People v. Reinhart — 39 Cal. 449

Majority

p. 449

No. 2,202.

THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, v. HANS REINHART, Appellant.

Headnote

Witness in His Own Behalf—Privilege of. —A party to an action who becomes a witness in his own behalf has no greater privilege than any other witness, and may refuse to answer a question when the answer "would tend to degrade his character.

Idem.—Evidence of Previous Conviction. — Oral testimony, if objected to, is not admissible to prove a previous conviction of crime of a witness examined in his own behalf, whether adduced on cross-examination of such witness or given by other witnesses for that purpose, the record being the best evidence of that fact.

Appeal from the County Court, City and County of San Francisco.

The facts are stated in the opinion.

delivered the opinion of the Court:

The defendant was sworn and examined as a witness in his own behalf, and, on cross-examination, he was asked whether he had not been convicted of certain offenses. He now insists that it was erroneous for the Court to compel him to answer those questions. We held in Clark v. Reese ( 35 Cal. 96 ), that when a party to the action becomes a witness in his own behalf, he drops, for the time being, the character of a party, and takes on that of a witness, and that his privilege is no greater than that of any other witness. He may refuse to answer the question whether he has been previously convicted of petty larceny, for it tends to degrade his character. (1 Greenl. Ev. Sec. 457; 2 Phil. Or. C., E. & H. Notes, 939.) But this is the privilege of the witness, and not of the party.

The opposite party, however, may prove a previous conviction of the witness for the purpose of discrediting or impeaching him (Newcomb v. Griswold, 24 N. Y. 298 , and cases there cited); but/tho admission of oral testimony,^ whether adduced on cross-examination of the witness sought to be impeached, or given by other witnessed for the pur

p. 450

pose of proving the previous conviction, would be erroneous, if objected to, on the ground that the record is the best evidence of the conviction^ (See authorities above cited, and People v. Herrick, 13 Johns. 82 ; King v. Inhabitants, etc., 8 East. 77; Carpenter v. Nixon, 5 Hill, 260 .) Objection on that ground does not appear to have been taken on the trial, and therefore is of no avail to the defendant on appeal.

The evidence was sufficient to justify the jury in finding the defendant guilty, as charged in the indictment.

Judgment affirmed.

Cases cited

Newcomb v. Griswold 24 N. Y. 298 N.Y. p. 449
People v. Herrick 13 Johns. 82 N.Y. Sup. Ct. p. 450