Welch v. Commonwealth

Response of the court by

JUDGE GUPPY

denying a rehearing.

Tibe appellee in this case, in the petition for rehearing, says the evidence, the admission of which was held in the opinion herein to be a reversible error, was admitted under and by authority of the opinion in Burdette v. Com., 93 Ky., 76, 18 S. W., 1011. It will be seen, however, from that ease, that the questions' asked and required to be answered1 were: First, whether he, being the defendant then testifying, had ever been convicted of stealing; second, whether he had been arrested for breaking into a house and stealing coffee, and. sent to the workhouse therefor. This court held that it was not error to require the defendant to answer' the questions; saying, in substance, that when the defendant voluntarily became a witness in his own behalf he should be treated in the same way as any other witness, and1 his testimony be subjected to the same test, by cross-examination, impeachment, or otherwise, as is the testimony of another called as- a witness. The court further said: “It is, however, a rule without exception that a witness can not be compelled to answer-any question that would tend to expose him to any kind of punishment or to a criminal charge. But whether a witness can be compelled to make answer to a question having a direct tendency to degrade his character seems, accprding to 1 Greenl. Ev., section 454, not to have been perfectly settled by authority, though in section 456 it is said to be ‘generally conceded that when the answer which the witness may give will not directly and certainly show his infamy, but will only tend to disgrace him, he may. be compelled to answer.’ It seems to us, however, that whether looking to the rights and interests of the witness, or ascertainment of truth, he would be less likely to suffer injustice-or injury, and his credibility more certainly determined, by showing the existing fact of his infamy, than by clouding his character with suspicion probably unfounded. In the same section it is said there does not seem to be any good reason why a witness should ■bie privileged from answering a question touching Ms present situation, employment and associates, if they are of his own choice, as, for Example, in what house or family he resides, what is his ordinary occupation, and whether he is intimately acquainted and conversant with certain persons, and the like; for, although these may disgrace him, his position is one of his own seeking. . . .” It will be seen from the foregoing that the -court was speaking of undisputed and accomplished facts of which a witness has been duly convicted, or of disreputable associations of his own choosing, none of which are at all analogous to the question involved in this case. Moreover, section 597 of the Civil Code of Practice seems not to have been considered or discussed in the opinion under consideration. The section provides how a witness may be impeached, which is. by contradictory evidence, by showing- that he has made statements different from his present testimony, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief, but not by evidence of particular wrongful acts, 'except that it may be shown by the examination of a witness or record of a judgment that he has been convicted of felony. The warrant read as evidence in this- case was in fact no evidence that the witness had been gutily of any crime at all, nor of any act or transaction of his life. It does not even show that any party had ever made affidavit even charging him with any crime. But even if the affidavit required by law to be filed, or knowledge of the officer issuing the writ, had been embraced therein, it would have not tended to make the warrant competent evidence. If a witness may be- impeached, and the litigant thereby be deprived of the benefit of his testimony, by simply showing that some one had' accused him of some crime, great or small, thousands of the best citizens would be subject to impeachment; and a trial or prosecution would often be the medium through and by which slanderous reports against worthy citizens might be published. It was expressly said in the case of Lewis v. Com., 19 R., 1139; 42 S. W., 1128: “A witness can not be impeached by proving particular acts or offenses that he might have been guilty of, but the inquiry must be confined to general character, and not to particular acts charged against the witness.” In Leslie v. Com. (decided Nov. 5, 1897), 19 R., 1201; 42 S. W., 1096, this court, after discussing the case of Burdette v. Com.,said: “But the Commonwealth was permitted,against objections, to ask appellant if he had not been, arrested and fined for carrying concealed weapons, and if he had not been arrested for discharging firearms in Tompkins-ville. We are inclined to the opinion that this was prejudicial