Scott v. State ( 1968 )

NESBETT, Chief Justice.

Appellant was convicted in the district court of the charge of soliciting for the purpose of prostitution in violation of state statute.¹ During the trial, the state, in order to impeach appellant and her witness, offered evidence of their prior convictions for soliciting prostitution in violation of an Anchorage city ordinance. Objections to the admission of evidence of the convictions were made on the ground that violations of municipal ordinances are not “crimes” within the meaning of Civil Rule 43(g) (11) [b]² and Civil Rule 43(h) (7) ³ which permit impeachment of a witness by evidence that he has been convicted of a crime. Appellant’s objections were overruled.

The point was appealed to the superior court which affirmed appellant’s conviction, whereupon appeal was taken to this court.

Appellant relies on authorities which have held that a conviction for violation of a municipal ordinance may not be shown to impeach a witness on the ground that only convictions for violations of the law of the land or of the state are admissible for impeachment purposes.⁴ Appellant also relies on relatively recent Oregon authorities holding that a violation of a municipal ordinance is not a “crime”⁵ within the meaning of Oregon law providing that it may be shown, for purposes of impeachment, that a witness has been convicted of a crime.⁶ Appellant points out that Oregon’s definition of a crime⁷ is so similar to Alaska’s definition⁸ that Oregon au-thorites should be controlling.

We are unable to agree with appellant. As early as 1906, in Ball v. United States,⁹ it was established that under Sections 669 and 675 of Carter’s Codes of Alaska, which were taken from the laws of Oregon and which are identical in all pertinent respects with Civil Rules 43(g) (11) [b] and 43(h) (7), that proof of a witness’ prior conviction of a misdemeanor was admissible for purposes of impeachment. There a judgment of conviction of the witness in the United States District Court in the Northern District of California of the misdemeanor of using the United States mails to defraud was held to have been properly admitted into evidence by an Alaska court. In so holding, the court relied upon a decision of the Supreme Court of Oregon.¹⁰ The court in Ball pointed out that the only reason that a defendant who took the stand in his own defense in Oregon could not be asked whether he had been convicted of a crime was because of an Oregon statute which expressly restricted cross-examination of the defendant to the testimony he had given on direct examination. The court specifically pointed out that no such restriction applied under Alaska law.

In Anderson v. State¹¹ this court followed Ball v. United States and construed Civil Rules 43(g) (11) [b] and 43(h) (7) as permitting proof of a previous conviction of a misdemeanor. In Sidney v. State¹² this court said:

Under the wording of Civ.R. 43 and the Anderson case, no limitation exists as to the type of crimes that can be used to impeach a defendant-witness.

Our dissenting colleague doubts that appellant was given a fair trial because evidence was admitted that both she and her witness had been four times previously convicted of the crime of soliciting prostitution, which was the same crime for which appellant was being tried, and that the trial judge did not clearly instruct the jury that this evidence was admitted only to impeach credibility and was not to be considered as evidence of guilt. Our colleague believes that there is a strong likelihood that evidence of the prior convictions was considered by the jury as evidence of guilt of the crime for which appellant was on trial and would order a new trial.

The majority does not share these doubts. Appellant herself apparently has no such doubt for she has made no point of the possibility that the jury may have improperly considered the evidence of prior convictions. The record contains nothing which would suggest a “strong likelihood” that the jury misapplied the evidence. The trial judge did explain to the jury that the evidence was being admitted only to test credibility and was “not to be considered as evidence against her in this particular case.” The trial judge did not again instruct the jury to this effect at the close of the case because district judges are not permitted to instruct juries.¹³ The district judge, therefore, did all that he could permissibly do to clarify the only purpose of the evidence.

The overwhelming weight of authority is that a witness’ credibility may be impeached by evidence that he has been convicted of a crime. In the case before us the complaining witness testified that appellant had offered to engage in sexual intercourse for hire. Appellant’s testimony was directly contradictory. The outcome of the case would necessarily turn on credibility and the state was entitled to impeach appellant’s veracity, if it could, by the evidence in question.

Ordering a new trial would be futile. District court judges are still not permitted to instruct juries and Civil Rules 43(g) (11) [b] and 43(h) (7) are still in effect.

Finding no error, it is ordered that the judgment of the superior court affirming the judgment of the district court be affirmed.

1 . AS 11.40.230.

2 . Civ.R. 43(g) (11) [b] states:

A witness may be impeached by the party against whom he was called by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief. He may not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime.

3 .Civ.R. 43(h) (7) states:

Every natural person has a privilege, which he may claim, to refuse to disclose in an action any matter that will have a direct tendency to degrade his character, except that such privilege shall not exist if the matter relates to the fact in issue or to a fact from which the fact in issue would be presumed.

A witness must answer as to the fact of' his previous conviction of a crime.

4 . Appellant cites Carter v. Duluth Yellow Cab Co., 170 Minn. 250, 212 N.W. 413, 414 (1927); and Roe v. State, 96 Fla. 723, 119 So. 118, 121 (1928) which so held even though the facts constituting the violation of a municipal ordinance also amounted to a violation of state law.

5 . State v. Crawford, 58 Or. 116, 113 P. 440, 441 (1911); Redsecker v. Wade, 69 Or. 153, 134 P. 5, 138 P. 485, 487 (1914) and Triphonoff v. Sweeney, et al., 65 Or. 299, 130 P. 979, 982 (1913).

6 . Section 863 L.O.L. referred to in the Oregon authorities cited by appellant is no doubt the same as present Ore.Rev. Stat. 45.600 (1967) which states:

A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but he may not be impeached by evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convicted of a crime.

7 . Ore.Rev.Stat. 161.020 (1967) states:

A crime or public offense is an act or omission forbidden by law and punishable upon conviction by any of the following punishments:

(1) Imprisonment.

(2) Fine.

(3) Removal from office.

(4) Disqualification to hold and enjoy any office of honor, trust or profit under the Constitution or laws of this state.

8 . AS 11.75.020 states:

A crime or public offense is an act or omission forbidden by law, and punishable, upon conviction, or by any of the following punishments:

(1) imprisonment;

(2) fine;

(3) removal from office;

(4) disqualification to hold and enjoy an office of honor, trust, or profit.

9 . 147 F. 32, 38 (9th Cir. 1906).

10 . State v. Bacon, 13 Or. 143, 9 P. 393, 57 Am.R. 8 (1886).

11 . 384 P.2d 669, 673 (Alaska 1963).

12 . 408 P.2d 858, 863 (Alaska 1965).

13 . District Court Crim.R. 1 (c) states:

The trial shall be conducted as are trials in criminal cases in the superior court, except that the eourt shall not instruct the jury other than to define the nature of the offense charged and the statute or regulation upon which the complaint is based.