*1 wrong- any particular guilty of had been imply that defendant ful act. proceedings. following from the predicates error
Defendant Bailey state of officer examination On the direct witness searched objection and another that he showed without paring for a night the homicide apartment on the Colonial slip find rack that knives They did knife. None was found. It produced knife. rack court. was into. It contained one ob sustained defendant’s but court was offered evidence made jection to strike No motion receipt to its evidence. was not asked relating to the exhibit the court evidence Under the cir disregard the evidence. admonish the place the court in error cumstances defendant not trial mat to a collateral this account. The evidence likewise related paring knife important was, defendant have a ter. The faсt did or absence in her hand when she struck the deceased. Presence light apartment of knife in on whether would shed her she had a knife in hand she struck deceased. when Finding record, no error in the reversible affirmed. ADAIR,
ME. CHIEF JUSTICE and ASSOCIATE JUS- FREEBOURN, BOTTOMLY TICES METCALF and concur. May Rehearing 18, 1951. denied
STATE, Respondent, COLOFF, Appellant. 9008. No. January April 1951.
Submitted Decided (2d) 343. *2 Mr. Edwin E. Mr. Multz, Hanley, Helena, Clarence Mr. W. M. Black, Shelby, appellant. for
Mr. Olsen, Atty. H. Gen., Arnold Poppler, Mr. Louis E. Atty. Gen., Asst. Hoyt, Mr. C. County Atty., Shelby, John respondent. Black,
Mr. Multz, Hanley, Hoyt Mr. Mr. Poppler and Mr. Mr. argued orally.
MR. JUSTICE FREEBOURN: appellant committing
Defendant and was convicted of lewd and upon age years lascivious acts a child under the of sixteen appeals from such conviction. defendant,
Under charged cross-examination prior with a conviction, felony. was asked if he had ever been convicted aof He answered, Later, “Yes.” objection, prosecution over permitted place reаd evidence and to the the follow- ing document: States of No. Criminal
“United Indictment in three America counts for violation of U. S. C. “John Coloff Title (Indicted 52b. as John Sec. Coloff,
K. alias Ivan
Koleff,)
“Judgment and Commitment. “On day May, this 5th At- of came the United States torney defendant, Coloff, appearing proper John person counsel, Graybill. Mr. Leo C.
“And having the defendant convicted verdict of on the guilty charged of the offenses in the Indictment the above cause, day entitled August, to-wit: That on or the 29th about continuously up including thereafter to and the date filing herein, Geraldine, the Indictment near County Chouteau, in Montana, the State and District of jurisdiction within court, bankrupt, while a *3 said unlawfully, defendant did knowingly, fraudulently, and feloniously bankruptcy conceal from the Trustee in in a bank- ruptcy proceeding by theretofore in this instituted court said defendant, property belonging certain to the estate in bank- ruptcy him, defendant, of say, said that is to the Southeast quarter 15, Township of Section in 23 North, Range of 13 East of the Principal Meridian, Montana in County, Chouteau Mon- tana, consisting of 160 acres of approximate land of the value $650.00, of and South Half Section 22, Township of North, Range 13 East of the Principal Montana Meridian, in County, Montana, Chouteau consisting of 320 acres of land of approximate $1243.00, value of charged as in count one of Indictment; said (2) and day on or about the 29th August, 1940, continuously and up thereafter including and filing the date of the herein, of the Indictment at Palls, Great in the Montana, State and District of said did defendant un- lawfully, knowingly, fraudulently feloniously conceal from said bankruptcy trustee in said proceeding certain other prop- to-wit, estate, sum bankrupt said
erty belonging to Ms charged States, as money United of the $260.06 lawful Indictment, (3) that or about of said count two County of Falls, August, 1940, at Great day of 29th Montana, within District of Cascade, in the State and Bankruptcy in court, the Referee jurisdiction of this before unlawfully, did proceeding, the said defendant bankruptcy said testify feloniously fraudulently, knowingly, corruptly, wilfully, bankruptcy falsely in relation to said and make a false oath Indictment, all in of said charged in count three proceeding, as 52b, U. S. C. Title Section violation has asked whether he having been now "And defendant pronounced against why should be anything say contrary being shown or to the him, and no sufficient cause By court, Is The Court to the It appearing defendant, John Adjudged that the said "Ordered And offenses, and he guilty said be Coloff, having been found custody Attorney General of hereby is to the committed imprison- representative, for or his authorized the United States (4) (2) And Four Months term of Two Years ment for the ($500.00) Dollars; and that said pay a of Five Hundred fine payment until of said fine or imprisoned be further defendant discharged provided law. otherwise until defendant be said copy deliver a that the Clerk certified "It is further ordered Mar- United States Judgment Commitment of this shall and that same serve qualified officer shal or other Commitment herein. as the Pray, Judge.” N. Charles
"/S/ 93-1901-11, "A provides: M. see. R. C. party against called, whom he was impeached general
contradictory reputa- by evidence that his evidence or *4 bad, integrity by honesty, is but not evidence truth, or tion for may wrongful except by it particular acts, be shown of witness, or the record of the examination of the the judgment, felony.” convicted of a that he has been "A 94-4723, person 1947, provides: convicted R. M. see. C.
