State v. Coloff , 125 Mont. 31 ( 1951 )

MR. JUSTICE FREEBOURN:

Defendant and appellant was convicted of committing lewd and lascivious acts upon a child under the age of sixteen years and appeals from such conviction.

Under cross-examination defendant, not charged with a prior conviction, was asked if he had ever been convicted of a felony. He answered, “Yes.” Later, over objection, the prosecution was permitted to place in evidence and read to the jury the following document:

“United States of America v. “John Coloff (Indicted as John K. Coloff, alias Ivan Koleff,) No. 7194, Criminal Indictment in three counts for violation of U. S. C. Title 11, Sec. 52b.

“Judgment and Commitment.

“On this 5th day of May, 1943, came the United States Attorney and the defendant, John Coloff, appearing in proper person and by his counsel, Mr. Leo C. Graybill.

“And the defendant having been convicted on the verdict of guilty of the offenses charged in the Indictment in the above entitled cause, to-wit: That on or about the 29th day of August, 1940, and continuously thereafter up to and including the date of the filing of the Indictment herein, near Geraldine, in the County of Chouteau, in the State and District of Montana, and within the jurisdiction of this court, while a bankrupt, the said defendant did unlawfully, knowingly, fraudulently, and feloniously conceal from the Trustee in bankruptcy in a bankruptcy proceeding theretofore instituted in this court by the said defendant, certain property belonging to the estate in bankruptcy of him, the said defendant, that is to say, the Southeast quarter of Section 15, in Township 23 North, of Range 13 East of the Montana Principal Meridian, in Chouteau County, Montana, consisting of 160 acres of land of the approximate value of $650.00, and the South Half of Section 22, in Township 23 North, of Range 13 East of the Montana Principal Meridian, in Chouteau County, Montana, consisting of 320 acres of land of the approximate value of $1243.00, as charged in count one of said Indictment; and (2) that on or about the 29th day of August, 1940, and continuously thereafter up to and including the date of the filing of the Indictment herein, at Great Palls, in the State and District of Montana, said defendant did unlawfully, knowingly, fraudulently and feloniously conceal from said trustee in said bankruptcy proceeding certain other property belonging to Ms said bankrupt estate, to-wit, the sum of $260.06 in lawful money of the United States, as charged in count two of said Indictment, and (3) that on or about the 29th day of August, 1940, at Great Falls, in the County of Cascade, in the State and District of Montana, and within the jurisdiction of this court, before the Referee in Bankruptcy in said bankruptcy proceeding, the said defendant did unlawfully, wilfully, corruptly, fraudulently, knowingly, feloniously testify falsely and make a false oath in relation to his said bankruptcy proceeding, as charged in count three of said Indictment, all in violation of Title 11, Section 52b, U. S. C.

"And the defendant having been now asked whether he has anything to say why judgment should not be pronounced against him, and no sufficient cause to the contrary being shown or appearing to the court, It Is By The Court

"Ordered And Adjudged that the said defendant, John Coloff, having been found guilty of said offenses, be and he hereby is committed to the custody of the Attorney General of the United States or his authorized representative, for imprisonment for the term of Two (2) Years And Four (4) Months and pay a fine of Five Hundred ($500.00) Dollars; and that said defendant be further imprisoned until payment of said fine or until said defendant be otherwise discharged as provided by law.

"It is further ordered that the Clerk deliver a certified copy of this Judgment and Commitment to the United States Marshal or other qualified officer and that the same shall serve as the Commitment herein.

"/S/ Charles N. Pray, Judge.”

R. C. M. 1947, see. 93-1901-11, provides: "A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony.”

R. C. M. 1947, see. 94-4723, provides: "A person convicted of any offense is notwithstanding a competent witness in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his examination as such witness. ’ ’

When the credibility of a witness is attacked under these statutes it has long been the uniform trial practice in Montana to ask the witness, on cross-examination, in substance, “Have you ever been convicted of a felony?” If the answer is “Yes,” further examination along this line is foreclosed. If the answer is a denial, the conviction can then be shown by the record of the judgment.

This is sound practice and should be followed. The purpose of the statutes, weakening the credibility of the witness, is satisfied and chance for error is eliminated. It is the natural, practical and best way of handling the matter.

The meaning or construction given these statutes is presumed to be the true one, even when the language has popularly a different meaning. 25 R. C. L., sec. 273, pp. 1042, 1043.

