Smith v. State

Irving, J., delivered the ojumon of the Court. Upon the trial of this appellant for murder, a witness for the defence w'as asked on cross-examination this question: “State if you have ever been confined in the Balti ²⁶ more city jail?” The counsel for the prisoner objected, but the Court overruled the objection, and allowed the question; but the Court instructed the witness that she was not obliged to answer the question. The witness did refuse to answer, and the counsel for the defence excepted because the question was allowed to be put. Whether the Circuit Court was right in so ruling is the sole question for our decision.

The subject has been much discussed in the books, and many conflicting decisions have been made ; and many Judges have gone further than the Court did in this instance, and have required an answer unless it was made clearly to appear, that the answer would subject the party to danger of prosecution, or be a possible link in the evidence against him. The theory upon which such inquiry has been allowed is, that the credibility of a witness is always in issue, and therefore anything which will tend to throw light upon his character in that regard may always be inquired into. In Cundell vs. Pratt, 1 Moody and Malkin, 108, Best, C. J., said he should always “ protect witnesses from questions the answers to which would expose them to punishment; but if they were protected beyond this, from questions that tended to degrade them, many an innocent man would unjustly suffer.” In Real vs. The People, 42 N. Y., 270 , the Court said their conclusion was “ that a witness upon cross-examination may be asked whether he has been in jail, the penitentiarjr, or the State prison, or any other place that would tend to impair his credibility, and how much of his life he had passed in - such places. When the inquiry is confined as to whether he has been convicted, and of what, a different rule may per.haps apply.

This involves questions as to the jurisdiction and proceedings of a Court of which the witness may not be competent to speak.” The Court added that this latter was the point involved in Griswold vs. Newcomb, 24 N. Y., 298 , which was relied on by the appellant here. ²⁷ It is thus distinguished in principle and does not apply to this case. In Real vs. The People the Court said, “ the extent of the cross-examination of this character is somewhat in the discretion of the Court, and must necessarily be so to prevent abuse.” If this were not so, the whole range of a man’s life might be traversed and the possibility of reformation and restoration to respectability, and credibility would lie excluded. If the witness desires protection from an unwarrantably prejudicial inference from the fact inquired about