Linde v. CommonwealthLinde v. Commonwealth
- Reporters:
- , ,
- Before:
- Thomas
Opinion of the Court by
Judge ThomasReversing.
The appellant, Henry Lincle, was convicted in the Hardin circuit court of the offense of selling intoxicating liquor for beverage purposes, and on this appeal from the judgment pronounced on the verdict counsel urge two errors as grounds for reversal (1), impropor questions propounded by Commonwealth’s attorney in cross-examining defendant’s character witnesses and (2), impropеr remarks made by him in his closing argument to the jury and to which the court overruled objections. The foundatiоn for ground (1) arose in this way: Defendant introduced witnesses to prove his good moral charactеr, as he had a right to do, and on their cross-examination by the Commonwealth’s attorney he asked them, “Have you heard them (defendant’s neighbors and acquaintances) talk about him being indicted for false swearing? Haven’t you heard about him being indicted in this court?” Defendant objected, but the court overruled the objections and the witnesses answered that they had heard of no such thing. We think it well settled that evеn *100 proof only of an indictment against a witness whose character is sought to be impeachеd is incompetent, and clearly, merely an insinuation that such indictment had been ’ returned, without proоf of the fact, would be still more incompetent. At the time the questions were propounded to thе witnesses by the Commonwealth’s attorney no proof of such a charge, by indictment, had been introduced, nor did he- attempt to do so at any time thereafter. A mere statement of the proposition is sufficient to condemn the practice, and we feel that further argument to demonstrate its incompetency as well as its prejudicial effect is entirely unnecessary. But, whether such an errоr alone would authorize a reversal of a judgment where the entire proof sustains the verdict of conviction with reasonable clearness, we need not determine, since the error complained of in ground (2) is undoubtedly sufficient for that purpose.
The facts with reference to ground (2) were; That in the closing argument to the jury by the Commonwealth’s attorney he said, “Is it not strange that these witnesses fоr the defense had not heard of as serious a thing as being indicted or charged with false swearing, abоut which I asked them?” Defendant objected to that remark, but his objections were overruled, and he excepted. The Commonwealth’s attorney then said, “I do not blame you for objecting to the testimоny on that question,” to which defendant objected and the court sustained the objection to it, but did not аdmonish the jury in any manner, and the defendant moved to discharge it because of the objectionable remarks, but the court overruled the motion and he excepted.
‘We have often had oсcasion, particularly in recent years , to lay down the limitations of the right of counsel, including Commonwealth’s attorneys, in their arguments to the jury, the substance of which were, that they had the right to comment оn the proof in the case and to draw all reasonable deductions therefrom and to evеn state to the jury their conclusions though they might be supported only by legitimate inferences drawn from fаcts for which there was testimony to support. Lawler v. Commonwealth, 182 Ky. 185 ; Chappell v. Commonwealth, 200 Ky. 429; Bailey v. Commonwealth, 193 Ky. 687; Bolin v. Commonwealth, 206 Ky. 608. But, at the sáme time, we have condemned arguments based upon facts that were wholly unproven and for which there was no testimony to sustain, or inference to be drawn. John *101 son v. Commonwealth, 188 Ky. 391. Even if it should be conceded that it was competent in this case (but which we do not hold) to prove by competent evidence that defendant had been indicted for fаlse swearing, such proof was not furnished nor offered to be introduced, and the only foundation for thе remarks of counsel, to which objections were made, was the mere insinuations embodied in his questions that such indictment had been returned, and it requires no argument to show the impropriety of those remarks or their prejudicial effect. They assumed it as a fact, wholly without proof, that defendant had bеen indicted for the highly degrading offense of perjury or false swearing and which could have no effеct upon the minds of the jury other than to prejudice them against him and to cause the return of a vеrdict different from what they might otherwise have done.
It is also argued in brief for appellant that he should have been permitted to establish his good character as an observer of our prohibition statute by showing that he had the reputation of obeying it; but it is our conclusion that his rights in that respect werе fully protected when the court permitted him to establish his good character for morality, uprightnеss and good citizenship in the community, for after all the one is included in the other, since it could scarcely be true that one possessed a good moral reputation and at the same time also possessed one for being a constant violator of the prohibition law.
For the errors above indicated, the judgment is reversed, with directions to set it aside and for proceedings consistent with this opinion.