111 Ky. 530 | Ky. Ct. App. | 1901
Opinion of the court by
Denying Motion.
In this case there has been filed by the attorney general a motion to modify the response to the petition for rehearing. No authority is cited in support of the- motion, and the argument urged to sustain it is as follows: “I have read the ‘response’ with great care, and it seem® to me that it overrules not only the .opinion in the three cases mentioned, but changes entirely the reach and extent to which cüoss-examination of witnesses has been for many years permitted both by precedent and authority, and so limits the cross-examination as almost to preclude any' inquiry as to the past life and conduct of the witness, and this may permit the greatest criminal to escape, or the innocent to be convicted. The innocent should not be convicted, nor the guilty allowed to escape, on the evidence of witnesses whose past life and conduct will not bear such scrutiny as will give a jury a fair opportunity to judge of their credibility.” The three cases referred to are Mitchell v. Com. (12 L. R., 458) 14 S. W., 489; Roberts
In the first place, there is no question in the mind of any member of the court that the ruling of the original opinion upon the question of -evidence therein stated was absolutely correct. ' To impeach or discredit or disparage a witness for the defense, a deputy sheriff wa® allowed to testify that he had a warrant for the arrest of the witness; and the Commonwealth’s attorney was allowed to read the warrant to the jury, charging, the witness' with the offense of detaining, a fern-ale under twenty-one year’s of age, with intent to have carnal knowledge of h-er. There never has been a day in the history of the Commonwealth when such evidence was admissible- for such purpose. By petition for rehearing, the- Commonwealth relied on the three cases above-mentioned, as sustaining the admissibility of the testimony complained- of om the appeal.' In its response t-o the petition, and in answer to- the doctrine therein stated and contended for, the court took occasion to comment on those cases, and to expressly overrule them, to the extent — -and no further- — to which they had been already, in substance, overruled in various opinions. The question whether section 597 of the Civil Code of Practice was applicable to cross-examination was brought before the court by the petition for re-hearing, and in its response the court simply reiter-ate-d the rule which it had on several occasions followed. The question was not presented or argued upon the hearing of the case, but, having been presented and argued by the petition for rehearing, it was thought best, for the guidance of the circuit courts, to announce the views of this
Section 597 of the Code, which is the same- as section 661 of the old Code, except that the word “un-truthfulness” has been substituted for “truth,” is as follows: “A witness may be impeached by the party against whom he-is- produced, by contradictory evidence, by showing th-ait he has made statements different from his present testimony, or by evidence that his general reputation for un-truthfulness or immorality renders him- unworthy of belief; but noit by evidence of particular wrongful acts, except that it may be showm by the examination of a witness, or record o-f a judgment, that he has- been convicted of felony.” Section 598 provides a limitation upon the mode of impeachment by contradiction. The question before the court is, how far, if at all., does the Code provision affect the right of cross-examination? In considering this question, it may be regarded as settled law that the same rule applies to a person accused, when testifying in his own behalf, as to any other witness. This has been the uniform rule in this State. McDonald v. Com., 86 Ky., 13 (9 R., 230) 4 S. W., 687; Parker v. Com. (21 R., 405), 51 S. W., 573; Lockhard v. Com., 87 Ky., 201, 10 R., 102; 8 S. W., 266; Pace v. Com., 89 Ky., 204; 14 R., 407, 12 S. W., 271; Burdette v. Com., 93 Ky., 76, 13 R., 960; 18 S. W., 1011; Saylor v. Com., 97 Ky., 184, 17 R., 100, 30 S. W., 390. It may be assumed, also, that before the adoption of the Code of 1854 the doctrine indicated by Chief Justice Robertson, in 1830, in Sodusky v. McGee, 5 J. J. Marsh. 622, 625, as to the .proper limits of oross-exami-na
It may be safely assumed, however, that even^as early as the adoption of the old Code the- trend1 of the authorities in this country, in the absence of statutory regulation, was at least in the direction of the doctrine as laid1 down In Greenl. Ev., sections 447-460; and much greater latitude was allowed on cross-examination than would be indicated by the extract given from- the opinion in the Sodusky case. If we examine the statute, we find that the word “impeach,” as there used, has evidently a more comprehensive sense than that which would be attached to it by a strict and literal definition. Strictly speaking, the word1 “impeach” imports a successful attempt to establish the charge of want of veracity. It imports destruction of the witness’ testimony. But, as generally used, it compre
