The opinion
MR. JUSTICE ANGSTMAN:
(dissenting).
I do not agree with the foregoing opinion. In order to present my views of the case I find it necessary to expose more of the record than that shown in the opinion of my associates.
When the defendant was upon the witness stand the county attorney, upon cross-examination, asked him if he had been convicted of a felony, to which he answered in the affirmative. The county attorney then asked him the following questions:
“Q. What was the charge? A. I don’t know. The charge was bankruptcy. I don’t know just exactly what it is.
“Q. You don’t know what you were charged with? A. No. I know what bankruptcy is.
“Q. Do you know what crime you were charged with? A. No, I don’t know.”
The county attorney then offered in evidence the record of the conviction. Defendant’s counsel thereupon interposed an objection.
The court, after considering the question during the noon recess, stated in substance that the prosecuting attorney is permitted upon an admission of the prior conviction to inquire as to the nature of the felony. The court thereupon, since defendant stated that he did not know of what crime he was convicted, overruled the objection and permitted the judgment of conviction to be read to the jury.
In some jurisdictions the only way to impeach a witness by showing he has been convicted of a felony is by the judgment of conviction. That is regarded as the best evidence. That rule was contended for in the case of Dotterer v. State, 172 Ind. 357 , *49 88 N. E. 689 , 30 L. R. A., N. S., 846, relied on in the majority opinion, and what is quoted from the opinion in that ease by my associates is in answer to that contention and has nothing to do with the question involved here. To get away from that rule our statute permits this fact to be shown in the alternative, either by cross-examination of the witness or by the record of conviction.
R. C. M. 1947, sec. 94-4723, provides that such proof may be ‘ ‘ either by the record or by his examination as such witness. ’ ’
And R. C. M. 1947, sec. 93-1901-11, provides “that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony.”
My associates properly concede and the rule is that these statutory provisions apply also to a defendant when he submits himself as a witness. State v. Black, 15 Mont. 143 , 38 Pac. 674 ; State v. O’Neill, 76 Mont. 526 , 248 Pac. 215 ; Wharton’s Criminal Evidence, 11th Ed., Vol. 3, Witnesses, secs. 1383, 1387, pp. 2268, 2273.
It is always proper for the party seeking to impeach a witness by showing that he has been convicted of a felony to show the name or nature of the felony. People v. Chin Hane, 108 Cal. 597 , 41 Pac. 697 ; People v. Eldridge, 147 Cal. 782 , 82 Pac. 442 ; People v. Jacobs, 73 Cal. App. 334 , 238 Pac. 770 ; People v. Muchupoff, 79 Cal. App. 306 , 249 Pac. 240 ; Hadley v. State, 25 Ariz. 23 , 212 Pac. 458 ; People v. Fouts, 61 Cal. App. 242 , 214 Pac. 657 ; State v. Gilbert, 138 Or. 291 , 4 Pac. (2d) 923 ; People v. David, 12 Cal. (2d) 639, 86 Pac. (2d) 811 ; People v. Jefferson, 84 Cal. App. (2d) 709, 191 Pac. (2d) 487 ; Brooks v. State, 192 Miss. 121 , 4 So. (2d) 886 ; State v. McBride, Mo. Sup., 231 S. W. 592 ; State v. Holloway, 355 Mo. 217 , 195 S. W. (2d) 662 ; McDaniel v. State, 8 Okl. Cr. 209, 127 Pac. 358 ; Stacey v. State, 79 Okl. Cr. 417, 155 Pac. (2d) 736 ; State v. Conwell, 36 N. M. 253, 13 Pac. (2d) 554 ; Spiegel v. Hays, 118 N. Y. 660 , 22 N. E. 1105 ; Thompson v. Bankers’ Mut. Casualty Ins. Co., 128 Minn. 474 , 151 N. W. 180 ; Johns v. State, *50 88 Neb. 145 , 129 N. W. 247 . He may not however prove the details or circumstances of the crime.
The reason for permitting proof of the name or nature of the crime was well stated by the Supreme Court of Utah in State v. Crawford, 60 Utah 6 , 206 Pac. 717, 719 , where it said: “The weight of authority, and, we think, the better reasoning is that the jurors are entitled to know of what particular felony a witness has been convicted. The evidence of conviction is admissible for the purpose of affecting the credibility of the witness. Some crimes involve a greater degree of moral turpitude than others. Some felonies are more heinous than others. Some convictions on felony charges affect the credibility of witnesses much more than others.”
The Supreme Court of Washington stated the applicable rule in State v. Steele, 150 Wash. 466 , 273 Pac. 742, 743 , as follows: “It is at once apparent, of course, that if the record of the conviction is introduced, it will of necessity show the nature of the offense and the extent of the punishment, and, since cross-examination is only an alternate method of proving the conviction, we see no reason why the witness may not be examined as to any matter the record itself will show, and this we think was the purpose of that part of the statute we have above quoted.”
