State v. Fisher

41 A. 208, 17 Del. 303, 1 Penne. 303, 1898 Del. LEXIS 25

• Court: Delaware Court of Oyer and Terminer
• Decided: May 28, 1898
• Status: Published

Opinions

Grubb, J:—

The question put to the witness by the State is

this: “Have you ever been convicted .in this Court of housebreaking?” The counsel for the prisoner has objected to the admissibility of the prisoner’s answer to the question on one ground that the best evidence of his conviction in this Court is the record of his conviction, which is in this Court and available for immediate use. In view of these circumstances, it is the opinion of the majority of this Court that we should not allow the prisoner, who is a witness in his own behalf in this case, to answer the question, because to do so would be to undertake to prove by parol testimony that which is evidenced by written record testimony of this Court, and the very best and highest testimony; which, as I said, is in this Court and available to the State. Therefore it is not unreasonable for us to insist upon the observance of the general and well recognized rule of evidence, that where the best evidence exists and is obtainable it alone is admissible and that all other testimony is excluded.

There is another matter to be considered in this connection, and that is that the courts in this State, in this county—and probably in each of the other counties—have admitted testimony of this character. I myself do not recall any instance where the question has been asked precisely under the circumstances of this case; that is, whether the witness has been convicted of any offense in the very court in which he is testifying and where the record is. But even assuming that we have allowed a witness to answer that question without requiring the production of the record of his conviction to prove it to the jury for the purpose of affecting his credibility before the jury, and even although it may have been done (and I remember no case myself where it has been done where the question was formally raised, considered, argued and decided), we can find certainly so far no reported case. Therefore, in the absence of any reported case of that kind covering this particular point, although we may have allowed it to be done in some instances, still we do not consider that that has established the law in this State in such a manner as to be controlling upon us now, and in a case like this, where the question is formally presented and considered, and in a capital case, we do not feel that we are under any obligation to be controlled by what may have been allowed in some other one or more cases, even if it had been a case precisely of this kind, without being formally raised and argued and deliberately considered. and decided to be allowable under the law. So that we treat it now, especially in a case of this magnitude, as if it was for the first time raised and formally presented, thoroughly argued, deliberately considered and solemnly decided; especially, as I say, since in our judicial reports of this State we know of no instance in which the question has been formally passed upon by the courts.

While I am opposed personally—and have heretofore so declared myself in a dissenting opinion—to any ruling which overrides a decision where the question has been solemnly adjudicated by a unanimous' Court, and where we have satisfactory evidence of that fact, either in the printed report or upon the assurance of a Judge who sat in the case and is positively clear about the question having been there decided; yet, so far as this case is concerned, although I have been on the bench longer than any of my brethern, I remember no case in which this question has been formally decided, and I find none in the reports. And I do not feel, therefore, required to follow what I consider a practice at variance with sound principles of law, nor do I think the Court is obliged to do it under the present circumstances; especially where a writ of error can be taken, as it can be now in criminal cases under our recently adopted Constitution. The ground I have taken, and expect to adhere to, unless I see very good ground to the contrary, where there is a writ of error and a higher court to correct our error, is that we ought to follow the adjudications of our courts where they are clearly known, and not to undertake to overrule them, or set them aside, or disregard them in this Court, but let their correction be left to the Court above.

But such is not this case. For, as I said, we knpw of no case in which this precise question now before us has formally been decided. There is no such case in our reports, and I have no satisfactory information that it has heretofore been formally presented, deliberately considered and solemnly decided.