McLaughlin v. Mencke

Fowler, J., delivered the opinion of the Court. The record in this, case is very unsatisfactory, and does not properly, if at all, present the question which was argued, inasmuch as it does not appear whether the appellant was injured by the ruling complained of. The only exception taken by him, so far as the record discloses, is to certain questions addressed during cross-examination to the witness Jacob Lutz. These questions were asked for the purpose of discrediting the witness, and in answer to them he admitted that he had been tried and sentenced by a magistrate within a month preceding to serve a short term in jail for drunkenness. The only evidence set forth in the bill of exceptions is contained in an extract from the cross-examination of the witness. What his testimony in chief was we are not informed, and it is impossible to say whether it was relevant and material or not. If not, the appellant was not injured by the ruling of the Court. For aught we can see the testimony in chief may have been of no value whatever to the appellant, and its entire exclusion may have been beneficial rather than injurious to him. In order to justify a reversal, as we have often said, there should be a concurrence of error on the part of the Court and injury thereby resulting to the appellant, and this must be apparent from the record. As the case was fully argued, we will briefly consider the — 87 — question which was intended to have been presented. We have seen there was no injury, and we think it is clear the Court below committed no error. The appellant contends that by the ruling complained of irrelevant testimony was introduced on the cross-examination of his witness, which damaged his-case before the jury; and that even if the appellee had the right to show the witness had been convicted of drunkenness in order to discredit him, it was error not to produce the best evidence thereof, namely, the record of conviction. We think, however, that the case of Smith v. State, 64 Md. 25, fully disposes of any doubt as to the relevancy of the evidence brought out on cross-examination, and the propriety of the question by which it was elicited. The question in the case just cited was “State if you have ever been confined in the Baltimore City Jail.” And the question here was, “Have you ever been in jail,” which was followed by the question, “What were you sent there for.” In Smith v. State, supra, we held that the theory upon which such inquiry has been allowed is that the credibility of a witness is always in issue, and therefore anything which will tend to throw light upon his character in that regard may always be inquired into. And we cited Real v. The People, 42 N. Y. 270, quoting the following language of the Court of Appeals of New York: “A witness upon cross-examination may be asked whether he has been in jail, the penitentiary or the state prison, or any other place that would tend to impair his credibility.” The object of the question here asked was the same as that in Smith v. State, namely, to impair the credibility of the witness, and the question having been ruled proper in that case, it is equally so here. But it is contended that conceding (and this concession is necessary since the ruling in Smith v. State), that even if the appellee had the right to show the witness had been convicted, it was error not to produce the best evidence thereof, viz., the record of conviction. . While there is some conflict in the authorities, text books as well as reported — 88 — cases, upon this subject, we think the more reasonable and practical rule is that which does not demand the production of the record when the object, as here, is solely for the purpose of discrediting. In commenting upon this question, Mr. Thompson in his work on Trials, section 467, says “ There is a confusion in the authorities as to whether a witness may be asked on cross-examination, whether he has been arrested, indicted or convicted upon a criminal charge. One of the difficulties grows out of the question whether such a matter can be proved by secondary evidence —even by the admission of the witness, who must of all men be certain of the fact if it existed. The strain about secondary evidence in such a case is a mere quibble, destitute of common sense.” In Clemens v. Conrad, 19 Mich. 174, Cooley, C. J., clearly lays down the rule and the reasons on which it is based: “ The right to inquire of a witness on cross-examination whether he has not been indicted and convicted of a criminal offence, we regard as settled in this State by the case of Wallace & Flood, 16 Mich. 90. It is true that in that case the question was whether the witness had been confined in the State prison, not whether he had been convicted; but confinement in prison presupposes a conviction by authority of law, and to justify the one inquiry and not the other would only be to uphold a technical rule, and at the same time point an easy mode of evading it without in the least obviating the reasons on which it rests. We think the reasons for requiring the record evidence of conviction have veiy little application to a case where the party convicted is himself upon the stand and is questioned concerning it, with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight that it may almost be looked upon as purely imaginary, while the danger that worthless characters will unexpectedly be placed on the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent.” — 89 — To the same effect is also section 474 Wharton's Criminal Evidence. See also State v. O'Brien, 81 Iowa, 93; St te v. Miller, 100 Mo. 622, and St te v. T ylor, 24 S. W. Rep. In the case last cited the Supreme Court of Missouri say: “ In this country there has, been some hesitation in permitting a question, the answer to which not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly discrediting the witness, to require an answer.” (Decided November 22d, 1894.) Judgment affirmed.