State v. Goodrich

196 P. 1043 | Idaho | 1921

RICE, C. J.

Appellant was convicted of having wilfully and unlawfully sold and disposed of intoxicating liquor for beverage purposes.

To rebut testimony admitted on behalf of appellant that the reputation of respondent’s principal witness for truth and veracity was bad, respondent was permitted to introduce testimony to the effect that the reputation of the witness for truth and veracity at the place where he had resided some three years previous to the trial was good. Appellant contends that the reception of this evidence was error, since the time was too remote to give it probative value.

The reputation of a witness for truth and veracity at the time of the trial is the question toward which the evidence is directed. (Fisher v. Conway, 21 Kan. 18, 30 Am. Rep. 419.) Whether or not the offered evidence is too remote to be of probative value is addressed to the discretion of the trial court. (Snow v. Grace, 29 Ark. 131.) It would be impossible to state a rule of law which would be applicable in all cases. (Lindsey v. Bates, 223 Mo. 294, 122 S. W. 682.) It has also been held, and we think properly, that greater latitude should be allowed in supporting than in attacking the character of a witness. (40 Cyc. 2648.) As was stated in the case of Dimmick v. United States, 135 Fed. 257, 70 C. C. A. 141: “The prosecution could not be limited to the years testified to by the witnesses on the part of plaintiff in error. It had the right, after introducing testimony to the effect that his reputation was good during the years when it had been assailed by the other side, to show what his reputation had been in previous years. The limit placed upon time as to reputation is usually confined to a reasonable period with reference to the time when it is called in question. A man’s reputation may change as years go by, but when assailed for a period of time he has the right not only to show that it was good during those years, but had always been good.”

The court permitted the witness Frank Bowers in rebuttal to answer the following question: “"What conversation took place between you and Mr. Coffman [witness for appellant] .... in regard to your coming down here to testify and impeach Dave Simmons, that part of your conversation?”

Objection was made on the ground that no foundation had been laid to the question as an impeaching question, and that it was hearsay. The court treated it as not impeaching, but as direct evidence tending to show the interest or bias of the witness Coffman. The position of the trial court finds support in the eases of O’Neill v. City of Lowell, 6 Allen (Mass.), 110; Day v. Stickney, 14 Allen (Mass.), 255. We think, however, that where it is sought to show the bias of a witness by proof of his declarations to that effect, the evidence should be considered as impeaching in character, and should be governed as to the method of its production by C. S., sec. 8039. There is the same reason for calling the witness’ attention to his former statements, with opportunity to explain them, as there is with reference to any other statement made concerning which he has testified. (Baker v. Joseph, 16 Cal. 173; People v. Mallon, 116 App. Div. 425, 101 N. Y. Supp. 814.)

In the case at bar, however, prejudicial error was not committed. The witness Coffman had been asked if he had not approached Frank Bowers and asked him if he knew anything against Dave Simmons, and that if he did know anything, that he (Coffman) would pay him well. The witness stated that he had asked Bowers if he knew anything about Simmons for truth and veracity, but that Bowers said he did not, and the witness denied that he offered to pay Min anything. It is clear from the record that there was but one such conversation. Coffman, therefore, had his attention directed to the particular conversation, and had an opportunity to explain the same. The time and place of the conversation, and the person with whom had, should be specified with sufficient definiteness to enable the witness to clearly identify it. The identification of the occasion and the person to whom the statement is made are matters of prime importance in directing the attention of the witness to the subject matter. (People v. Bosquet, 116 Cal. 75, 47 Pac. 879.) Since Coffman showed by his answer that his attention had been directed to the occasion of the conversation and the person with whom it was had, and also that he was familiar with the subject matter, the requirements for which the statute was enacted had been met and no prejudicial error results from the failure to completely lay the foundation in the statutory method. (Gibson v. Seney, 138 Iowa, 383, 116 N. W. 325; State v. Gray, 43 Or. 446, 74 Pac. 927; State v. Ellsworth, 30 Or. 145, 47 Pac. 199.)

Appellant also complains that the judgment is erroneous, in that in addition to imposing a sentence of .imprisonment, and fine and costs, it further provided that in default of payment of the fine and costs the appellant shall be confined in the county jail at the rate of one day for each two dollars of the amount of the fine and costs remaining unpaid.

This question was considered and decided adversely to the contention of appellant in the case of State v. Anderson, 31 Ida. 514, 174 Pac. 124. We have carefully reexamined the matter and are satisfied that the California .and Utah eases to the contrary should not be followed and that the conclusion reached in the Anderson case was correct. In this connection it is proper to suggest, however, that the correctness of the statement in the Anderson case that an execution cannot issue to recover a fine and costs upon a judgment which imposes a sentence both of imprisonment and fine and costs is doubted. '

We have exaiuined the other specifications of error, and consider them to be without merit.

The judgment will be affirmed.

Budge and Lee, JJ., concur. Dunn, J., concurs in the conclusion. McCarthy, J., being disqualified, took no part in the opinion.