State v. Schechter , 44 Ohio St. 2d 188 ( 1975 )

CORRIGAN, J.

I.

Counsel for appellant earnestly urges a reversal of the decision of the Court of Appeals and remand for a new trial solely on the application of the rule of law established in Webb v. State, supra (29 Ohio St. 351). It is a bifurcated prayer tined with two propositions of law, the first of which asserts:

“The rule of law in Webb v. State, 29 Ohio St. 351 (1876) permits the introduction of opinion testimony as to the reputation of the prosecution’s witness for truth and veracity only where there has been an ‘inquiry’ involving the introduction of testimony and other evidence.”

Such reliance on Webb under the facts reflected in the record in this case can at best be characterized as tenuous, if not fatuous. Of course, there has been an inquiry here as to who murdered Linda Kyman, involving the introduction of testimony and evidence. That was the purpose of the trial below. And, as this court held in paragraph four of the syllabus in Webb, almost a eentury ago:

“Evidence cannot be given to prove an infamous crime against a witness, of which he has not been convicted, for the purpose of impeaching his credit; yet, where the question as to whether the witness is guilty of such crimes becomes the legitimate subject of inquiry on the trial, his reputation for truth may be proved, to rebut the imputation of guilt which the evidence makes against him.”

Appellant’s first proposition of law is rejected.

II.

The second proposition of law advanced by appellant declares:

“Once it has been determined that an ‘inquiry’ has been conducted sufficient to justify the application of the rule in Webb v. State, the trial judge must exercise discretion in determining whether to permit certain persons to testify as to this collateral issue. Judges should not be permitted to testify in this situation if their testimony is likely to have an unfair and prejudicial effect.”

Appellant presents no precedent for the proposition he urges this court to accept. We are unable to find any statute or case law applicable to this fact situation. There was likewise no canon of judicial ethics in force in June 1973, at the time of this trial, which prohibited a judge from testifying as a character witness.

Effective December 20, 1973, however, this court adopted a new Code of Judicial Conduct governing the judiciary of Ohio. Canon 2B thereof provides, in part, that ‘ ‘ [a] judge * * * should not testify voluntarily as a character witness.” In the commentary ©n that canon, it is stated:

“The testimony of a judge as a character witness injects the prestige of his office into the proceeding in which he testifies and may be misunderstood to be an official testimonial. This canon, however, does not afford him a privilege against testifying in response to an official summons.”

We are unable to conclude that permitting the two judges of the Court of Common Pleas to testify as character witnesses, under the rule of Webb v. State, supra, for the witness, Helen Kyman, was illegal, unethical, unfair or prejudicially erroneous, even though it may have been unwise.

We do not accept the second proposition of law.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

HebbeRT, Celebrezze and P. Brown, JJ., concur. O’Neill, C. J., Stern and W. Brown, JJ., concur in the judgment.