State v. Hougensen

• Decision Date: 28 December 1936
• Docket Number: 5529
• Citation: 91 Utah 351,64 P.2d 229
• Court: Utah Supreme Court
• Parties: STATE v. HOUGENSEN

64 P.2d 229

91 Utah 351

STATE v. HOUGENSEN

No. 5529

Supreme Court of Utah

December 28, 1936

Appeal from District Court, Third District, Salt Lake County; James W. McKinney, Judge.

Chester Hougensen was convicted of voluntary manslaughter, and he appeals.

AFFIRMED.

Vere L McCarthy, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

WOLFE Justice.ELIAS HANSEN, C. J., and FOLLAND, EPHRAIM HANSON and MOFFAT, JJ., concur.

OPINION

WOLFE, Justice.

Early in the morning of May 30, 1933, defendant, coproprietor of the "C-C" Restaurant, shot Frank Miller, who died the same day from the wounds.The shooting occurred in the said restaurant.The only witness to the shooting, outside of the defendant, was Mrs. Miller, purported wife of deceased.Defendant testified he was attacked by Miller with a knife and shot to defend himself.Mrs. Miller testified defendant put his arm around her and Mr. Miller hit at him, whereupon defendant caught Miller by the wrist and twisted him to the floor; that she asked deceased to go home with her; that they both started and as they were on their way, defendant appeared and fired one shot; that she ran into the street and immediately thereafter heard two more shots.There had been much drinking previous to the shooting among defendant, Mr. Miller, one Allen, and one Sheeley, in which Mrs. Miller joined to some extent.Defendant was charged with murder and convicted of voluntary manslaughter.He appeals.

We need not at this time present any other of the background facts in order to understand the questions presented by the assignments.By assignments 1 to 7, inclusive, defendant raises the question of whether on cross-examination, prior conduct, acts or actions, specific in nature, may be elicited in order to affect credibility.The seven alleged errors covered by the assignments relate to the claimed refusal of the court to allow, over objection as to relevancy and competency, the defense attorney on cross-examination of Mrs. Miller to go into the matter of specific past acts and conduct of the witness in order to show that she was a woman of such character whose evidence should not be relied upon.Especially important does the question become in view of the fact that the defendant probably could not have been convicted without her evidence.

The questions to which it is claimed objections were sustained are here set out with numbers corresponding to their assignments:

No. 1: "Q.Didn't you make an affidavit in Los Angeles under that name [meaning Howard]?"

No. 2: "Q.Who are you living with now?"

No. 3: "Q.Youare living now with this man Allen that you met in the C & C Cafe?"

No. 4: "Q.Youknow what is the meaning of the word 'hustler'?"

No. 5: "Q.Didn't you go out on the streets and solicit money from men a day or two before the shooting?"

No. 6: "Q.Do you know what 'pimps' are?"

No. 7: "Q.Youtold her how he made this money he gave to you to provide for you?"

