BRETT, Judge:
Eloy McDonald was charged by Information with the crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor. He was tried before a jury, found guilty, and his punishment set at One Year in the County Jail and a fine of $200.00. He lodged his appeal in this Court within the time prescribed by law asserting as his chief complaint that the State, in conducting cross-examination, was unfair and prejudicial and continued to interrogate him about previous convictions that they could not prove and were too remote from the principal crime to have any bearing upon his credibility as a witness.
In support of his contention he recites the cross-examination at page 106-108 of the casemade, as follows:
Q. Ever been convicted of a crime?
A. No, I haven’t.
You mean this drunk driving deal?
Q. Have you ever been convicted of a crime ?
Drunk or fighting?
A. Yes.
Q. Drunk ?
A. Yes, sir.
Q. How many times? Every week? MR. GEB: Objection as to improper.
THE COURT: Overruled, it is to test the credibility.
Q. MR. WELCH: How many times on the drunk?
A. I wouldn’t say how many times. It is not every week. Two or three times a year.
Q. You had two or three convictions a year for being drunk ?
A. No.
Q. Have you been convicted of being drunk since this case in February?
A. Yes, one time.
Q. How many times ?
A. One time.
BY MR. GEB: It is improper anything that happened subsequent. BY THE COURT: It is admissible to test credibility.
Q. BY MR. WELCH: What else have you been convicted of ?
A. Drinking and disturbing the peace once in a while. Nothing serious.
Q. Convicted of larceny of chickens?
A. No, sir.
[778]*778Q. When you were 17 years old?
A. I got in some trouble with my brother. I was turned loose on a suspended sentence.
Q. You were convicted and given a a suspended sentence?
A. Yes.
Q. What else?
A. That’s all.
Q. What about when you were 19, were you convicted of desertion?
A. No, I had no desertion.
Q. Wife and child desertion ?
A. I came over and made an agreement to pay her so much a month.
Q. Did you get a suspended sentence?
A. I did not get no suspended sentence.
Q. There was no conviction on that type of a charge ?
A. I agreed to pay so much a month.
Q. I am asking about the disposition of the charge. Was there a conviction?
BY MR. GEB: Is it possible not to smear his name and not go into all of this ?
BY THE COURT: The District Attorney has the right if he has been convicted of such a crime.
BY MR. GEB: He says he does not know. I do not know why he has to keep being harassed.
A. On no suspended sentence. I agreed to pay her $25.00 per month, and that is what I did.
Q. In this court here ?
A. In this courthouse. I don’t know whether it was this court or not. It has been so long.
Q. Were you convicted in 1940 of larceny of tires ?
A. I definitely wasn’t.
Q. Do you recall such a case ?
A. I don’t know what you are talking about. Tires — you have got something wrong. No tires, never.
Q. Any other charges you haven’t told us about?
A. No, sir. I don’t know where you got those tires at. I have never been here on no tires.
When the prosecutor asked such questions concerning the defendant’s past record such as: “Convicted of larceny of chickens? * * * when you were 17 years old? * * * what about when you were 19, were you convicted of desertion ?” Answer, “No, I had no desertion.” “Were you convicted in 1940 of larceny of tires?” Answer, “I definitely was not.”; and pursued them no further, he left the impression of conviction without proof, or even an offer of proof, thereof. This was improper and was no doubt, prejudicial to defendant.
There are a number of cases from other jurisdictions passing on this question. See, State v. Gustafson, 248 Or. 1, 432 P.2d 323; State v. Stago, 82 Ariz. 285, 312 P.2d 160; People v. Perez, 58 Cal.2d 229, 373 P.2d 617; State v. Glenn (Mo.) 262 S.W. 1030; State v. Herrera, 8 Utah 2d 188, 330 P.2d 1086.
We quote with approval from State v. Singleton, 66 Ariz. 49, 182 P.2d 920, as follows:
“But when, as here, such questioning is raised and then dropped with no further attempt on the part of the State to prove its point, the aforementioned 'fishing expedition’ having failed, we believe it to be wholly improper and highly prejudicial. To allow this sort of examination would be to allow the imaginative and over-zealous prosecutor to concoct a damaging line of examination which could leave with the jury the impression that defendant was anything that the questions, by innuendo, seem to suggest. If the questions were persistent enough and cleverly enough framed, no amount of denial on the part of a defendant would be able to erase the impression in the mind of the jury that the prosecutor actually had such facts at hand and [779]*779that probably there was some truth to the insinuations.”
