Opinion
No. 25974
Decided December 9, 1936.
Evidence — Competency of witness question for court, but credibility question for jury — Cross-examination — Limits subject to discretion but not legitimacy of cross-examination — Conviction of crime competent as reflecting upon credibility of witness — Confession tantamount to conviction, when — Crimen falsi involved in burning property to collect insurance — Defenses of misrepresentation, conspiracy and incendiarism in action on fire insurance policy — Cross-examination of plaintiff competent as reflecting upon credibility — Confession as to part in plot to destroy plant.
1. The competency of a witness is a question for the court. His credibility must be determined by the jury.
2. The trial judge may exercise a sound discretion as to the limits of cross-examination, but he has no such discretion as to the legitimacy of such cross-examination.
3. Where a party offers himself as a witness it has always been competent in Ohio to ask him, for the purpose of reflecting upon his credibility, whether he has been convicted of treason, a felony or any other crime that came within the designation of the crimen falsi of the common law. ( Wagner v. State, 115 Ohio St. 136, approved, followed and distinguished.)
4. A confession is tantamount to a conviction, when voluntarily made.
5. Arson is a felony in Ohio, and when property is destroyed by burning, for the purpose of collecting insurance, the crimen falsi is involved.
6. Where plaintiff, in an action on a fire insurance policy, defended by the insurer on the grounds of misrepresentation, conspiracy and incendiarism, offers himself as a witness and upon cross-examination is asked the question, in substance, "You went to the police department and made a confession of your part in the plot to destroy the Middle West Hat Company," such question is competent as reflecting upon the credibility of the witness, and the sustaining of an objection to such question by the trial court constitutes prejudicial error.
APPEAL from the Court of Appeals of Cuyahoga county.
In the statement and opinion herein the parties will be referred to as plaintiff and defendant, as they appeared in the trial court.
On October 6, 1932, Harry Kornreich sued The Industrial Fire Insurance Company in the Court of Common Pleas of Cuyahoga County, Ohio, to recover the sum of $4500, the face amount of a "Merchandise and Household Goods in Transit, Trip Form" policy of insurance. Plaintiff alleges in substance that defendant issued its policy on February 15, 1932, and by its terms "insured one Ben Weiser and/or plaintiff" against loss or damage by fire to certain household goods while being delivered by truck from Geneva, Ohio, to Duquesne, Pennsylvania; that the cash value of the goods was $6227.56; that he was the owner of the household goods when on February 20, 1932, they were destroyed by fire en route; that he had no other insurance on the property; and that immediately after the fire he gave defendant notice of same, claiming total loss.
He further alleges that on April 18, 1932, he rendered to defendant a particular account of the loss, stating the time, origin and circumstances of the fire, the value and ownership of the property and amount of loss, which statement was received by defendant without objection, and that on August 30, 1932, he offered to submit his loss to an appraisal, but defendant refused same. Plaintiff alleges he has performed all things required of him under his contract of insurance.
For its defense, defendant admits its corporate existence, the issuance of the policy and that "Harry Kornreich and/or Ben Weiser" were named as the assured therein. Then it proceeds to deny specifically each and every material averment of plaintiff's petition.
Defendant then pleads three affirmative defenses.
For a second defense it alleges that the amount claimed is greatly in excess of the loss; that the proof of loss is indefinite in several respects; that it failed to provide the affidavit required; that it does not disclose whether there was other insurance on the property; that the parties insured are not the sole and unconditional owners of the property on which loss was sustained; and that Kornreich was informed as to the insufficiency of his proof of loss in these respects, and has failed to file such proof and thereby has no right to prosecute this action.
For a third defense a failure to appraise the loss as provided by the policy is pleaded.
