O'Connor v. St. Louis Transit Co. , 106 Mo. App. 215 ( 1904 )

BLAND, P. J.

(after stating the facts). — The error complained of by the defendant is the action of the trial court in excluding the transcript from the docket of the police court and sustaining the objections to the following questions propounded to plaintiff on her cross-examination: First: “You whipped her (Mrs. Spior) once, and I will ask you if she didn’t have you arrested and try you in the police court?” Second: “You were never fined by the police judge in the police court in the city of St. Louis?” Defendant does not set out the answers be expected to elicit from plaintiff to the above questions, and for this reason we might dismiss the matter without comment. But' we will anticipate what defendant expected the answers to these questions would he, had plaintiff been required to make answer. The fair inference to be drawn from the questions is that if plaintiff had answered them, she would have said that she had whipped Mrs. Spior, that- the latter had her arrested for the assault and that she had been fined therefor by a police justice. These questions were evidently asked for the purpose of discrediting plaintiff as a witness. The jury, being the exclusive judges of the degree of credibility to be attached to the testimony of a witness, his credibility is always open to inquiry within legal rules and limitations. It is the law that on cross-examination the credibility of a witness may be affected, impaired or totally annihilated by showing from his own mouth his moral rottenness or total depravity, and for this purpose he may be asked on cross-examination, if he was ever in jail or State’s prison and how much of his life had been passed therein. Real v. The People, 42 N. Y. 270. In Wentworth v. Buhler, 3 E. D. Smith 305, Woodruff, J., ruled that “a question on cross-examination that is relevant to the credibility of the witness is proper.” This court, in Miller v. St. Louis Hospital Association, 5 Mo. App. l. c. 401, approvingly quoted the following from Stevens ’ Digest, Laws of Evidence 123: “When a witness is cross-examined, he may in addition to the questions hereinbefore referred to, be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.” The court further said: “But the extent of the cross-examination of this nature is somewhat in the discretion of the court, and must necessarily be so, to prevent abuse. ’ ’ The opinion in this case was approved by the Supreme Court. See same case, 73 Mo. 242.

The discretion which the court may exercise in a cross-examination of this nature, we apprehend, does not authorize the court to deny the right to make the cross-examination at all, but to put an end to it when, in the opinion of the court, it has been carried far enough and to permit it to go on would be oppressive or useless. The questions, to be relevant, must be such, if answered in the affirmative, as will tend to shake the credibility of the witness by injuring his character. If, therefore, the questions do not tend to impugn the character of the witness for morality, virtue or honesty, or .for truth and veracity they would be irrelevant and should be excluded. Assuming then, that the plaintiff, if she had been required to answer the questions, would have said, she did whip Mrs. Spior and that she was taken before a police judge and fined for assault and battery, would her answers have injured her character for morality, honesty or virtue, or for truth and veracity? We think none of these elements of character are involved in a mere assault. At most, the evidence would have shown that plaintiff was a woman of ill temper, rough and unladylike, but would not warrant the inference that she was immoral, dishonest or untruthful. For this reason we do not think the trial judge erred in sustaining the objections to the questions.

In respect to the exclusion of the transcript from the docket of the police justice, we need only repeat what has often been said by the Supreme Court, that is, that a record of a court of a former conviction of crime is not admissible for the purpose of discrediting a witness, unless the conviction was of an offense the law denounces as_infamous. Fanning v. State, 14 Mo. 386; State v. Taylor, 98 Mo. 240; State v. Donnelly, 130 Mo. 642; Gardner v. Railway, 135 Mo. 90; State v. Grant, 144 Mo. 56.

The errors complained of we think are without substantial merit and the judgment is affirmed.

Bey burn and Goode, JJ., concur.