State v. Hill

• Citation: 52 W. Va. 296,43 S.E. 160
• Parties: STATE. v. HILL.
• Decision Date: 14 January 1903
• Court: Supreme Court of West Virginia

43 S.E. 160
52 W. Va. 296

STATE.
v.
HILL.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1903.

TRIAL—WITNESSES — PERSONAL PRIVILEGE— CREDIBILITY — CROSS-EXAMINATION — CONVICTION OF CRIME—VERDICT—CONCLUSIVENESS.

1. A witness will not be compelled to answer a question touching matter not material, but collateral, to the issue, if the answer will degrade him. But the privilege to refuse to answer is personal to him, and cannot be used by a party. If the witness does not refuse to answer, it is in the discretion of the court to allow or refuse to allow an answer. If the court refuse to allow an answer, it is not at all the ground of exception by a party; nor is it such around of exception if the court allows an answer, except, perhaps, when such discretion is grossly abused, to the manifest harm of a party.

2. The mere putting of a question, the answer to which may degrade a witness, which he refuses to answer by leave of the court, is not ground of exception for error.

3. The general rule is that if improper evidence has been given to a jury, and is afterwards withdrawn by the court from the consideration of the jury, that cures any error committed by its introduction; but there may be instances where such a strong impression has been made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove the effect caused by its withdrawal, and then the error will call for a new trial.

4. On cross-examination to discredit a witness, he may be asked whether he has been confined in the penitentiary, and, if he answers that he has been, it is no ground of exception by the party introducing the witness. It is not necessary in such case to produce the record of conviction.

5. Again the court holds that a verdict of a jury upon the facts resting upon the weight of the evidence, the inferences to be drawn therefrom, and the credibility of witnesses, has almost uncontrollable finality, and is sacred in law, beyond reversal by this court. This court cannot merely weigh evidence in competition with a jury. It can set aside such a verdict only where it is very plainly and manifestly contrary to or without sufficient evidence, and plainly inflicts injustice.

(Syllabus by the Court.)

Error to circuit court, Marion county; John. W. Mason, Judge.

A. T. Hill was convicted of receiving stolen goods, and brings error. Affirmed.

T. N. Parks and W. S. Meredith, for plaintiff in error.

C. Powell, Atty. Gen., for the State.

BRANNON, J. A. T. Hill was indicted In the circuit court of Marion county for breaking and entering a freight car of the Baltimore & Ohio Railroad Company and stealing from it a lot of shoes; the indictment containing counts for such breaking and stealing, and also a count for receiving the shoes, knowing them to be stolen. He was acquitted on the counts charging the breaking into the car, but was convicted on the count for receiving, and was sentenced to the penitentiary for five years. He brings the case here, complaining of the sentence in several respects.

The wife of the prisoner, as a witness, stated that the goods were brought to her husband's house by two men, and that three females were living there, who were witnesses for the prisoner to that fact; and the prosecution asked her if it was not a fact that all three were prostitutes, and whether she did not know they were when they came to her house, and whether she did not know that men visited them, and whether men had not paid the witness for the time they were visiting these girls. The court told the witness that she need not answer any question tending to incriminate or disgrace her, and instructed the jury that such evidence could only be admitted as affecting the credit of the witness, not as tending to show guilt on the part of the prisoner; and afterwards, upon further consideration, the court totally excluded it, and told the jury to disregard It in coming to a verdict. Is there in this any error hurtful to the prisoner? The answers of the witness fixed nothing on her, save that she had heard the girls were prostitutes; but the prisoner claims that the mere propounding of these questions was error to his prejudice, because tending to show that the witness kept a house of bad repute, and thus degraded her and diminished her credit. Of course, there is no question that, where the answer to a question may tend to subject the witness to a criminal or penal liability (not a mere civil one), no answer will be required, if the witness himself objects on that score, whether the matter is relevant or not; but how as to evidence merely tending to degrade the character? The law is that, where the question is relevant or material to the matter on trial, the witness must answer, however much it disgraces or discredits the character, because the demands of public justice require this. The witness can set up no privilege in that case. But where the question introduces matter not relevant to the issue on trial, but foreign or collateral to It, if the witness objects to answer, he will not be compelled to do so. This privilege, however, like the privilege of refusal to an-

[43 S.E. 161]

swer a criminating question, is personal to the witness. A party cannot insist upon it. If the witness do not object to answer, adverse counsel cannot, so as to make it a subject of error. Though the witness do not object, it seems that it is still within the discretion of the court, on its own motion, or at the...