The fourth defense pleads a conspiracy between Ben Weiser, the driver of the truck, who was insured under the policy, Meyer Pollock, who sold the truck in question in bad faith to Ben Weiser, and Harry Kornreich, the owner of the furniture in question, to defraud the defendant by obtaining excessive insurance on the truck and furniture by various misrepresentations, and in furtherance of such conspiracy by having a fire break out in the truck at an opportune time and place, so that they could collect the insurance from defendant; that the truck in question was worth only $400, yet Meyer Pollock had his interest in it insured for $800 with The National Liberty Insurance Company of America, which was represented by a note given by Ben Weiser to Pollock, secured by mortgage on the truck in question; that while the alleged furniture was being transported at one o'clock in the morning in furtherance of the conspiracy, at a lonely spot in the highway a fire was caused to break out, destroying the truck and whatever had been placed on it to give the appearance of furniture; that Kornreich's furniture was not in fact on the truck but had been removed to parts unknown; that Weiser and Pollock presented a claim to The National Liberty Insurance Company for the loss of the Stewart truck, whereupon it was discovered that there was a mortgage from Pollock to the Stewart Truck Company of Cleveland, Ohio, on the truck; and that the insurance company refused to pay, and no action has been brought either by Pollock or Weiser to collect same.
Kornreich's reply to this answer admits the provisions of the policy providing for appraisal, and alleges he complied with all conditions on his part relative thereto, but that the insurance company failed to cooperate; and he denies all other averments of the answer.
There is testimony in the record which without doubt reflects upon the claim of conspiracy. The sufficiency of this testimony was, of course, for the jury; and the only purpose of adverting to it is to obtain its reflection upon the relevancy and competency of the questions asked by counsel on cross-examination of Kornreich and Weiser.
Ben Weiser was not engaged in the transportation business. He lived on a farm seven miles from Geneva. Weiser owned two trucks, a Ford and an Acme, when he was first approached by Mrs. Kornreich to move the furniture in question. When he became assured of the contract to move the furniture he bought the Stewart truck which was larger than either one he had, and it was of the end-gate type, ordinarily used by farmers and stock dealers to transport livestock, and at times merchandise. Pollock was a dealer in cattle. Weiser had not had previous dealings with Kornreich other than that he had sold Kornreich milk and butter. When Weiser loaded the furniture he made a written list of it, but when called upon at the trial to produce it he testified he had lost it. Two men called Weiser's attention to the fact that his truck was on fire, and another motorist passed while the truck and contents were burning. Weiser furnished the money, $45, to Mrs. Kornreich to pay the premium on the policy sued on herein. Neither of the three men who saw the truck burn testified. Weiser stated they went on their way and he did not know their names. Kornreich admitted he was a bootlegger in 1931.
During the progress of the trial in the Court of Common Pleas, counsel for defendant on cross-examination asked Ben Weiser:
"Q. Have you ever had any fires other than the one of February 1932?"
To this question counsel for plaintiff objected. The objection was sustained by the court, and defendant, by counsel, at the time excepted.
Kornreich, upon cross-examination, was asked the following questions:
"Q. Now you said you were in the bootlegging business. What was the nature of your work there? A. Selling whiskey.
"Q. How long had you been in the bootlegging business prior to June 9, 1931?"
To this question counsel for plaintiff objected. The court sustained the objection and counsel for defendant excepted thereto.
Thereupon the following questions were submitted to the court for determination as to their admissibility, in the absence of the jury, with the statement that they were asked as on cross-examination of the plaintiff Kornreich, namely:
"Q. Is it not a fact that you and a man who was known as Curley Harris were employed by Leon Sperling to burn the Middle West Hat Plant at or near the corner of 9th and St. Clair in the city of Cleveland?
"Q. Is it not a fact that you were to receive thirty dollars for your part in the plot to burn this building?
"Q. Is it not a fact that you purchased 35 gallons of gasoline, rented a garage and stored the gasoline, and also purchased several bales of paper excelsior weighing approximately a ton?
"Q. Isn't it a fact that on or about the 19th day of November, 1932, about eleven o'clock in the evening, you hauled thirty or thirty-five gallons of gasoline to the Middle West plant on St. Clair avenue?
"Q. Isn't it a fact that you drove into an alley, unloaded the gasoline and the excelsior and placed same inside of the plant?
"Q. Isn't it a fact that within ten minutes after you left the plant the Middle West Hat Company burst into flames and was almost totally destroyed by fire?
"Q. Isn't it a fact that after making the delivery of your gasoline you drove down into the Flats and threw the gasoline cans away, and then drove around the Flats and up the Eagle street ramp?
"Q. Isn't it a fact that you, having failed to collect your thirty dollars from Curley Harris at the time of making your delivery, looked in the telephone directory for the name of the president of the Middle West Company and found that it was Leon Sperling?
"Q. Isn't it a fact that you telephoned Leon Sperling at his home and said that you were a friend of Curley's, and that you thereafter went to Sperling's home?
