State v. McMillion , 127 W. Va. 197 ( 1944 )

Were it not for the holding of this Court in State v.Friedman, 124 W. Va. 4, 18 S.E.2d 653, I would dissent from the decision in this case on the ground that the cross-examination of defendant as to his prior conviction constituted prejudicial error. I did not participate in the decision of the Friedman case, and though bound by it do not agree with it so far as it deals with the application of Code,57-3-6. Prior to the enactment of Code, 1931, there was no statutory provision dealing with the cross-examination of the accused in a criminal trial, after he has voluntarily submitted himself as a witness, but the settled law of this State prior to the Friedman case inhibited the cross-examination of an accused in a criminal case as to a prior conviction where the prior conviction was not placed in issue under the indictment, or the accused did not, in the first instance, testify on direct examination as to the prior conviction, or the crime involved in the prior conviction was not connected with the crime concerning which the accused is being examined. In State v. Webb, 99 W. Va. 225, 128 S.E. 97, this Court held such cross-examination inadmissible, notwithstanding the rule was otherwise in the majority of American jurisdictions. I think the decision in the Webb case, in so far as it deals with the instant question, is sound. Code, 57-3-6, provides, "* * * and if he so voluntarily becomes a witness he shall, as to all matters relevant to the issue, be deemed to have waived his privilege of not giving evidence against himself and shall be subject to cross-examination as any other witness; but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by anyone." It is to be noted that the liberty of cross-examination of an accused in a criminal case is limited by this statute to "all matters relevant to the issue". I do not think that evidence concerning a prior conviction not connected with the crime for which the accused is being tried is in the least relevant to the issue of whether accused is guilty or innocent, and is inadmissible, unless the indictment charges the former conviction, or the accused has testified on direct examination to his former conviction, or the crime involved in the former conviction is connected with the crime for which he is being tried. None of these factors appears in the instant record, but because of the holding of this Court in the Friedman case, I am constrained to concur with the other members of the Court in this decision. It was because I felt bound by the views of the majority of the Court in the Friedman case that I cited it in the opinion in State v. Seckman, 124 W. Va. 740, 742,22 S.E.2d 374.