Plaintiff in error was convicted in the United States District Court, Eastern District of Arkansas, upon one count of an indictment charging him with unlawfully carrying on the business of a wholesale liquor dealer without having first paid the special tax, as required by law, and was sentenced to the United States penitentiary at Atlanta, Ga., for a period of 18 months, and fined $1,000. Three questions are urged in argument:
First, misconduct of the district attorney. It is sufficient as to this to say that the alleged remark of the district attorney claimed to be prejudicial does not appear in the record. Hence that matter is not before the court.
Second, alleged error of the court in sustaining an objection to a question asked the witness, Sparks, as follows: “Mr. Sparks, have you been convicted of a felony?” Of this we speak later.
The third question is that urged by counsel that the evidence was insufficient to sustain the conviction. The indictment was under the old law, which was re-enacted by what is known as the Willis-Campbell Act, approved November 23, 1921. 42 Stat. 222, c. 134 (Comp. St. Ann. Supp. 1923, §§ 10138y2aaa, 10138%bbb, 10138i/2ece, 10138%a-10138$5e). It is urged that the evidence does not show the offense was committed after that time.
The record fails to show that any contention was made in the trial court that the evidence was insufficient to carry the case to the jury. Outside of any other question, however, we think there is evidence from which a jury could find that the alleged business of plaintiff in error was carried on after the passage of the Act of November 23, 1921. Therefore this point is without merit.
*130 We return, therefore, to the proposition presented as to the alleged error of the court in sustaining an objection to the question asked the "witness Sparks as to whether he had been convicted of a felony. The court’s theory of the matter is shown by its remark in sustaining the objection, “There is a way of bringing it in, by bringing a certified copy of the conviction.” This raises a very interesting and important question, upon which the briefs furnish us little assistance.
The direct question here presented seems never to have been determined by this court. In Bise v. United States,
In Glover v. United States,
The question is now properly before this court. Therefore the time has arrived to determine it.’ At common law persons convicted of infamous crimes were incompetent to be witnesses at all, on the theory that they were so destitute of moral honesty that truth could not within them dwell. In nearly all of the states of the Union this disqualification of the witness is now removed, and one who has been convicted of crime is a competent witness, but the general provision of state statutes is that the conviction may be shown to affect credibility.
As to some crimes, such as perjury, it is pointed out by the Supreme Court in Rosen et al. v. United States,
The decisions construing the statutes of the various states on this subject are not uniform as to just what class óf crimes a witness may be proved to have been convicted of in order to affect credibility. This court, as we have heretofore pointed out in Glover v. United States, seems to approve the general rule that the crime must rise to the dignity of a felony or petit larceny.
In Neal v. United States of America (filed July 14,1924)
We refer to some of the authorities and cases holding that the conviction must be proved by the record thereof. The follow *131 ing words of Prof. Greenleaf are generally cited in support of the contention: “But, on the other hand, where the question involves the fact of a previous conviction, it ought not to be asked, because there is higher and better evidence which ought to be offered. If the inquiry is confined, in terms, to the fact of his having been subjected to an ignominious punishment, or to imprisonment alone, it is made, not for the purpose of showing that he was an innocent sufferer, but that he was guilty, and the only competent proof of this guilt is the record of his conviction. Proof of the same nature, namely, documentary evidence, may also be had of the cause of his commitment to prison, whether in execution of a sentence, or on a preliminary charge.” Greenleaf on Evidence, § 457.
Perhaps the strongest statement of this theory is found in Hall v. Brown,
“The statute therefore authorizes no other mode of proving a witness unworthy of credit because of his presumed insensibility to the obligations of an oath, as evidenced by his commission of an infamous crime, but the record of his conviction, because his conviction can be proved only by the record, and we think the strictness of the rule is founded in the soundest reasons of justice and of policy. If the question of the witness’ guilt or innocence of crime in fact, were permitted to be tried, issues would often be so greatly multiplied that the merits of the principal cause on trial would be lost sight of, and the rights of the litigating parties sacrificed. And it would also be doing great injustice to the witness to subject him to trial for crime in a case to which he was not a party. The common law therefore determined wisely when it excluded all evidence of the criminality of a witness except the record of his conviction. And we think the court ought not to depart from this wise and salutary rule any further than the plain import of the statute requires. The statute is an enabling or remedial one, and should be construed liberally in favor of the party for whose benefit it was made. It speaks only of persons who have been convicted of, not of those who have committed, crimes, and it provides that such conviction, not such commission, may be shown to affect the credit of the witness.”
See, also, as sustaining the record doctrine, Commonwealth v. Walsh,
Among the eases and text-writers sustaining the right to show conviction of crime by cross-examination as affecting credibility, are the following, in the consideration of which and the weight to be attached thereto, should be noted that some of the states have statutes providing that the conviction may be shown either by record or by cross-examination; others, that it can be shown only by the record; while others have no provision as to method of proof:
“In this country there has been some hesitation in permitting a question the answer to which not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly discrediting a witness, to require answer.” Wharton’s Criminal Evidence, § 474.