"Q. Isn't it a fact Mr. Sperling met you on the porch of his home, and you told him that Curley owed you thirty dollars, and that you wanted your money?
"Q. Isn't it a fact that Sperling replied, "I am being watched and can't get at my bank account. Meet me at the Hotel Cleveland in a day or so'?
"Q. Isn't it a fact that Sperling did meet you in the hotel a few days later, and that he gave you seventeen dollars, or some such amount, and that when Sperling offered you fifteen dollars you laughed at him and told him he would have to have some real money, or else he was going to get into a lot of trouble?
"Q. Isn't it a fact that you were the organizer of an association known as the Barbers Protective Association, the sole purpose of which was to intimidate barbers and collect money under threat of destroying their property, and that when the barbers failed to pay you the amount you demanded, that you destroyed their property, breaking their plate glass windows or throwing stink bombs into their place of business?
"Q. Isn't it a fact that you afterwards entered into some agreement with John McGee, who succeeded you in the Barbers Protective Association, and that you also did some work for John McGee of a similar nature, namely, intimidating, under threat of property damage, barbers and other business men?
"Q. Isn't it a fact that you had, in connection with the purchase of the excelsior and gasoline for the MidWest fire, a man by the name of Arthur Beil, who helped you load the gasoline cans in burlap sacks?
"Q. Isn't it a fact that you purchased eight bales of excelsior on November 11, 1932, from the Excelsior Supply Company at East 40th street and King avenue, in the city of Cleveland?
"Q. Isn't it a fact that when Sperling refused to pay you any money you went to the police department and made a confession of your part in the plot to destroy the Middle West Hat Company?
"Q. Isn't it a fact that all of these facts concerning which I have asked these questions with reference to the Middle West Hat Company took place within two weeks prior to Saturday, November 19, 1932, and isn't it a fact that the fire in the Middle West Hat Company plant broke out about midnight on Saturday, November 19, 1932?"
To each and all these questions counsel for plaintiff objected. The court sustained the objections to each and all the questions, and the exceptions of counsel for defendant were noted thereto.
Plaintiff secured a verdict in the trial. Error was prosecuted to the Court of Appeals of Cuyahoga county, which court affirmed the judgment of the Court of Common Pleas, and appeal is prosecuted to this court to reverse the judgment of the Court of Appeals.
Messrs. Silber Soltz and Mr. H.H. Felsman, for appellee.
Mr. Hermon N. George, Mr. William A. Kane, Mr. Frank J. Kus and Messrs. Quigley Byrnes, for appellant.
Defendant claims that the trial court committed prejudicial and reversible error in the following particulars, namely:
(a) In refusing to permit counsel for defendant to cross-examine Ben Weiser, the driver of the truck at the time of the fire, as to other fires in which he was involved,
(b) In refusing to permit the witness, Albert L. Soper, to testify as to the complete conversation which took place between himself, as appraiser for defendant, and Louis Press, as appraiser for plaintiff, at a time when it is conceded that the appraisement failed and after Kornreich's indictment for arson.
We attach no importance to this assignment of error and do not consider it.
(c) In refusing to allow defendant to cross-examine plaintiff as to his occupation from February 20, 1932, the date of the fire, to the date of the trial,
(d) In refusing to permit defendant to cross-examine Kornreich as to his confessed participation in the Middle West Hat Company fire on St. Clair avenue in Cleveland, Ohio, nine months after the fire concerning which this action is brought,
(e) In refusing to permit defendant to cross-examine Kornreich as to his other criminal activities.
Defendant claims that inasmuch as it defended this action on the grounds of misrepresentation and conspiracy, a wide latitude should have been allowed in the cross-examination of the alleged conspirators.
It is not claimed that the questions were relevant to the issues, but it is claimed that they were competent as reflecting upon the credibility of the witnesses who were parties to the action and were the alleged conspirators.
The trial judge may exercise a sound discretion as to the limits of cross-examination, but he has no such discretion as to the legitimacy of such cross-examination.
The competency of a witness is a question for the court. His credibility must be determined by the jury.
Parties to the record could not testify at common law, either for themselves or their co-suitors; neither could they be compelled to testify for the adverse party.
