Opinion
Argued March 22d 1870
Decided June 21st, 1870
William F. Kintzing, for the plaintiff in error.
Samuel B. Garvin, district attorney, for the defendant in error.
The question complained of was put to the witness for the purpose of impairing her credibility as a witness. It has been the practice of the courts of this State, from a very early period, to permit questions of this character to be put to the witness, and for the purpose indicated. (1 Denio, 280; 4 id., 502; 6 Hill, 144.) Its abuse is guarded against in two modes. 1. By the privilege of the witness to decline to answer any question which may disgrace him, or may tend to charge him as a criminal. 2. By the power of the court of its own motion to prohibit an unreasonable or oppressive cross-examination. In The Great Western Turnpike Company v. Loomis ( 32 N.Y., 127), it was earnestly contended that the court had no power itself to exclude such evidence, and that it could only be excluded where the witness claimed his privilege. It was held, that the court could exercise the power in its discretion. The evidence was conceded to be competent in its character, the question being simply, as to the extent to which it should be carried. In his points, the counsel for the plaintiff in error, in the case now before us, concedes this authority, but contends, "that this discretion has been abused to such an extent as to justify the court in interfering, and also that the rule is changed in cases where the party is a witness in his own behalf." The suggestion of an abuse of authority is entitled to no consideration on the facts. I do not inquire, therefore, whether we have power to consider the question of abuse under any circumstances, or in what manner.
The defendant invokes the aid of the legal principle, that on a criminal trial, the character of the defendant cannot be attacked by the public prosecutor, unless the defendant himself first draws it into controversy, and that although the defendant here may have been a thief, she is nevertheless entitled to be judged by the same rules of evidence and of law, which are applied to the most virtuous person. These principles are quite correct. (1 Wharton Am. Cr. Law, 5th ed., p. 824; 5 Parker Cr. R., 105.) The defendant, however, appeared before the court below in a double capacity, that of an accused party on trial, and that of a witness. As an accused party on trial, she was entitled to the application of the rule, that her character could not be attacked, unless she herself opened the question. She had the benefit of it, as the district attorney opened and closed his case without allusion to her character. She however chose to avail herself of the statute of 1869, which permitted her to make herself a "competent witness" in the case. She was not compelled to take this position, the statute declaring that the failure to testify should not create any presumption against her. (Stat. supra.) She elected, however, to make herself a witness. She became and was a competent witness. For this purpose, she left her position as a defendant, and while upon the stand, was subject to the same rules, and called upon to submit to the same tests which could by law be applied to other witnesses. Her statements were made to the jury under the solemnity of an oath. In theory of law, this gave greater weight to her narration than if she had placed her simple declaration before the jury, unaccompanied by her oath. She cannot claim the advantages of the position of a witness, and at the same time avoid its duties and responsibilities. If one so testifying should testify to a willful falsehood on a material point, I cannot doubt that the offence would be perjury. The character of party in the same cause would afford no defence to such an accusation. In the minor effect of being subject to a like cross-examination with other witnesses, the rule is the same. The question was a proper one, and no suggestion of privilege being made, the objection was properly overruled.
The question in Newcomb v. Griswold (24 N.Y.R., 298) was entirely different from the present. There was no question of an actual conviction here, and the point whether the offence could be proved by a verbal answer, or whether the record should be introduced, did not arise. The defendant was inquired of simply whether she had before been arrested for theft. Neither was the attention of the court or the opposite counsel called to the question of the manner of proof, by record or otherwise.
The judgment should be affirmed.
By the following statute, passed May 7th, 1869, the plaintiff in error was rendered a competent witness in her own behalf:
"SECTION 1. In the trial of all indictments, complaints, and other proceedings, against persons charged with the commission of crimes or offences, and in all proceedings, in the nature of criminal proceedings, in any and all courts, and before any and all officers, and persons acting judicially, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness. But the neglect or refusal of any such person to testify shall not create any prejudice against him."
When the plaintiff in error voluntarily availed herself of the benefit of this statute, by becoming a witness, she became subject to the same rules of examination as any other witness.
The following question was put to the witness on cross-examination: "Have you ever been arrested before for theft?" The counsel for the prisoner objected to the question on the ground, that the district attorney had no right to attack the character of the prisoner, she not having put her character in issue. The objection was overruled, and the counsel for the prisoner excepted. The question was one which the court, in the exercise of its discretion, had a right to allow to be put and answered. ( Le Beau v. The People, 34 N.Y., 223; G.W.T. Co. v. Loomis, 32 id., 127.) The witness did not claim that she was privileged from answering the question, on the ground that it would tend to disgrace her. Hence the case, cited by the counsel for the plaintiff in error ( Lohman v. The People, 1 N.Y., 380), does not apply to this case. I perceive no ground for disturbing the decision of the General Term. The judgment should be affirmed, and the record and proceedings remitted to the court of General Sessions of the city and county of New York.
LOTT, J., was also for affirmance, on the ground that the objection did not raise the point that the record should be proved.
All for affirmance. Judgment affirmed.