# Mayes v. State > Indiana Court of Appeals · November 13, 1974 · 162 Ind. App. 186 URL: https://www.frixlaw.com/law-library/cases/9721236 ## Case - **Full name:** Jackie D. Mayes v. State of Indiana - **Court:** Indiana Court of Appeals - **Decided:** November 13, 1974 - **Citations:** 162 Ind. App. 186; 318 N.E.2d 811; 1974 Ind. App. LEXIS 820 - **Precedential status:** Published - **Opinion:** Dissent by Buchanan - **Judges:** Sullivan, Buchanan - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9721236 ## Opinion text Dissenting Opinion Buchanan, J. — I respectfully dissent from the majority opinion and would reverse the trial court’s judgment because *209 reversible error was committed in allowing the State over Mayes’ objection to introduce evidence of his prior conviction of Assault and Battery with Intent to Commit a Felony (Robbery), which is not a crime having a tendency to reflect on his credibility for truth and veracity. RESTATEMENT OF ESSENTIAL FACTS During cross-examination, the State was allowed, over objection, to question Mayes as to a prior conviction: “Q. On June 8, 1962, you were convicted of the crime of Assault and Battery With Intent to Commit a Felony, to-wit: Robbery, is that not true? “A. That is true. “Mr. Pehler: For the record we will show our continuing objection. “Court: Very well, let the record show Defendant’s objection to the question, the Court overruling the same.” Arguments of counsel out of the presence of the jury revealed that Mayes had been charged with Robbery, but had pleaded guilty to the lesser included offense of Assault and Battery with Intent to Commit a Felony. GROUNDS FOR DISSENT Assault and Battery with Intent to Commit a Felony (Robbery) is neither a crime involving dishonesty or false statement, nor is it one of the enumerated offenses permitted by Statute 1 to impeach a witness. The entire thrust of Ashton v. Anderson, (1972), 258 Ind. 51 , 279 N.E.2d 210 , is that evidence of prior crimes of a witness is admissible only if the particular conviction is for a crime which has a tendency to reflect on the individual’s credibility for truth and veracity. *210 In fact the test created by Justice Hunter on behalf of the majority is definitively stated below to be: “Simply stated, either the particular criminal conviction reflects on the witness’ credibility for truth and veracity, or it does not. If the particular conviction is for a crime which has a tendency to reflect on the individual’s credibility for truth and veracity, such evidence should not be excluded; if the prior conviction is for a crime which has no bearing whatsoever on his credibility for truth and veracity, such evidence should not be admitted.” (emphasis supplied) The opinion goes on to favorably quote Professor Wig-more’s statement that, “. . . The other attitude is entirely logical, and admits only such misconduct as indicates a lack of veracity, — fraud, forgery, perjury, and the like. . . .” It is a matter of only admitting crimes that indicate a lack of veracity. In so holding the Court overruled previous cases in any way indicating that “any prior conviction for a crime must be admitted in evidence.” Thus the tenor of Ashton is that convictions of criminal offense which “have no bearing on the individual’s propensity to tell the truth” are not admissible in evidence. This language used by the Court reflects a desire to limit the admissibility of a witness’ prior crimes to those specifically enumerated in the Statute and to those involving “dishonesty or false statement.” The reasonable implication is that, while there are so-called infamous crimes listed in the Statute which render a witness incompetent, the words “dishonesty or false statement” are to be narrowly construed so as to include only those crimes involving such misconduct as indicates a lack of veracity or propensity to tell the truth. ■ The majority of this Court, in my humble opinion, paint with too broad a brush. All crimes have some element of dishonesty in the broad sense of moral depravity. *211 • Words are little creatures waiting to do our bidding, and different words have different meanings in different contexts. The word “dishonesty” as used in Ashton is not used in a broad generic sense which might be applied to crimes in general. Rather, it is used as defined in Webster’s Third New International Dictionary: “. . . characterized by lack of truth, honesty, probity, or trustworthiness or by an inclination to mislead, lie, cheat, or defraud.” 2 [Webster’s Third New INTERNATIONAL DICTIONARY, p. 650.] It would also seem that Mayes’ Assault and Battery involved a crime of violence which does not necessarily reflect “on [his] credibility for truth and veracity.” Granted, fine distinctions are required in deciding which crimes not specified in the Statute render a witness incompetent because conviction reflects on his lack of veracity (honesty). Distinguish we must if vie are to follow a standard of limiting impeachment to prior crimes involving “dishonesty” in its restricted sense of untruthfulness or deceit. “Dishonesty” and “false statement” become virtually synonymous. Two recent decisions buttress an interpretation of Ashton confining dishonest crimes to be those reflecting on the “witness’ credibility for truth and veracity.” In Dexter v. State (1973), 260 Ind. 608 , 297 N.E.2d 817 , the State had attempted to impeach the credibility of the defendant (charged with aggravated assault and battery) on cross-examination by questioning him of prior convictions for assault. Our Supreme Court unanimously reversed, Justice Prentice saying: “By Ashton v. Anderson . . ., we established the rule that only those convictions for crimes involving dishonesty or false statements and those crimes tohich the statute permits to be shoum for impeachment (treason, murder, rape, arson, burglary, robbery, kidnapping, forgery and wilful and corrupt perjury) may be shoion for such purposes." (emphasis supplied) 297 N.E.2d at 818 '.' *212 In Lewis v. State (1973), 157 Ind. App. 149 , 299 N.E.2d 193 , defendant was charged with violation of the Offenses Against Property Act. During the prosecutor’s cross-examination, Lewis was questioned about (and directed to answer over objection) prior convictions of Malicious Prosecution and Joy-riding, for the purpose of impeaching his credibility. In reversing-the trial court judgment, this Court stated: “In this case the prosecutor questioned the Appellant about the prior convictions of ‘Malicious Trespass’ and ‘Joy-riding’, neither of which are within those crimes set out in Ashton v. Anderson for which the prior conviction of which may be used for impeachment purposes.” * * t- “It would appear that our Supreme Court has been both specific and exclusive in regard to the crimes by which a witness may be impeached. . . . None of the offenses by which the prosecutor elicited impeachment testimony are within the confines of any of those crimes above specified in Ashton v. Anderson and Dexter.” (emphasis supplied) 299 N.E.2d at 194 . Dexter held that simple assault is inadmissible as impeaching evidence. Simple assault and assault and battery with intent to commit a felony (robbery) both involve the use of violence and do not primarily indicate a lack of veracity or reflect, as such, on the witness’ credibility for truth and veracity. In the courtroom search for truth the trier of fact is not aided by indiscriminate blackening of a witness’ character, but is aided by knowledge that the witness has been convicted of crimes reflecting on his credibility for truth and veracity. Mayes’ prior conviction did not bear on his credibility for truth and veracity, and therefore was not “dishonest” in the limited sense that term was used in Ashton . The judgment of the trial court should be reversed. Note. — Reported at 318 N.E.2d 811 . . IC 1971, 34-1-14-14, Ind. Ann. Stat. §2-3725 (Burns Supp. 1974). . Black’s Law Dictionary is to the same effect: “Dishonesty. Disposition to lie, cheat or defraud; untrustworthiness; lack of integrity.” [Black’s LAW DICTIONARY (Fourth Ed.), p. 554], --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721236. Public record. Not legal advice.