Keveney v. State

Ohio Supreme Court

Dec 4, 1923

17961

Versions:109 Ohio St. (N.S.) 64

109 Ohio St. 64

141 N.E. 845

1 Ohio Law. Abs. 861

1923 Ohio LEXIS 179

Wanamaker, J.

Rоbert D. Keveney was indicted jointly with John Reiter and Fred G-lanz, in the court of common pleas of Henry cоunty, on a charge of breaking into a railroad car. Error was prosecuted to the Court of Appeals, which affirmed *65 the judgment below. The cause is now here by leave of this court for a review of the judgment.

Keveney’s claim, as shown by his brief, is as follows:

“Claims of Plaintiff in Error.

“1. The trial court erred in permitting the question, by the prosecutor on cross-examination, to the witness, Delventhal, ashing Delventhal whether he ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was not under indictment ‘for concealing and obtaining stolen prоperty, cigarettes, from Mr. Keveney and Mr. Reiter and Mr. Grlanz from the D. T. & I.’ And the Court of Appeals erred in holding that the action of Keveney in going on the stand in his own behalf and admitting there that other indictments were pеnding against him cured that error.

“2. The trial court erred when it permitted the prosecutor, on cross-examination of the defendant, to ask the defendant, Keveney, the question— ‘There are a number of indictments against you aren’t there, Robert?’ over the objection and exception of defendant, without thеn instructing the jury as to the only purpose for which that question could be asked and would be permitted to be answered in this case, and the Court of Appeals erred in affirming the conviction below under such cirсumstances.”

As to the question put to the witness Delventhal, who was called by the defendant, “whether he was nоt under indictment for concealing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and obtaining stolen property, cigarettes, from Mr. Keveney and Mr. Rеiter and Mr. Gf-lanz,” the following may be briefly observed:

The interest of witnesses in the result of the case *66 is always one of the biggest factors in weighing their evidence, in determining its credibility. If Delventhal was so indicted, the presumption is that in due course he would be tried, and it is obviоus that upon that trial he would need the good will of Keveney. Human nature is such that if Delventhal now testified tо anything against Keveney, Keveney would not likely testify later in Delventhal’s favor. At all events, it is a matter pеrtinent and relative to Delventhal’s interest in giving testimony in this cause in favor of Keveney.

It is urged that reversible error in this question is supported by the case of Hamilton v. State, 34 Ohio St., 82, where the witness was asked whether or not he was indicted fоr burglary and larceny jointly with defendant. In that ease it was held that that was an impeachment of the witness’s tеstimony by a particular fact, the defendant not having put his general reputation in issue; that the state could not attack him by offering the testimony, either generally or specially. The question of mutual interest in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍conducting a defense to a like charge does not seem to have been considered. Of cоurse you cannot impeach a witness by merely showing an indictment, but you may affect his interest in his present testimony, his credibility upon the stand, by showing his mutuality of interest with the defendant in securing his acquittal, which, of course, is a mаtter directly affecting the weight of his testimony.

It is clearly held, in the case of Wroe v. State, 20 Ohio St., 460, that the trial court has a wide discretion in the cross-examinаtion of witnesses, especially on matters affecting their credibility. *67 Upon this point the Hamilton case, supra, is not approved, becausе it has entirely overlooked the question of the witness’s interest in securing and retaining the good will of the defеndant in anything that reasonably pertains thereto touching his guilt or innocence.

As to the second proposition, the Wroe case, supra, again applies: also the case of Harroff v. State, 37 Ohio St., 178, 41 Am. Rep., 496. (In the official report of this case the plaintiff in error’s name is erroneously spelled “Hanoff.”) But there is another reasоn why this was not reversible error. Under the old common-law practice ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍all error occurring at the trial was reversible error, but under the Code such error must relate to a matter “substantially affecting the merits оf the case and prejudicial to the defendant.”

As affecting the credibility of the witness, former conviсtions of crime may always be shown. The preliminary question usually in such cases is to show, first that he was indicted, аnd thereafter show the conviction, or that the defendant fled from the jurisdiction and is now a fugitive from justice, which fact could likewise be shown as well as the final conviction.

If, however, no such conviction is shown, or that the witness is a fugitive from justice, then upon motion of the defendant such preliminary question to the indictment should be stricken out. That, however, could only appear from the later examination of the witnesses. Indeed, the-court would be amply warranted in striking out such testimony on its own motion, cautioning the jury to disrеgard it.

*68 This court has repeatedly held that the mere fact of an affidavit, information, or indictment being found against a person is no evidence of guilt. Indeed, the court, in the discharge of its full duty, upon the trial of an indictment, charges the trial jury that the finding of the indictment affords no presumption whatsoever of guilt, but on the contrary the defendant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is presumed to be innocent. If that is true as to the indictment upon which he is being tried, it is muсh more time of other indictments. In this case, however, no motion was made by the defendant to later еxclude this testimony. He may have intended to turn the point against the state, and he cannot now comрlain if any error was committed in that behalf.

We find no error in this case materially affecting the substantial rights оf the defendant, and the judgment of the courts below is therefore affirmed.

Judgment affirmed.

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur.