People v. Penn , 71 Mich. App. 517 ( 1976 )

T. M. Burns, P. J.

On August 20, 1973, the defendant was convicted by a jury of second-degree murder, MCLA 750.317; MSA 28.549, and assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279. He was later sentenced to life imprisonment for the first offense and 6 to 10 years in prison on the second.

Defendant was charged with the murder of Letha Reckker, with whom he had previously cohabited. It was alleged that the defendant fatally wounded the deceased with a knife while the two were fighting.

Prior to trial defense counsel requested that the prosecution be prevented from impeaching the defendant’s credibility by inquiring into two prior felony convictions. The prosecutor objected and after discussion of the question, the trial court merely stated that the prosecutor would not be permitted to go outside the rap sheet or introduce evidence of prior criminal charges which had not resulted in convictions.

The trial court erred reversibly in failing to exercise its discretion to exclude the defendant’s prior convictions from the evidence. Although defense counsel’s motion to exclude the record was poorly made, the issue was sufficiently raised and should have been considered and ruled upon by the trial court.

The record indicates that the trial court did not exercise its discretion in deciding the question. In fact, it appears that the judge did not explicitly rule on the admissibility of the prior felony convictions at all. While at the time of this trial there was no requirement that the trial judge had to indicate his exercise of discretion on the record, the record reveals that the judge did not have sufficient facts before him to properly exercise such discretion. He knew only the nature of the offenses. No inquiry was made of the dates of the convictions, the most recent of which was in 1955. The remoteness in time of a prior conviction is certainly relevant to its admissibility and should be considered by the trial court. See People v Townsend, 60 Mich App 204, 206; 230 NW2d 378 (1975). The staleness of the convictions in this case, if considered by the trial court, may well have been found' to render their admission into evidence improper.

The trial court’s failure to exercise discretion in ruling on defendant’s motion could not be considered harmless error; the defendant’s guilt clearly was not established by "overwhelming evidence”. People v Johnson, 46 Mich App 212, 221; 207 NW2d 914 (1973). Being the only witness to the entire incident, defendant’s credibility was critical to the weight given to his version of the fight.

Reversed and remanded for a new trial.

D. E. Holbrook, Jr., J. concurs in the result only.