Underhill on Criminal Evidence, §§ 60, 61, referring to cross-examination of a defendant as a witness: “He may be questioned as to specific facts calculated to discredit him. Thus Ms previous arrest or indictment, his conviction of a felony, a previous imprisonment in a penitentiary or house of correction, his prior contradictory statements, disorderly actions, or the commission of offenses similar to that charged, attempts to bribe witnesses, or simulation of insanity, may all be brought out by questions put to Mm on Ms cross-examination, to show what credit his evidence should receive.”
Wigmore on Evidence, vol. 2, § 1270: “ * * * The result is that three types of rule now obtain in the different jurisdic *132 tions: (1)’ The requirement of a copy in all cases; (2) the allowance of an admission on cross-examination of the witness to be impeached, but the requirement of a copy or an abstract when proof is made by an-' other witness — this rarely’ by common-law decision, but widely by statute; (3) the allowance of recollection testimony either from the witness to be impeached or from another — this rarely, and by statute only. The second form is the only proper one, and now obtains in the majority of jurisdictions.”
Thompson on Trials states (section 467): “There is a confusion in the authorities as to whether a witness may be asked, on cross-examination whether he has been arrested, indicted or convicted upon a criminal charge. One of the difficulties grows out of the question whether such a matter can be proved by secondary evidence, even by the admission of the witness, who must, of all men, be certain of the fact if it existed. The strain about secondary evidence in such a case is a mere quibble, totally destitute of common sense” — and cites many cases where, a witness has been impeached on cross-examination by inquiry as to whether he has ever been convicted of a felony.
28 Ruling Case Law, § 213: “The weight of authority, however, clearly sustains the right to show such conviction by cross-examination.”
In McLaughlin v. Mencke,
“While there is some conflict in the authorities and text-books, as well as reported cases, upon this subject, we think the more reasonable and practicable rule is that which does not demand the production of the record when the object, as here, is solely for the purpose of discrediting.”
In State v. Knowles,
“In many of those jurisdictions, however, where the conviction of crime no longer affects the competency, but simply goes to the credibility, of the witness, there has been- a tendency, sometimes by legislative enactment and sometimes by judicial decision, to broaden the sources of evidence, and permit the conviction to be shown by cross-examination of the witness himself. In a technical sense the record may be the best evidence, and the rule of primariness may require its production. This general rule, however, is of no great value, unless in its application to the subject under consideration it is necessary for the interests of justice to avoid error, exclude falsehood, and promote the truth. It can hardly be claimed that a record of conviction is any more convincing to the mind, or less liable to error, than is the witness’ own admission of the fact under oath. He may well be presumed to know what the truth is. There is very little possibility of his being mistaken as to the fact of the conviction, and none as to the identity of the party convicted. He has every inducement of self-interest to protect his good name and reputation, and it is inconceivable that he will falsely accuse .himself.”
Further the court says:
“The all-important thing to be proved is the fact of conviction. As to the form of proof, it is sufficient if it be reasonably free from the possibility of error. To hold that we cannot receive as evidence the witness’ own admission of a fact which he has every inducement of self-interest to deny, an admission which can be wrung from him by the all-compelling power of truth alone, is to exalt the shadow above the substance, to return to the reasoning and results of the ■ earlier and darker period of the law’s development, rather than to those which have obtained and prevailed in modem and more enlightened times.”
Vermont has a statute that conviction of a crime involving moral turpitude may be given in evidence to affect the credibility of a witness. In McGovern v. Hays
&
Smith et al.,
In Commonwealth v. Racco,
In United Railways & Electric Co. of Baltimore v. Phillips,
In State v. Martin,
In Younger v. State,
In Hunt v. State,
In Burdette v. Commonwealth,
In James Wilbur v. Luther J. Flood,
As supporting the cross-examination theory, see Elliott on Evidence, § 216; 40 Cyc. p. 2622. See, also, State v. Babcock, 25 R. I. 224,
As sustaining the proposition that the matter of permitting such question to be asked is within the discretion of the court, see State v. Slack et al.,
The rule requiring record evidence, or the best evidence of which a case in its nature ' is susceptible, is to prevent fraud, and reduce possibility of error to a minimum. In United States v. Reyburn,
“The rule of evidence does not require the strongest possible evidence of the matter in dispute, but only that no evidence shall be given which, from the nature of the transaction, supposes there is better evidence of the Tact attainable by the party. It is said in the books,- that the ground of the rule is a suspicion of fraud, and if there is better evidence of the fact, which is withheld, a presumption arises that the party has some secret or sinister motive in not producing it. Rules of evidence are adopted for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they are designed.”