35 any competent witness notwithstanding a of offense is may criminal, the proceeding, or but conviction cause or civil affecting weight his tes- proved purpose of of for the by or his examination as such timony, either the record ’’ witness. сredibility When a witness is attacked under these long practice trial statutes it been uniform has cross-examination, substance, witness, Montana to ask the felony?” you “Have ever been convicted of a If the answer is “Yes,” along further examination this line is foreclosed. If denial, the answer a then is the conviction can be shown judgment. record of the
This practice is sound and should be followed. The statutes, weakening credibility witness, satisfied natural, and chance for is eliminated. It is error practical way handling and best the matter. meaning given or construction these statutes is presumed one, language be the true even when the has popularly
a meaning. 25 L., 273, 1042, different R. pp. C. sec. 1043. practical given construction long a statute for period of time strong has been considered evidence of the mean ‘‘ ing Indeed, practical of the law. statute, construсtion of a publicly given or the meaning by contemporary usage, is usually presumed to be the true one. It should reasons disregarded, * * *”. 50 or overturned, Am. Jur., * * [*] Statutes, except see. cogent pp. 309, 310, not be convincing disturbed, 311. and,
“The ordinarily, way natural the easiest prove them [prior convictions], true, if himself, but the party ought deprived not to be statutory right by of his falsehood of witness.” Helwig Lascowski, Mich. N. W. L. R. A. also, 378. See Burdette v. Ky.
Commonwealth,
“The proof prior usual manner conviction *5 36 if he such a conviction has suffered
is the witness who to ask and, denies felony, if he of a convicted been theretofore had judg- a convicted, copy of produce has so that he * * 19, 235 People Craig, 196 Cal. v. ment of conviction 721, 724. Pac. testifies, case, if he and is sworn
A
in a criminal
defendant
im
subject
rules of cross-examination
is
to the same
Schnepel, 23 Mont.
peachment
State v.
as
other witness.
579,
174,
39
102 Pac.
927;
Crowe, Mont.
523, 59 Pac.
State v.
526,
643;
O’Neill, 76 Mont.
248
Ann.
18
Cas.
and State
215.
stand,
prior
take
conviction
If the defendant does not
Jones, 51
impeach him. State v.
not be shown to
Mont.
peachment, different as and a much between defendant Hougensen, defendant, in State v. Utah witness for the as said as (2d) questions to a defendant “such jury case, whereas in of a may directly prejudice the case prejudice jury than they no more witness not a defendant do directly thus affect case.” against such witness and less conviction, prior purposes admitted his When defendant impeached credibility had been were served. His of the statutes judgment introduce show- goTo further and and weakened. ing “* such [*] * prior what conviction good ground can there be could serve no good purpose. for demanding but, done; if do more than has been To do so is to record? of conviction an effec answer, the record negative there is a # * # assault, and his convic impeachment the fact of tive to him and his of it it, known confession tion of was as well itself, record probative force as the high quality as of in this case requiring the record we reason for the rule by parol was as near entirely fails; and the admission think adopted Rules of evidence are record could be. the fact as the State, purposes.” Dotterer v. Ind. practical 689, 693, A., S.,N. L. R. N. E. felony judgment
A in a district court of Montana does not charged. It set out the facts circumstances crime goes than the offense. no further to name placed commitment before federal court have been of three here showed defendant to convicted *6 constituting felonies and set out facts and circumstances each offense. comprising prior
Dеtails and are circumstances offenses People Hane, not admissible. See: v. Chin 108 Cal. 697; People Muchupoff, App. v. Cal. 249 Pac.
240; People David, (2d) (2d) 811; v. Cal. 86 Pac. People Braun, (2d) 1, (2d) Cal. 402. See also: Evidence, Wharton’s Ed., 3, Witnesses, Criminal 11th Vol. sec. p. 2261. only testifying seeing witness defendant commit the charged
acts prosecutrix. was the day On the immediately after committed, such crime is said prosecutrix to have met sheriff Dunstall. He testified: "I asked her if she had been down Hotel, the Rex or whether had been she molested. She stated that she had not. asked her if Mr. any Coloff had way. molested her in She stated that he had given go her a Fair, dollar to to the her mother was down at Fair.”
There corroborating was some evidence spoken as to words where, the room time, and about the the criminal acts are said to have been committed.
Under the judgment prior evidencе the weighed conviction heavily against may defendant. It well the deciding have been factor brought which about prejudicial his conviction. It was error to admit it evidence.
Appellant complains of the trial gi court’s refusal ve these,
severalinstructions offered defendant. Two of re specting judgment prior the withdrawal of conviction jury, from should given. the consideration have been properly other instructions were refused. n The case is reversed. For reasons stated new trial. is remanded for a BOTTOMLY concurs.
MR. JUSTICE
concurring).