It is to be observed that the statute, thus construed, do'es -not in any way abridge the common-law right of cross examination except with regard to the matter expressly prohibited, and then only when such matter is introduced for the purpose of impeachment or attack. He may be cross-examined upon collateral facts to test his recollection (1 Greenl. Ev., section 449), but his answer is conclusive, and can not be contradicted', because the inquiry is collateral to the issue. He may be examined as to matters showing bias, hostility, and interest (Id. section 450; Best, Ev. section 32-5); and upon such questions, as they are not collateral, but material, he' may be contradicted. He can not be compelled to answer as to facts which would expose- him to a criminal charge (1 G-reenl. Ev. section 451); nor, under the statute, may he be required to give evidence of partícula^ wrongful acts (that is to say, criminal acts), except as permitted by the statutory exceptions to the statutory prohibition. As matter of course, particular ■wrongful acts (that is, crimes) committed by a witness may be shown, where such crimes are relevant to the issue in the -case, without regard to the question whether they affect the cháracter of the witness. It may be assumed that such offenses m'ay be shown by the witness himself in cases where he is not protected by some other rule of evidence, -when such offenses are material to the issue in the case on trial. And we have held, in the recent case ■of Abbott v. Com., 23 R., 226 (62 S. W., 715), that even upon a trial for murdeir the commission of another murder might be shown, because it tended to establish the motive of the crime for which the accused was on trial; and so in Mar
Now, when we come to consider the adjudged cases., we find a very peculiar condition. There are two oases where th'e general rule as laid down in the text-books has been applied to the cross-examination of witnesses, without applying the restriction of the statute. In neither of these cas'es was the statute considered1 by the court. In one of them it is claimed that it was cited in the brief of counsel, but it most assuredly was net considered or mentioned in the opinion. On the other hand, in four cases the statute was held to apply to cross-examination, —sometimes unnecessarily so held, because the questions asked were not permissible under the general rule, but they were held by this court to be within the prohibition of the Code. The Mitchell case, supra, ha$ no bearing whatever upon the question before1 us. The question complained of iin that case was permissible under the terms of the Code provision. The defendant was asked if he had not been in a State prison , which is, in effect, a loose and general mode of inquiry as to whether he had not been convicted of a felony. This court, in an opinion by Judge Pryor, justified the question under the general doctrine, without reference to the statute; but it might have been justified under the statute. In Roberts v. Com., supra (decided in 1892), in am' opinion.' by Judge Bennett, this court held, .upon the authority of Burdette v. Com., supra, that it was competent to ask a witness on cross-examination if he was not under indictment in another circuit for robbery, and to ask anoth
It therefore appears that of the three cases which, by the opinion, are overruled in so far as they are in conflict with it, one case is not at all in conflict with the opinion of the response in this case in the matter actually decided there; another is decided upon the authority of the Burdette case, which does not at all sustain the decision; and the Burdette case was decided without reference to or consideration of .the statute. It is to be borne in mind that the -general rule as to cross-examination of a witness, whether testifying in his own behalf or not, is .that “he may be asked any question which! tends (1) to test his accuracy, veracity, or credibility, and (2) to.shake his credit by injuring his character” (3 Rice, Ev. section 219d); that this rule is subject, as always, to the constitutional provision for his protection (Saylor v. Com., supra), and other rules of law not necessary to be here stated; and that is affected by the statute under consideration only in so far asi that statute contain a new and specific prohibition, and a new and specific permission, not recognized by the law aforetime. ’ 'The statute does not affect the materiality of matters inquired about on cross-examination, nor their admissibility for other purposes than the single one which is the subject matter of the litigation; that is, to impeach the witness, 'Or shake his credit by injuring his character. The statute provides that this shall not be done by evidence of particular offenses, unless such offenses are of the
Bearing these things in mind, the consideration of the oases which, in the various arguments, have been referred to as in conflict with or as supporting the doctrine of the opinion and response, becomes easy. In Warren v. Com., 99 Ky., 373, 375, 18 R., 141 (35 S. W., 1028), the Code provision was not considered. The general doctrine was applied, and questions as to whether the witness had any employment, how long since he had had work, and whether his crippled foot had prevented 'his working four or five .years before it became injured, were held proper.. Another witness was asked how often he had been in jail, and if he did not make it a business to lie around Elizabethtown, drunk, during elections, and “bleed” candidates. There is nothing in this caso in conflict with the doctrine now declared, unless it be the inquiry as to how often the witness had been in. jail. In Lewis v. Com. (19 R., 1141) (42 S. W., 1127), it was held to be error to prove by the clerk that a witness for the defence was indicted as an accessory to the crime, for which the dtefendant was on trial. It would seem that such testimony wa-s admissible if the question had been asked the accused upon
Whole court sitting.
AI-generated responses must be verified and are not legal advice.