State v. Branch

Appellant took the witness stand in his own behalf and gave extensive exculpatory testimony. Thereafter in rebuttal, the state produced several witnesses who testified appellant's reputation for truth, honesty and integrity in the community where he resided was bad. While appellant's assignment seems to limit the asserted error to admission of evidence of appellant's bad general reputation, as distinguished from veracity, prior to his proffer to establish his good character, his ultimate contention appears to exclude any adverse character evidence as to veracity or otherwise and such apparently is the majority holding.

This position utterly fails to distinguish between impeaching the defendant in a criminal case as a witness, and as a defendant where he does not take the witness stand. The latter situation is not before us and the authorities relative thereto are, therefore, not in point.

State v. Williams (Mo.), 87 S.W.2d 175, is relied upon to sustain the proposition that Section 16-1209, I.C.A. does not authorize the character impeachment of a defendant-witness in a criminal case on the ground that we have no statute making said section of the statute applicable.

In the first place State v. Williams, supra, holds and has been construed by later cases in Missouri as holding that a defendant in a criminal case who testifies may be impeached as to his reputation for truth and veracity.

"* * * In the Scott Case, supra, 332 Mo. 255, loc. cit. 266,58 S.W.2d 275, loc. cit. 280, 90 A.L.R. 860, 869, the writer expressed the opinion that the reputation of the witness for honesty also might be shown, on the theory that honesty is simply trustworthiness in both word and deed. And it is a fact that one cannot have a good reputation for honesty if he stands in bad repute for truth and veracity; but there are cases indicating a view that a man may bear a bad reputation for honesty, although not considered untruthful, as where he fails to pay his debts, or is a sharp trader, and the like. (70 C.J., Section 1069, p. 858.) And so, to avoid ambiguity and injustice to the defendant as far as possible, it seems better that the impeaching testimony should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity." (State v. Williams, supra at 182.)

In other words, State v. Williams, supra, held that a defendant as a witness in a criminal case could not be impeached for immorality but could as to his truth and veracity.

"* * * The character of the accused may become involved in two aspects. If he testifies, he may be impeached for truth and veracity the same as other witnesses. See State v. Williams, and cases cited supra. * * *" State v. Robinson (Mo.),130 S.W.2d 530 at 531.

"Appellant assigned error because the trial court permitted the state to introduce evidence which tended to impeach him for truth and veracity. There is no merit in this assignment since appellant testified in the case and was therefore subject to impeachment the same as any other witness.State v. Scott, 332 Mo. 255, 58 S.W.2d 275, 90 A.L.R. 860. * * *" State v. Quinn, 136 S.W.2d 985 at 987. State v.Ferguson (Mo.), 182 S.W.2d 38 at 42.

Therefore, whatever else the Missouri rule may be, the cases in that jurisdiction recognize and reiterate that the defendant as a witness in a criminal case may be impeached by showing that his reputation for truth and veracity is bad.

The questions propounded herein, except for the omission of the word "general", where in the language of our statute, which is truth, honesty or integrity, and State v. Williams, supra, indicated that Idaho authorizes impeachment as to the reputation of a defendant-witness in a criminal case for truth, honesty and integrity, stating:

"This view (that the defendant in a criminal case as a witness may be impeached as to truth and veracity) has the approval of commentators: 2 Wigmore on Evidence (2d Ed.), Section 922, p. 301; Jones on Evidence (3d Ed.), Sections 860, 861, pp. 1356, 1360; Greenleaf on Evidence (16th Ed.), Section 461a, P. 576. And such is the rule followed in the great majority of jurisdictions in the United States. As gathered from 70 C.J., Section 1039, p. 826, 2 Wigmore on Evidence (2d Ed.), Section 923, p. 304 et seq., and the 1934 Supplement thereto, p. 378, and some brief, hurried research of our own, it appears that in nine states (Arkansas, Georgia, Iowa, Indiana, Kentucky, Louisiana, Montana, New Mexico, Oregon) the rule is fixed by statutes permitting evidence as to the general moral character of the witness for the purpose of impeachment. In three states (California, Idaho, Utah) the statute limits the inquiry to the reputation of the witness for truth, honesty, and integrity. * * *"

In the second place, the statement in the majority opinion that our impeachment statute, Section 16-1209, supra, "is not applicable to a defendant in a criminal action in this jurisdiction, for the very obvious reason that there is no statutory provision here, as in other jurisdictions, providing that a defendant, when he testifies in his own behalf, becomes 'as any other witness' and is governed by the same rules of evidence," obviously overlooks Section 19-2010, I.C.A.¹ The identical California statute, Kerr's Code, Section 1102, has been held to make their statute, Kerr's Code, Section 2051, identical with Section 16-1209, supra, applicable to and authorizing the impeachment of a defendant as a witness in a criminal case. (People v. Hickman (Cal.), 45 P. 175 at 176;People v. Prather (Cal.), 53 P. 259 at 261; People v. White (Cal.), 75 P. 828; People v. Bastian (Cal.), 272 P. 756 at 757.)

