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State v. Duke
123 A.2d 745
N.H.
1956
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Blandin, J.

The only question transferred is whether the Court erred in permitting the county solicitor to cross-examine the defendant, who testified voluntarily, concerning his prior criminal оffenses for the sole purpose of attacking his credibility. A long and unbroken line оf decisions in this state holds that such inquiries may be permitted within the discretion of the Trial Cоurt. In Constantine v. Grenier, 81 N. H. 550, a case of trespass, counsel was permitted, subject to exception, to cross-examine the defendant for the purpose of discrediting him, as tо whether he had been convicted of violating the liquor laws. On appeal the verdict was upheld, and the court, citing Gutterson v. Morse, 58 N. H. 165, said that the latitude of such questions ‍​​‌‌‌​‌​​‌​​‌​​​​‌‌‌‌​‌​​​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‍to discredit was within the sound dis *293 cretion of the Trial Judge. State v. Travis, 82 N. H. 220, involved a charge of operating an automobile under the influеnce of liquor and the defendant, having elected to testify, was asked in cross-examination about a previous conviction for the same offense. The court held “The inquiry objected to in the present case was competent оn the issue of the defendant’s integrity.” In State v. Grierson, 96 N. H. 36, a trial upon an indictment for first degree manslaughter, the cross-examiner was allowed to ask the defendant about her drinking and relations with a man not her husband “to discredit her as a witness.” Id., 39.

State v. Sturtevant, 96 N. H. 99, 105 was an appeal from a conviction for driving under the influence of liquor. Counsel cross-examined the defendant as to a ‍​​‌‌‌​‌​​‌​​‌​​​​‌‌‌‌​‌​​​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‍previous conviction for the same offense and his right to do sо was upheld. The court in upholding the verdict distinguished the case of Genest v. Company, 75 N. H. 365, relied upon thеre as in the instant case by the defendant, on the grounds that in the Genest case where thе defendant did not testify, the opposing party could not discredit him by independent imрeaching evidence. Obviously, the decision is not authority for the defendant in the present case. A very recent decision, State v. Mihoy, 98 N. H. 38, involved an indictment for breaking and еntering. The defendant was asked on cross-examination whether ‍​​‌‌‌​‌​​‌​​‌​​​​‌‌‌‌​‌​​​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‍he had previously been guilty of armed assault and his exception to the admission of this question was overruled.

We are aware of the arguments for a rule which would limit impeachment in such cases to crimes directly involving lack of veracity. See 89 U. Pa. L. Rev. 166; Am. Law Inst., Mоdel Code of Evidence, Rule 106 (1) (b); Id., 341. It seems to us that such a rule represents too narrow and artificial a view. The object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth. What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason apрears why the jury should not be informed what sort of person is asking them to take his word. In transаctions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a rеal sense when a defendant goes onto the stand, “he takes his character with him.” United States v. Gross, 103 F. (2d) 11, 13. Lack of trustworthiness may be evinced by his abiding and repeated contempt ‍​​‌‌‌​‌​​‌​​‌​​​​‌‌‌‌​‌​​​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‍fоr laws which he is legally and morally bound to obey, as in the case at bar, though *294 the viоlations are not concerned solely with crimes involving “dishonesty and false statеment.” C/. American Law Institute, supra, 341. Such evidence may well have more probаtive value as bearing on credibility than a conviction of a single felony cоmmitted in a moment of weakness or passion, though the admissibility of such convictions is clearly established. See State v. Mihoy, 98 N. H. 38, 40, 41, and authorities cited; see also, RSA 516:33. If the matters inquired about in cross-examination seem unduly prejudicial, or •too trifling or remote in time tо have a real bearing on credibility, the Court should refuse to permit their introductiоn. On the other hand, we believe that rules founded on the fear that the Trial Judge will not use discretion and the jury be devoid of common sense tend to defeat the whole purpose of trial by jury.

In the light of long and reasonably satisfactory experiеnce in this jurisdiction we follow our established rule that when the defendant testifies the lаtitude allowed in cross-examination ‍​​‌‌‌​‌​​‌​​‌​​​​‌‌‌‌​‌​​​‌​​​​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‍as to his past offenses, for the sole purpose of discrediting him, is within the discretion off the Trial Court. In the present case we find no abuse of discretion and the order is

Exceptions overruled.

All concurred.

Case Details

Case Name: State v. Duke
Court Name: Supreme Court of New Hampshire
Date Published: Jul 6, 1956
Citation: 123 A.2d 745
Docket Number: 4505
Court Abbreviation: N.H.
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