State v. Fournier

• Decision Date: 01 July 1963
• Docket Number: No. 390,390
• Citation: 123 Vt. 439,193 A.2d 924
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Joseph FOURNIER.

Page 924

193 A.2d 924

123 Vt. 439

STATE of Vermont v. Joseph FOURNIER.

No. 390.

Supreme Court of Vermont.

July 1, 1963.

Harry L. Goetz, Grand Juror for City of Winooski, Winooski, for plaintiff.

Cain & O'Brien, Burlington, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HULBURD, Chief Justice.

The respondent was tried and convicted, under 23 V.S.A. § 1183, of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. During the course of the trial, the prosecuting officer, the grand juror of the City of Winooski, sought to inquire of the respondent on cross-examination whether he had been convicted before of driving while under the influence of intoxicating liquor. The complaint did not charge the respondent with a second offense. Counsel for the respondent objected to the question. The prosecutor stated that the evidence was offered as bearing on the credibility of the respondent. The trial court admitted the evidence on that basis, and rejected the contention of the respondent that the crime of operating a motor vehicle while under the influence of intoxicating liquor was not one involving moral turpitude.

By statute it is provided that 'The conviction of a crime involving moral turpitude within fifteen years shall be the only crime admissible in evidence given to affect the credibility of a witness.' 12 V.S.A. § 1608. The propriety of the trial court's ruling, therefore, depends on whether it was correct in holding that the crime in question was one involving moral turpitude. State v. Russ, 122 Vt. 236, 167 A.2d 528.

We have not had occasion in this Court to pass on the question of whether convictions of drunken driving, so-called, are convictions of offenses involving moral turpitude. In Underwood v. Cray, 94 Vt. 58, 108 A. 513, this court held that a prior conviction of an assault upon a person was not an offense involving moral turpitude. It did not attempt to lay down any definition upon which it reached this conclusion.

When the legislature passed the statute in question relating to evidence of prior convictions, it obviously intended to restrict the prosecution in what it could show. Not every crime was to be admissible. The mere fact that a man had been found guilty of a crime was not to be enough. It must be a crime 'involving moral turpitude.' What the legislature is saying is that merely undesirable social conduct which has been made criminal should not be taken as evidence tending to discredit a man. The conduct must not only be socially undesirable which the law has made criminal, but it must, by its nature be base or depraved. See 14 Am.Jur. § 5, p. 757; 22 C.J.S. Criminal Law § 8. The legislature undoubtedly intended to employ the disinction commonly observed between crimes mala in se, and crimes mala prohibita. It was only the...