Defendant also contends that some of the convictions referred to by the prosecutor were entirely too remote to test defendant’s present credibility. The obvious one is the inquiry concerning “Larceny of Chickens” 28 years prior to the offense for which defendant was being tried, without showing any relationship to the charge of operating a motor vehicle while under the influence of intoxicating liquor. We note however, that defense counsel failed to enter an objection to the question; but notwithstanding that failure, the only purpose such a question could serve would be to create prejudice toward the defendant.
Free access — add to your briefcase to read the full text and ask questions with AI
BRETT, Judge:
Eloy McDonald was charged by Information with the crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor. He was tried before a jury, found guilty, and his punishment set at One Year in the County Jail and a fine of $200.00. He lodged his appeal in this Court within the time prescribed by law asserting as his chief complaint that the State, in conducting cross-examination, was unfair and prejudicial and continued to interrogate him about previous convictions that they could not prove and were too remote from the principal crime to have any bearing upon his credibility as a witness.
In support of his contention he recites the cross-examination at page 106-108 of the casemade, as follows:
Q. Ever been convicted of a crime?
A. No, I haven’t.
You mean this drunk driving deal?
Q. Have you ever been convicted of a crime ?
Drunk or fighting?
A. Yes.
Q. Drunk ?
A. Yes, sir.
Q. How many times? Every week? MR. GEB: Objection as to improper.
THE COURT: Overruled, it is to test the credibility.
Q. MR. WELCH: How many times on the drunk?
A. I wouldn’t say how many times. It is not every week. Two or three times a year.
Q. You had two or three convictions a year for being drunk ?
A. No.
Q. Have you been convicted of being drunk since this case in February?
A. Yes, one time.
Q. How many times ?
A. One time.
BY MR. GEB: It is improper anything that happened subsequent. BY THE COURT: It is admissible to test credibility.
Q. BY MR. WELCH: What else have you been convicted of ?
A. Drinking and disturbing the peace once in a while. Nothing serious.
Q. Convicted of larceny of chickens?
A. No, sir.
[778]*778Q. When you were 17 years old?
A. I got in some trouble with my brother. I was turned loose on a suspended sentence.
Q. You were convicted and given a a suspended sentence?
A. Yes.
Q. What else?
A. That’s all.
Q. What about when you were 19, were you convicted of desertion?
A. No, I had no desertion.
Q. Wife and child desertion ?
A. I came over and made an agreement to pay her so much a month.
Q. Did you get a suspended sentence?
A. I did not get no suspended sentence.
Q. There was no conviction on that type of a charge ?
A. I agreed to pay so much a month.
Q. I am asking about the disposition of the charge. Was there a conviction?
BY MR. GEB: Is it possible not to smear his name and not go into all of this ?
BY THE COURT: The District Attorney has the right if he has been convicted of such a crime.
BY MR. GEB: He says he does not know. I do not know why he has to keep being harassed.
A. On no suspended sentence. I agreed to pay her $25.00 per month, and that is what I did.
Q. In this court here ?
A. In this courthouse. I don’t know whether it was this court or not. It has been so long.
Q. Were you convicted in 1940 of larceny of tires ?
A. I definitely wasn’t.
Q. Do you recall such a case ?
A. I don’t know what you are talking about. Tires — you have got something wrong. No tires, never.
Q. Any other charges you haven’t told us about?
A. No, sir. I don’t know where you got those tires at. I have never been here on no tires.
When the prosecutor asked such questions concerning the defendant’s past record such as: “Convicted of larceny of chickens? * * * when you were 17 years old? * * * what about when you were 19, were you convicted of desertion ?” Answer, “No, I had no desertion.” “Were you convicted in 1940 of larceny of tires?” Answer, “I definitely was not.”; and pursued them no further, he left the impression of conviction without proof, or even an offer of proof, thereof. This was improper and was no doubt, prejudicial to defendant.
