*1 Argued April 1, March reversed remanded Appellant, Respondent. DURANT, SMITH,
TONGUE, J. damages personal
This in- is an action for juries sustained in an automobile accident plaintiff’s a collision between car and defendant’s car jury, on a two-lane road. The case was tried before a which returned a verdict in favor of defendant. Plain- appeals. tiff beginning
At of the trial defendant’s at torney negligent, conceded that defendant was but plaintiff’s recovery contended that was barred his contributory negligence. ‹ Plaintiff testified that de “straddling” center line when it fendant’s car was contrary, hit his Defendant on the testified, car. principal he was on his own side of the road. The jury issue to was whether be decided defendant plaintiff or both were over the center line. Thus, although there was other evidence on that issue, the credibility testimony parties of both was of *3 importance. vital assignment primary
Plaintiff’s of error is that refusing permit plaintiff the trial erred in court by impeach offering in the- defendant as a witness prior evidence the records two convictions of the driving, provided by defendant for rеckless OKS recently by proper 45.600 and as held this court to be in Marshall v. P2d 1312 Martinson, (1974).
Defendant contends that Marshall should be “qualified,” “clarified” and if not reconsidered and applied should to this case overruled, not be be- jury prejudice may may cause result reason that because there was evidence of defendant’s drink- ‹ The prior accident occurred to the effective date of ORS comparative providing negligence. 18.470 for
ing before this accident and because defendant had guilty driving previous been of reckless on two occa- probable driving it that he was sions, is also rеck- lessly at the time of accident.
1. The contention that the admission in evidence aof
prior driving could reckless result prejudice. unfair provisions of what is now 45.600 ORS were
originally by Oregon legislature enacted in 1861 (§ Deady’s 1845-64) and read as Code follows: “Impeachment adverse A witness witness.
may against impeached by party whom he be by contradictory by evi- called, evidence or general reputation dence that his for truth is bad or render him that his moral character is such as to unworthy may impeached of belief but not be ; he particular wrongful except acts, evidence may the re- be shown his examination judgment, cord that he has been convicted (Emphasis added) a crime.” considering interpretation applica- kept tion of 45.600 it must be in mind that ORS although permitting im- this is a civil the rule case, peachment by prior any proof of a conviction of crime perhaps greater impact is one which has criminal cases. may defendant,
It
as contended
true,
be
criminal or civil case who
that a defendant
either a
jury
“prejudiced”
impeached
in that the
so
is a
such
conviction that he
“bad
infer from
likely
to have committed
act
man” and thus more
charged. ›
danger
present
still
would
However,
*4
›
Martinson,
J.,
Marshall v.
The dissent
that
starts with the сontention
Or
“Prejudice” possible is civil crim both impeached by inal cases whenever a witness is рroof any ques of conviction of crime. However, the scope per tion of whether and how to limit the missible conviction of crime is policy. public Oregon legis one of this instance, In only power legislate adopted lature not has but has subject. repeal a statute on We can neither nor only amend that statute, but endeavor to see applied legislature. in accordance with the intent previous Marshall, our as in decisions, legislature provided held that where the a wit- impeached by proof ness conviction of qualification, “a without crime,” limitation or we were required give plain those words their and natural meaning, “any as so to extend crime,” whether felony If or misdemeanor. this court is to undertake go behind the terms of this statute in an effort to legislature, seek the “true” intent we must still considering bear in that in mind matters which are the objects legislation, questions case, in this such public policy primarily questions are to be decided legislature, than rather the courts. give
It follows that this court must considera- *5 648 why, public policy, as of
tion the reasons a matter Oregon legislature may deliberately have chosen impeachment adopt permitting a statute of a wit- any proof ness conviction of crime in both criminal and civil сases.