(specially
ADAIR:
MR. CHIEF JUSTICE
of record
person
in a court
At
law a
convicted
common
being a witness.
disqualified from
any
thereupon became
felony
a
jurisdiction by statute
in this
disqualification is removed
This
person is
such
notwithstanding his conviction
providing that
or crim-
proceeding,
or
civil
cause
competent
a
may
proved
inal, “but
the conviction
testimony,
weight
either
the record
affecting
of his
supplied.)
(Emphasis
examination
such witness.”
441, 446,
94-4723;
Stein, 60 Mont.
R. M.
State v.
C.
sec.
In this after a who testimony given case he felony has been sworn he was impeached by party against whom then be “by witness, or the by showing the examination of called *7 ’’ felony. judgment, he has been convicted of a of the record 1947, 93-1901-11. (Emphasis supplied.) R. C. M. sec. They unambiguous. foregoing plain and are The statutes are They speak meaning Their readily understood. themselves. defy An unambiguous statute is so clear as to construction. interpreted, should be It the not be enforced. should —it duty as it them and the court take these statutes finds to clearly it simply stated law as it. apply worded finds Here the “or,” simple “and.” simple “or” means the word The —not “either,” “either” means “both.” word “a” word —not other, larger clearly some and less defined means “a” and not Shiеlds, v. Mont. phrase. See Shields word or City Falls, Goings of Great 528; ex rel. v. (2d) State (2d) 51, 112 Mont. n which insert in construction would argues for a state “either” and for the word “both” word the statute the our office. The not “or.” Such is word “and” for the word says judge and simply law the office of the to ascertain or in declare what is in terms substance contained omitted, omit what statute, or to “not to insert what has been has inserted”. R. M. sec. 93-401-15. C. and sworn, the defendant was took the witness stand
Here gave testimony Thereby subjected him- in his own behalf. impeachment purpose provided self in the manner and for 94-4723, supra. 93-1901-11 sections and At the outset his cross-examination of the defendant county attorney promptly fully availed of the himself opportunity advantages given him the above statutes by propounding proper the usual and impeaching question to which the defendant made affirmative answer. The defendant’s admission that felony given he had been convicted of a so from proof witness chair was and is sufficient of that fact. proof proof conviction;
“The must be limited under no circumstances facts in at the evidence former trial or the details gone and circumstances of the offense be into.” Evidence, (11th Wharton’s Criminal Ed.), Witnesses, see.
p. 2261.
With
record,
defendant’s admission before
and in
the fact that he had
felony
theretofore been
of a
convicted
was
longer
no
county
issue.
attorney,
Nevertheless the
de-
over
proper
timely objections,
fendant’s
proceeded to further
probe
inquire
into
upon
facts
touched
in his
ease
chief nor in
testimony
witness,
the direct
of the defendant
thus
making the
Having
defendant his own witness.
done so he was
and is
and concluded
bound
answers of the
fatal error
permit
for the trial court to thereafter
impeаched upon
testimony
injected
witness to be
such
so
into
county attorney.
Smith,
case
State
Mont.
362-365,
The record shows: ‘‘ Hoyt: Mr. Cross Examination
“Q. Coloff, you— I Mr. believe you Hoyt, just Witness: Mr. please
“The will talk a little got into I almost very good. I hear because can’t louder trouble— about that. don’t care
.“The Court: ¥e Yes. Excuse me. “The Witness: your humbly request, con- May request, I “Mr. Stromnes: the witness? I can also see here where sent to sit ‘‘ n please. Talk louder The Witness: that ago a while you testified “Q. Coloff, I Mr. believe oath, that correct? testifying under you you realized were A. Yes. felony? of a
“Q. Coloff, you Mr. ever been convicted have A. Yes. charge?
“Q. And what was is a— question Object as—that “Mr. Stromnes: ‘‘ The Court: Overruled. May my exception? “Mr. I note Stromnes: charge A. I know. The “Q. charge? don’t What was the exactly what it is. just I know bankruptcy. was don’t A. charged with? No. “Q. you were You don’t know what bankruptcy I know is. what No, A. you charged with?
“Q. what youDo knоw crime were know. don’t “Q. you convicted of? you Do know what were question Don’t answer that Just a moment. “Mr. Stromnes: you question you ‘Do know what were (Whereupon now. reporter.) the court convicted off’ was read objected improper highly That to as “Mr. Stromnes: at this time for a mistrial. prejudicial and we move the Court objection is overruled. Motion Court: denied. “The an order ad- We now move the Court for “Mr. Stromnes: disregard ques- moment to both the monishing the at this question that the of the fact answer reason tion and the this defendant knowingly put prejudice ignorantly either jury. with this didn’t has answered He Motion denied. Court:
“The that. further on go You can’t know. *9 Hoyt: any
“Mr. I on that? say go You further can’t ° (cid:127) “The know. says Court: he doesn’t He Hoyt: Honor, may I at proof “Mr. make an offer of Your this time? Well, yes.