No person was permitted to testify at common law who had committed and been legally convicted of treason, a felony, or any of the crimen falsi. Crimen falsi was characterized as any crime which might injuriously affect the administration of justice by the introduction of falsehood and fraud. The disability of parties and persons who had been convicted of infamous crimes to testify has been removed both in England and in the United States, but it is sometimes enlightening to recur to the original law and make mental inquiry as to its purpose.
These common-law disabilities have been removed in criminal cases in Ohio by Section 13444-2, General Code, and in civil cases by Section 11493, General Code, which latter section we quote:
"All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly."
We have likewise certain inhibitory statutes, providing that parties and particular persons shall not testify in certain cases. We do not regard it as necessary to the determination of the questions here involved to refer to them.
Parties were excluded from the witness chair because of their interest in the case and the natural, consequent tendency to color the facts in their own favor.
Persons who had committed treason, felony or any of the crimen falsi were excluded, because neither court nor jury could be expected to know when they were telling the truth.
The crimen falsi of the common law was carried into the law of Ohio by this court in its reasoning in the case of Webb v. State, 29 Ohio St. 351. See page 358.
The general tendency in Ohio has been to relax the old rules in the furtherance of justice, in so far as it may be done without invading substantial rights. This tendency is evidenced by the enactment of Section 13444-19, General Code, effective July 22, 1929, namely:
"In any criminal case where the defendant's motive, intent, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing the act in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant."
This section has in effect been held by this court to be constitutional, hence it must be concluded that it violates no constitutional right of an accused person.
It is provided by Section 13444-2, General Code, that: "No person shall be disqualified as a witness in a criminal prosecution by reason of his interest in the event thereof as a party or otherwise, or by reason of his conviction of crime. * * * Such interest, conviction or relationship may be shown for the purpose of affecting the credibility of such witness. * * *"
These sections are referred to for the purpose of showing the strides that have been made by the law in its departure, from the common-law disabilities.
Collateral attacks on character and reputation have at all times received the closest scrutiny from the courts, but they have crept into the law to a limited extent.
These collateral attacks must be made in good faith within the prescribed limitations, else a trial would develop into a puppet show. The jury has the right to and should understand the character of the person on whose testimony they are required to act; and the value of cross-examination, the most important test of truth, should not be sacrificed to the feelings of the witness, and no great injustice is done to any individual upon whose oath the property or personal security of others is to depend in showing to the jury his real character, provided always that it is done in accordance with the laws of the forum.
We indulge a short resume of the Ohio cases dealing with cross-examination on collateral matters as affecting credibility.
This court held, in the case of Wroe v. State, 20 Ohio St. 460, in the fourth paragraph of the syllabus:
"The limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose of judging of his character and credit from his own voluntary admissions, rests [rest] in the sound discretion of the court trying the cause. Such questions may be allowed when there is reason to believe it will tend to the ends of justice; but they ought to be excluded when a disparaging course of examination seems unjust to the witness, and uncalled for by the circumstances of the case."
Judge McIlvaine said, in the opinion in the case of Coble v. State, 31 Ohio St. 100, at page 102:
"If it be claimed by the state that this record contradicted the testimony of the defendant below, it is enough to say, that the state was concluded by the answer of the defendant to the question, 'How many times have you been arrested?' Although, on cross-examination, such question is admissible, an answer thereto can not be enforced, and, if it be voluntarily given, the state is bound by the answer."
In this expression of the law, the distinguished judge was following the weight of authority as of that time, viz., 1876.
Judge Okey, in the case of Hamilton v. State, 34 Ohio St. 82, said, at page 86:
"In permitting the counsel for the state to cross-examine the witness Hafner, for the purpose of eliciting the fact that indictments were pending against him, there would have been no error, if the inquiry had been limited to that fact."
Wroe v. State, supra, is cited in support of this statement of the law.
In the case of Wagner v. State, 115 Ohio St. 136, 152 N.E. 28, Wagner was on trial for forgery and uttering of a forged instrument. He testified in his own defense, and on cross-examination counsel for the state was permitted, over the objection and exception of Wagner, to ask him if he had not been indicted for other acts of forgery and of obtaining money by false pretenses. He admitted he had been. He was at no time asked whether he had ever been convicted on any of the other indictments.
In a per curiam opinion this court condemned such practice and, in effect, held that such questions were impertinent, incompetent and prejudicial, and it reversed the judgment of conviction. It further held that the only proper question under such circumstances was whether the witness had been convicted of the offenses concerning which inquiry had been made.