In Hadley v. State, supra, the Supreme Court of Arizona had this to say:
“The general rule, in the absence of a statute regulating the matter, when a defendant offers himself as a witness, is that it may be shown, either by the record or on cross-examination, that he has suffered previous conviction of a felony or felonies. Either method is permissible [citing authorities].
“The record, which is the best evidence of a previous conviction, may always be introduced. It, of course, would show the nature of the crime. The defendant cannot in anticipation of the exposition of his past in that particular, by testifying to it on his direct examination, prevent the prosecution from showing the nature of the crime of which he was previously convicted. *51 Indeed, the weight of the evidence as a factor of impeachment depends upon the character of the crime involved in the previous conviction — as, whether it involved moral turpitude or was merely malum prohibitum.” [ 25 Ariz. 23 , 212 Pac. 462 .]
This court has held that it is proper to inquire as to the name or nature of the crime involved in the conviction. State v. Smith, 57 Mont. 563 , 190 Pac. 107 . Such is the rule also in the Federal courts. Arnold v. United States, 10 Cir., 94 F. (2d) 499, and a long list of cases cited on page 506. It may also be shown how many times a witness has been convicted. State v. Gentry, Mo. Sup., 212 S. W. (2d) 63 ; Hadley v. State, supra; People v. Eldridge, supra; People v. Moran, 25 Cal. App. 472 , 144 Pac. 152 ; Dively v. People, 74 Colo. 268 , 220 Pac. 991 ; Wharton’s Criminal Evidence, 11th Ed., Vol. 3, Witnesses, sec. 1374, p. 2261.
Here defendant on his cross-examination stated that he did not know the nature of the felony of which he had been convicted. He tried to leave the impression with the jury that the charge was bankruptcy. Obviously a witness may not by this sort of evasive answer, whether intentionally evasive or not, preclude a showing of the actual crime of which he stands convicted. Where a witness equivocates in his answer as to the nature of the felony of which he stands convicted a reasonable latitude of cross-examination is permissible. Davis v. People, 77 Colo. 546 , 238 Pac. 25 . And the judgment itself may be introduced as the best evidence of the fact.
A like situation arose in State v. Forsha, 190 Mo. 296 , 88 S. W. 746, 755 , 4 L. R. A., N. S., 576, and the court disposed of the question by saying: “After the witness admitted that he had pleaded guilty to a common assault, there was nothing improper in permitting the state to show by the record that the witness had pleaded guilty to a charge of an assault with intent to kill. This testimony was admissible as affecting the credibility of the witness.”
A like situation was before the Supreme Court of Michigan, in Helwig v. Lascowski, 82 Mich. 619 , 46 N. W. 1033, 1034 , 10 *52 L. R. A. 378, and the court disposed of the question in that case by saying: “The facts which could formerly be shown to disqualify a witness may now be shown as affecting his credibility, and, as.formerly the objecting party was not bound to accept the statement of the witness as to his interest, relationship, or conviction of crime, but might prove it against his denial, so I can see no reason why a party who desires to show like facts to discredit a witness should be bound by his answer. The statute expressly provides that such facts may be shown. The natural and, ordinarily, the easiest way to prove them, if true, is by the witness himself, but the party ought not to be deprived of his statutory right by the falsehood of the witness. ’ ’
In People v. Jacobs, supra, the court held that when defendant testified that he pleaded guilty to a charge of receivihg stolen property it was proper to read to him the information to show that he had pleaded guilty to the crime of grand larceny — a charge lesser than, but included within that contained in the information which charged robbery.
Here the details and circumstances surrounding the offense for which the defendant was convicted were not gone into. The judgment of conviction was all that was introduced. The jury under our statute was entitled to know not only that defendant had been convicted of a felony but the nature of that felony, as affecting his credibility as a witness.
My associates rest their opinion upon what they call the uniform trial practice in Montana. This is my first information that the trial courts of this state have followed a uniform practice on any subject. That they have not on the subject we are considering is made plain by the decision in State v. Smith, supra, where it was held proper to compel a witness over objection to answer the question whether he had not been convicted of sedition.
The statute is so plain that it needs no construction. It is not uncertain or ambiguous. The person desiring to show that a witness has been convicted of a felony may under the plain wording of the statute take his choice of two methods of proving *53 it. He may do so by the record or may do so upon the examination of the witness. Where, as here, the witness equivocates in his answer as to the nature of the crime of which he stands convicted, then he himself is to blame for making it necessary to resort to the judgment of conviction to prove the fact as to the nature of the crime. Furthermore, if there is room for construction of the statute, a construction will not be countenanced which “operates to defeat the manifest purpose of the statute and the intention of the legislature as expressed by the language employed” and the doctrine of contemporaneous or practical construction, if applicable to judicial construction by trial courts as distinguished from construction by the general public “must be resorted to with caution and reserve. * * * In any event, to apply the doctrine of contemporaneous or practical construction to a statute, the statute so construed must be doubtful, ambiguous, or uncertain, and the ambiguity which arises from the language must be so great as to compel the court to seize upon extraneous circumstances to aid in reaching a conclusion. Where the meaning of a statute is plain, a contemporaneous or practical construction thereof will not be permitted to control, modify, destroy, abrogate, contradict, enlarge, or restrict that meaning.” 50 Am. Jur., Statutes, sec. 319, pp. 311, 312.