The practical construction given a statute for a long period of time has been considered strong evidence of the meaning of the law. ‘ ‘ Indeed, the practical construction of a statute, or the meaning publicly given it by contemporary usage, is usually presumed to be the true one. It should not be disturbed, disregarded, or overturned, * * * except for cogent or convincing reasons * * *”. 50 Am. Jur., Statutes, see. 319, pp. 309, 310, 311.

“The natural and, ordinarily, the easiest way to prove them [prior convictions], if true, is by the witness himself, but the party ought not to be deprived of his statutory right by the falsehood of the witness.” Helwig v. Lascowski, 82 Mich. 619, 46 N. W. 1033, 1034, 10 L. R. A. 378. See also, Burdette v. Commonwealth, 93 Ky. 76, 18 S. W. 1011.

“The record of conviction may be introduced after the witness has denied having been convicted * * 28 R. C. L., sec. 213, p. 627.

“The usual manner of making proof of a prior conviction is to ask the witness who has suffered such a conviction if he had been theretofore convicted of a felony, and, if he denies that he has been so convicted, to produce a copy of the judgment of conviction * * People v. Craig, 196 Cal. 19, 235 Pac. 721, 724.

A defendant in a criminal case, if he is sworn and testifies, is subject to the same rules of cross-examination and impeachment as any other witness. State v. Schnepel, 23 Mont. 523, 59 Pac. 927; State v. Crowe, 39 Mont. 174, 102 Pac. 579, 18 Ann. Cas. 643; and State v. O’Neill, 76 Mont. 526, 248 Pac. 215.

If the defendant does not take the stand, a prior conviction may not be shown to impeach him. State v. Jones, 51 Mont. 390, 153 Pac. 282.

The effect of showing a prior conviction, for the purpose of impeachment, is much different as between the defendant and a witness for the defendant, as said in State v. Hougensen, 91 Utah 351, 64 Pac. (2d) 229, 239, “such questions as to a defendant may directly prejudice the jury in the case, whereas in case of a witness not a defendant they do no more than prejudice the jury against such witness and thus less directly affect the case.”

When defendant admitted his prior conviction, the purposes of the statutes were served. His credibility had been impeached and weakened. To go further and introduce the judgment showing such prior conviction could serve no good purpose.

“* * * what good ground can there be for demanding the record? To do so is to do more than has been done; but, if there is a negative answer, the record of conviction is an effective impeachment # * # the fact of that assault, and his conviction of it, was as well known to him and his confession of it as of as high quality and probative force as the record itself, and the reason for the rule requiring the record in this case we think entirely fails; and the admission by parol was as near the fact as the record could be. Rules of evidence are adopted for practical purposes.” Dotterer v. State, 172 Ind. 357, 88 N. E. 689, 693, 30 L. R. A., N. S., 846.

A felony judgment in a district court of Montana does not set out the facts and circumstances of the crime charged. It goes no further than to name the offense.

The federal court judgment and commitment placed before the jury here showed defendant to have been convicted of three felonies and set out the facts and circumstances constituting each offense.

Details and circumstances comprising the prior offenses are not admissible. See: People v. Chin Hane, 108 Cal. 597, 41 Pac. 697; People v. Muchupoff, 79 Cal. App. 306, 249 Pac. 240; People v. David, 12 Cal. (2d) 639, 86 Pac. (2d) 811; and People v. Braun, 14 Cal. (2d) 1, 92 Pac. (2d) 402. See also: Wharton’s Criminal Evidence, 11th Ed., Vol. 3, Witnesses, sec. 1374, p. 2261.

The only witness testifying to seeing defendant commit the acts charged was the prosecutrix. On the day and immediately after such crime is said to have been committed, the prosecutrix met sheriff Dunstall. He testified: "I asked her if she had been down to the Rex Hotel, and whether or not she had been molested. She stated that she had not. I asked her if Mr. Coloff had molested her in any way. She stated that he had given her a dollar to go to the Fair, that her mother was down at the Fair.”

There was some corroborating evidence as to words spoken in the room where, and about the time, the criminal acts are said to have been committed.

Under the evidence the judgment of prior conviction weighed heavily against defendant. It may well have been the deciding factor which brought about his conviction. It was prejudicial error to admit it in evidence.

Appellant complains of the trial court’s refusal to give several instructions offered by defendant. Two of these, respecting the withdrawal of the judgment of prior conviction from the consideration of the jury, should have been given. The other instructions were properly refused.

■ For the reasons stated the judgment is reversed. The case is remanded for a new trial.

MR. JUSTICE BOTTOMLY concurs.