People v. Snellie

TEMPLE, J. — The defendant was tried and convicted upon an indictment for grand larceny. On the trial he testified in his own behalf, and on his cross-examination stated that he had been in jail on this charge for five months. He was then asked if this was the only charge for which he had been put in jail. The question was objected to, but the objection having been overruled, witness said he had been arrested for assault and battery. He was then asked if he had been arrested for larceny. Objection being made was overruled, the judge remarking at the time: “He is not bound to answer it, but the question whether he has ever been arrested and confined on such a charge may be asked.” Witness then answered the question in the affirmative. It is claimed that these rulings are erroneous under the doctrine of People v. Reinhart, 39 Cal. 449. On the other side, it is contended that the examination was proper, as tending to show the degree of credibility to which the witness was entitled, to exhibit his true character and standing before the jury, and that the evidence did not tend to prove the contents of a record by parol, but only to show that he had been accused of and arrested for an offense. There is no more vexed question in the law of evidence than as to the latitude which should be allowed on cross-examination to bring before the court and jury the exact character of the witness upon whose testimony they must depend. The arguments in favor of and against allowing compulsory examination upon matters, which are material only as affecting the character of the witness, have often been stated with great force. It is certainly desirable that a witness should not be subject to public insult simply to gratify the feelings of a party or his attorney, who may be injured by his evidence, nor should he be permitted to be insulted merely to depreciate [687] him in the estimation, of the jury. He ought not to be aggravated merely to test his power of. self-control, or to throw him from his ground, nor ought the veil be lifted from transactions long past which do not throw light upon the present character of the witness, nor ought inquiries to be allowed which, while they tend to degrade, throw no light upon the credibility of the witness. The cases upon the subject are not very satisfactory, but in practice, at all events, it is settled that while other evidence offered to impeach a witness must be confined to evidence of general reputation, the witness himself may be asked as to collateral acts affecting his standing and having some bearing upon his credibility. Nor will he be privileged from answering simply because the answer will tend to depreciate him in the estimation of the community. The evidence must be such as would directly show his infamy. The authorities on the subject are compiled in Starkie on Evidence, p. 208; 1 G-reenl., sec. 454 et seq.; 2 Phill. Ev. 421. But while it is proper to prove independent collateral acts, in order to place the character of the witness properly before the jury, such facts must be established by the best evidence, and parol evidence will not be admissible when it appears that better evidence can be had. Thus a person might be asked if he had not been discharged from a situation on suspicion of theft, but he could not be asked if he had been convicted of larceny, for this implies better evidence. In this case the question was whether he had not been imprisoned on a charge of larceny. It is true an arrest may, under extraordinary circumstances, be made when no written charge has been made and no warrant issued. In such ease, however, the charge is required to be made in writing with all convenient haste, and the case is exceptional. The presumption, I think, is, that when a person is put in jail upon a criminal charge, the accusation is in writing, which in such case would constitute the best evidence of the fact. One reason given why it would not be safe to allow the witness to state whether he has been convicted is because he may be mistaken as to the nature of the conviction. The same reason applies with equal force to the case at bar, and it is equally within the rule that the best evidence the case admits of should be produced. Judgment reversed and cause remanded for.a new trial. We concur: Sprague, J.; Rhodes, C. J.