“The in Court: It will have to be made chambers. jury, (Whereupon, hearing chambers outside the following had:) proceedings were “The right. All Your This Court: оffer. is cross examina- you may tion. It required, not but make it. is ‘‘ Hoyt: Mr. correct, your If I am I Honor stated that could go my questioning. no further line of your
“The Court: Go ahead with offer. Hoyt: “Mr. prove by witness, But offer to the state prove offers to the witness now on the stand that that witness perjury convicted of and that he knows that he was con- perjury, victed of given and that purposes this of im- peachment of the witness now on stand. And I cite Section 10668 of the Revised— ‘‘The Court: Show it me. to Hoyt:
“Mr. Of Montana, the Revised Codes of 1935, and the case of Garney, Mont., State v. (2d) page at
“Mr. Stromnes: To the proof offer of made county attorney, objects the defendant for the reason that the record now discloses that the defendant admitted that he has been felony, convicted of a county and that if attorney should be permitted pursue to then inquiry further pursue or proof indicates, аs his offer that it would degrade tend to impeach defendant and to the defendant in a method not known recognized by any or law or laws or decisions of the State Montana; proof that such only would not highly be improper, prejudicial but would be to the justify defendant and an order declaring mistrial, of the Court impel and would the Supreme recognized Court of this state under statutes and decisions to any judgment reverse or conviction this case if a verdict of guilty were suggests returned. The offer proof, in addition entirely foreign prejudicial
its nature and character which plea, and would any and the issue raised the information case; that prove disprove of fact tend to issue highly prejudicial proffered said would further evidence tendency put defendant for the reason would have a years ago on trial in this cause for a criminal offense committed prejudice the jury and would and would therefore confuse the jury, and with obfuscate the defendant and would *10 jury lawfully might think, whether or not well cause the to retry on or properly so, or to the defendant proceed and so already was respect with the which he has admitted offense felony more or years ago, and thus cause one or committed case jurors issues in this all of the be confused as to the give at Honor will irrespective of the instructions which his testimony in the case reaches the termination of the the event broadly jury. sufficiently think there. the I I it have covered having he was con- admitted that The Court: The witness ‘ ‘ the felony having stated that he did not know of a victed bankruptcy pro- charge out of other than it arose nature any questions opinion the further is of that ceedings, Court the objectionable particular witness line from this along this court, in open in (Whereupon, objection sustained. the following jury, proceedings hearing of the the presence the had:) were jury you are gentlemen of the Ladies and
“The Court: duty— your it is by the Court admonished your the May request Honor to advise “Mr. Stromnes: in so that proof was denied the record offer of jury that it? jury hears objec- proof and on Yes, offer of was made “The Court: proof objection sustained. offer tion made Thereupon course that.” with record of shows denied. trial court recessed for admonition to usual two hours. its trial court reversed convening after recess the
Upon proof, whereupon excluding the offered rulings former 1,No. evidence, state’s exhibit county attorney in as the offered set and Commitment” designated “Judgment the document- Mr. Free- opinion by Justice foregoing in the length forth at bourn. had:
Thereupon following proceedings wеre Yes, I in Hoyt: “Mr. offer it evidence. objects be-
“Mr. Stromnes: To which exhibit the defendant material highly prejudicial, cause it is irrelevant and not any in- the information or the issues fact raised under case, prove disprove volved in it this nor does tend to either instance, ease, issue this but in the first has offered my county attorney inciting opinion, purpose for the prejudice jurors or some or one or more members thereof against defendant, purpose serves no case. I think it. that covers ‘‘The Court: For what is this ? exhibit offered Hoyt: Honor,
“Mr. Your this exhibit is purposes offered for impeaching the witness now on the stand.” objections Defendant’s were overruled and state’s exhibit 1No. was Whereupon received evidence. the following oc- curred : Imay
“Mr. Stromnes: And now move the Court for mis- *11 trial I believe because that the admission of this exhibit would prejudicial to the defendant and render him unable to obtаin impartial a fair and trial from or jury. Court: The
“The introduction of impeaching evidence is of prejudicial course to a defendant. That is its purpose, way impeachment, of that proper objection is no in the Court’s already mind. The has Court ruled the evidence is admissible. your objection. You had ‘' I Mr. Stromnes: now make a motion for a mistrial. Your Court: motion is
“The denied. I
“Mr. Stromnes: would like in it the record. Well, you got Court: in “The it the record. Your motion is denied. May Hoyt: I proceed
“Mr. now? and hear- presence (Whereupon, “The Court: Yes. had:) were ing following proceedings the jury, of Plain- read May Hoyt: permission “Mr. I the Court’s have jury? tiff’s Exhibit to the reading read or may. either now
“The Court: You It can be defendant permission reserved with the counsel may you it. reading you it read If want to read waived. Hoyt: your “Mr. I it Honor. would like to read ‘‘ Hoyt: explain I nature May The Court: Proceed. Mr. of this instrument? That is may instrument. all.
“The Court: No. You read the say may possibly. I explain argument You wouldn’t now. (Where- Hoyt: Very “Mr. I instrument. well. will read this ” jury Hoyt.) upon Mr. Plaintiff’s Exhibit was read to By attorney: Hoyt, county Mr. just
“Q. Coloff, you heard the instrument that Mr. have Yes, it, you? did A. You heard me read sir. read?
