Burdette v. Commonwealth

JUDGE LEWIS DELIVERED THE OPINION OP THE COURT. The only ground relied on for reversal of judgment Against appellant, indicted and convicted for the crime of larceny, is, that the Commonwealth’s Attorney was permitted to ask, and he was required to answer, the following questions on cross-examination of himself as a witness in his own behalf: 1. Whether he had ever before been convicted of stealing. 2. Whether he had been arrested for breaking into a house and stealing coffee and sent to the work-house therefor. It has been settled by this court that when a defendant in a criminal prosecution voluntarily becomes a witness in his own behalf, he is to be treated in the same way as any other witness, and his testimony subjected to the same test by cross-examination, impeachment or otherwise, as is the testimony of another called as a witness. 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, according to G-reenleaf on Evidence, section 454, volume 1, 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 skoto Ms infamy, but will only tend to disgrace him, he may be compelled to answer.” It [78] seems to us, however, that whether looking to the rights and interest 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 be privileged from answering a question touching his 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. And, in section 459 it is said, that when the inquiry relates to transactions comparatively recent, bearing directly upon the present character and moral principles of the witness, and, therefore, essential to the due estimation of his testimony by the jury, learned judges have of late' been disposed to allow it. Nevertheless, the proposition is stated in section 457, without qualification, that when the question involves the fact of a previous conviction, it ought not to be asked. But the only reason given in that connection for the rule is, that there is higher and better evidence of such fact that ought to be offered, which reason, it seems to us, is rather technical than substantial ; for certainly previous conviction for a crime could not be more safely and satisfactorily shown by record evidence than by admission of the person himself, who was convicted. In fact, there is no more reason for excluding a question to a witness on cross-examination, [79] answer to which would show his previous conviction of crime, than interrogation of him in reference to any other past transaction of an infamous or degrading character. After ail, the object of testimony is to elicit the whole truth as to an issue involved, and every reasonable test should be applied that will enable the jury to fix a proper estimate upon the credit of a witness, and it should be applied as well to a defendant, in a criminal prosecution, who voluntarily testifies in his own behalf, as another person; otherwise, in many cases there would be undue credence given to testimony not entitled to credit. Our Constitution provides that a person can not be compelled to give evidence against himself, but that applies to a pending prosecution, or to evidence that might expose him to punishment or to a criminal charge; and manifestly, neither the law nor public policy requires any other restriction in the application of necessary tests of the credibility of a witness or truthfulness of his testimony. And such is the present tendency of decisions on the subject, for Wharton says: “In this country there has been some hesitation in permitting a question, the answer to which not merely implies disgrace but touches on matters of record; but the tendency now is, if the question be asked for the purpose of honestly discrediting a witness, to require an answer.” (Wharton’s Orim. Ev., sec. 474.) In the State of Kansas v. Pfefferle, 36 Kan., 90, the question involved in this case was well considered, and the conclusion arrived at that, according to tendency of modern authorities extensively cited, as well as upon principle, for the purpose of impairing his credibility, a witness may be cross-examined as to specific facts [80] tending to disgrace or degrade him, although such facts are irrelevant and collateral to the main issue. And we see no good reason whatever why such test may not, in a proper and pertinent manner and under control of the ■ court-, be applied. Judgment affirmed.