My associates assert that the only witness testifying to seeing defendant commit the acts charged was the prosecutrix. That is true. The nature of the crime charged is such that generally there are no eye witnesses. But the prosecutrix was corroborated in many respects by disinterested witnesses.
The prosecuting witness testified that on the 22nd day of July, 1949, which was the day of the act in question, she was in the lobby of the hotel crying because she had no money with which to attend the fair. Defendant asked her why she was crying and she told him that she needed some money so she could go to the fair. Defendant thereupon stated to her that if she would come with him and help make some beds he would give her a dollar. This she did, and she said that as soon as *54 they started making the bed he pushed her on top of the bed. She then testified:
“Q. And then what happened? A. And then he took his pants, unbuttoned his pants, and held me down on the bed and pulled my jeans down to my knees.
“Q. And what else happened, Bonnie? A. And then he took his thing out, and I said, ‘What’s that, what’s that,’ and he never said anything. And then he tried to put it in my thing but his was too big and it started hurting and I started crying.
“Q. And then what happened, Bonnie? A. After he held me on the bed there, then I grabbed hold of the bedstead there and pulled myself up and when I done that I grabbed my jeans up at the same time.
“Q. And then what did you do, Bonnie? A. We — he started chasing me around the dresser and I went around the dresser.
“Q. And did John Coloff give you any money, Bonnie? A. He put his money on the bed.
“Q. And did you take any? A. Yes.
“Q. How much did you take? A. A dollar.
“Q. And then what happened, Bonnie? A. While we were running around it each time I would go around I would push the bolt a little further and finally I got it clear undone.
“Q. Where was the bolt? A. On the door. Q. And then what did you do? A. And when it was finally out I grabbed hold of the door and ran out and shut it.”
The witness Thompson testified that he went to the lavatory on the second floor of the Rex hotel, on July 22nd, and while in there heard a little girl come upstairs crying. He heard a man ask her why she was crying and she said her mother had gone to the fair and that she herself didn’t have any money and couldn’t go; that the man then asked her to come into the room and he would give her the money. Mr. Thompson testified that he listened in the hall and heard the little girl say something about “Leave my pants be,” and “What’s that, what’s that.” That he thought the girl was being “monkeyed with” and went across the street to the depot and got two fellows to *55 come over with him. He and the other two men went to the hotel and listened at the door of the room where the man and girl were. .The witness then left and went up town to get the sheriff and returned with him. When he and the sheriff returned the defendant was sweeping the hall upstairs. The witness Stower testified that he was one of the men who went with Thompson to the hotel and listened at the door of the room. He said he heard a lot of whispering and he heard the girl say, “That’s enough, that’s enough.” That he went down stairs after listening five or ten minutes and started back to the depot and then came back to the hotel and upon entering it, passed a little girl who was pointed out to him as having come down from the room, and he started to follow her up town. The witness Doran also was one of the men who went with Thompson and Stower to the Rex hotel and who listened at the door. He also heard in a whisper the girl say, “That’s enough, that’s enough. ’ ’ He, after listening for some five or ten minutes, went downstairs; that he heard the door of the room open and click shut and the little girl came tripping down the stairs about a minute later; that when the girl left the hotel he and the witness Stower followed her up the street. They got a policeman and returned to the hotel. The witness directed the policeman to the room where the occurrences took place. The policeman who returned to the hotel was Mr. Dennison, the chief of police of Shelby. He saw defendant and asked him what was the trouble and the defendant answered that there was no trouble; the defendant denied that there was anybody in the room with him. It will thus be noted that the evidence given by prosecutrix was in many respects corroborated by disinterested witnesses.
My associates also make much of the fact that prosecutrix admitted to Sheriff Dunstall on the day of the alleged crime that defendant had not molested her. It should be noted in this connection that Mr. Dunstall also was asked: “Q. Was there any further conversation relative to that fact? A. No other than the fact that she became excited and started to cry *56 at the time, and I tried to pacify her and assured her that there would be no damage done to her.”
Prosecutrix testified that defendant had told her. that if she told what happened, “he would bury me in the dirt. * * * and he said, I will get your aunt Helen and your cousin and your mother. ’ ’
To my mind it is easily understandable in the light of this threat why this eight year old girl denied to the sheriff that defendant molested her, if we assume that she knew the meaning of the word molest.
I concede, of course, that the judgment of conviction standing against defendant “weighed heavily against” him. That is the purpose of the statute allowing him to be impeached when he submits himself as a witness.
I think Judge Hattersley ruled correctly in permitting the judgment of conviction to be received in evidence and considered by the jury.
I agree with my associates that the other instructions offered by defendant were property refused.
In my opinion the judgment should be affirmed.