Eads v. State

101 P. 946 | Wyo. | 1909

Scott, Justice.

The plaintiff in error who was the defendant below and who will be referred to as the defendant was charged by information in the district court of Big Horn County with having, on the 31st day of October, 1908, committed the crime of larceny of a horse of the value of one hundred dollars, the personal property of R. W. Hale. He was arraigned, plead not guilty, tried, convicted and brings the case here on error.

1. The defendant seeks to predicate error on the alleged misconduct of H. S. Ridgely, an attorney at law, who assisted the county and prosecuting attorney in the trial of the case, in asking upon cross-examination of the defendant who testified in his own behalf the following question, viz: “You are the father of Kize Eads?” to which question the defendant made answer: “Yes, I guess I am.” This question was not germane to anything brought out on direct examination nor was it relevant to any issue in the case. It was not objected to on the ground of irrelevancy or at all nor was the answer made the subject of a motion to strike but went to the jury unchallenged in any way. No attempt was made to disclose its prejudicial character to the court until after verdict. Upon motion for a new trial in support Of which one of counsel for defendant made affidavit in substance as follows: That he, the attorney for the defendant, was not informed as to the character of Kize Eads when the question was propounded. That since the trial affiant has learned that said Kize Eads had a very bad reputation for honesty and integrity in the said county as to being law abiding and has learned that he was compelled to leave the county on account of warnings received that he would be violently dealt with if he did not leave. That one of his associates had been foully dealt with and that immediately thereafter the said Kize Eads received notice that if he did not leave the said county he would likewise be foully dealt with and that he did leave the county to escape personal violence. That on information and belief the question was asked of the defendant concerning his relation to Kize Eads for the sole and only purpose of calling the attention of the jury to the fact that the defendant was related to a person who had a bad reputation and thus prejudice the defendant in the minds of the jury, and for no other purpose whatever. That affiant took no exception or made no objection at the time for the reason that he did not know until after defendant had left the witness stand that Kize Eads was a man of bad reputation and of the facts connected therewith, and that the affiant lives in Sheridan County.

Whatever merit there may be in this showing it is and was apparent at the time the question was asked that it called for irrelevant testimony. The court undoubtedly would have' sustained an objection upon that ground had an objection been made. Had that been done the alleged misconduct of counsel would have been eliminated. There was no counter affidavit and however reprehensible the conduct of counsel may have been the court’s attention was not called by timely objection to the alleged misconduct. Without such objection and an exception taken at the time to an adverse ruling and the opportunity offered the trial court by means of such objection to correct such misconduct the question cannot be here considered. This court has so held in Horn v. State, 12 Wyo. 80, and in Curran v. State, id. 553. The question was not sought to be raised until after verdict. It was then too late.

2. Other alleged acts of misconduct of the said Ridgely with reference to examining witnesses are complained of but they were not objected to at the time. Ail exception to the alleged misconduct is not of itself sufficient (State v. Waters, 36 Wash. 358, 364, 78 Pac. 897; Rangenier v. Seattle Electric Co. (1909), 100 Pac. 842), and under the rule above announced error if any in that respect was not preserved in the record.

3. The defendant was sworn and testified as a witness in his own behalf. It is urged that the court erred in overruling the objections interposed by him to each and all of the following questions propounded by counsel for the State on his cross-examination, to-wit: “Question. Did you wire down to Allen G. Eisher, an attorney at Chadron, Nebraska, and ask him to have the horse attached so it could not be returned to Wyoming? Answer. No sir. Question. Did you have your attorney Johnson wire that? Answer. No sir. Question. You didn’t know he had wired? Answer. I found out afterward.” The first two questions having been answered in the negative no harm was done to the defendant in permitting them to be asked. They can only be considered here as throwing light upon the third question and the alleged error in permitting it to be asked over the objection of the defendant. The objection to the last question was on the ground that it was not the best evidence, and for the further reason that it had not been shown that Johnson was acting under the direction of the defendant, and that it was not proper cross-examination.

