State v. Voelpel

• Decision Date: 24 September 1929
• Docket Number: No. 39456.,39456.
• Citation: 226 N.W. 770,208 Iowa 1049
• Parties: STATE v. VOELPEL.
• Court: Iowa Supreme Court

208 Iowa 1049

226 N.W. 770

STATE

v.VOELPEL.

No. 39456.

Supreme Court of Iowa.

Sept. 24, 1929.

Appeal from District Court, Clinton County; A. P. Barker, Judge.

The defendant was indicted for the crime of manslaughter, and appeals from a conviction and the judgment pronounced thereon. Reversed.Davis, McLaughlin & Hise, of Des Moines, and John E. Purcell and Wolfe, Wolfe & Claussen, all of Clinton, for appellant.

John Fletcher, Atty. Gen., and L. F. Sutton, M. L. Sutton, Co. Atty., and E. O. Work, all of Clinton, for the State.

FAVILLE, J.

On the 6th day of December 1927, the appellant, accompanied by a woman companion, was driving an automobile in an easterly direction upon the Lincoln Highway in Clinton county. He overtook an automobile traveling in the same direction, in which one Mrs. L. P. Daniels was riding, and collided with said car, striking it in the rear, with the result that the Daniels car was thrown into the ditch and injuries were inflicted upon Mrs. Daniels from which she died. The state charged that the appellant was guilty of gross negligence in the operation of his car, that he was driving the same at an excessive rate of speed, and that the appellant was operating said car while intoxicated. On cross-examination the appellant testified: “I have been convicted of a felony.” In submitting the cause to the jury, the court gave the following instruction:

“The defendant, upon cross-examination, admitted that he had been convicted of a felony. A felony is an offense against the laws of the state punishable by imprisonment in the penitentiary. The sole purpose and object of asking that question was to affect his credibility as a witness. The law presumes that a person who has so little regard for law that he will commit a felony is less worthy of belief under oath than a citizen who is law-abiding. You may consider that fact with the other facts in the case affecting his credibility and give his testimony such credit as you deem it to merit.”

Error is predicated upon the giving of the portion of the instruction which is in italics.

Code 1927, § 13890, is as follows: “Defendants in all criminal proceedings shall be competent witnesses in their own behalf, but can not be called as witnesses by the state.”

Code 1927, § 13892, provides: “When the defendant testifies in his own behalf, he shall be subject to cross-examination as an ordinary witness, but the state shall be strictly confined therein to the matters testified to in the examination in chief.”

[1] It is the well-established rule in this state that, when a defendant in a criminal action is a witness in his own behalf, he stands upon the same footing as any other witness, in so far as his memory, history, motives, or matters affecting his credibility are concerned. State v. Red, 53 Iowa, 69, 4 N. W. 831;State v. Watson, 102 Iowa, 651, 72 N. W. 283;State v. Chingren, 105 Iowa, 169, 74 N. W. 946;State v. Kuhn, 117 Iowa, 216, 90 N. W. 733;State v. Wasson, 126 Iowa, 320, 101 N. W. 1125;State v. Brandenberger, 151 Iowa, 197, 130 N. W. 1065;State v. McCumber, 202 Iowa, 1382, 212 N. W. 137.

[2] Code 1927, § 11270, is as follows: “A witness may be interrogated as to his previous conviction for a felony. No other proof is competent, except the record thereof.”

This section is applicable to any witness, in either a civil or a criminal case, including a defendant who appears in his own behalf. See Hackett v. Freeman & Graves, 103 Iowa, 296, 72 N. W. 528;Palmer v. Cedar Rapids & M. Ry. Co., 113 Iowa, 442, 85 N. W. 756;State v. Carter, 121 Iowa, 135, 96 N. W. 710;State v. Loser, 132 Iowa, 419, 104 N. W. 337;State v. Foxton, 166 Iowa, 181, 147 N. W. 347, 52 L. R. A. (N. S.) 919, Ann. Cas. 1916E, 727;State v. Concord, 172 Iowa, 467, 154 N. W. 763;State v. Gilliland, 187 Iowa, 794, 174 N. W. 496.

[3][4][5][6] The evidence disclosing that the appellant had been previously convicted of a felony, the question at this point is: What is the legal effect of the proof of such previous conviction? The court instructed the jury that the law presumes that a person who has so little regard for law that he will commit a felony is less worthy of belief under oath than a citizen who is law-abiding.

There has been a distinct evolution in the law from the time of the complete disqualification of a person as a witness who had been convicted of a crime. An interesting discussion of the subject is to be found in Wigmore on Evidence, vol. 1, § 519. We are not confronted with the question of whether the previous conviction of a witness must be of “an infamous crime,” or one “involving moral turpitude.” By statute the proof may be only of “previous conviction for a felony.” This is one of the methods of impeachment of a witness. It may be true that in ancient times and under the common law a witness who had been previously convicted of an “infamous crime” was not permitted to testify at all. However, the law is now more logical and rational in this regard. An innocent person is not to be deprived of the evidence of a material witness who may testify in his behalf because of the fact that the witness has been previously convicted of crime. Evidence of previous conviction of a felony is admissible under the statute as affecting the credibility of the witness. The law, however,...