State v. Malmberg

• Decision Date: 08 November 1905
• Citation: 105 N.W. 614,14 N.D. 523
• Court: North Dakota Supreme Court

105 N.W. 614

14 N.D. 523

THE STATE OF NORTH DAKOTA v. ERNEST MALMBERG AND JOHN MALMBERG

Supreme Court of North Dakota

November 8, 1905

Appeal from District Court, Barnes county; Cowan, J.

Ernest Malmberg and John Malmberg were convicted of maintaining a liquor nuisance, and appeal.

Reversed.

Judgment reversed, and new trial ordered.

Young Wright & Jones, for appellants.

A witness may be cross-examined so as to test his bias prejudice or hostility towards a party to the suit, and asked whether he has a controversy with him against whom he is testifying. Atwood v. Welton, 7 Conn. 66; Selph v. State, 22 Fla. 637; State v. McFarlan, 6 So 728; Blessing v. Hapr, 8 Md. 31; People v. Christie, 2 Abb. Prac. 256; State v. Mase, 24 S.E. 798; Daffin v. State, 21 Tex.App. 76; Kellogg et al. v. Nelson et al., 5 Wis. 125; Fincher v. State, 58 Ala. 215.

Cases holding that it is improper on cross-examination to go into the cause of a witness' hostile feelings are confined to those where he admits them. People v. Macard, 40 N.W. 784; State v. Berrier et al., 12 S.E. 251; Conveyer v. Field, 61 Ga. 258; Patman v. State, Id. 379.

C. N. Frich, Attorney General, and Alfred Zuger, for respondents.

The conduct and extent of the cross-examination of a witness, affecting his credibility, is largely in the discretion of the trial court. Storm v. United States et al., 94 U.S. 76, 24 L.Ed. 42.

Questions irrelevant to the matter in issue cannot be asked of a witness to impeach him. U.S. v. Dickinson, Fed. Cases No. 14958; Rosenbaum v. State, 33 Ala. 35b; 2 Elliott on Ev. section 977; Odiorne v. Winkley, Fed. Cases No. 10432, 15 So. Rep. 914.

OPINION

ENGERUD, J.

Defendants appeal from a judgment rendered pursuant to a verdict convicting them of the crime of maintaining a nuisance, as defined in section 7605, Rev. Codes 1899.

On cross-examination of the complaining witness the defendants' counsel sought to show by appropriate questions that the defendant and the witness were members of opposing factions in the village of Litchville, that the factional differences had engendered personal hostility between the witness and defendants, and that such ill feeling had been further embittered by the fact that the witness had been informed that one of the defendants was a rival of the witness for the appointment to the position of postmaster of the village. The trial court sustained objections made to these questions, and we think the ruling was erroneous. If the ill feeling and rivalry existed, as indicated by the questions asked, they were clearly important facts for the consideration of the jury in determining the weight to be given to the witness' testimony. Before the questions objected to were asked, the witness had testified, but in a somewhat evasive manner, in response to questions on cross-examination, that he entertained no unfriendly feelings towards the defendant and that he did not know at the time the prosecution was commenced, or since, that the defendant was a rival candidate for the post office. Some of the questions objected to called the witness' attention to his testimony at the preliminary examination, where the examiner claimed the witness had sworn in substance that he knew that one of the defendants was a rival candidate, and the questions sought to elicit from the witness an admission or denial of such testimony. The other questions objected to were designed to obtain from the witness an admission or denial of the facts, as indicated by the questions, that the witness and defendants were prominent adherents of opposite factions, and that the factional differences had engendered a feeling of bitter personal hostility on the part of the members of one faction against those of the other. The manifest purpose of this line of cross-examination was to overcome the effect of the witness' preceding statement denying the ill feeling and rivalry, and to test the credibility of the witness. If he gave an affirmative answer to the questions, his admissions would tend to discredit him. If he answered in the negative, the defendant might show, if he could, by other witnesses that the answers were false.

Respondent contends that the line of cross-examination objected to was wholly irrelevant, or was at least on a subject collateral to the issues, and hence that the extent of the cross-examination along that line was a matter resting in the sound discretion of the trial court. He further claims that the cross-examiner was concluded by the witness' denial of the ill feeling and rivalry, because that subject of inquiry being collateral to the issues could not be used as a basis for impeachment. As already indicated, the testimony sought to be elicited by the questions was relevant and material to the controversy, because it bore directly upon the credibility of the witness; and the questions were therefore proper cross-examination. Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003; State v. Kent, 5 N.D. 516, 67 N.W. 1052, 35 L. R. A 518; State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Ekanger, 8 N.D. 559, 80 N.W. 482. In a limited sense the subject of inquiry was collateral to the issues in the case, but it was not collateral in the sense that term is often used when applying the familiar rules which respondent invokes. There is a wide distinction between evidence which affects the general credibility of a witness and evidence which affects the credibility of a witness' testimony in a specific case. Both are proper subjects for cross-examination. Evidence of facts which are material only because they affect the general credibility of the witness, such as previous conviction of crime, evil associations, and the like, can in general be shown only by cross-examination of the witness, and the examination is concluded by the answers, however false they may be. The rule itself and the reasons for it are so familiar to the profession that a statement of them is unnecessary. With respect to evidence of facts which do not detract from his general credit, but which tend to diminish his credit and capacity to testify correctly in the particular case, a different rule applies. That rule is well stated in Fincher v. State, 58 Ala. 215, 219, as follows: "Of the several modes of assailing the credibility of a witness, the one most usually resorted to is a cross-examination as to his relationship to the parties, his interest in the pending suit, his hostility to the prisoner, if it be a prosecution for a criminal offense, his motives, and whatever may fairly be presumed to bias him in favor of the party at whose instance he is testifying and against the adverse party. These are matters collateral to the main issue of facts which is to be determined; and, while the general rule is that the answer of a witness to collateral questions cannot be contradicted by the party cross-examining, an exception obtains in reference to questions of this character, which are...