Remington v. Judd

Eschweiler, J. An examination of the record satisfies us that there is sufficient evidence to support the finding by the jury that the negligence of defendant’s driver, who either [340] knew or should have known of the presence of plaintiff’s vehicle in front of him just prior to the accident, was the proximate cause of the collision, and that there is sufficient, though scanty, evidence to support the assessment of damages, and no useful purpose would be served by a discussion óf the details. Many rulings of the court during the trial are assigned as errors by the appellant, and though we are satisfied that the exceptions interposed by defendant to some of such rulings should have been sustained, yet in view of the entire record we cannot consider such errors of sufficient prejudice, under the provisions of sec. 3072m, Stats., to warrant the reversal of the judgment. We shall, however, discuss some of the questions presented. Defendant, a witness on his own behalf, was questioned on cross-examination and denied having been convicted in justice’s court for an assault and battery and again for larceny. He was then asked by plaintiff’s counsel as to whether or not he entered a plea of nolo contendere in the larceny case. The objection to this was sustained, the court rightly holding that such plea is not a conviction. On rebuttal the records of the justice of the peace, showing a judgment of a fine and costs for an assault and battery charge, were received, and no question is made as to such being properly admitted. An offer was then made of the docket entries in a case by the State against said defendant in justice’s court upon a charge of larceny, and further showing that- the defendant appeared in court with an attorney, withdrew his plea of not guilty and entered a plea of nolo contendere, and paid the costs, and apparently, from the recitals in the docket, the court thereupon dismissed the case and the defendant from further consideration under the charge of larceny. There was no showing made that any determination was reached or judgment announced that the defendant was guilty. Such docket entry was received over defendant’s objection and argument made thereon to the jury, this also [341] over objection. On defendant being recalled he was asked to state the facts in regard to the larceny case. The court refused to permit him to so testify. Defendant’s objection to the docket entries as to the case charging larceny should have been sustained. It is the fact of a conviction that may, under sec. 4073, Stats., be proven to affect the credibility of a witness. While the criminal offense specified in that statute may be either a felony or misdemeanor (Koch v. State, 126 Wis. 470, 106 N. W. 531), still it is essential that there shall be a finding and judgment of guilty as charged in order that the proceedings in the criminal case may be used for impeachment purposes. The mere fact of having been in jail, which might presuppose a proper conviction, is not sufficient and cannot be used. Cullen v. Hanisch, 114 Wis. 24, 29, 89 N. W. 900. The word “conviction,” as here found in the statute, means that the criminal proceedings must have reached the stage of a judicial determination that the person charged with the offense was guilty, and nothing short of that meets the statutory requirement. Davis v. State, 134 Wis. 632, 638, 115 N. W. 150; Jones, Evidence (3d ed.) § 716. There having been no conviction for larceny shown in the docket entries they should not have been received, and the question as to the effect to be given, under this statute, to' a plea of nolo contendere as distinguished from a plea of guilty, or such finding by jury or court, need not be here determined. Furthermore, if there had been proper proof of a prior conviction brought into the case by the cross-examination of a witness, such witness should be permitted, if he so desire, to tell on redirect examination, in a general way, the nature of the offense for which such conviction was had; not of course for the purpose of a retrial of the criminal proceedings, but that the jury may better tell to what extent his credibility is impaired, for manifestly offenses vary within vast ranges as to their impeaching power. The de [342] fendant, therefore, should have been permitted to give the testimony forbidden by the court’s ruling. Carlson v. Winterson, 147 N. Y. 652, 656, 42 N. E. 347; Jones, Evidence (3d ed.) §§ 867, 872. Were the testimony by defendant on more material points than it was, he being in the rear seat of the automobile at the time and not driving, a different result might have been required- By the Court. — Judgment affirmed.