Opinion
04-21-1926
STATE v. GRANT.
Earle D. Willey, Deputy Attorney General, for the State. Charles L. Terry, Jr., of Dover, for defendant.
Lester E. Grant was indicted for larceny. To a question whether he had been previously convicted of a felony, defendant objected. Objection overruled. '
HARRINGTON and RICHARDS, JJ., sitting.
Earle D. Willey, Deputy Attorney General, for the State.
Charles L. Terry, Jr., of Dover, for defendant.
Indictment for larceny, No. 22, April term, 1926.
In cross-examining the defendant, Willey, Deputy Attorney General, asked whether he had not been previously convicted in this court for having committed a felony. Terry, attorney for defendant, objected to the question, citing 29 Cyc. 1567. He then produced what purported to be a pardon of the defendant duly executed by the Hon. John G. Townsend, Jr., then Governor of the state of Delaware, bearing date the—day of?A. D.? which said pardon referred to two specific felonies, which had been previously committed by the said defendant.
It appeared from said pardon that the said defendant had pleaded guilty in this court to one charge of larceny and that he had, also, been duly convicted after a trial in this court on another charge of the same character.
In response to a question by the court, Willey, Deputy Attorney General, admitted the pardon to be genuine, and that the offenses referred to in it were, so far as he knew, the only felonies for which the defendant had been convicted.
HARRINGTON, J., delivering the opinion of the court:
There was a period in the history of the common law when conviction of certain crimes, and judgment on such conviction, rendered a person infamous, and disqualified him as a witness. Wigmore on Ev. §§ 519, 520, 521; Greenleaf on Ev. §§ 373, 375, 376; Chamberlayne's Hand-Bk. on Ev. § 1156; State v. Timmons, 2 Har. 529.
While it is not perfectly clear what offenses were included in this class, that felonies were included is apparent from the above citations.
Subject to certain qualifications that need not be considered here, this disability was, however, removed at common law by a full pardon. Wigmore on Ev. §§ 377, 378; Chamberlayne's Hand-Bk. on Ev. § 1156; State v. Timmons, 2 Hr. 52a9. In both England and in most of the states of this country the common law disability, above referred to, has been removed by statute. Wigmore on Ev. § 524.
The statute of this state, governing thisquestion, is embodied in section 4214, Revised Code 1915, which provides:
"No person shall be excluded from testifying as a witness by reason of his having been convicted of a felony, but evidence of the fact may be given to affect his credibility."
The credit of a witness may ordinarily be attacked either on cross-examination or by the evidence of other witnesses. Chamberlayne's Hand-Bk. on Ev. §§ 1181, 1182, 1184, 1185; Chamberlayne on Ev. §§ 3742, 3752. See, also, State v. Rash, 2 Boyce, 77, 78 A. 405; State v. Quinn, 2 Pennewill, 339, 45 A. 544; State v. Primrose, 2 Boyce, 165, 77 A. 717; State v. Wright, 2 Pennewill, 228, 45 A. 395; State v. Windsor, 5 Har. 526; and Lord v. Horsey, 5 Har. 317.
While the court record is the best evidence of the conviction of a crime (State v. Duhammel, 2 Har. 532; State v. Fisher, 1 Pennewill, 305, 41 A. 208), applying the above principle, a witness may, nevertheless, be asked in this state on cross-examination whether he has ever been convicted of a felony (State v. Durham, 5 Pennewill, 105, 58 A. 1024; Clemens v. Conrad, 19 Mich. 170; State v. Knowles, 98 Me. 429, 57 A. 588). See, also, Wigmore on Ev. §§ 980, 1270; Jones' Blue-Bk. on Ev. § 839.
If he admits that he has been so convicted, the production of the record' at a later stage of the trial is usually considered unnecessary; though this is probably within the discretion of the cross-examining attorney.
It is true that a majority of the court in State v. Fisher, 1 Pennewill, 305, 41 A. 208, reached a different conclusion and held that a witness could not be asked, on cross-examination, whether he had ever been convicted of a felony, intimating, however, that the rule might be different if he had been convicted in another county.
