State v. Conway

• Decision Date: 05 November 1897
• Citation: 38 A. 656,20 R.I. 270
• Parties: STATE v. CONWAY.
• Court: Rhode Island Supreme Court

38 A. 656

20 R.I. 270

STATE

v. CONWAY.

Supreme Court of Rhode Island.

Nov. 5, 1897.

Honora Conway was indicted for nuisance, and, having been convicted, petitions for a new trial, on an exception to rulings touching the introduction of certain evidence. Petition granted.

Willard B. Tanner, Atty. Gen., and Charles F. Stearns, Asst. Atty. Gen., for the State.

F. P. Owen, for defendant.

PER CURIAM. The petition for new trial in this case is based upon certain alleged errors of the common pleas division in admitting testimony relating to an indictment against the defendant, which had been previously found, and to which the defendant had entered a plea of nolo contendere. At the trial of the case the attorney general was permitted to ask the following questions, against the objection of defendant's counsel, viz.: "This was not your first offense, was it? * * * Are you the Honora Conway who plead nolo contendere to an indictment for nuisance on the 16th of October, 1883, and who afterwards paid $100 and costs?" The court ruled, in effect, that the evidence was competent for the purpose of affecting the credibility of the defendant, and that her plea of nolo contendere amounted to a conviction, upon which the court might have imposed sentence. Although this evidence was allowed to go to the jury, the attorney general failed to offer the indictment in question in evidence; and in view of this fact, and for the purpose of having it appear as a part of the record in the case, the defendant afterwards offered the indictment in evidence, saying at the time: "My point is, I want it to appear on the record for this reason: Your honor has allowed that testimony against my objection. This indictment was not. prossed, and I want it to show. That is not evidence against this witness." An exception was taken by the defendant to the rulings aforesaid.

We think the evidence objected to was inadmissible. Gen. Laws R. I. c. 244, § 40, is as follows: "No person shall be deemed an incompetent witness because of his conviction of any crime, or sentence to imprisonment therefor; but shall be admitted to testify like any other witness, except that conviction or sentence for any crime or misdemeanor may be shown to affect his credibility." The evidence shows that the defendant had neither been convicted nor sentenced under the indictment referred to, and therefore the attorney general had no right to attempt to discredit her by any reference thereto. It is true, as said by the court, that a person may be sentenced on a plea of nolo contendere, as well as on a conviction (Whart. Cr. Pl. & Prac. § 419); but, while for this purpose it has the same effect as a conviction or a plea of guilty, yet as to the other proceedings it does not have the same effect. As said by Shaw, C. J., in Com. v. Tilton, 8 Metc. (Mass.) 233: "This plea, like a demurrer, admits, for the purposes of the case, all the facts which are well stated, but it is not to be used as an admission elsewhere." See, also, Com. v. Horton, 9 Pick. 206. Hawkins states the matter thus: "An implied confession is where a defendant, in...