State v. Duke

• Decision Date: 06 July 1956
• Citation: 123 A.2d 745,100 N.H. 292
• Parties: STATE v. Henry C. DUKE.
• Court: New Hampshire Supreme Court

Page 745

123 A.2d 745

100 N.H. 292

STATE v.Henry C. DUKE.

Supreme Court of New Hampshire.

July 6, 1956.

Louis C. Wyman, Atty. Gen., Elmer T. Bourque, Asst. Atty. Gen., and Conrad Danais, County Solicitor, Manchester, for the State.

Upton, Sanders & Upton and Wesley E. Whitney, Concord, James B. Sullivan, Manchester, for defendant.

BLANDIN, Justice.

The only question transferred is whether the court erred in permitting the county solicitor to cross-examine the defendant, who testified voluntarily, concerning his prior criminal offenses for the sole purpose of attacking his credibility.A long and unbroken line of decisions in this state holds that such inquiries may be permitted within the discretion of the trial court.In Constantine v. Grenier, 81 N.H. 550, 127 A. 656, a case of trespass, counsel was permitted, subject to exception, to cross-examine the defendant for the purpose of discrediting him, as to whether he had been convicted of violating the liquor laws.On appeal the verdict was upheld, and the court, citing Gutterson v. Morse, 58 N.H. 165, said that the latitude of such questions to discredit was within the sound discretion of the trial judge.State v. Travis, 82 N.H. 220, 131 A. 598, involved a charge of operating an automobile under the influence of liquor and the defendant, having elected to testify, was asked in cross-examination about a previous conviction for the same offense.The Court held 'The inquiry objected to in the present case was competent on the issue of the respondent's integrity.'82 N.H. at page 220, 131 A. at page 598.In State v. Grierson96 N.H. 36, at page 39, 69 A.2d 851, at page 854, a trial upon an indictment for first degree manslaughter, the cross-examiner was allowed to ask the defendant about her drinking and relations with a man not her husband 'to discredit [her] as a witness.'The Court in upholding the verdict distinguished the case of Genest v. Odell Mfg. Co., 75 N.H. 365, 74 A. 593, relied upon there as in the instant case by the defendant, on the grounds that in the Genest case where the defendant did not testify, the opposing party could not discredit him by independent impeaching evidence.Obviously, the decision is not authority for the defendant in the present case.State v. Sturtevant, 96 N.H. 99, 70 A.2d 909, was an appeal from a conviction for driving under the influence of liquor.Counsel cross-examined the defendant as to a previous conviction for the same offense and his right to do so was upheld.A very recent decision, State v. Mihoy, 98 N.H. 38, 93 A.2d 661, 35 A.L.R.2d 852, involved an indictment for breaking and entering.The defendant was asked on cross-examination whether he had previously been guilty of armed assault and his exception to the admission of this question was overruled.

We are aware of the arguments for a rule which would limit impeachment in such cases to crimes directly involving lack of veracity.See89 U. of Pa. L.Rev. 166;Amer.Law Inst., Model Code of Evidence, Rule 106(1)(b);Id. at 341.It seems to us that such a rule represents too narrow and artificial a view.The object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth.What a person is often determines whether he should be believed....