Shields v. Conway

133 Ky. 35 | Ky. Ct. App. | 1909

Opinion of the Court by

Judge Carroll

Affirming'.

Appellee, ■ who' was plaintiff below, brought this action- in slander against the appellant, Shields, who was defendant below,' charging that in the presence and hearing of' divers' and Sundry persons Shields falsely and maliciously spoke of and concerning him the following words, to-witr ‘‘Oh, yes; yon are paving the way- to have anóthér lawsuit with me, so you can go' down to Blardstowri and’swear to some more damned lies like yon did on other trial”— thereby meaning' to charge Conway with the crime of perjury committed in his testimony in a case pending between the parties a short time previously. The answer did not'deny the fact that Conway had previously testified in the suit, but did deny speaking the words charged. 'Upon a trial before a jury the plaintiff recovered judgment for' $400.

On the trial of the case, after a witness named Barnett testified in behalf of plaintiff, the defendant introduced á record of the Nelson Circuit Court, consisting of an indictment against Barnett and a judgement, showing that in 1887 on the charge of murder he was convicted and Ms punishment-fixed at eighteen years in the State penitentiary. Thereupon the plaintiff introduced in rebuttal a number of witnesses, who testified to the general good reputation of Barnett for truth and morality. The admission of this evidence is the -principal error complained of. It is the contention of appellant that this evidence was incompetent because the general reputation of Barnett was not attacked or impeached by the introduction of the record of his conviction. Section 597 of the Civil Code of Practice declares that: “A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; but not by evidence- of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony. ’ ’ And section 599 provides: ‘ ‘ Evidence of the good character of a witness is inadmissible until his general reputation has been impeached. ’ ’ Under section 597 it was competent for the defendant to introduce the record of Barnett’s conviction, but the admissibility of the evidence of his good' character depends upon the question whether or not the introduction of this record was such an impéachment of his general reputation, within the méaning of section 599, as authorized the introduction of evidence of his good character. This precise question has not heretofore been decided by this court, but it has come before other courts of last resort — some of them holding that evidence of this character is competent, and others holding it incompetent.

In our opinion the evidence was competent. The purpose in introducing the record of conviction was to impeach the general reputation of the witness, and to impress the jury with the fact that he was not worthy of belief. However serious an offense a man may have committed, and however damaging to his reputation it may be, he should be allowed the privilege of outliving the odium attached to it, and reinstating himself in the confidence and respect of his neighbors and acquaintances. No matter how bad a man may have been, or how low in the estimation of his neighbors he may have fallen, he should not be denied the right to reform or the high privilege of becoming an honored and useful citizen; and when he does so re-establish himself, and the record of his former delinquency is offered to discredit him, he should have the right to show that his reformation is genuine, and that his neighbors and acquaintances regard his general reputation for truthfulness and morality as good. It would be a hard and almost cruel rule to lay down that a man on the witness stand might be confronted with, the record of a crime, committed many years before, offered for the purpose of embarrassing,- humiliating and discrediting him, and yet denied the right to show by persons competent and qualified to speak that afterwards by good conduct and an upright life he had established himself in the respect of his neighbors. We think this'conclusion fully authorized by a fair construction of the Code provisions referred to. A witness may not be impeached by evidence of particular wrongful acts, with the exception that it may be shown that he has been convicted of a felony.. Although he may have committed a dozen particular wrongful acts, each involving greater moral turpitude than many felonies, yet evidence - of. -them is not competent; but if he has committed one amounting- to a felony, followed by a conviction, this one offense may be offered-in evidence against him. It is therefore manifest that • the Legislature intended to place, the one act followed by a conviction for a felony in a class different from other wrongful acts not so punished, and in the same category as an attack upon the general reputation of the witness. A. witness cannot be impeached by evidence of particular wrongful acts, because he may not be prepared to meet them; and, if he was, to allow an explanation for each, would often unreasonably protract the trial, besides bringing into it many side issues. And, as tbe witness cannot be impeached by evidence of particular wrongful acts, neither can evidence be offered to sustain his character, as such evidence is not admissible until his good character has been put in issue — until an attack has been made upon it in a general way. But a witness may be impeached by a record of conviction for a felony, and, as he .cannot excuse or justify its commission or go behind the judgment, it would follow that if there, was. no other way by. which he could show the jury or the court that he was .truthful and moral, he must stand mute before the silent but. impressive evidence of his guilt, and -see his reputation attacked without an opportunity to. defend. Although a .witness when- thus impeached may not go behind or explain the conviction, yet he may show that since the judgment was pronounced .he .has lived an honorable and upright dife and .is! held-in .high esteem by friends, and neighbors;. and this, upon, the ground that the evidence, of- conviction is in fact and truth .an attack upon, his general reputation within the fair meaning of-the Code. ■ ■

But counsel say that, if it is allowable to offer evidence of good character to rebut the presumption of unworthiness arising from a conviction for a felony, it would logically result in allowing a-witness who had made contradictory statements or declarations in .conflict- with his present testimony, or who was shown to have an interest in the case, to -introduce evidence in support of his good ■ character.' There is, however, no reason for carrying, the rule we have announced to this extent. A witness may be related to‘the party in whose behalf he is testifying, or he may be interested in the result of the controversy, or he may have made contradictory statements, or declarations in conflict with his present-testimony, but evidence of these facts, or any or all of them, would not be an impeachment of the general reputation of the witness for morality and truth. A witness of the highest character may he related to a party to the litigation,'or interested in the result of the trial, or have made statements contradictory of his evidence, hut these circumstances' do not involve his general reputation for truthfulness, nor are they regarded as impeaching his character. We have carefully examined the-instruction criticized, but do not find, it open to the objection urged against it.

Perceiving no error, the judgment is affirmed.