Suppose, hypothetical that a case, to take de- charged fendant is with the crime of assault and testi- playing at the time the assault he was fied that ap- of his cards with two that both friends friends; they pear testify playing witnesses and were with him and that all three had cards at that time, previously for assault on at least three been convicted reasoning previous adopt To of the occasions. dis- require in Marshall, would J., sent Oregon legislature, by us to hold that adopting 1861 the permitting of a wit- a statute jury crime,” ness “a intended to withhold from for defendant and in such a case the fact that both thе previously had convicted for his alibi witnesses been involving a crime “moral assault because it turpitude.” parte P 18, 651 Mason, Ex Or robbery, (1896). assaults resulted If, however, involving turpitude, the fact that the moral a crime pre- been alibi witnesses had defendant and his three robbery viously could be shown to im- convicted of reasoning according peach dissent, to the them, having jury might despite infer that the fact that the robbery likely previously it is more been convicted robbery. subsequent guilty that defendant was an that we can divine such We do not believe history legislative 45.600, of OKS intent from the contrary, separately theOn below. reasons discussed say have been un- in 1861 would cannot legis- public policy, for the as a matter reasonable, deliberately provide lature to in both criminal and civil cases in which the defendant testified on his jury, determining credibility own behalf the testimony, may of his consider whether he has been any regardless convicted of turpitude.” whether the crime is one legislature may have reasoned: (1) frequently quoted That, as stated in the case Duke, State v. 100 NH 292, 293, 123 A2d *6 (1956): appears why jury
“No sufficient reason should person asking not be informed what sort is them everyday to take his word. In transactions of life, probably they’d thing this is know.” the first wish to (2) That in a criminal case a defendant who is a apt is “three-time-loser” more to lie in an effort heavy penalty, avoid a further with a conviction, than a defendant with a “clean” record.
(3) previous That this is true whether the convic- involving turpitude” tions were crimes “moral or for other crimes. may disagree
We with these reasons. In our opinion, properly say leg- we however, cannot that the by adopting a islature, which, terms, statute its permits proof by aof witness of con- viction of “a crime,” did not consider these and other deciding, public similar reasons in as matter of policy, scope how wide оr how should be the narrow of the statute. previ-
2. The contention that our we should overrule they upon ous “rest an decisions because unsatis- factory analysis the statute.” court has held that is
This what 650 providing
now
that a witness
45.600,
by proof
ORS
impeached
“that he has been convicted of
is
crimes
crime,”
not limited to
repeated,
turpitude”
“dishonesty.” In
Marshall
or
following
approval,
v.
statement
with
State
(1968):
In Marshall we that contention. We again reject that contention for two reasons:
(1) Upon examination of the common law as proper find that there is no basis to as- legislature Oregon sume that the intended the statute persons involving to be limited to convicted of crimes turpitude.” “morаl
(2) support prior decisions do not the con Our enacting legislature tention that statute perpetuate relating intended to a common law rule but crimes, for conviction held that Oregon adoption legislature of that statute the change intended to the common law. Oregon proper that the There basis to assume
