State v. Hickman
| Decision Date | 15 October 1956 |
| Parties | , 2 O.O.2d 70 The STATE of Ohio, Appellee, v. HICKMAN, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. For the purpose of reflecting upon the credibility of the accused, he may be asked on cross-examination whether he has ever been convicted of a crime that comes within the designation of the crimen falsi of the common law.
2. Where the defendant testifies in his own behalf in a criminal prosecution, he may not be cross-examined as to a former conviction for violating a city ordinance.
3. In the trial of a criminal case, where it is relevant and material to show the motive or intent of the defendant in doing an act, Section 2945.59, Revised Code, authorizes the introduction of evidence of like acts of the accused, previously committed, which are so related to the offense charged, in character and point of time, as tend to show the intent, motive, habit or state of mind of the defendant at the time he committed the offense charged, provided such related criminal act comes within the designation of crimen falsi of the common law.
Edward W. Rhode, Jr., Sandusky, for appellant.
William E. Didelius, Pros. Atty., and Richard D. Holzapfel, Sandusky, for appellee.
The defendant was charged in Municipal Court with operating a motor vehicle while under the influence of intoxicating liquor contrary to and in violation of Section 4511.19, Revised Code.
Upon motion of defendant, a jury was empaneled and sworn. The jury returned a verdict of guilty as charged. The defendant was sentenced to six months in the county jail, fined $500 and costs, and his license was revoked for three years.
Following the overruling of a motion for new trial, defendant appealed to this court on questions of law.
It appears from the evidence offered by the state that at about 3:15 a. m. on the morning of May 20, 1956, an automobile had been backed into a ditch on the northerly side of route 6 at or near the intersection of Perkins Avenue with said route, several miles east of the city of Sandusky, the front of the vehicle extending into the northerly lane of the highway.
When the officers arrived, the defendant was sitting in the auto behind the wheel, and defendant's wife, sister-in-law and two children were also in the automobile. Defendant stated to the arresting officers that he was coming from a Sandusky drive-in theater and had attempted to make a turn at Perkins Avenue up a steep grade and his car rolled back across the highway, and that his wheels had gone into the ditch on the north side of the highway and the vehicle could not be moved. The officers also testified that defendant was under the influence of intoxicating liquor.
Mrs. Hickman testified on behalf of defendant and stated that her husband met some friends at the theater and that they had some drinks; that upon his return he got into the back seat and went to sleep; that she did not waken him because he had been drinking and she did not want him to drive the car; and that she drove the automobile down to Perkins Avenue and started upgrade across the track, saw a train coming, stopped and backed the car across the highway to the ditch and was unable to get it out.
This witness also testified that when the officers asked defendant who was driving the car he stated that he was; that she had told the officers the same thing because she had no driver's license.
Defendant's sister-in-law was called as a witness for defendant, and she testified that defendant had been drinking and that his wife drove the car, and at Perkins Avenue she backed into the ditch, and that defendant told the officers that he was driving.
The defendant testified in his own behalf. He admitted that he met some friends at the theater and had 'a couple good drinks of whiskey and a couple cans of beer.' Defendant also testified that when he returned to the automobile he crawled into the back seat and went to sleep and did not awaken until after the car had rolled back into the ditch, and that he told the officers he was driving in order to protect his wife, as she had no driver's license.
At the close of the state's case and also at the close of all the evidence, defendant moved for a directed verdict. Both motions were overruled.
The jury returned a verdict of guilty and judgment was entered on the verdict.
On appeal to this court, defendant assigns as errors of the trial the following:
I and II. That the trial court erred in overruling defendant's motions for directed verdicts.
III. That the trial court erred in the admission of certain evidence over the objection of defendant
IV. That the verdict and judgment are manifestly against the weight of the evidence.
V. That the court erred in overruling defendant's motion for a new trial.
I and II. It is the opinion of this court that at the close of the state's case the state had introduced evidence of a substantial character in support of the charge laid against defendant and that a jury issue was presented. Defendant thereupon proceeded to introduce evidence in his own behalf, as already pointed out, and thereby waived the alleged error.
This court is of the opinion also that the trial court did not err in overruling defendant's motion at the close of all the evidence, as the record discloses that the state introduced evidence of sufficient probative value to require the submission of the case to the jury. It follows that this assignment of error should not be sustained.
IV. After a careful examination of the record, this court concludes that the verdict and the judgment thereon are not manifestly against the weight of the evidence.
Defendant admits he had been drinking intoxicating liquor prior to leaving the drive-in theater. The testimony of the officers, and tests which were made, clearly established that defendant was under the influence of liquor when he was arrested. The evidence is in sharp conflict on the issue whether defendant or his wife had driven the automobile from the theater to the place where it was backed into the ditch.
It was the province of the jury to determine which witness should be believed, and also the greater weight of the evidence on this material fact issue, and, subject to the intervention of prejudicial error, which matter will be considered later, this court can not say, on the record before us, that the verdict of the jury is against the manifest weight of the evidence.
III. Over the objection of the defendant, the court permitted the state to cross-examine him concerning previous arrests on charges of operating a motor vehicle while under the influence of intoxicating liquor. We quote a portion of this testimony from the record, as follows:
'Judge: All right, you may cross-examine.
'Rhode: I object.
'Judge: Objection overruled.
'Judge: Sit down, Mr. Rhode.
'Rhode: Exceptions taken.
'Judge: Exceptions noted, sir.
'Rhode: (Unable to transcribe this remark of Mr. Rhode).
'Rhode: If it please the court, I ask for a ruling informing the jury what this testimony is good for what it is coming to.
'Wennes: Solely for the credibility of this witness.
'Rhode: I think the court should give that, at this time immediately.
'Judge: You may proceed.'
This cross-examination of defendant continued, during which defendant was inquired of further as to a number of arrests or convictions on charges as above indicated, and defendant admitted that he had been convicted or pleaded guilty three times and that he had been arrested a 'time or two that I wasn't guilty.'
While the court instructed the jury in its general charge that evidence as to former convictions was received only for the limited purpose of permitting the jury to consider it in determining the credibility...
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