State v. Hill
| Decision Date | 14 January 1903 |
| Parties | STATE v. HILL. |
| Court | West Virginia Supreme Court |
Submitted September 4, 1902.
Syllabus by the Court.
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 ground 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 The general rule is that if improper evidence has been given to a jury, and is afterwards withdrawn by the court from the consideration of the jury, that cures any error committed by its introduction; but there may be instances where such a strong impression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.
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.
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 answer 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 suggestion of counsel, to allow or refuse the question. It may be a question merely intended to embarrass the witness, worry the witness, exposing indecent things in court, tending to corrupt morals, and answering no fairly useful purpose on the trial. It almost invariably wounds the feelings of the witness and his family. It removes the mantle of oblivion and forgiveness, by reopening the pages of years past, and exposing acts done in the infirmity of human nature amid the temptations that beset life. If this door is open wide, the witness stand will be a terror; men will suppress evidence from fear of it, to the injury of public justice; and it will threaten both the worthy and unworthy witness, and be a cross upon which attorneys too zealous in their cause will crucify witnesses to suit their own ends. It would tend to disorder in courts. Rarely, very rarely, should it be tolerated. The rule that a witness can only be impeached by evidence of general reputation as regards truth and veracity would tend to forbid on cross-examination such disgracing questions. Upon the general subject, see 8 Enc. Pl. & Prac. 118; 1 Thomp. Trials, § 287; Whart. Cr. Ev. § 472; 1 Whart. Ev. § 541; 1 Greenl. Ev. § 461b (c); note, Fries v. Brugler, 21 Am.Dec. 59; note, Turnpike Road Co. v. Loomis, 88 Am.Dec. 321. In Howel's Case, 5 Grat. 664, it was held that there was no error in refusing a question put by a prisoner to a female witness, who stated that she was unmarried, as to how old her youngest child was, and whether she was not generally reputed to be unchaste, and whether she was not unchaste. It does not appear that the witness objected; still it was no error, because the court had a discretion to reject the question. It condemns such evidence. The same ruling is found in Forney v. Ferrell, 4 W. Va. 729. There the witness set up no objection, but the adverse counsel did. There being no objection by the witness, we see that the lower court had such discretion to refuse the question; but it would not have been error to allow it to be answered in the absence of objection by the witness. In the present case, as the witness did not claim the privilege, we have to say that there is no error available to the prisoner in allowing the questions, even if answered. There is no available error in either allowing or rejecting such question, if the witness do not object. The first impression is that, where a person's material witness is discredited by such irrelevant testimony, he could complain, as the general rule is that irrelevant evidence, raising a collateral issue, is not to be allowed, and that it is error to allow it if it may have harmed the party; but it seems to be a matter covered by the discretion of the court. Irrelevant evidence cannot be admitted on the main issue without its being cause of reversal, but this evidence is not on the main issue, which makes a difference as to the reversibility of the error. The matter being personal to the witness, a party cannot except. if the witness waives his privilege to object, and it is then within the court's discretion, not a ground of error. We do not intend to say, as an inflexible doctrine, that there may not be a case of gross abuse in admitting such evidence; but such a case must be rare, indeed, under the authorities.
It may be thought that we are departing from the Howel Case and the Forney Case, above, as it may be claimed that they brand such evidence as improper, and justify its rejection, and therefore it is error to admit it. I have been perplexed with this question, but do not think those cases go beyond holding that there is no error in excluding such disparaging evidence. I do not think that they mean to say the court may not, in its discretion, admit it, where justice calls loudly for it. The great current of authority does allow that discretion, and we should not interpret those cases as counter to that current. If asked why, if it is no error to refuse such evidence, it is not error to admit it, I answer that, when refused, the complaining party can be told that he has no right to evidence irrelevant and alien to the case and, when admitted, the complaining party can be told that the privilege to object is personal to the witness, and that such party has tendered the witness as credible, and cannot complain if his character is put in its true light to the jury. We cannot say...
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