Engstrom v. Nelson

Bronson, J. The plaintiff sued the defendants for assault and battery. Upon trial in the district court of Burke county before a jury a verdict was returned for the defendants. Erom the judgment [532] rendered thereupon, the plaintiff appeals and specifies thirty-nine errors of law committed by the trial court during the course of the trial. Thirty-six of such specifications relate to rulings of the trial court upon the admission of evidence and to remarks to the trial court occurring during the trial. Three of such specifications concern instructions of the trial court to the jury. The cause of action arose over a pile of old scrap iron situated on land owned by one of the defendants. The plaintiff previously had owned such land and claimed the right to take such scrap iron. On June 27, 1917, the plaintiff came to such land with a team for the purpose of taking away such old scrap iron. As he was proceeding to load up some of such scrap iron, the defendant Henry Nelson came; later the other defendant; a row occurred and a fight started. The plaintiff, claiming injuries suffered as a result thereof, brought this action. For some time anterior there had existed bad blood between the parties. It appears that on a previous occasion the plaintiff had been arrested for an assault on one of the defendants. The record discloses that there was criminal prosecution against the defendants for this alleged assault. It is wholly unnecessary for this court to review in extenso the numerous assignments of errors claimed. We have examined the record throughout, and we are satisfied that the plaintiff was accorded a fair trial, and that no prejudicial error is shown upon the matters raised in the specifications of error. It is time that this near feud should end. The only matter in the record that engages our serious attention is the ruling of the trial court upon the following questions propounded by the plaintiff to one of the defendants: Q. Have you ever been convicted of a charge in a criminal action? A. Before this ? Q. Before this civil case ? A. Before this civil case ? Q. No, before this civil case to-day ? The court sustained an objection made to these questions. The plaintiff predicates prejudicial error upon this ruling, claiming that his purpose in so asking such question was twofold. First, concerning the credibility of the witness. Second, to lay a foundation that the defendant had pleaded guilty in the justice court to this offense of assault and battery and had paid a fine therefor. And the plaintiff [533] further claims that sucb proof would have entitled him to an instruction of nominal damage. If the record clearly showed this to be the purpose of the plaintiff, it .was prejudicial error to sustain such objection. It is admissible in evidence to show that a witness has been convicted of a crime for the purpose of affecting his credibility. State v. Kent (State v. Pancoast) 5 N. D. 516, 35 L.R.A. 518, 67 N. W. 1052; Chnase v. Goets, 18 N. D. 594, 120 N. W. 553; State v. Oien, 26 N. D. 552, 145 N. W. 424. See State v. Nyhus, 19 N. D. 326, 27 L.R.A.(N.S.) 487, 124 N. W. 71; State v. Hazlett, 16 N. D. 426, 438, 113 N. W. 374. Evidence also is admissible which shows the entry of a plea of guilty and a conviction of a witness for the same assault and battery in a criminal case, as an admission of the witness against his interest. Satham v. Muffle, 23 N. D. 63, 135 N. W. 797; 5 C. J. 685. In this case, the plaintiff made no offer of proof to inform the court of the purpose for which he asked the questions involved. There is no offer made in the record to prove that the defendants, or either'of them, did plead guilty to the same assault and battery in a criminal charge. Previous to the time these questions were asked by the plaintiff, the counsel for the plaintiff asked the plaintiff, while he was on the stand, the following question: “Q. Do you know whether or not Henry Nelson pleaded guilty in the justice court, or was convicted of assault and battery a short time ago in this particular case?” This question was objected to and thereupon withdrawn by the plaintiff. The record discloses that some of the witnesses herein were ihter-rogated and gave evidence concerning testimony that was given in the case of State of North Dakota v. N. A. Nelson, the trial of which oe-eiirred in the same court a short time previous to this action. When this former question to the plaintiff and this former evidence is considered in connection with the specific questions, upon which error is predicated, it is rather apparent that the manner in which the same was propounded served to elicit an answer as to whether or not the defendant N. A. Nelson had been convicted of the crime of the same assault and battery involved herein. The plaintiff had no right to establish in the record the proof of the conviction of the defendant questioned in a criminal case of the same assault and battery. The plaintiff had [534] the right to show that the defendant had been convicted of a crime for the purpose of affecting his credibility. He might show in evidence proof of the conviction of the defendant upon a criminal charge for this same alleged assault and battery when the foundation was first laid that the defendant had pleaded guilty, — all for the purpose of an admission against interest. Therefore, the trial court, guarding against reversible error prejudicial to the defendants, under the circumstances, might properly sustain the objection to the question propounded until the plaintiff either advised the court of the purpose for which such question was propounded or framed a succeeding question clearly calling for testimony clearly admissible. Finding no prejudicial error in the rulings, remarks, or instructions of the trial court, the judgment of the District Court is,accordingly affirmed.