167 A. 645 | Pa. Super. Ct. | 1933
Argued May 2, 1933. The defendant was charged with the unlawful transportation and possession of intoxicating liquor. He was found guilty of transportation, and not guilty of possession. Upon the completion of the defendant's testimony, the Commonwealth introduced, in rebuttal, for the purpose of attacking defendant's credibility, the record to No. 35, March Sessions, 1925, wherein the defendant pleaded guilty to the charge of possession and manufacture of liquor. The admission of this seven-year-old record is the subject of the first and second assignments of error.
The defendant took the stand in his own behalf, but did not introduce any character witnesses. Under the common law, one convicted of a felony or other infamous crime was disqualified as a witness. The Act of May 23, 1887, P.L. 158 (19 P. S. § 681), removed that disability, and all persons are now qualified to be *63
witnesses in any criminal proceeding, with certain exceptions which are not involved in this case. When a defendant testifies, however, in his own behalf, his credibility is subject to attack by the same methods, and his conduct is open to investigation, as any other witness, except as limited in the Act of March 15, 1911, P.L. 20, § 1 (19 P. S. § 771), which provides that "any person charged with any crime, and called as a witness in his own behalf, shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation," with certain exceptions immaterial here. This act, as pointed out by Judge HENDERSON, in Com. v. Doe,
Is the possession and manufacture of liquor in violation of law crimen falsi? The term "crimen falsi" is not well defined at common law. Its extent and *64
meaning is nowhere laid down with precision, but it generally applied to crimes which disqualified a person as a witness. "The term involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud": 16 C.J. 60, § 12. It has been held to include, also, forgery, perjury, subornation of perjury, suppression of testimony by bribery or conspiracy to procure the absence of a witness, barratry, the fraudulent making or alteration of a writing, to the prejudice of another man's right, etc.: Rawle's 3d Rev. Bouvier's Law Dictionary, Vol. 1, page 730. Placing the most liberal interpretation on this term, the manufacture and sale of liquor does not come within its meaning. It is not "an offense malum in se, defined as one which is naturally evil as adjudged by the sense of a civilized community" (8 R.C.L. p. 55), but an act which is malum prohibitum, a wrong only because made so by statute, not involving any moral dereliction which carries with it a disregard of the obligation of an oath. As was said by Mr. Justice KEPHART, in Com. v. Quaranta,
The learned court below relies on the case of Com. v. Arcurio,
The appellant cites Com. v. Doe, supra, and Com. v. Vis,
We recognize that a trial judge is vested with considerable discretion as to the relevancy of evidence affecting the credibility of the witness or defendant, but we are clearly convinced that the court erred in admitting the record of a former offense that was neither a felony nor a misdemeanor in the nature of a crimen falsi.
We find no other reversible error in the record, but for the reasons given we are constrained to return the case for another trial.
Judgment is reversed, and a new trial granted.