The object and purpose of this examination was to show an attempt on the part of the defendant to keep the horse, which he was charged with stealing, out of the jurisdiction of the court and embarrass the state in the matter of its identification. If such fact could be shown, it was proper for the state to do so as the jury might properly infer therefrom a consciousness of guilt on the part of the defendant, the weight of which evidence would be for the jury. In order to elucidate the matter we will refer to the evidence on this phase of the case. The evidence tended to show that in the summer of 1903 the defendant sold the horse which was the subject of the larceny to Dr. Hale. At the time of the alleged larceiry this horse had been broken and was kept in a pasture. In the fall of 1907 the defendant for and on behalf of his daughter rounded up a bunch of horses, sold and delivered them to one Gregg who shipped them east. That in the bunch so sold to Gregg the horse sold to Dr. Hale was found in a pasture near Chadron, Nebraska, where Gregg was 'keeping the horses. The defendant contended that this was not the Hale horse but a half brother to that horse. Much evidence was introduced on both sides upon the question of identity, and after the horse was shipped back to the county seat it was examined by the witnesses with a view to its identification, and during the trial was viewed by the jury under the direction of the court.

The defendant upon his direct examination especially denied that the horse found in the pasture at Chadron, Nebraska, and shipped back to Wyoming was the horse he had sold to Doctor Hale. Any attempt upon his part to prevent the horse from being seen and inspected at the time of trial by witnesses who had theretofore known the horse was proper to go to the jury as bearing on the question of guilt.

It is urged that it was not the best evidence in this that die question called for the contents of a telegram the proof of which was the telegram itself. It will be observed' that the defendant denied sending the telegram. The state was not limited in its cross-examination nor bound by such denial. The question in effect inquired of the defendant if he knew his attorney had wired to Fisher to have the horse attached so it could not be returned to Wyoming. It is apparent from the questions asked that the court and counsel understood that the question related to thé time in fact of sending such telegram if any was sent. It is equally apparent from defendant’s answer that he so understood the question. His answer is, “I found out afterwards.” This answer clearly implies that he understood the question as applying to the time when the supposed telegram was sent. If the defendant knew that his attorney was about to send or knew at the time such a telegram was- being sent it was a matter of legitimate inquiry upon cross-examination as a circumstance bearing upon the question as to whether he authorized or procured the sending of the telegram.

The action was not for a recovery upon a deed or other contract in writing nor one negotiated by telegraph, nor was it a criminal action for fraud committed by means of telegraphing in which cases the written contract, deed, or telegrams would constitute the best evidence. The subject of the inquiry here was the conduct of the defendant as indicative of guilt of the crime charged, it is stated in §890, Wigmore on Ev., that: “The law is that a defendant taking the stand as a witness may as a witness be impeached like any other witness.” (Jackson v. State, 33 Tex. Cr. Rep., 47 Am. St. 30; Hanoff v. State, 37 O. St. 178.) It is apparent that the state sought to prove the contents of the telegram as an admission on the part of the defendant or to lay the predicate for impeachment. If he sent or procured or was a party to the sending of such a telegram the latter would be competent evidence against him of what it contained, but the state would not in the first instance be bound to produce the telegram any more than it would in the first instance in the impeachment of a witness or proving the admissions of a party in writing be compelled to produce a letter or other writing. In such a case if the answers are contradictory to the contents of the letter or writing the party propounding the questions has the option of having the letter or writing properly identified and received in evidence, or of not pursuing the subject further. (§§1023, 1260 (3) Wigmore on Ev.; Western Manufacturers’ Material Ins. Co. v. Boughlin, 136 Ill. 317, 26 N. E. 591; Warth v. Lowenstein, 219 Ill. 222, 76 N. E. 378; State v. Hayes, 138 N. C. 660, 50 S. E. 623.) If the defendant was a party in an attempt to have any one send such a telegram, that fact would be competent evidence whether the telegram was sent or not. The method of proving the acts and conduct of the defendant in this kind of a case was not confined to written but could be shown by oral testimony and the contents of the telegram as bearing on the defendant’s conduct could properly be included in oral questions propounded to him in laying the foundation for impeachment, as in the case of an ordinary witness or in seeking his admission as a party. The inquiry went to the conduct of a party to the case and sought an admission of such party while testifying as a witness in his own behalf of prior conduct inconsistent with his claim of innocence. He knew whether he was connected in any way with the sending of such a telegram. That was the matter to which the question was directed and that question could not well be answered otherwise than orally. Indeed it was not nor is it here claimed that the authority to send such a telegram must be in writing.