A. is no 45.600, intended that enacting legislature, ORS application its be limited crimes turpitude.”
652 person any
At law, common a convicted of incompetent testify felony completely to as a wit (2d 1972). §84, 43 ed ness. McCormick on Evidence nothing Several had to do with common law felonies turpitude.” said, It has been however, “moral * * * disqualification the “The extension of to origin concept its in the of in felon seems to have penalty creased rather than that of untrustworthiness.” (2d 1969). ed Perkins Law 16-17 on Criminal And even one common law dis- if, time, at the qualification might in- been limited to crimes have credibility,” volving turpitude,” to so as “affect subsequent of statutes that at the time of the enactment many disqualification, crimes which had eliminated turpitude” nothing with “moral were little or do to among in- included which rendered a witness those competent testify. Furthermore, as Mc- observed supra law definition of Cormick, 85, at “the cоmmon very disqualifying precise.” crimes was not Greenleaf, fl According on Law A Treatise (1846): of Evidence 420-21, % " difficulty point no small 373. It precisely render determine crimes which justly perpetrator stated The rule is infamous. thus judicium require, publicum must be ‘the upon implying a dereliction an such offence, principle, of a with it a conclusion moral total carries as obligation disregard of an oath.’ But to the fl Michael, by O’Connell, J., in Cook As noted (1958): P2d history examining code of Evidence “In our own Deady’s (General following Laws Code find notation in page Oregon 1845-1864), 315: principles em- law of evidence ‘The rules and chapters following two codified bodied and mainly and extracted from Greenleaf’s condensed are ” Law of Evidence.’ Treatise on the *9 difficulty specification the in lies the of those of- general enumerating fences. The usual and more is, * * * felony, treason, the and the crimen But falsi. meaning and extent the term crimen in falsi, * * * precision. our is law, nowdierelaid down with may And from these it decisions, deduced, he only the crimen of the common law in not falsi charge volves the may injuriously hut also is one which falsehood, jus affect the administration of tice, the introduction of falsehood and fraud. At language least it be said, the of Sir William gone affirmatively; far Scott, ‘so the law has say it is stop, not for me to where it should ” negatively.’ Wigmore (3d See also 2 on Evidence 612-13, ed 1940), quoting foregoing. Wigmore, supra at quotes problem also 610-11, from a discussion of this (Bow Bentham, Rationale of Judicial Evidence ring’s 1827), concluding: ed “* * * legislator If the had his choice of wit upon every
nesses occasion, and witnesses all pocket, produce sorts in his he would do well not to any, upon any occasion, but such over whose con tutelary despotic sway; duct the motives exercised in to word, admit no other men than for witnesses pеrfect perfect men. But men do not and if exist; delinquents the earth were covered with would them, not send for them to be witnesses to their delin quency. tor things, legisla In such a state then, option, open this other; has and no the door give to all witnesses or to to all license crimes. * * *” (Emphasis added) appears adop- It that at the time thus tion in what is now 1861 of ORS 45.600 the common relating disqualification law rule of witnesses for only conviction of crimes a state of con- uncertainty, subject but was the siderable of consid- Oregon legislature As a result, erable criticism. good only recognize had reason to not these difficulties, clarify simplify problem abolishing but to incompetency the rule of for conviction of certain by substituting place crimes and in its a rule of im- peachment by proof of the conviction of any jury, leaving proper wisdom of under in- to the weight the conviction de- structions, the accorded type pending upon of crime involved. opinion, our more reasonable as- legislature
sume was what intended when provided impeached 1861 it that a witness by proof “a than it is to crime,” of the conviction of *10 legislature by in- “a the assume that the term crime” uncertainty perpetuate and criti- all of the tended to cism of the common law. Deady nothing suggest to is in the Code
There ineompetency contrary. was elim the The rule of to 324) by (p § and Com inated entitled “Definition 70Ó of Witnesses.” (cid:176) Deady provision petency the of by proof relating the of con the Code to (ch 9) chapter separate and is in a viction of a crime (cid:176) Deady provided as follows: Code 700 of the Section except exception, persons as other- without 700. All “Sec. organs title, who, having provided of sense can wise in this perceptions perceive, perceiving their can make known may parties, others, nor other Therefore neither be witnesses. action, persons proceeding, an suit or an event of who have interest in the excluded; have been con- nor those who are opinions crime; persons their on on account of nor victed of every except although religious belief; the case matters of latter, may credibility ques- be drawn the witness the of added) provided (Emphasis tion, 673J” section provides Section 673 as follows: presumed speak truth. This the 673. A is “Sec. witness by may however, manner presumption, the be overcome by testimony, testified, by or the charаcter of his he which by motives, affecting or contra- character or his evidence by jury, they evidence; dictory trial where added) credibility.” judges (Emphasis his are the exclusive (§ 880) section § which makes no reference to but provides as follows: impeached by “Sec. 830. A witness be
party against
by contradictory
whom was
he
called,
by
general reputation
or
evidence,
evidence that his
for truth is
bad,
that his moral character is such
unworthy
as
dence
by
to render him
but not
evi-
belief,
particular wrongful
except
acts;
shown,
the examination
the witness,
judgment,
or the record
that he has been
(Emphasis added)
convicted
a crime.”
again reject
For all of these reasons, we
legis-
contention that this court must “assume that the
* * *
lature
scope
intended to restrict
of im-
peachment”
under
830 to the conviction of crimes
turpitude.”
