Arnold v. United States

BRATTON, Circuit Judge

(specially concurring).

In the trial of a criminal case, a witness may be asked for the purpose of impeachment whether he has been convicted of a felony, infamous crime, petit larceny, or other crime involving moral turpitude. And it is the general rule that if he answers in the affirmative the inquiry ends, but if he replies in the negative the record of such conviction may be introduced. Coulston v. United States, 10 Cir., 51 F.2d 178 , and cases there cited. The precise and narrow question here is whether a witness who admits conviction may be asked on cross-examination to state the nature or name of the crime for which he was convicted-.

Some crimes are regarded as more heinous than others. Some involve a greater degree of moral turpitude than others. The credibility of a witness may be more seriously affected by the conviction of one than of another. Where a witness merely admits conviction of a felony, it is manifestly impossible for the jury to correctly weigh his testimony and properly determine the weight which should be given it without knowing the nature or name of the crime. In order that the jury may have light instead of being required to act in darkness respecting a matter of such substance, some states have enacted statutes which expressly permit inquiry as to the name of the particular crime. People v. Chin Hane, 108 Cal. 597 , 41 P. 697 ; People v. Eldridge, 147 Cal. 782 , 82 P. 442 ; People v. Fouts, 61 Cal.App. 242 , 214 P. 657 ; State v. Johnson, 76 Utah 84 , 287 P. 909 . And the inquiry has been sanctioned in the absence of an authorizing statute. Territory v. Chavez, 8 N.M. 528 , 45 P. 1107 ; Hadley v. State, 25 Ariz. 23 , 212 P. 458, 462 . In the latter case it was said:

“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. Wigmore on Evidence, vol. 2, § 980; Commonwealth v. Walsh, 196 Mass. 369 , 82 N.E. 19 , 124 Am. St.Rep. 559, 13 Ann.Cas. 642, and notes 643 and 644. „ '

“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. 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.”

Here appellant had been long engaged in the "insurance and the banking business. There is no suggestion that he had ever been previously involved in the commission of a crime. His good reputation was clearly established and no effort was exerted to show the contrary. He denied specifically and categorically that James and Kennedy ever came to his apartment and talked with him; denied that he knew anything about the agreement which constituted the conspiracy; denied that he ever discussed it with anyone or became a party to it in any manner; and denied that he knew the bonds which were sold through the bank had been stolen. He testified that Kennedy came to the bank, gave the name of C. J. Griffin, and áaid that he had some bonds which he desired to sell; that appellant thereupon introduced him to an employee of the bank who handled transactions of that kind in the absence of a certain assistant cashier; and that the sale was conducted in the regular manner. Virtually all of the testimony tending to establish the'conspiracy laid in the indictment came from admitted accomplices. Kennedy, one of the accomplices, was the only witness who testified that appellant was ever- approached concerning the conspiracy or ever agreed to participate in it. Manifestly a sharp issue of veracity was presented which the jury was required to resolve at least in part by measuring the credibility of the witnesses, particularly that of Kennedy and appellant, and correctly weighing, their testimony. While the cross-examination could not extend to collateral matters or intrude into the private affairs of the witnesses for capricious purposes, -in view of the peculiar circumstances present in this case, it was *510 prejudicial error to deny appellant the right to ask Kennedy and Edwards on cross-examination the name of the felony for which each admitted conviction. Hadley v. State, supra.

In all other respects, I think the case was tried without error; and my concurrence in the reversal is therefore limited to the one ground.