“Q. you deny wish to that the John Coloff And do yourself? person No, A. I don’t. is the instrument same “Q. you? It A. is me. That Hoyt: That all.” “Mr. taking testimony far as the
Thus ended case so concerned. plain unambiguous language
The statute states how felony has suffered of a be im- a witness who conviction “by expressly prohibits impeachment peached and it evidence R. wrongful acts”. M. particular C. sec. 93-1901-11. Here, statutory violation of the above prohibition direct objections, court, county over defendant’s the trial allowed the attorney place particular evidence read to the constituting wrongful separate three distinct offenses acts Bankruptcy particularly spe- with Act under Federal constituting b violations of sub. wrongful acts section cific A., Bankruptcy, 52, sub. b. sec. Title U. S. C. that Act. wrongful placed improperly acts so particular The evidence 93-1901-11, supra, were: of section in violation in evidence
45 August 1. in 29, 1940, Geraldine, That about near county, Montana, witness, Chouteau the defendant while bankrupt, knowingly fraudulently and concealed from his trus- bankruptcy belonging tee in property certain real his estate in bankruptcy, namely, R. (a) 15, SB of T. 23 N. section % E., 13 M., M. P. comprising $650, acres of the value of (b) the E., S of R. 13 P. M., section T. N. M. com- % prising 320 $1,243; acres the value of August 29,
2. Falls, Montana, That on or about 1940, at Great the defendant witness knowingly fraudulently concealed from his bankruptcy personal property trustee certain be- longing to his in bankruptcy, estate to-wit: the sum of $260.06 money lawful States; of the United August 29, 1940, That on or about at Greаt Falls in Cas- county, Montana, cade knowingly defendant witness falsely testified and made a false oath relation to his said bankruptcy proceeding.
In Smith, State v. supra, 349, 360, Mont. wherein this court reversed the of conviction remanded the county attorney cause for trial, a new cross- examined the defendant brought on matters not out on his direct examination. There court said: $* though a wide latitude is allowed in the cross-examina-
tion of governing cross-examination must still control. a defendant thus offering himself as a witness, ® [*] * rules
“But respondent urges proper pur- that if not for that pose, questions proper were purpose impeachment. for the This is the same contention that made in was the ease State Kanakaris, disposed Mont. and was by this court in following language: ‘Upon the cross-ex- amination of many the defendant he asked questions by county attorney, of which was show guilty he had of numerous offenses, independent minor being the crime for attorney which was tried. The could object have had no other than impeach view the defendant *13 for either jury, and the degrade in the estimation of him ’ * * * by statute. are forbidden questions the party witness, one cross-examining a a pretense “Under by for the other witnesses make his ease an action cannot out to * * * attorney made county Here the [Citing side. cases.] upon in facts touched prove not defendant his own testimony the witness. chief, in in his case nor the direct witness, so, .by the answers of Having he was bound done not the statement and the that the witness did make answer * * * him have the matter. recited to should ended 330, 407, People Schmitz, App. “In supra Cal. v. [7 * * * 419, A., S., 717], 15 L. N. ‘It is of much R. the court said: every importance more that defendant have a fair and should by impartial under the rules of evidence laid down trial judges experience ablest centuries than established particular a that defendant in some case be should convicted.’ People Rodriguez, “In v. 66 supra 174], Cal. Pac. [134 the court said: “ question ‘If a put is ato witness which is collateral and issue, irrelevant to.the answer'cannot be contradicted party question, who asked the against but conclusive him.’ * * * People McKeller, 65; v. 53 1 Cal. Greenleaf Ev. sec. 449.
“If prove counsel for the state desired to other acts of a character, corroboration, similar he should have introdrrced evidence, his case in evidence chief. The and all the tending guilt defendant, evidence to show the should have fairness, produced, that, in given so all be defendant opportunity as part to meet that evidence a of his defense. Having so, having, being, failed to do for the time made witness, his own he was bound the answer the defendant permit given, and error for trial court to thereafter it was * * * testimony. [Citing upon impeached him to be such cases.] McFarland, Mr. employed by Justice language “The * * * is par- 34 Pac. People Wells, v. Cal. case of this: ticularly to cases such applicable “ to assume officers prosecuting the habit of ‘It is much too guilty, expect beforehand that and then defendant twisted, have the established rules of and all the fea evidence a distorted, tures of fair trial to secure a conviction. order If fairly convicted, a defendant cannot be con should all; provide ways victed at and to hold otherwise would be ’ ’’ and means Compare for the conviction the innocent. State v. Smith, Mont. Pac. wherein this court reversed judgment of conviction and remanded the cause for new trial.
In Garney, Mont., (2d) 506, reversing State remanding of convictiоn and case new *14 trial, recognized this making court the usual manner of proof prior of a ask if conviction is to the witness he had there felony deny been tofore convicted aof and should he that he has convicted, been so a produce copy judgment to then said, conviction. There we also “A careful search of the authorities fails to procedure reveal case in whieh the adopted by the practice state in case this was followed. Such is questionable most Compare to be commended.” not Black, 1894, 143, 149, State v. 674; Mont. 38 Pac. State v. Shannon, 95 280, 287, (2d) Mont. 360.