How can there be any particular possibility of fraud or error in asking a witness a question which it is in his interest to deny, and- the answer to which is wrung from him by the court processes of securing the truth? Where life and liberty depend upon the testimony of another, it is in the interest of justice that the jury should have before them every fact affecting the credibility of the witness. Otherwise, a party may be deprived of life and liberty by the testimony of a criminal, as well as by the evidence of one whose life is stainless and character unquestioned.
Certain refinement of reasoning on this question is indulged in by some of the courts, as for instance in Real v. People,
The court concluded that the witness could be asked whether he had been in the jail or penitentiary or state prison, and' how much of his life he had passed in such places, but says: “When the inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply.. This involves questions as to the jurisdiction and proceedings of a court of which the witness may not be competent to speak” —and says that “the extent of the cross-examination of this character is somewhat in the discretion of the court, and must necessarily be so to prevent abuse”; that “this discretion should be liberally exercised with a view to arrive at the truth.”
That a witness may be asked whether he has been in the penitentiary and for how long, as this case holds and as many of the authorities hold, and yet to say that he cannot be asked whether he was in the penitentiary as the result of a conviction of a felony, is a technical refinement that does not appeal to common, sense and is not in the interest of truth and justice. Why should a party be put to the expense of securing the record of conviction in possibly some far-distant court, and why should a trial be delayed in order that such record may be secured, if the witness who would know the fact better than any one else is willing to testify against his own interest and against his own standing that he has been convicted of a felony? A witness could *135 he asked on the stand as to the date of his birth or the fact of his marriage. There is in most of the states a written record of birth, likewise written evideneo of marriage by return to the proper county official, and the question as to birth or marriage would call for secondary evidence, ;just as much as the question of whether he had been convicted of a felony. All would be important facts in his life, which the witness would know better than any one else.
From Milo Clemens et al. v. Louis Conrad,
This was approved as correct doctrine by the Seventh circuit in Lang et al. v. United States,
The question naturally arises as to how far the inquirer is hound by the answer of the witness. While the cross-examiner is allowed a wide range under the discretion of the court for the purpose of showing the character of the party on the stand, and may go into certain collateral matters, the general rule is that he is bound by the answer he obtains. Johnson v. United States,
We think, however, the question of the witness’ credibility is not a mere collateral matter. It bears on every issue involved as to -which such witness gives testimony, and that which impairs credibility is material in the highest degree. The party inquiring of a witness as to his conviction of a felony should not be bound by a false answer, if he can procure the record of conviction and refute the same. The court cannot, however, enter upon a trial of the question of conviction, and therefore the refutation of the witness’ answer should be confined to the record of the conviction. Unless said record is produced the answer of the witness is binding on the inquirer. That risk he takes in asking the question.
Taylor on Evidence, vol. 3, § 1438, says on this subject: “Fourthly, it may be broadly laid down that where questions, put to a witness on cross-examination for the purpose of directly testing his credit, relate to relevant facts, his answers may be contradicted by independent evidence. If, however, questions are put with this object upon irrelevant matters, the answers given by the witness cannot be contradicted. The question, what matters connected with the witness are or are not relevant, has been discussed on a former page. In addition to what is stated there, it should be observed, that inquiries respecting the previous conduct of a witness will almost invariably he regarded as irrelevant, if not connected with the cause or the parties. Therefore, if a witness be questioned on cross-examination respecting the commission of crimes by him on some former occasion, his answers must (except in the case of an actual conviction) be taken as conclusive.”
There should be a limitation to the rule hereinbefore announced, and that limitation is that the right to ask a witness on cross-examination the question whether he had been convicted of a felony, is subject to some extent to the regulatory, sound discretion of the court to prevent the abuse thei'eof. The question may be asked, not for the purpose of honestly discrediting the witness, but really to raise imputations against his character, where there is no foundation whatever therefor, in order to affect the jury, and hence there should ho some discretion in the court to determine whether the question is asked for the purpose of honestly discrediting the witness or whether its purpose is merely to arouse unjust suspicion in. the minds of the jurors. The difficulties and annoyances of the witness’ chair should not ho augmented by unwarranted insinuations or abuse perpetrated by means of cross-examination. There is no difficulty, we think, in a court holding an examination within hounds by the exercise of a sound discretion, and where the question is not asked with the honest pur *136 pose of discrediting the witness the court has it within its power in the ■ exercise of such discretion to protect the witness and prevent unfair imputations. Our conclusion in the whole matter is that a witness may be asked on cross-examination, for the honest purpose of affecting credibility, whether he has been convicted of a felony, subject to such limitation as the sound discretion of the court may dictate to prevent abuse of the right; that- the questioner is bound by the reply, unless the record of conviction is. produced to refute the answer of the witness.
In this case the witness, Sparks, was a leading witness for the government. Without the evidence of Sparks there would not be, sufficient evidence to warrant a conviction. There is nothing to show that the question was not asked in good faith for the honest purpose of affecting the credibility of the witness. The refusal to permit the answer was error and was prejudicial.
The case is therefore reversed and remanded, with instructions to grant a new trial.