Fowler v. State

Murphy, C.J., delivered the opinion of the Court. Appellant was found guilty by a jury in the Criminal ²⁶⁶ Court of Baltimore under two separate indictments charging assault upon James Williard on February 24, 1968. Sentenced by the court to two concurrent five-year terms under the jurisdiction of the Department of Correction, he contends on this appeal that the court erred when it instructed the jury that it could consider his past criminal record in determining his guilt of the offenses charged. There was evidence adduced at the trial showing that appellant and Williard engaged in an altercation on February 24, 1968, during which appellant struck Williard twice with an iron pipe.

Appellant testified on his own behalf and admitted that he struck Williard. He claimed, however, that he was defending himself when he struck Williard. On cross-examination, appellant admitted to an extensive past criminal record. In its advisory instructions to the jury, the court stated: “You are permitted to draw from the facts you find to be proved such reasonable inferences as seem justified in the light of your own experience, and in that regard you may consider the past record of the Defendant, but only as it applies to the evidence in this case as to his guilt or innocence.” At the conclusion of the court’s charge, appellant’s counsel, out of the presence of the jury, stated: “In your instruction I think there should be an instruction to the Jury not to consider the criminal record in determining . . .

The court responded as follows: “I did say it. Haven’t even touched on it. If you want me to say it again, I’ll say it again.” It is elementary that in a criminal case, where the defendant is a witness in his own behalf, he thereby puts ²⁶⁷ his character in issue and may be asked on cross-examination if he has been convicted of a crime. Huber v. State, 2 Md. App. 245 .

Such evidence of prior conviction is admissible only for the purposes of impeachment and not to prove a fact in issue unless relevant to that issue and not collateral thereto. Johnson