The only point before us for consideration is the proper rule where the defendant becomes a witness on his own behalf, and the authorities are practically uniform in holding under statutes similar to ours, that where a defendant in a criminal case becomes a witness in his own behalf, he may be impeached by showing that his reputation for truth, honesty and integrity is bad, the same as any other witness.

People v. Hinksman (N.Y.), 85 N.E. 676, cited as supporting the proposition that a defendant in a criminal case, even though a witness, cannot be impeached, holds to the contrary and clearly distinguishes the two situations,

"* * * Logically a defendant who voluntarily testifies in his own behalf occupies a dual position. He is at once a party and a witness, and is entitled to the rights and privileges of each. As a party he need not testify at all.

If he deem it prudent to remain silent, no presumption is to be indulged against him. If he prefers to testify, his general character is safe from attack until he puts it in issue by himself introducing evidence relating to it. But when he assumes the character of a witness he exposes himself to the legitimate attacks which may be made upon any witness. Other witnesses may be called to impeach his credibility by showing that his general reputation for veracity is bad, or he may upon cross-examination be interrogated as to any specific act or thing which may affect his character and tend to show that he is not worthy of belief. * * *" At page 679-680.

and such has been without deviation the subsequent interpretation of this case.

"* * * The position of a defendant is far different when he becomes a witness in his own behalf than when he does not and stands upon his right to refuse to testify. He is surrounded with safeguards, but by becoming a witness the defendant puts his credibility in issue, as does any other witness. * * *People v. Tice, 131 N.Y. 651, 30 N.E. 494, 15 L.R.A. 669;People v. McCormick, 135 N.Y. 663, 664, 32 N.E. 26; People v.Webster, 139 N.Y. 73, 84, 34 N.E. 730; People v. DeGarmo,179 N.Y. 130, 134, 71 N.E. 736; People v. Hinksman, 192 N.Y. 421,432, 433, 85 N.E. 676; People v. Rosenheimer, 209 N.Y. 115,123, 102 N.E. 530, 46 L.R.A. (N.S.) 977, Ann. Cas. 1915A, 161;People v. Richardson, 222 N.Y. 103, 107, 118 N.E. 514; Wigmore on Evid. Sections 61, 889, 890, 2207." People v. Johnston (N.Y.), 127 N.E. 186 at 188.

"In the case of People v. Hinksman, 192 N.Y. 421,85 N.E. 676, 679, the Court of Appeals of New York commenting upon the same question said: 'Logically a defendant who voluntarily testifies in his own behalf occupies a dual position. He is at once a party and a witness and is entitled to the rights and privileges of each. As a party he need not testify at all. If he deems it prudent to remain silent, no presumption is to be indulged against him. If he prefers to testify, his general character is safe from attack until he puts it in issue by himself introducing evidence relating to it. But when he assumes the character of a witness he exposes himself to the legitimate attacks which may be made upon any witness. Other witnesses may be called to impeach his credibility by showing that his general reputation for veracity is bad, or he may upon cross-examination be interrogated as to any specific act or thing which may affect his character and tend to show that he is not worthy of belief.'

"Many cases may be cited from other states that approve the same doctrine, among which are State v. Beal, 68 Ind. 345, 34 Am. Rep. 263; State v. Anderson, 135 La. 326, 65 So. 478; Statev. Dyer, 139 Mo. 199, 40 S.W. 768; Paxton v. State,108 Ark. 316,157 S.W. 396.

"The general rule is stated in 28 Ruling Case Law 620, as follows: 'Generally speaking, a defendant in a criminal case testifying in his own behalf may be contradicted, impeached and sustained in the same manner as other witnesses. His character for truth may be impeached, and the same is true in some jurisdictions as to his general character.'

"An examination of the authorities leads to the conclusion that while the defendant in a criminal case may be protected from attack as to his general character unless he first puts in issue his reputation for good character, yet when he testifies as a witness his reputation for truth and veracity is always an issue and therefore subject to attack independent of any attempt on his part to support the same." Hamilton v. State (Ohio), 177 N.E. 221 at 222.

"The defendant testified in his own behalf, going fully into the facts constituting his defense. To impeach his testimony, the state called several witnesses, who testified that his general reputation for truth, honesty, and integrity in the neighborhood where he lived was bad. Objection was made that such evidence was incompetent, inasmuch as the defendant had not himself put his character in issue. The objection was overruled. The defendant having testified to matters material to his defense, it was competent for the state to impeach his testimony. When a defendant is sworn, and testifies in his own behalf, he is subject to the same rules of cross-examination and impeachment as any other witness. Code Civ. Proc., Section 3379²; Pen. Code, Section 2078³. See, also Mitchell v. State,94 Ala. 68, 10 So. 518; People v. Beck,58 Cal. 212; Drew v. State, 124 Ind. 9,23 N.E. 1098; State v. Rainsbarger, 79 Iowa 745, 45 N.W. 302;State v. Day, 100 Mo. 242, 12 S.W. 365; State v. Broderick,61 Vt. 421, 17 A. 716. The objection was properly overruled."State v. Schnepel (Mont.), 59 P. 927, 928.