In using the contents of a writing for the purpose of laying the foundation for impeachment the law is that the cross-examiner may accept an affirmative answer as proof of the contents, nor is the rule about proving a doncument’s contents by production thereby violated. (§1260 Wig. on ■Ev.) Such affirmative answer amounts to an admission of the witness or party. Upon this subject it is said in §684, Wharton’s Criminal Evidence (9th Ed) : “We may now regard it as settled that the admissions of a party may be received when relating to the contents of a writing, without notice to produce; nor can such testimony be excluded on the ground that it is parol proof of a written instrument.” The law as thus announced sustains the ruling of the lower court in permitting the question to be asked.

4. One Berg, the grandson of the defendant, was called and testified as a witness for the defense. His description of the horse sold to Dr. Hale differed from that given by the witnesses for the State. Upon cross-examination by the county and prosecuting attorney he was asked the following questions: “You talked to his (defendant’s) attorneys about it? Talked over these descriptions?” To this question the witness made answer: “Yes, sir.” No objection was interposed to the question nor was there any motion to strike the answer. Upon re-direct examination the following question was propounded to the witness: “You may state to the court whether you described that horse to counsel or whether counsel described the horse to you?” The state objected to the question as immaterial, which objection was sustained and to which ruling the defendant excepted. The defendant then offered to prove by the witness “that the witness himself gave counsel a description of this horse without any suggestion on the part of counsel at all.” Objection to the offer was sustained, to which ruling exception was taken.

The evidence offered would be clearly incompetent upon examination in chief, and its competency upon re-direct examination would depend upon whether it was germane to and had a tendency to clear up and explain the witness’ testimony given upon cross-examination.

The right and duty of an attorney regularly retained in a casé to see his client’s witnesses and ascertain what they know about the controversy is plain. An attorney would be derelict who failed to inform himself in this respect. (§788 Wigmore on Ev.) It is only when it is sought to show an actual fraudulent conference, an attempt to corrupt or to influence a witness to color his testimony or to testify falsely or to avoid the service of process or to do anything that would have a tendency to defeat justice that what occurs between an attorney and his client’s witnesses becomes material. The state did not attempt to go into any such matter upon cross-examination further than to show what the law exacts of an attorney as his duty to himself, the court and his client, viz.: to prepare for the intelligent presentation of his client’s cause upon the trial. Counsel thinks the evidence was proper as rebutting an inference which the jury might draw from the evidence given on cross-examination that he as representing the deféndant was coaching the witness and trying to build up and manufacture evidence for the defense. We cannot assume that the jury was misled by the question or that the defendant was prejudiced thereby. The question was not objected to nor had the jury any right upon the evidence to draw such inference. If the defendant thought that the jury would be misled by the testimony in this respect he no doubt could have obviated the matter by the preparation and presentation of a proper instruction to be given by the court covering that phase of the case.

5. Upon cross-examination by defendant’s counsel it was sought to discredit one Fedders who was sworn and testified as a witness on behalf of the state by questions and by offering to show by the witness for the purpose of affecting his credibility that he had been arrested for shooting a man in a house of prostitution at Thermopolis in January, 1908. The evidence proffered was collateral to the issue and unless it clearly tended to discredit the witness it should not be received. Inquiry may be made as to specific instances of recent but not remote misconduct of a witness upon cross-examination of such witness within proper limits for the purpose of affecting his credibility. In such a case his answers preclude further inquiry, in other words, extrinsic evidence of such collateral matter is not permissible. The right and limits of such cross-examination when relevant on the subject of bad character rests largely in the discretion of the trial court. (§§981, 987 Wigmore on Ev.) That he had been arrested for shooting a man in a bawdy house did not of itself establish the fact that the witness was in or was a frequenter of or dwelt in the atmosphere of a •bawdy house. It was nothing more than an accusation of crime. (State v. Greenburg, 55 Kan. 404, 53 Pac. 61.) What the state did in the matter of the charge as contained in the offer did not prove or tend to prove the charge upon which the witness was arrested if at all. The witness was not asked what he had done, but what the state had done. In Nolan v. Brooklyn City & N. R. R. Co., 87 N. Y. 68, 41 Am. Rep. 345, the witness was asked not what he had done but what the fire department had done, whether it had expelled him. The question was held improper. The Court of Appeals of that state in People v. Irving, 95 N. Y., say: “We have held of late that mere charges or accusations, or even indictments, may not be so inquired into since they are consistent with innocence, and may exist without moral delinquency. (People v. Crapo, 76 N. Y. 288, 32 Am. Rep. 302; People v. Brown, 72 N. Y. 571, 28 Am. Rep. 183; Ryan v. People, 79 N. Y. 594.)” In People v. Casey, 72 N. Y. 393, the prisoner was indicted for an assault with ’a dangerous weapon and testified in his own behalf. On cross-examination the prosecutor was permitted to question him as to other altercations in which he had been engaged, and other assaults which he had committed and it was held no error. The court say, in commenting on that case in People v. Irving, supra: “Facts were asked for there and not accusations or irresponsible charges.” In Ryan v. People, supra, it was held that an indictment was a mere accusation and had no legitimate tendency to discredit a witness or impeach his moral character. We are aware that the decisions are in hopeless conflict upon this question. The rule, however, followed by the Court of Appeals of New York as above set forth is the one which commends itself to us as sound in principle. We think in all such cases the fact of misconduct of the witness and not what the state or others have done in the way of mere accusations or by way of arrest is a matter of legitimate inquiry within the limits of a sound discretion of the trial court. Whether the witness can refuse to answer any question with reference thereto under a claim of personal privilege is a matter which is not here presented.