There are a number of cases from other jurisdictions passing on this question. See, State v. Gustafson, 248 Or. 1, 432 P.2d 323; State v. Stago, 82 Ariz. 285, 312 P.2d 160; People v. Perez, 58 Cal.2d 229, 373 P.2d 617; State v. Glenn (Mo.) 262 S.W. 1030; State v. Herrera, 8 Utah 2d 188, 330 P.2d 1086.
We quote with approval from State v. Singleton, 66 Ariz. 49, 182 P.2d 920, as follows:
“But when, as here, such questioning is raised and then dropped with no further attempt on the part of the State to prove its point, the aforementioned 'fishing expedition’ having failed, we believe it to be wholly improper and highly prejudicial. To allow this sort of examination would be to allow the imaginative and over-zealous prosecutor to concoct a damaging line of examination which could leave with the jury the impression that defendant was anything that the questions, by innuendo, seem to suggest. If the questions were persistent enough and cleverly enough framed, no amount of denial on the part of a defendant would be able to erase the impression in the mind of the jury that the prosecutor actually had such facts at hand and [779]*779that probably there was some truth to the insinuations.”
Defendant also contends that some of the convictions referred to by the prosecutor were entirely too remote to test defendant’s present credibility. The obvious one is the inquiry concerning “Larceny of Chickens” 28 years prior to the offense for which defendant was being tried, without showing any relationship to the charge of operating a motor vehicle while under the influence of intoxicating liquor. We note however, that defense counsel failed to enter an objection to the question; but notwithstanding that failure, the only purpose such a question could serve would be to create prejudice toward the defendant. We believe that the court should have required some clarification on its own motion because of the remoteness in time of the alleged conviction. In this respect the trial court enjoys considerable latitude and discretion and may interrupt an improper line of questioning at any time. We observe also in this respect, the very purpose for either side entering objections and preserving exceptions to adverse rulings of the court is: First, to permit the trial judge to exercise his discretion concerning the admissibility of the testimony; and secondly, to preserve the adverse ruling for appeal. The record shows that various prior objections had been entered, but for reasons unknown this particular line of questioning was not objected to.
In a sense of fairness, it seems reasonable when the prosecutor intends to inquire concerning an isolated remote pri- or conviction — especially when such conviction was sustained many years prior to the present charge; or, when such remote prior conviction is of an unrelated nature to the charge confronting the defendant, the trial court should be forewarned of the line of anticipated inquiry, in order that the trial judge may be placed in a position to properly evaluate the consequences of the inquiry and to rule accordingly. This forewarning should not be an ex-parte action on the part of the prosecutor, but should also advise defense counsel. In this case, some of the prosecutor’s questions were obviously too remote to contribute to the determination of the charges on which defendant was being tried and only caused prejudice toward him. Admittedly, when the defendant takes the witness stand to testify, and especially one who has sustained a long line of convictions, which the prosecutor is presumably prepared to properly prove, the situation takes on an entirely different light. But even so, it must be expected that the prosecutor will be able to sustain his allegations of former convictions in accordance with the provisions of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, and others not cited herein.
It is presumed also, that the prosecutor — gaining his information from a “rap-sheet” — will pursue his duty of procuring the records of former conviction prior to trial if he intends to use the information of former convictions; otherwise, when defendant denies the conviction, or contends he did not have counsel, the State is bound by defendant’s answers. It has long been the rule in this type of situation, when the defendant assumes the witness stand to testify in his own behalf he does so subject to inquiry concerning his former convictions; however, in cases such as this case, reference to a remote, unrelated conviction many years back may jeopardize an otherwise properly sustained conviction.
The proof in this case was sufficient to prove the charge of operating a motor vehicle while under the influence of intoxicating liquor; and, we conclude in this case that the trial judge did not commit reversible error in his rulings; but notwithstanding, we are of the opinion that it was improper, under the facts of this case, for the prosecutor to continue to inquire concerning defendant’s prior convictions sustained 28 years earlier and not related to the charge, without offering proof thereof, in face of defendant’s denial. We consequently conclude that de[780]*780fendant was sufficiently prejudiced to require that the sentence of the trial court in this case should be modified.
Therefore, the sentence imposed in the District Court of Kay County, Case Number 21433, is modified from one year in the County Jail and a fine of $200.00, to confinement in the County Jail for 90 days and a fine of $100.00 and court costs; and as modified, the judgment and sentence is affirmed.
NIX, J., specially concurs.
BUSSEY, P. J., dissents.