Every person charged guilty, his plea with a crime of not on has an right impartial absolute and fundamental a fair and to 'pursuant government trial under and to the law of sovereignty alleged of which to have it is a offended and duty resting courts, appellate, on trial and officers thereof, including attorneys, the state’s to see that this most right upheld substantial and vital and sustained. Shannon, supra, court,
In in reversing judg- State v. this trial, remanding ment a right the case new held that the impeachment by for crime have one on trial state prescribed 93-1901-11, confined within the limits section right. Dillon, supra, Compare Mont., is a substantial State v. (2d) Clearly right and denial of the violation such substantial so a mistrial the law effected under the defendant
accorded reversible error. constitutes wholly upon question is determined appeal which
Upon weigh pass highly improper for us it would be law hear, new trial must at a that a new evidence and evaluate. consider entirety. opinion its
I in Mr. Justice Freebourn’s concur (dissenting). MR. JUSTICE ANGSTMAN: present agree opinion. In order to foregoing I do with my necessary expose I more of views of the find it case my opinion associates. record thаn that shown county upon stand When the defendant was the witness upon cross-examination, if attorney, asked him he had felony, convicted of to which he answered affirmative. county attorney following questions: The then asked him the “Q. What A. I charge? charge was the don’t know. The just I bankruptcy. exactly don’t know what is. “Q. you charged You don’t know were what with? A. No. I bankruptcy know what is.
“Q. you you charged No, Do know what crime were with? A. know.” don’t county attorney then offered evidence the record the conviction. counsel thereupon interposed Defendant’s an objection. court, considering question after during the noon
recess, prosecuting stated in substance that the attorney per- upon prior an admission of the inquire mitted conviction as to felony. thereupon, to nature of The court the since defend- convicted, that did not know of what crime he ant stated objection permitted of convic- overruled the jury. tion be read to by a way impeach jurisdictions only
In some by judgment felony convicted of showing he has been rule That evidence. regarded best That is conviction. State, Ind. 357, v. Dotterer 172 for in the case of was contended
49 majority S., 846, 689, A., 30 L. R. N. relied on 88 N. E. by in that ease opinion from opinion, quoted and what is nothing has my that contention and associates is answer to away get from question involved here. To to do with the alternative, permits this fact to shown rule our statute be by by witness or the record of either cross-examination of the conviction. may 94-4723, proof 1947, provides R. C. M. sec. that such be
‘‘ ’’ either as such witness. the record or his examination 1947, 93-1901-11,provides And R. M. “that C. sec. witness,
shown examination or the record of judgment, felony.” that he has been convicted of a
My properly associates and the is that these сoncede rule statutory provisions apply also to defendant when he submits Black, 674; himself as a witness. 15 143, State v. Mont. 38 Pac. O’Neill, v. 76 526, 215; State Mont. 248 Pac. Wharton’s Crim Evidence, inal Ed., 3, Witnesses, 11th 1383, 1387, pp. Vol. secs. 2268, 2273. always proper
It is party seeking for the impeach a witness by showing that he has been felony convicted of a to show felony. the name or nature of People Hane, v. Chin 108 597, Cal. 41 697; People Pac. Eldridge, 782, v. 147 Cal. People 82 442; Pac. Jacobs, v. 73 App. 334, Cal. 238 Pac. 770; People Muchupoff, v. 306, 79 App. 240; Cal. 249 Pac. Hadley State, 23, 458; v. 25 Ariz. 212 Pac. People Fouts, v. 61 214 App. 657; Gilbert, Cal. Pac. State v. 138 4 Or. (2d) 923; People David, (2d) (2d) Pac. v. Cal. 86 Pac. Jefferson, 811; People App. (2d) 709, (2d) v. 84 Cal. 191 Pac. 487; State, 121, 4 (2d) 886; 192 Miss. Brooks v. So. State v. Mc 592; Holloway, 355 Mo. Bride, Sup., 231 W. v. Mo. S. State 209, State, 662; Okl. Cr. (2d) 195 W. McDaniel v. S. 736; (2d) 417, 155 Pac. State, 79 Okl. Cr. 358; Stacey v. 554; Spiegel v. (2d) Conwell, 36 N. M. v. State Mut. Thompson v. Bankers’ 1105; Hays, 660, N. E. 118 N. Y. State, 180; Johns W. 474, 151 Minn. Casualty Co., N. Ins. *16 50 prove the may N. not however 129 W. Hе Neb. circumstances the crime.