The cases of Wroe v. State and Coble v. State, supra, were not in any wise referred to and this is understandable, as there was nothing in the syllabus in either case that demanded comment.
The case of Smith v. State, 125 Ohio St. 137, 180 N.E. 695, is not in point and we do not consider it. Under the doctrine of stare decisis we must accept the rule as announced in the Wagner case, supra, namely, that the only proper course to follow when cross-examining a witness with reference to collateral offenses, for the purpose of affecting his credibility, is to ask him whether he has been convicted of the offenses in question.
We are of opinion that there should be another qualification, namely, that such cross-examination should be confined to those offenses which as a matter of law do affect credibility, viz., treason, felony and crimen falsi.
It would be most unfair to a witness to ask him on cross-examination for the purpose of affecting his credibility, whether or not he had been convicted of assault and battery. The nature of the offense of assault and battery in no wise reflects upon credibility.
We are announcing no new law. This has always been the law and is the law today.
Surely the rule in the Wagner case, supra, does not go so far as to shut out a plea of guilty or a confession. A plea of guilty is tantamount to a conviction, and a confession is most certainly tantamount to a plea of guilty, if voluntarily made.
A confession is of serious import in law. We find in Staundford's Pleas of The Crown, Book 2, Chapter 51, in the year of 1607, the following:
"If one is indicted, or appealed for felony, and on arraignment he confesses it, this is the best and surest answer that can be in our law for quieting the conscience of the judge and making it a good and firm condemnation * * *." See 2 Wigmore on Evidence (2nd Ed.), 128, Section 818.
We shall advert to one question in the instant case, viz.: "Isn't it a fact that when Sperling refused to pay you any money you went to the police department and made a confession of your part in the plot to destroy the Middle West Hat Company?" The objection to this question was sustained and exception noted.
Why was this not a competent question as reflecting upon Kornreich's credibility? He was accused of arson in the action then on trial, and defendant was endeavoring to show that since the fire involved in that particular action Kornreich had confessed to participation in a fire, which, if he made a true confession, was of incendiary origin. Arson is a felony, and when goods, chattels or buildings are destroyed for the purpose of collecting insurance it is likewise crimen falsi.
It is not enough to say that the confession might have been involuntary, as this feature could have been taken care of upon preliminary or re-examination. This was not an extra-judicial confession, strictly speaking, as it is stated in the question, "you went to the police department and made a confession," etc.
If Kornreich made such a confession, the jury was entitled to know it in order to determine his credibility, and it was entitled to know all of it from him. If he did not make it, he could have said so. Surely the trial judge has no more discretion to rule a confession out of the case than he would have to rule out a plea of guilty or a conviction.
Suppose counsel for defendant had put the question, Since the fire herein involved, you have been tried and convicted of the offense of arson?" or "You entered a plea of guilty to an indictment for arson?" This court has said such questions are competent and must be answered when asked in good faith. In the face of this law, can a confession of guilt of the same character of offense be refused admission?
When the court sustained the objection to the question, counsel for defendant was at his string's end. If Kornreich had answered that he did make such confession, then defendant was entitled to have it for what it was worth. If he had denied making it, then defendant would have had the opportunity to show it aliunde.
Ordinarily this court does not concern itself with questions of credibility, being content to leave such questions to the court below, where they properly belong; but, where a ruling of a court of inferior jurisdiction, if permitted to go unnoticed, would operate as a shield for the evil-minded, the furtherance of justice requires a court of last resort to announce the true rule of law, even where the question involved is no more serious than that of credibility.
The Court of Common Pleas committed prejudicial error in sustaining the objection of counsel for plaintiff to the question asked of Kornreich on cross-examination as to his confession relative to his participation in the Middle West Hat Company fire, and the Court of Appeals erred in affirming the judgment of the Court of Common Pleas.
The judgments of the Court of Common Pleas and the Court of Appeals herein are reversed, and this cause is remanded to the Court of Common Pleas of Cuyahoga county, for further proceedings according to law.
Judgment reversed and cause remanded.
WEYGANDT, C.J., MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
WILLIAMS, J., concurs in the judgment.
I affirm on authority of Wagner v. State, 115 Ohio St. 136, 152 N.E. 28.