Young Men's Christian Ass'n v. Rawlings

Noryal, C. J. This cause was before us at the January term, 1896, when a judgment recovered by the plaintiff was reversed. 48 Nebr., 216. The last trial resulted in a judgment in favor of’ defendant. To obtain a reversal thereof, this error proceeding is prosecuted by the unsuccessful party. The action was upon a subscription contract. The answer put in issue each and every averment of the petition. The defendant was a witness in his own behalf. He had been previously adjudged guilty of contempt of court by reason of his having attempted to bribe a juror, and was fined therefor $100. For the purpose of affecting his credibility in the present case the plaintiff offered in evidence said judgment of conviction, to which defendant objected; the objection was sustained and the offered testimony excluded. Upon this ruling alone a reversal is sought. Section 330 of the Code of Civil Procedure declares: “Facts which have heretofore caused the exclusion of testimony may still be shown for the purpose of lessening its credibility.” Section 338 of said Code provides: “A witness may be interrogated as to his previous conviction for a felony. But no other proof of such conviction is competent except the record thereof.” It is obvious that, if it were not for the last section quoted, the proof tendered was admissible under section 330, as tending to affect the credibility of the defendant as a witness. But said section, in its scope and purpose, is modified by section 338. It allows the admission of a witness that he had been convicted of a felony, or the record of such conviction, to be received as evidence. Said section clearly excludes the idea that the conviction of an offense below the grade of a felony is admissible to affect the credibility of a witness. Argument can not make it plainer. The defendant not having been convicted of a felony, the testimony offered was properly excluded, Affirmed.