She denied that she used the name Howard, but defendant was not able to pursue the inquiry to see if she had signed an affidavit under that name.It appears that as to question No. 3the court said, "It will be held in abeyance until it can be heard."As to No. 4, it was answered later when she denied she was a "hustler on the streets in Salt Lake City."As to No. 5, she denied solicitation and denied Miller was her "pimp," thus answering that question and indirectly the question involved in assignment No. 6.This leaves Nos. 1, 3, and 7 to consider.The purpose of asking her whether she went under the name of Howard, whether she was living then with Allen whom she met on the night of the killing, whether she solicited money from men a day or two before the shooting, of eliciting from her a knowledge of how Miller made his money, were all only for the purpose of impairing her credibility.There are two methods of discrediting evidence.First, to show that the evidence itself is untrue and unreliable; and, second, to show that the transmitter of the testimony is unreliable, either because of bad memory, failure to accurately record impressions, or because of lack of veracity.If the vehicle which conveys testimony is unreliable for that purpose, the testimony is apt itself to be unreliable.One can affect the vehicle by showing that the witness has a bad reputation for truth and veracity.State v. Hansen, 40 Utah 418, 122 P. 375.One can affect it by showing that a defendant in a criminal case has a bad character as to a particular trait involved in the commission of the crime, but only after evidence of defendant's good character in that respect has been received.State v. Thompson, 58 Utah 291, 199 P. 161, 38 A. L. R. 697.Evidence of contradictory statements of a witness may affect the reliability of the testimony directly or impeach the transmitter of the evidence as a reliable vehicle to register and convey facts and impressions, depending upon whether the contradictory statements are used for impeachment or for substantive evidence in the form of admissions--in the latter case when the witness is a party.Can a witness in a criminal case be cross-examined on collateral matters for the purpose of affecting his credibility as a witness or, as stated above, impairing his worth as a dependable vehicle to give true evidence?In the consideration of this question, great care must be exercised to distinguish those previous acts or conduct of a witness which may be given to meet some issue in the case other than mere credibility.In State v. Smith, 90 Utah 482, 62 P.2d 1110, recently decided, we held that evidence of prior sexual acts might be given if they were such as might be used to counteract an inference that the defendant had intercourse with the prosecutrix created by a doctor's testimony that an examination of the prosecutrix revealed that she had had sexual intercourse; that such evidence might also be given where it was shown that she was accusing one person to shield or protect another or to divert blame from herself.These are not matters purely affecting credibility, but matters affecting the issue of whether defendant did or did not commit the act charged as the crime.In the question presented by these four assignments of error, we have had no appreciable aid from either the brief of defendant or the state.Not a Utah case is cited or discussed.

There is an irreconcilable conflict in authorities, not only among the different states, but among the decisions of many particular states, including our own.The reason will presently appear.In 28 R. C. L. 610, § 200, it is stated:

"In some states evidence of particular acts of misconduct which tend to disgrace him cannot be elicited from a witness on cross-examination for the purpose of impeaching him any more than it can by the testimony of other witnesses, and provision to this effect is sometimes made by statute.In most jurisdictions, however, a witness may be specially interrogated on cross-examination in regard to specific acts, however degrading, for the purpose of testing his credibility."

Starting on page 410 of 65 A. L. R. is a note which deals with the right to elicit from the witness acts of sexual immorality in order to affect credibility.It is stated:

"A thorough investigation of the decisions shows that there is rather abundant authority to support either side of the topic under discussion.In dealing with this subject the courts have drawn many fine points of distinction, and a close study of the cases has caused them to be resolved into the various classes as set forth in the scheme."

It is further stated that "from a jurisdictional standpoint the balance of the authorities appears inclined to the view that a witness may be cross-examined as to sexual morality, for the purpose of affecting his or her testimony."Eighteen jurisdictions are listed as adopting this majority rule and from these jurisdictions about one hundred cases are cited.Utah is included through the decision of State v. Williams, 49 Utah 320, 163 P. 1104, as supporting the majority rule.Seventeen jurisdictions are given as adopting the minority rule.We have examined many of the cases cited as supporting both rules.If those cases in which the cross-examination went to serve not only an attempted impairment of credibility, but some issue in the case, are counted out, we are not so sure that the jurisdictions would stand eighteen to seventeen in favor of the majority rule.Thus in the case of Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S.W. 56, where a witness was required to answer whether she had not sustained illicit relations with decedent before his marriage in a contest over the right of administration, when she had testified to confidential declarations of decedent to her, mitigating strongly against one of the contestants, the relationship was exposable on the question of motive.Her relationship with deceased may have influenced her to testify against the common-law wife who was in effect a contestant.The difficulty of the study is enhanced by these special cases.It is, of course, not so important to determine which is the majority and minority rule, as it is to lay down common-sense rules.The difficulty in doing so--and this causes the hopeless conflict in decisions--is that there are two opposing considerations which press themselves on the courts.The courts have recognized that the testimony of a dissolute person is generally not to be given the credence of a person of upright character; that the value of the evidence largely depends on the type of vehicle which brings it to the courtroom.Therefore, it has strongly appealed to the sense of justice that the cross-examiner...