details or of or nature of permitting proof the name reason for of of Utah in Supreme stated Court the crime well it Crawford, 717, 719, said: State v. Utah where reasoning think, weight authority, and, we the better “The of jurors particular felony is are entitled to know of what that of is ad- witness has been convicted. The evidence conviction credibility purpose affecting missible of the wit- degree greater turpitude ness. Some crimes involve a of moral than others. Some felonies are heinous Some more than others. felony charges credibility convictions on affect the of witnesses much more than others.” Supreme Washington Court applicable stated the rule Steele, State v. Wash. as follows: apparent, course,
“It is at once that if record of the introduced, necessity conviction is it will of show the nature of the offense and the extent punishment, and, since cross- only an examination is alternate proving method of the convic- tion, why we see no reason may be examined as to matter the show, record itself will and this we think part was the of that of the statute we have above quoted.” Hadley State,
In supra, the Supreme Court of Arizona say: had this to general rule,
“The in the absence of a regulating statute matter, when defendant offers as a witness, himself is it may shown, be either the record on cross-examination, previous that he has suffered conviction of a felony or felonies. permissible Either method [citing authorities]. record,
“The previous which the best evidence of a convic- tion, always It, course, introduced. would show the anticipation nature of the crime. The defendant cannot in exposition past particular, testifying of his in that showing examination, prevent prosecution direct from on his previously which convicted. the nature of the crime of he was weight impeachment Indeed, the of the evidence as a factor of pre- depends upon the character of the crime involved *17 as, turpitude vious it moral or whether involved conviction— merely 23, 212 prohibitum.” was malum Ariz. Pac. [25 462.] inquire This court proper has held that it is to as to the name or nature of the crime State involved conviction. v. Smith, 563, 57 190 Mont. the rule Pac. Such is also Federal States, (2d) courts. Arnold v. 10 Cir., United 94 F. 499, and long page may list of cited cases 506. It also be many shown how times a witness has been convicted. State v. Gentry, 212 Sup., (2d) Mo. W. 63; Hadley S. State, supra; v. People v. Eldridge, supra; People Moran, 472, v. 25 App. Cal. 144 152; Dively Pac. People, v. 268, 74 220 991; Colo. Evidence, Wharton’s Criminal Ed., 11th 3, Witnesses, Vol. sec. 1374, p. 2261.
Here defendant on his cross-examination stated that he did
not know
felony
the nature of the
of which he had been con-
victed. He tried
impression
to leave the
with the
that the
charge
bankruptcy.
Obviously a
may
witness
by
sort of evasive answer, whether intentionally
not,
evasive or
preclude a showing of the actual crime of which he stands
convicted. Where a
equivocates
witness
in his answer as to the
nature
felony
of the
of which he stands convicted a reasonable
latitude of cross-examination is permissible.
People,
Davis v.
77
546,
Colo.
A like situation arose in State Forsha, v. 190 Mo. S. A., W. L. R. S.,N. 576, and the disposed court question by of saying: “After the witness admitted that pleaded guilty he had assault, to a nothing common there was improper permitting by the state to show the record that the pleaded guilty charge witness had a to of an assault with intent testimony affecting crеdibility to kill. This was admissible as of the witness.”
A Supreme Michigan, like situation was before the Court of 1033, 1034, W. Lascowski, Mich. 46 N. Helwig v. disposed question
L. R. court in that case A. and the formerly dis- saying: shown to “The facts which could be credibility, affecting his qualify may be a witness now shown and, as.formerly accept objecting party was not bound to interest, relationship, witness his statement as to denial, crime, might prove against his conviction but so why party can no see reason who desires to show like facts to discredit a should be bound his answer. statute provides expressly that such be The natural facts shown. and, ordinarily, way prove true, the easiest if them, himself, ought the witness party deprived but the not to ’’ statutory right by the falsehood the witness. People Jacobs,
In supra, the court held that when defend- pleaded ant guilty testified that charge receivihg to a property stolen proper it was read tо him the information pleaded guilty show he had grand to the crime of *18 larceny charge than, lesser but included within that con- —a charged robbery. tained the information which Here the surrounding details and circumstances the offense for which defendant was gone convicted were not into. The judgment of conviction was all that was introduced. The under our statute was entitled know only to that defendant had been convicted a felony but the nature of that felony, affecting credibility as his as a witness.
My opinion associates their rest upon they what call the practice uniform trial in Montana. my This is first information trial that the courts of this state have prac- followed a uniform any subject. they That subject tice on have not on the we are considering by plain Smith, is made the decision in State v. supra, proper compel it held objec- where was to a witness over question tion answer the whether he had not been to convicted sedition. is needs It plain The is that no construction. statute so ambiguous. desiring person to show that or not uncertain felony plain may under the has been convicted of a a witness proving methods of of two take choice wording of the statute may upon so the examina- by or do the record it. He do so equivocates Where, here, the witness tion witness. of the he stands which the crime of nature of to the his answer as necessary making it is to blame convicted, himself then he to fact as prove the to judgment of conviction to to the resort is room for Furthermore, if there the crime. the nature of not be counten- will statute, a construction construction of the of the manifest “operates anced which to defeat expressed legislature as intention of the statute and the or contemporaneous doctrine of language employed” and the judicial construction, applicable construction practical if to general distinguished trial from construction courts as * * * and reserve. public be resorted to with caution “must contemporaneous or any event, apply In doctrine of to statute, a statute so construed practical construction to ambiguity uncertain, doubtful, ambiguous, and the must be or great compel language must be so as to which arises from the to aid upon seize extraneous circumstances the court plain, meaning reaching statute a conclusion. Where the will not contemporaneous practical construction thereof contradict, modify, destroy, abrogate, permitted control, Jur., Statutes, sec. enlarge, meaning.” 50 Am. or restrict that 311, 312. pp. only testifying seeing My witness associates аssert that prosecutrix. That charged was the defendant commit the acts charged generally such the crime is true. The nature of prosecutrix But the was corroborated eye there are no witnesses. many witnesses. respects by disinterested day 22nd testified that on the prosecuting day question, act in she was July, 1949, which was *19 money crying had no with lobby the hotel because she why was Defendant asked her she attend the fair. which to money she him needed some so crying and she told that she thereupon her that if go Defendant stated to could to the fair. help make some beds he would with him and she would come did, and said that as soon as give dollar. This she she her a they making pushed top the bed he her on of the bed. started She then testified:
“Q. A. his happened? And then what And then he took me bed pants, pants, unbuttoned his and held down on the and my pulled my jeans knees. down to “Q. happened, A. And whаt Bonnie? And then he took else that, out, said, that,’ I and thing his and ‘What’s what’s he anything. put my thing he it in never said And then tried to big hurting crying. his I but was too started started “Q. happened, Bonnie? A. After he held And then what grabbed there, then I hold of bedstead there me on the bed myself my jeans I I pulled up grabbed and when done that up at same time.