"* * * The defendant, having become a witness in his own behalf, was subject to the same rules of cross-examination and impeachment as any other witness. State v. Schnepel,23 Mont. 523, 59 P. 927; State v. Crowe, 39 Mont. 174, 102 P. 579, 18 Ann. Cas. 643. Section 11977, Revised Codes of 1921, declares:

" 'The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code.'

"The Code does not make any exception to the rule which governs the impeachment of a witness in a civil action. That rule is declared in section 10668, Revised Codes, as follows:

" '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, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony.'

"For the purpose of impeachment, the question asked by the county attorney was proper. State v. O'Neill (Mont.),248 P. 215 at 218, 219.

Appellant contends that because the word "general" was not incorporated in the question, his objection of "incompetent, irrelevant and immaterial" should have been sustained. There is nothing to indicate the appellant called the attention of the trial court to the omission of this word or that it was not understood to mean and comprehend the general reputation of the appellant in the community where he resided. Hence the question was not so imperfect as to justify holding it reversible error.

"A further objection is made in this connection. There were some six or seven impeaching witnesses in all put on by the prosecution. To all of them, except in two instances, the form of the questions calling for their knowledge was unobjectionable; the witnesses being asked, in the usual formula, if they knew 'the general reputation of the defendant for truth, honesty and integrity,' etc. In two instances, however, the word 'general' was, whether by inadvertence or otherwise, omitted in putting the question. The objection interposed by defendant in each of the instances, including the two last, was the same as above stated, and no specific suggestion or objection as to the mere form of the question was in any instance made to the court or opposite counsel. Defendant now insists that in the two instances indicated his objection was clearly good, and should have been sustained. In the first place, while it is true that the inquiry is to be confined to the general reputation of the witness, it is not necessarily true that this object can only be accomplished by using in all instances one stereotyped form of question. As, for example, in the case before us, in each of the two instances where the term 'general' was omitted in putting the question, the whole manner of the inquiry and the character of the questions asked evinced as clearly to the witness on the stand and the jury that it was the general reputation of the impeached witness that was being sought as though that fact had been expressed in exact terms. This is all that is required. But, in the next place, if defendant wished to avail himself of the objection now made, he should have directed the attention of the judge by specifically calling his attention to the vice in the form of the question now complained of. He cannot be heard to urge or point out here for the first time an objection of any more specific character than that made in the court below. People v. Bush, 68 Cal. 629,10 P. 169; Howland v. Railway Co. (Cal.), 42 P. 983; People v.Frigerio, 107 Cal. 151, 40 P. 107." People v. Hickman, supra at 176, 177.

Apparently the attempt is made in the majority opinion to distinguish between impeaching as to general reputation or character and for truth and veracity. Our legislature has, however, specifically enumerated the traits of character which may be inquired into as bearing on credibility, namely, "truth, honesty or integrity". Section 16-1209, supra. Hence, if the defendant in a criminal case as a witness can be impeached, and all the authorities hold he can, he is to be impeached in the statutory method and one or all of these three traits are the legitimate subject of inquiry.

California and other jurisdictions have uniformly held the defendant in a criminal case as a witness may be impeached by showing his reputation for truth, honesty and integrity is bad. (People v. Fealy (Cal.), 165 P. 1034; People v. Brannon (Cal.), 209 P. 1029; People v. Gordon (Cal.),273 P. 568; State v. O'Donnell (Ore.), 149 P. 536; State v.Friedlander (Wash.), 250 P. 453; Short v. Commonwealth (Ky.),42 S.W.2d 696; Pinn v. State (Neb.), 186 N.W. 544; State v.Howard (Mo.), 23 S.W.2d 16; State v. Thornhill (La.),178 So. 343; Ivey v. State (Fla.), 180 So. 368.)

No case is cited by appellant nor are there any in the majority opinion holding that under statutes similar to ours where the defendant takes the witness stand in his own behalf, he may not be impeached by showing his adverse general reputation for truth, honesty and integrity.

It was for the jury to determine whether the identity of the animal allegedly stolen by appellant had been established, and the evidence though conflicting was sufficient to justify the verdict.

Therefore, I dissent and the judgment of conviction should be affirmed as no prejudicial error appears in the record.

I am authorized to say that Budge, J., concurs in this dissent.

¹ "19-2010. Rules of evidence. — The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code."

² "3379. "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, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony."

³ "2078. The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this Code."