error. The general rule is that the fact that a witness is under indictment may not be proved for the purpose of impeaching him. Neither is evidence of his arrest upon a criminal charge admissible for that purpose.” If the witness had been tried and convicted of the offense charged in the warrant in question, it would have been competent, under the Code, to have proved that fact. This court, in the case of Pennington v. Com., 51 S. W., 818, decided that a witness could not be required to answer as to indictments against him or conviction for misdemeanor. We quote as follows from the opinion in the case, supra: “On the trial the following extract of the cross-examination of appellant is taken from the bill of evidence, to all of which evidence appellant objected. ‘Q. Were you indicted for anything since then? 'A. Yes, sir. Q. What was it? A. I was charged with killing a hog. Q. Were you convicted on the charge? A. Yes, sir. Q. Well, go on. Were you indicted for anything else? A. I was indicted here for taking a gun under false pretenses. Q. Were you indicted for anything in any other county? A. I was indicted once at Salyersville, Ky., for carrying concealed a pistol. I was tried and fined. Q. Were you ever convicted and sent to the penitentiary in any other State? A. No, sir.’ Then follow a number of questions as to whether the accused had ever been indicted in the counties of Knott, Pike, Martin, Breathitt, Perry and Bell; the witness answering in the negative to each question. Our statute provides (section 597, Civ. Code Prac.) that a witness may not be impeached by ‘evidence of particular wrongful acts, except that it may be shown by the examination of a witness or record of a judgment that he' has been convicted of felony.’ It follows that the evidence quoted was incompetent, and from its nature it was. presumably prejudicial. Such have been the repeated rulings of this and other courts. Baker v. Com. (Ky.), 50 S. W., 54; Martin v. Com., 93 Ky., 193, (19 S. W., 580); Leslie v. Com. (Ky.), 42 S. W., 1095; Saylor v. Com. (Ky.), 30 S. W., 390; 2 Rob. Ky. Cr. Law & Proc., section 979; Commander v. State, 60 Ala., 1; Pinckord v. State, 13 Tex. App., 478.” The question under consideration is discussed at length in 1 Greenl. Ev. (Lewis’ 1896 Ed.), c. 3. It is said in section 454 that: “Where the answer, though it will not expose the witness to any criminal prosecution or penalty, or to any forfeiture of estate, yet has a direct tendency to degrade his character. On this point there has been a great diversity of opinion, and the law still remains not perfectly settled by authorities. . . .” At the close of section 459 the learned1 writer says: “The great question, however, whether a witness may not be bound in some ■ cases to answer an interrogatory to his own moral degradation, where, though collateral to the main issue, it is relevant to his character for veracity, has not yet been brought into direct and solemn judgment, and must therefore be regarded as an open question, notwithstanding the practice of eminent judges at nisi prius in favor of the inquiry under the limitation we have above stated.” It may be conceded that some courts of last resort in some of the States hold that a witness may be required to answer as to infamous charges having been made against, or as to crimes theretofore committed by, him, ¡or of which he may have been convicted. But we think' that the reason of. the law, as well as the later authorities, sustains the doctrine announced in the opinion of this court heretofore referred.to in support of the opinion herein. It is not unreasonable to conclude that the provision of the Code heretofore quoted was enacted for the purpose of putting the question under consideration at rest in this State. The section, supra, was not discussed or referred to in the cases of Mitchell v. Com. (Ky.), 14 S. W., 489, Roberts v. Com. (Ky.), 20 S. W., 267, nor in Burdette v. Com., 93 Ky., 76, (18 S. W., 1011), relied on by appellee. The doctrine announced in the three above-named cases has been, in effect, overruled time and again by decisions of this court announcing a contrary rule. We are of opinion that under the provision of the Code, supra, a witness can not be required to answer any question the answer to which would tend to show that he had been guilty of any misdemeanor, or had been accused of any crime, indicted» for any crime, or convicted of any misdemeanor, and that no such facts can be proved of and concerning a witness by other witnesses. So far as the opinions in the three last-named cases are in conflict with this opinion, they are hereby expressly overruled. Also, see Smith v. Fisher, 5 J. J. Marsh., 189. Petition overruled.

Chief Justice Paynter and Judges Hobson and White dissent from this response, but agree that the petition should be overruled.