“Q. you do, A. And then what did Bonnie? We—he started chasing and I went me around the dresser around the dresser.
“Q. give you any money, And did John Coloff Bonnie? money put A. He on the bed.
“Q. any? you A. Yes. And did take “Q. you A. A How much did take? dollar.
“Q. happened, Bonnie? A. And then what While we were running go push I would around I around it each time would finally got I the bolt a little further and it clear undone. “Q. Q. Where was A. On And then the bolt? the door. you finally grabbed A. when it was what did do? And out ran it.” hold of the door and out shut lavatory Thompson testified that went The witness he July 22nd, Rex hotel, floor of the on and while the second girl upstairs crying. a little He heard a there heard come crying and why man ask her she was she said her mother had gone any money fair and that herself didn’t have to the she go; her and couldn’t that the man then asked to come into money. give Thompson Mr. room and would her the testified he girl say listened the hall and heard the little some- he my be,” that, thing pants and “What’s what’s about “Leave girl being “monkeyed thought with” that.” That depot got two fellows and went across the street to the *20 went to the other two men He and the with him. come over and the man the room where the door of and listened at hotel get the up town to then and went left girl were. .The re- he the sheriff him. When and returned with sheriff and wit- upstairs. the hall sweeping the defendant turned who went with he of the men testified that was one ness Stower He of the room. and at the door Thompson to hotel listened the girl say, and he heard the whispering heard lot of said he a down enough.” That he went stairs enough, “That’s that’s depot back to the listening ten minutes and started after five or upon entering it, passed and and then back to the hotel came having him down girl pointed come a little who was out room, up he follow her town. The wit- from the and started to Thompson Doran men who went with ness also was one the He Rex hotel who listened at the door. Stower the say, enough, that’s whisper girl also heard “That’s ’’ He, enough. listening minutes, five ten went after for some downstairs; open that he heard door of the room and click girl tripping shut and the stairs little came down the about later; girl minute that when the left hotel he and the They up got witness Stower followed her a police- the street. man police- and returned to the The witness directed the hotel. man place. police- room where occurrences took Dennison, man Mr. who returned to hotel was chief police Shelby. He saw defendant asked him what was trouble there and the defendant answered that was no trouble; anybody there was defendant denied with given room him. It will thus be noted that the evidence by prosecutrix many respects inwas corroborated disin- terested witnesses.
My prosecutrix make much of the fact that associates also day alleged admitted to Dunstall on the crime Sheriff her. that defendant had not molested It should noted “Q. Mr. Dunstall also Was connection that was asked: A. No there further conversation relative to that fact? cry other than the fact that she became excited and started to time, at I assured her that there pacify and tried to her and damage would be her.” no done to Prosecutrix had that if she testified that defendant told her. * * * bury happened, told what “he would me the dirt. said, your get your your aunt will Helen and cousin ’’ mother. *21 my light easily
To mind understandable of this why eight year girl threat old denied to the sheriff that her, defendant if we that knew molested assume she the mean- ing of the molest. word concede, course,
I judgment standing that the of conviction against “weighed heavily against” defendant him. That is the allowing statute him impeached when he submits as a himself witness.
I Judge Hattersley correctly think ruled in permitting the judgment of conviction to be received evidence and considered jury. agree my
I with associates that the other instructions offered property defendant were refused. my opinion In judgment should be affirmed.
ME. JUSTICE METCALF:
I Angstman’s concur with Mr. Justice with respect dissent to the previous admission the record of commitment. The majority opinion merely comments on the evidence to indicate admission of the and commitment in the perjury case have been the decisive factor in the minds of finding guilty. the defendant the majority Since opinion trial, returns this case for new withhold com- weight sufficiency ment of the evidence. DOCOTOVICH, DOCOTOVICH, Appellant, Defendant. No. 9042. April 18, March 1951. 1951.
Submitted Decided (2d)