B.
support
Our
decisions do not
the contention
legislature
ORS 45.600 was intended
perpetuate
relating
a common
impeach-
law rule
ment
crime.
Bacon,
State v.
“if he had not been convicted of a crime.” The com- mon only law rule that such a conviction could by cоpy judgment, questioning shown *11 Referring Deady § the witness. 830 of Code, particularly language by that “it be shown the examination of the or the witness, record of the judgment, that has he been convicted of a crime,” the court said:
(‘[T]he change Code worked has a in the com provisions rule, mon-law and under the sec of our as it tion, the misdemeanors, includes both felonies and question was there admissible, and was no error ruling (Emphasis added) in the of the court.” 656 although question directly-
Thus, was not presented, only § the court Bacon stated not that 830 changed common but that it included law, “mis- any attempt qualify without that demeanors,” term, turpi- much less limit to those tude.” by
Defendants and the dissent C. J., rely subsequent on the of State Marshall, case of Oregon (1888), P Hunsaker, v. 16 19 605 Or holding provisions § what was 830 of the Deady principles. They “introduce no new are Code declaratory simply of the common law on that sub ject” (emphasis added), citing Sheppard v. Yocum and (1882), 1 402, P and Green DeLashmutt, 10 Or § 462. leaf on Evidence attempt was Iiunsaher, there no however, by proof
impeach a a conviction of witness only by prior contradictory proof statements, blit subject § § The court but 831. covered 831] only [§ § intro “These sections 830 and held “declaratory principles,” are no new but duce subject.” As noted, common law on clearly by removing § made “new law” however, disqualification of a witness for conviction by providing be im that a witness crime and peached proof Moreover, of a crime. of conviction Sheppard in Hunsaker: the authorities cited both of supra, DeLashmutt, Greenleaf, Yocum 462(a)), (in particular, with im supra, § deal by proof prior peachment statements, inconsistent by proof a crime. conviction of than rather Motley, Similarly 415, 272 in State v. method cited defendant, also P 561 not for conviction of a involved
657 was statement that what rеsult that its with the “declaratory Deady previously § was of the Code 830 nothing. citing Ilunsaker, adds of common law,” P2d 235 Ede, v. State again what was stated that the court “declaratory Deady § of the com- was 830 of the Code Motley. citing in issue Ilunsaker and law,” mon prior whether conviction of a that case, however, judgment, proved record of the crime could (as recognized practice at common law which was the Bacon) crimes was no issue as to what and there impeachment. proved purpose could be these cases overrules follows that none of It supra, Bacon, v. to the effect the law as stated State change rule” § in the common law that “worked a and misdemeanors.” “both felonies includes in some other states have It is true that courts particular states a in those held under the statutes only impeached crimes for conviction of witness can be turpitude.” is a dis However, there question sev split in the authorities on tinct adopted by same rule followed the eral courts have supra, beginning Bacon, with v. State court, 1886. – reject again the conten these reasons,
For Deady adoption § of the Code of 830 tion perpetuate, Oregon legislature rathеr intended to relating change, to the law rules the common than to by proof impeachment the conviction a witness crimes. † – For dissenting opinion cases see to those reference supra Martinson, n. 6. note at 62 J., in Marshall † Deady enacting also contends Defendant that the a witness
3. The contention proof a crime should the trial court. to the discretion of left *13 precedent Defendant also contends that there adoption the of a rule of this court for the decisions may impeached question he that whether a witness the including by proof a crime, the conviction of against pro possible prejudice balancing the the of the proof, left the dis should be bative value of such the trial court. ‡ cretion of Oregon supra, the two one of Bacon, v. State questions support contention, of this cited in
