42 Minn. 258 | Minn. | 1890
Defendant stands convicted of the crime of assault in the second degree, as defined in the fourth subdivision of section 187, Pen. Code. Upon appeal, he alleges error in rulings made by the trial court upon the admissibility of certain testimony, and, further, that the verdict is so manifestly and palpably against the evidence as to raise the presumption that it was the result of prejudice and passion. The case has been here before. 38 Minn. 438, (38 N. W. Rep. 355.)
1. The court below ruled correctly as to the admission in evidence of the conversation which occurred, immediately before the defendant’s arrest, between his wife and the police officer. The latter was in the hallway, upon the outside of the door which opened into defendant’s living room. The wife was in the room, the door being closed. From the situation- of the parties, it would be impossible for the officer to say positively that defendant was in the room at the time, and had knowledge of what was said by his wife to the of
2. The defendant introduced evidence to establish previous good character, and became a witness in his own behalf. On the cross-examination, he was interrogated, despite the objection made by counsel, as to his having been convicted some years before of the offence of assault and battery. He did not expressly deny such conviction, but his answers were evasions, or, possibly, might be regarded as an admission of the charge. Thereupon, in rebuttal, over defendant’s objection that it was incompetent and immaterial, the state was permitted to show by the record that defendant had been convicted of the misdemeanor before mentioned. His counsel now contends with great earnestness that this ruling was erroneous, but seems to have abandoned the position, taken upon the trial, that the cross-examination of the defendant as to the former conviction was equally improper. If the cross-examination was proper, — and, under the circumstances, we are justified in assuming that it was, — it is difficult to see, upon general principles, without regard to a statute which may control and govern, any substantial reason why the fact of conviction should not be established, irrespective of the purpose, by the best evidence obtainable, that is, by the record. The object being to discredit the witness, why should the disparaging, and perhaps very degrading, testimony be drawn from the witness himself, and the better evidence in degree excluded, contrary to a well-known rule ? There are very respectable authorities holding that, when evidence of former conviction is offered for the purpose of affecting the credibility of a witness, it should be the record thereof. Carpenter v. Nixon, 5 Hill, 260; People v. Satterlee, 5 Hun, 167; Shay v. People, 22 N. Y. 317. But we are relieved of the necessity of passing upon this question by section 531 of the Penal Code, which provides that a conviction of any crime may be proved, either by the record or by cross-examination of the witness, for the purpose of affecting the weight of his testimony.
As to the claim that the evidence did not justify the verdict, we need but to say that the defendant has now been convicted twice, and that, if the jury at the last trial believed the testimony of the witnesses for the state, there was an abundance of evidence to sustain the result.
Order affirmed.