Holden v. Berberich , 351 Mo. 995 ( 1943 )

I concur in the result only. First, briefly as to the facts. Respondent sued the appellants for the wrongful death of her husband, resulting from a collision between appellants' truck and an automobile driven by one Best, in which the deceased was riding. At the trial Best testified as a witness for the respondent. He freely admitted on both direct and cross-examination that he and his companions had been drinking beer before starting on the trip, and there was other evidence tending to show he was drunk. But his account of the collision convicted appellants' truck driver of negligence.

[2] On cross-examination appellants' counsel over respondent's objection, elicited from Best the admission that he was then under indictment and out on bond, charged with driving a motor vehicle while intoxicated, the charge growing out of the collision. The verdict was for appellants but the lower court granted a new trial on the ground that it had erred in admitting that testimony. Appellants contend the testimony was competent. The principal opinion affirms the judgment below, holding such discrediting evidence may be admitted in a criminal case, but not in a civil case. I do not agree to that sweeping distinction, but concur for another reason to be stated presently.

Of course evidence is incompetent in any case to show a witness has been merely charged with a crime when the effort is to impeach him under Sec. 1916^*, which requires a showing that he has been convicted of a criminal offense. But that is a wholly different thing. Impeachments of that character are under the arbitrary rule of the statute. The former conviction may have been of an offense wholly unrelated to the case in which the witness is testifying, and at a different time and place.

But here, the appellants were not relying on that statute. They were attempting to show the interest of the witness Best against the appellants in the civil case then on trial. As a matter of law they had a right to do that under Sec. 1887, which expressly provides the interest of a witness in the event of any civil suit may be shown for the purpose of affecting his credibility. So, also, Sec. 4069 provides that the law in civil cases relative to the examination of witnesses shall extend to criminal cases so far as applicable. The rule is the same in both classes of cases. So if the criminal offense for which Best was then under indictment, had been such as to make it definitely and certainly to his interest to testify favorably to respondent in her civil suit, to save himself in his own case, I think the pendency of the latter case against him could have been shown.

When a co-indictee of the defendant on trial in a criminal case turns State's evidence, the fact that he has a similar charge pending against him may be shown to affect his credibility on the theory that he hopes for leniency and thus is serving his own interest. State v. Rose, 339 Mo. 317, 327, 96 S.W.2d 498, 504 (5, 6). Likewise in State v. Snow, 252 S.W. 629, 632, several men testified for the defendant in a carnal knowledge case that the prosecutrix was over the protected statutory age. These witnesses were under pending indictment for the same offense, against her. The opinion held it was proper to develop the latter fact in their cross-examination, because the question of her age had a direct statutory bearing on their own cases, and therefore made them interested in the result of the case on trial. As these two decisions show, it makes no difference whether the witness testifies for the State or for the defendant. Such is the doctrine stated in 3 Wigmore on Evidence (3 Ed.), secs. 949, 967, pp. 503, 525.

[795] Further, in State v. Decker, 161 Mo. App. 396, 398, 143 S.W. 544(1), a prosecution for assault with intent to rape, it was held error to deny the accused the right to ask the prosecutrix on cross-examination whether she had employed counsel and intended to bring a civil suit based on the same facts. The opinion said (italics ours): "The jury have the right both incivil and criminal cases to consider the interest which the witness may have in the result of the litigation." And if this be true of a witness in a criminal case who is interested as plaintiff in another civil suit based on the same facts, certainly there is no reason why the same rule should not apply to a witness in a civil case who is interested as a defendant in a similar criminal case. Not only do our statutes, Secs. 1887 and 4069, supra, provide that the interest of a witness may be shown in both classes of cases, but such is the general rule, 70 C.J., sec. 1148, p. 947; 28 R.C.L., sec. 204, p. 615.

My special concurrence in this case is based on the fact that the scope of all discrediting cross-examination is more or less within the discretion of the trial court. 70 C.J., sec. 1162, p. 956; State v. Rose, supra, 339 Mo. l.c. 327, 96 S.W. l.c. 504 (6); and for reasons of judicial policy is restricted in some instances to avoid confusion of issues and undue prejudice. 1 Wigmore on Evid. (3 Ed.), sec. 42, p. 441; 6 id., sec. 1904, p. 574. As said by the same author, 1 id., sec. 194, p. 646, sometimes impeaching evidence is too relevant, in the sense that the prejudicial effect thereof outweighs its evidential value on the real issues.

It will be noticed that in all the Missouri decisions cited above the issue on which the witness testified in the case on trial was directly and inherently involved by operation of law in the other case to which he was a party. In the Rose and Snow cases the witness was charged with the same criminal offense as the defendant. In the Decker case the plaintiff contemplated bringing a civil action for damages for the same identical assault with intent to commit rape. If, in the instant case, the witness Best were criminally charged with manslaughter by culpable negligence for the killing of respondent's husband, and then were testifying for her, as he did, in her civil action for the husband's wrongful death resulting from the same negligence, the situation would be comparable to those in the cases cited.

But that is not the situation. Best is criminally charged only with drunken driving. That charge could be sustained by mere proof of his intoxication anywhere on the fatal trip, even before the collision and without any showing of negligence. It may be evidence about the collision would be competent in the criminal case but it would not be an essential legal ingredient. And there is no evidence in this record that either the prosecuting authorities or the respondent were holding over Best's head any charge of responsibility for the wrongful death because of his drunkenness, when he testified for respondent. That charge is made only by appellants. He had testified freely as to his drinking. In my opinion the lower court properly could deny appellants the right collaterally to try the prosecutor's criminal case for him as a part of the civil suit, in order to get the fact before the jury that Best had been arrested and was out on bond on the drunken driving charge. They could, of course, prove directly any pertinent facts about his drunkenness and the collision.

^* All references to statutes are to R.S. Mo. 1939, and Mo. R.S.A.