While I find no reported case expressly overruling the Fisher Case, and there is a conflict in the authorities on the question (30 L. R. A. [N. S.] 846; 13 Ann. Cas. 643; Jones' Blue-Bk. on Ev. § 839; Chamberlayne on Ev. § 3749; Greenleaf on Ev. § 457), it certainly does not represent the rule now applied almost daily in our courts. Nor does it represent the rule applied in the early stages of the common law. Rex v. Edwards, 4 T. R. 440 (100 Eng. Reprint, 1108). See Wigmore on Ev. § 1270.
The state admits the genuineness of the pardon produced by the defendant, and that it covers all felonies of which he has been convicted. The question before us must, therefore, be considered as though such pardon had been admitted in evidence, on behalf of the defendant, before the question objected to had been asked.
It is true, as claimed by the defendant, that a pardon takes away many of the results and personal disabilities arising from a conviction of a felony and, to a certain extent, makes the person pardoned a new man. 29 Cyc. 1357. Among other things, it removes the disfranchisement of the person so convicted, but, though this defendant has been pardoned, the fact remains that he has been convicted of a felony. The rule with respect to this question is aptly stated in Curtis v. Cochran, 50 N. H. 242, where the court said:
"A pardon is not presumed to be granted on the ground of innocence or total reformation. * * * It removes the disability, but does not change the common-law principle that the conviction of an infamous offense is evidence of bad character for truth."
See, also, to the same effect, Wigmore on Ev. § 908; Chamberlayne's Hand-Bk. on Ev. § 1183; Greenleaf on Ev. § 377; Stephen's Digest on Ev. 273; 20 R. C. L. 567, § 55; U. S. v. Jones, 2 Wheeler, Cr. Cas. 451, Fed. Cas. No. 15,403; Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875; Diehl v. Rodgers, 169 Pa. 316, 32 A. 424, 47 Am. St. Rep. 908.
Notwithstanding the pardon, for the purpose of affecting the credit of the defendant, the fact of the conviction may, therefore, be brought out either on cross-examination or in rebuttal.
That being true, the objection of the defendant is overruled.
Note. The rule permitting prior convictions of other offenses to be brought out on cross-examination or shown in rebuttal for the purpose of affecting the credibility of the witness is confined in this state to felonies. State v. Burton, 2 Marv. 446, 43 A. 254; State v. Powell, 5 Pennewill, 24, 61 A. 966.
In State v. Deputy, 3 Pennewill, 19, 50 A. 176, the court held that, for the purpose of affecting her credit, a witness could not be asked whether the prosecuting witness was a good girl or a bad girl.
The right to question a witness concerning matters that will incriminate or disgrace him has also been considered.
In State v. Thomas, 4 Har. 568, it was held that a question with respect to a matter that tended to incriminate the defendant might be asked, but that it was his privilege to refuse to answer it.
In Knowles v. Knowles, 2 Houst. 133, the court said:
"The rule of law is well settled that n6 witness is bound to incriminate himself, that is to say, to answer a question which may have the effect to subject him to a criminal prosecution; and it is also well settled that he cannot be excused from answering a question, because his answer may render him liable to a civil suit. But whether he is obliged to answer, when his answer may have a tendency to degrade him, or disparage him in the esteem of his fellow men, is not so well settled and has long been a matter of more controversy and discussion. The better opinions and decisions, however, appear tobe, that when the question is directly pertinent and material to the matter in issue, he cannot be excused from answering it, merely on the ground that his answer will have the tendency, or effect to degrade him, or to diminish his standing and respectability in the community; but where it is irrelevant, or only collateral to the matter in issue, he cannot be compelled to answer."
See, State v. Burton, 2 Marv. 446, 43 A. 254. See, however, Wigmore on Ev. §§ 984-987; Jones Blue-Bk. on Ev. §§ 830, 831; Chamberlayne on Ev. § 3734; 1 Amer. Law Rep. Annot. 1402, etc.
In State v. Carter, Houst. Cr. Cas. 412, the state was not permitted to show by what other names the defendants had been known, on the ground that the question tended to put character in issue before that issue had been raised by the defendants.