cases permitted court on cross-examination the trial were asking con- he had been not whether of the witness he had ever been whether crime, a but victed of (at 151) pointed that “until out arrested. This court presumed Never- innocent.” witness was convicted, (at 155) interests of to the reference after theless, promote “liberality cross-examination, аllowed on 156) (at the trial justice” that was held it the ends of questions, “may such exclude discretion, its court, justice to re- seem ends of as the them, allow quire” the trial court. affirmed
Similarly, Wade, 153, v. in Redsecker support cited case the other P P 138 485 “ [cjounsel (at 161) appears it contention, of this a traffic legislature intended that not have could “the Code in 1861 code vehicle first motor since the a ‘crime’ be considered violation penalties for “criminal 1911” and because until was not enacted * ** * specifically 1931.” until driving enacted were reckless application of ORS proves much. too а contention Such Deady Code. in the listed to crimes not limited 45.600 is ‡ Defendant opinions dissenting reference also makes Martinson, J., Denecke, v. J., in Marshall supra effect. same to the note plaintiff permitted [on was trial for the court many cross-examination] [the defendant] her ask questions borne, what names she had what she as to done, had and as to whether she had been convicted that “In a etc.” It held the exercise of lawfully the trial court could allow discretion, sound discrediting purpose this, witness,” syllabus supra, quoting Bacon, from the State “[s]ubject sound discretion of the a wit- court, to the compelled any question to answer which ness * * *” credibility. tends to test his appears in neither Bacon nor Thus, considering application Bedsecker was this court permitting statutory provisions of 45.600 ORS impeachment by proof of conviction of a crime. Instead, these cases hold that on cross-examination of witness permit proof properly trial could of even court *14 “any question” which tended to affect the an arrest or credibility the In both of those cases the witness. only in test court discretion discussed of trial suggestion in either context. There was no case deny any had discretion to the im- that the trial court peachment by proof prior witness of a by specifically provided ORS 45.600 a as many in cases. as held court this Manrique, in State v. 271 Or Moreover, recently rejected (1975), the con- P2d 239 this court admissibility of evi- the tention that in criminal cases when offered crimes the defendant, dence of other the discretion should be left to evidence, as substantive by balancing probative against judge value of the trial holding (at 393): danger prejudice. we said In so problem of this “We believe, however, importance de- state and the such to both the as a more so to demand fendants in criminal cаses uniformity definite rule and one conducive to rulings by likely trial courts than would be to fol adoption low from the rule advocated the Appeals, Court of to the effect that the admissi bility balancing including of evidence of other crimes, probative against danger value of left to the discretion of prejudice, is a matter to subject only the trial case, court each to reversal ” · ‘clearly wrong.’ where Under a rule that would leave it to the dis- judge admissibility cretion of trial determine the proof impeach a crime to of the conviction of might evidence admitted in court witness, same one well be excluded another. the result in a Thus, might judge depend upon case well what court or it is tried before. test which would limit crimes those conviction of uncertainty,
turpitude” subject criticism for is also .to require a rule which would and is noted, legislature prepare and either this court or the catalog crimes are considered to involve which · In so holding Manrique, 201, 211, State quoted Wigmore as follows from 2 on P2d 239 we also (3d discussing problem: 200-01, 1940), in ed Evidence “ * * judicial judges test of incline to treat Some probative test, and value as identical with the common-sense similarity liberally inter- to admit such instances as bear preted by every-day reasoning. judges standard of Other firmly against every is not on set their faces instance which regardless issue, the offence in of the consid- all fours with eration that justice quite protecting the consists as much in mercy public showing against to those whose evil doers as ” * * *’ skilfully guilt has more or less concealed. been *15 again Manrique, supra 4, re- at n. we also State v. following recent decision in Marshall foot- ferred to our note: impeachment by of a discussion of “For 45.600, Martinson, 46, 518 OES Marshall v. see (1974).” P2d 1312
