Opinion
No. 8502
Decided November 24, 1958.
Criminal law — Evidence — Competency of witnesses — Accused offering himself as witness — Subject to same rules and tests as other witnesses — Cross-examination of accused — Prejudicial error, when.
1. An accused in a criminal case offering himself as a witness subjects himself to the same rules and credibility tests as other witnesses, and he may be cross-examined as to convictions of crime under state or federal laws.
2. In the trial of an accused for murder, it is prejudicial error for the prosecution to ask the accused, on cross-examination, about a prior "murder charge" and, following the accused's answer, "never convicted of anything else in my life," to ask him "you weren't convicted of murder in 1927?"
APPEAL: Court of Appeals for Hamilton County.
Mr. C. Watson Hover, prosecuting attorney, and Mr. Frank J. Longano, for appellee.
Mr. William F. Hopkins and Mr. Harvey B. Woods, for appellant.
This is an appeal in a criminal case wherein defendant, appellant herein, was tried and convicted at the hands of a jury of second degree murder, and sentenced to life imprisonment.
At the trial, defendant testified in his own behalf and, on cross-examination by the prosecution, was properly asked about a prior conviction of a crime which he admitted.
The prosecutor then asked the following questions:
"Q. Joe, did you ever live in South Mt. Vernon, Ohio? A. I never lived in Mt. Vernon, Ohio, no.
"Q. What about the murder charge in Mt. Vernon, Ohio, in 1927?"
Defense counsel promptly moved for a mistrial, claiming no charge of the court could correct the error, which motion was overruled.
The witness then answered:
"A. Never convicted of anything else in my life."
The prosecutor then asked:
"Q. You weren't convicted of murder in 1927? A. No."
Defense counsel again moved for a mistrial and was again overruled, taking appropriate exceptions.
Appellant claims here that the foregoing cross-examination is prejudicial error, requiring a reversal by this court.
It is settled law in Ohio, that a defendant offering himself as a witness subjects himself to the same rules and credibility tests as other witnesses, and he may be cross-examined as to convictions of crime under state or federal laws. This is both by statute — Section 2945.42, Revised Code — and the common law.
It is apparent that the foregoing cross-examination was improper, and this court considers it prejudicial.
The burden is on the state to prove guilt beyond a reasonable doubt by competent evidence, and it cannot deviate in the slightest degree from the rules it has itself prescribed. While the constitutional phrase "due process of law" eludes exact definition, it requires an exacting complete vindication of the constitutional guarantee of the presumption of innocence, and a fair and impartial trial by jury.
We think the law as set forth in Wagner v. State, 115 Ohio St. 136, 152 N.E. 28, is controlling here. At page 137, it is stated:
"It is evident that the state had no information concerning any such convictions. Manifestly these questions were asked for the sole purpose of discrediting Wagner before the jury. Questions of this kind are often permitted on cross-examination as being preliminary to the later showing that in fact the indictments inquired about resulted in convictions. When the state has no such further evidence, or produces none, then questions of this character become incompetent for any purpose, and, when counsel for the state knows that no convictions attended the indictments inquired about, then this line of cross-examination is wholly unfair, and is highly prejudicial to the accused.
"If the fact that the accused has been indicted at other times and for other crimes is to discredit him with the trial jury, then counsel for the state should be allowed to argue to the jury that the accused is so discredited by the very indictment under which he is on trial; in other words, that he enters the trial not presumed to be innocent, but seriously discredited by reason of the fact that he has been indicted. No prosecutor would be permitted in any court to make any such argument.
"There is another feature to this class of cross-examination worthy of mention, and which further manifests its unfairness; that is, the so-called preliminary questions about having been indicted are as unnecessary as they are improper in most cases. If the state believes that convictions have been had for the other crimes, then the party being cross-examined should be asked the direct question whether he has been convicted of the other crimes. The accused may be able to answer that question truthfully that he has not, and yet at the same time it may be that he has been indicted."
The prosecution here apparently had defendant's criminal record at hand and knew that the Mt. Vernon charge did not result in a conviction, so that the only reason for the questions had to be to discredit the defendant before the jury.
In oral argument, the state, conceding the cross-examination to be improper and prejudicial, contends that even so, the record contains ample additional evidence to prove guilt beyond a reasonable doubt, and, therefore, the conviction should be affirmed. State v. Witsel, 144 Ohio St. 190, 58 N.E.2d 212, is cited in support of that contention. We can distinguish that from the instant case.
Other citations in support of our conclusion will be found in 15 Ohio Jurisprudence (2d), 536, Section 366; State v. Hickman, 102 Ohio App. 78, 141 N.E.2d 202; and State v. Cocco, 73 Ohio App. 182, 55 N.E.2d 430.
The judgment of conviction is reversed, and the cause is remanded for further proceedings according to law.
Judgment reversed.
MATTHEWS and LONG, JJ., concur.