross-examination the district attorney asked him the following questions: 'Have you ever been arrested for a felony?' 'Have you been arrested for stage robbery?' 'Have you been arrested for cattle stealing?' The witness was compelled to answer each question, against the objection of the defendant. The only possible object of asking the questions was to impeach the credibility of the witness. But the testimony was not admissible for that purpose. The mere fact that the witness had been arrested does not prove, or tend to prove, that he had been convicted of any offense; and, until there is proof of conviction, the witness was protected by the legal presumption of innocence. Hence the rule formulated by the Code of Civil Procedure: 'A witness may be impeached by the party against whom he was called, by contradictory evidence that his general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of the judgment that he has been convicted of a felony?' "

The effect of this decision is that the credibility of a witness cannot be impeached on a cross-examination by asking him whether he was ever arrested for a felony or charged with some serious offense; but, in such case, the inquiry must be confined to the fact of a conviction, and the provision cited is sufficiently similar to our own to make the decision in point here. It is no doubt true, as said by CAMPBELL, J., that "there is no rule which will allow the credit of a witness to be impeached or assailed by the direct testimony of other witnesses to any criminality, or charge of criminality, unless he has actually been adjudged guilty. And this can only be shown by a record of a judgment." Driscoll v. People, 47 Mich. 416, 417; S.C. 11 N.W. 221. But the inquiry here is whether, within the proper discretion of the court, a witness on cross-examination may be asked concerning some charge of criminality.

In Real v. People, 42 N.Y. 270, a witness introduced by the accused, and who gave material testimony in his favor, was asked upon cross-examination whether he had been in the penitentiary, and how long, which question was excepted to and overruled. The court say:

"My conclusion is that a witness upon cross-examination may be asked whether he has been in jail, the penitentiary, or state prison, or other place that would tend to impair his credibility, and how much of his life he has passed in such places. When the inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply. This involves questions as to the jurisdiction and proceedings of the court of which the witness may not be competent to speak. Here the inquiry was simply whether and how long the witness had been in the penitentiary. This the witness knew and could not be mistaken about. *** The extent of the cross-examination of this character is somewhat in the discretion of the court, and must necessarily be so to prevent abuse."

And in giving the reasons for the admission of such testimony the court said:

"In such examination the presumption is strong that the witness will protect his credibility as far, at least, as the truth will warrant. All experience shows this to be so. It would be productive of great injustice often if, where a witness is produced of whom the opposite party has before never heard, and who gives material testimony, and from some source, or from the manner and appearance of the witness, such party should learn that most of the life of the witness had been spent in jails and other prisons for crimes, if this fact could only be shown by records existing in distant counties, and perhaps states, which for the purposes of the trial are wholly inaccessible. No danger can result to the party introducing the witness from this class of inquiries, while their exclusion might, in some cases, wholly defeat the ends of justice."

It is true this question presupposes a conviction, and is not technically within the rule laid down in the Code which allows a witness to be asked whether he has been convicted of a crime; but, tested by the general principles of reasoning by which it is...