GG1 turpitude.” “moral As stated on Evi- McCormick (2d 1972): dence ed
“* * * requiring turpi- Under the moral rule questionаble tude, a detailed seems whether the creation of catalog involving turpi- of crimes ‘moral application appeal tude’ and its at the trial and on judicial energy is not a waste of of view the size problem. shifting Moreover, the burden to judge’s problems discretion raises as to the adequacy upon of his information or basis which to exercise his discretion. A rule a clear and advantages certain definition has in administration. possible 4. The need revision ORS 45.600. The dissent in Marshall con- J., (at 64)
cludes with this statement: disagreement proper interpretation “Our on the suggests of ORS 45.600 that there is the neеd for proposal its revision. The of Rule 21 of the Uni provides good form Rules of Evidence solution: ‘Evidence not the conviction of a witness for a crime involving dishonesty or false statements shall purpose impairing be inadmissible for the his * * credibility Rules Evidence, Uniform (1965).” (Emphasis added) Rule 21, 9A ULA 607 adopt require To such a rule would, course, a “revision” of ORS 45.600 because there is no basis support at law common or otherwise contention Oregon legislature intended to ex- application clude from the that statute “crimes not involving dishonesty or false statement.” disagree
do We with the view that there a “neеd for revision” of ORS We also 45.600. disagree pro with do not the contention the test posed preferable Rule 21 to the even greater turpitude” tests of uncertainties of the
(>(>2 discretion.” (cid:181) We do not believe, how
and “trial court properly of 45.600can that such a “revision” ORS ever, guise “interpre by of court under the the be made that statute. tation” of auspices of the Code under the
A committee
prepar
process
now in the
of
Revision
is
Commission
ing
proposed
Evidence for submission
a new
Code of
legislature.
is
If
45.600
of the
ORS
the next session
adoption
the
of Uniform
whether
“revised,”
to be
change
that
a
believe
such
otherwise,
21 оr
Rule
accomplished
rather than
that means
be
should
particularly after
case,
in this
this court
the decision of
recently reaffirming
estab
such a well
Marshall
so
standing. n
long
rule and one of such
lished
(cid:181) Another
adoption of a rule to the
the
alternative would be
prior
impeachment
upon
con
for the
of a witness
effect
that
limited)
(however
be defined
of a crime
that
term
viction
jury by the
revealed to
the nature of the crime could
having
party impeaching
denies
unless
the witness
the witness
except
Thus,
in the event
a crime.
convicted of
been
impeachment
denial,
to the mоre
would
limited
a
of such
This would minimize
of “a crime.”
neutral
fact of the commission
previous
prejudice
crime
danger
from the fact
of
party
for which
nature
as
involved conduct of the same
party
subsequent
charged
it to the
trial and would leave
in the
is
re-examination,
whether,
calling
to re
on
to decide
the witness
any
explaining
course of
in the
the nature
crime
veal
mitigating
relating
prior
Such
to the
conviction.
circumstances
45.600,
require
rule,
course,
of ORS
amendment
would also
expressly permits
of a witness
offer
which now
judgment
of a crime.
of conviction
the record
n
plaintiff
offеred as a
that because
Defendant
also contends
prove
single
proof”
convictions
two
two exhibits
“offer
appeared
driving
from
and because
defendant
for reckless
reduced
had been
that one of the convictions
one of such exhibits
liquor,
driving
charge
so
under
the influence
from
inadmissible,
its
trial court acted within
make that exhibit
rejecting
discretion in
both exhibits.
says
support
that we
defendant
contention
of that
part
excluding
if
properly
an exhibit
court
affirm a trial
Prouty
citing
general objection,
L
B Co.
inadmissible,
&
even on
and Freed-
Cogan
al,
O’CONNELL,
J., dissenting.
I dissent
for the reasons
stated
my dissent
Marshall v. Martinson, 268
46, 59,
Or
Denecke, J., joins
this dissent.
ux,
man
v. Cholick
(1963), among
et