York v. Glenn

• Decision Date: 28 September 1951
• Docket Number: No. 15268,15268
• Citation: 242 S.W.2d 653
• Parties: YORK v. GLENN.
• Court: Texas Court of Appeals

Page 653

242 S.W.2d 653

YORK v. GLENN.

No. 15268.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 28, 1951.

W. Taz Locke, Wichita Falls, for appellant.

Mock & Kee, of Wichita Falls, for appellee.

RENFRO, Justice.

Appellee A. H. Glenn sued J. H. York, DBA Checker Cab Company, for injuries sustained by his wife while riding as a passenger in one of appellant's taxicabs in the city of Wichita Falls, Texas. Judgment was entered for appellee, based upon a favorable jury verdict, and the appellant has appealed from said judgment.

The taxicab was being driven by appellant's agent and driver, George Claxton Taylor. After the driver Taylor had testified for the appellant and after the appellant had rested, the appellee introduced, for the purpose of impeaching the credibility of the witness Taylor, documentary records showing that Taylor had been convicted in Wichita County in 1942 on a felony indictment and had received a five year suspended sentence.

The appellant alleges error on the part of the trial court in admitting the judgment of conviction on the ground that a proper predicate had not been laid in that the witness Taylor was not asked about said conviction while he was on the witness stand.

The authorities do not bear out the appellant's contentions. In Kennedy v. International-Great Northern R. Co., Tex.Com.App., 1 S.W.2d 581, after the plaintiff Kennedy had testified, the defendant offered in evidence a duly authenticated copy of a judgment showing that Kennedy had theretofore received a sentence for felony theft and had received a suspended sentence. The trial court sustained an objection to the introduction of the judgment of conviction. The Court of Civil Appeals reversed the case because of the refusal of the trial court to allow the judgment in evidence and the Commission of Appeals affirmed the action of the Court of Civil Appeals, holding that the judgment of conviction should have been admitted.

In the earlier case of Gulf, C. & S. F. Ry. Co. v. Gibson, 42 Tex.Civ.App. 306 93 S.W. 469, 471, error dismissed, a judgment of conviction and sentence, showing that one of the witnesses in the case had theretofore been convicted of a felony, was introduced in evidence. The case was affirmed by the court with the statement that 'proof by the record of conviction of crime is universally conceded to be a proper mode of impeachment.' The foregoing authorities are approved by Texas & N. O. R. R. Co. v. Parry, 12 S.W.2d 997, opinion by Commission of Appeals, approved by the Supreme Court, and Texas Employers' Ins. Ass'n v. Drayton, Tex.Civ.App., 173 S.W.2d 782, refused for want of merit.

After an exhaustive discussion of the cases, McCormick and Ray, Texas Law of Evidence, page 402, reach the conclusion that in civil cases not only may the record of the charge or conviction be introduced without laying a foundation, but that is the only method of proving the charge or conviction.

In accordance with the foregoing authorities, we hold that record evidence of a felony conviction is a proper method of impeaching the credibility of a witness. We accordingly overrule appellant's first point.

The appellant contends that the conviction of a felony eight years prior to the trial of this case was too remote and the evidence should not have been admitted for that reason.

The determination of the question of remoteness is primarily within the sound discretion of the trial judge and in the absence of the showing of abuse of discretion, his ruling should not be disturbed on appeal. Most cases dealing with convictions from eight to ten years and down have held evidence of such convictions admissible. Bunch v. Texas Employers' Ins. Ass'n,...