Vandemark, R. W.

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LAW JOURNAL - MARCH, 1937ADMISSIBILITY OF PRIOR CONVICTION, ARRESTS, AND CON-FESSION TO ,IMPEACH CREDIBILITY OF A WITNESS.The recent case of Kornreich v. Industrial Fire Ins. Co., 132 O.S.78, 5 N.E. (2d) 153 (1936) presents the problem of the admissibility ofquestions upon cross-examination asked for the purposes of impeachingthe credibility of a witness. The plaintiff brought the action upon afire insurance policy issued by defendant. The plaintiff upon the cross-examination was asked, "Isn't it a fact that when Sperling refused topay you any money you went to the police department and made a con-fession of your part in the plot to destroy the Middle West Hat Co.?"The trial court sustained an objection to the question. The SupremeCourt reversed the ruling and held the question was proper.At common law questions whether the witness had committed anycrime have frequently been asked upon cross-examination. Of course,the witness may have a privilege against answering such questions.But in many states the trial court in its discretion may permit suchquestions to be asked. People v. Turney, 124 Mich. 542, 83 N.W. 273(I9OO); Tla-Koa-Yelee v. United States, 167 U.S. 274 17 Sup. Ct.855 (1896); State v. Wells, 54 Kan. 16l, 37 Pac. 1005 (1894); 5Jones on Evidence Sec. 832.In Ohio it has been held permissible to ask a witness whether he hasbeen arrested. Hanoff v. State, 37 Ohio St. 178, 41 Am. Rep. 496(1882); Colbe v. State, 31 Ohio St. 100, 20 O.L.R. 487 (1876);Wroe v. State, 20 0. S. 460, 5 Dec. Rep. 55 (1870)- In the WroeCase the court said, "The limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose ofjudging of his character and credit from his own voluntary admissions,rests in the sound discretion of the court trying the cause. Such questionsmay be allowed when there is reason to believe it will tend to the endsof justice; but they ought to be excluded when a disparaging course ofexaminations seems unjust to the witness, and uncalled for by the cir-cumstances of the case." Brandon v. People, 42 N.Y. 265, 40 Cyc.2621 (1870); People v. Fong Ching, 78 Cal. 169, 20 Pac. 396(1889); Parkerv. State, 58 Ark. 513, 25 S.W. 603 (1894); Statev.Duncan, 7 Wash. 336, 38 Am. St. Rep. 103 (1893).Hamilton v. State 34 Ohio St. 82 2 Ohio Dec. Rep. 103 (880)was the first case in Ohio in which the court held that it was per-missible to ask a witness on cross-examination if he had been indictedfor a crime. This case was soon followed by Hanoff v. State, supra,which said it was not reversible error to ask a witness whether he hadbeen arrested and indicted. This seemed to be the prevailing view in228Ohio until the case of Wagner v. State, 115 Ohio St. 136, 152 N.E. 28(1926) was decided. The Supreme Court held in that case that theonly proper course to follow when cross-examining a witness withreference to collateral offenses, for the purpose of affecting his credi-bility is to ask him whether he has been convicted of the offense inquestion. The court said that if the party had been convicted, there wasno need to show the indictment, and if he had not been convicted,there was no more reason for presuming him guilty of that crime be-cause of the indictment than for presuming him guilty of the one forwhich he is now being tried. And for the present trial the presumptionof course, is that he is innocent. In the syllabus of the principal case theWagner case is "approved, followed, and distinguished." But the ruleof the Wagner case that you canot inquire about previous indictments isnot altered in the instant case.In the principal case the court held that a witness could be asked ifhe had voluntarily confessed that he had committed a crime. Of course,this could not be reconciled with a doctrine that the only way to provea crime is by showing proof of conviction. But such a rule seems tounduly limit the cross-examination. In many states a witness may beasked if he committed a certain crime.The holding in the principal case, however, may be reconciled withthe ruling that an indictment cannot be shown. In proving the indict-ment, the party is offering the opinion of the grand jury that there wasprobable cause to believe the witness guilty of the crime. It is hearsaysince the grand jury is not present in court to be examined. While theconfession also is hearsay since it was made out of the court there is notthe same objection to admissibility since the party making the con-fession is present in court and upon the stand. The confession, ifvoluntary, is convincing and for probative effect falls little if any shortof proof of a conviction. It is submitted that the Supreme Court rightlyheld that the question was proper. R. W. VANDEMARK.EVIDENCE OF KNOWLEDGE OF DEFENDANT OF DEFECT NECES-SARY TO TAKE CASE TO JURY ON ISSUE OF NEGLIGENCE.The plaintiff proved that she was a customer in the defendant'sstore; that a foot-stool or sewing-stool obstructed the aisle; that the de-fect in the aisle caused her to fall; and that the stool belonged to thecounter of which a saleslady had charge, supervision, and control, andwas returned to the counter after the plaintiff fell over it. The courtheld that the plaintiff had not presented a prima facie case to go to the2-29NOTES AND COMMENTS

Admissibility of Prior Conviction, Arrests, and Confession to Impeach Credibility of a Witness

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Admissibility of Prior Conviction, Arrests, and Confession to Impeach Credibility of a Witness

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