Following the foregoing offer of proof the defendant’s counsel asked the same witness on cross-examination as follows: “You were arrested at the same time for carrying concealed weapons and convicted in Justice court at Thermopolis, Wyoming?” The question was objected to on the ground that it was not a proper question to ask the witness as it did not purport to call for proof of a felony. The objection was sustained and the defendant excepted. Thereupon defendant made offer of proof as follows: “Defendant offers to prove on crossrexamination of this witness that he was convicted in justice court at Thermopolis, Wyo-mmg, for the offense of carrying concealed weapons, and growing out of the transaction of shooting in a house of prostitution heretofore mentioned in one of the preceding questions.” The offer was objected to as immaterial, irrelevant and incompetent. The objection was sustained and exception noted.

This offer refers to and must ibe construed in connection with a preceding question if any in which the transaction of shooting a man in a house of prostitution is referred to. The place of the occurrence of such shooting is not mentioned or referred to as a house of prostitution in any preceding question as shown by the record. It is true that in contending for a right to propound a former question there was an offer to prove that this witness was arrested for shooting a man in such a place, but as already stated, such fact constituted nothing more than a mere accusation. The present offer refers to a question not found in the examination of this witness nor was any question propounded to him in which the latter part of the offer either alone or in connection with the former offer would be responsive, nor was it a clear and definite offer as affecting credibility to prove that the offense.of carrying concealed weapons for which conviction was had was committed at the time and place of such alleged shooting or that the shooting was the result of carrying concealed weapons. In this connection it may be said that it is lawful to carry an unconcealed weapon for a lawful purpose. By reference to the former question and offer the time of the arrest for the misdemeanor was some time in January and at the time he was arrested for the shooting presumably at a subsequent time to such shooting. The record is silent as to whether such arrest was made in a house of prostitution and the offer does not purport to prove that he was arrested in such a place. Growing out of a transaction does not necessarily mean a part of such transaction either in point of time or place as to a subsequent act. Upon this condition of the record it cannot be said that the defendant had put himself in a position to entitle him to an affirmative ruling with reference to this part of the offer.

We come now to the question as to whether the proffered evidence was competent for the purpose of discrediting the witness. In discussing the question of what crimes the conviction of which are relevant to indicate bad character as to credibility it is stated in Wigmore (§980) that: “If in a given jurisdiction general bad character is allowable for impeachment then any offense will serve to indicate such bad character.- If character for veracity only is allowable for impeachment then only such specific offenses may be used as indicate a lack of veracity-character.” In this jurisdiction the question is not regulated by statute and it has never been judicially determined as to whether impeachment of a witness may extend to general bad character or must be confined to his character for truth and veracity nor do we deem it necessary to here decide that question.

A misdemeanor is not an infamous crime nor does it always involve moral turpitude or lack of veracity in the perpetrator. It seems to us that the evidence to be competent and relevant to discredit the witness should at least tend to prove moral turpitude or a lack of veracity. The crime of carrying concealed weapons imputes neither, and if it be conceded that proof of a conviction therefor was technically admissible under the first rule as above stated by AVigmore, then it follows as a corrollary that its rej ection though erroneous was not prejudicial. It is for material and prejudicial and not harmless error that this court is authorized to reverse a.judgment. (Section 3744 R. S. 1899.) It is conceded that the evidence is sufficient to support the verdict.

We find the record clear of prejudicial error. The judgment will be affirmed.

Affirmed.

Potter, C. J., and Beard, J., concur.