
    Homer Hanoff v. The State of Ohio.
    1. Where upon a trial of an indictment the defendant offers himself as a witness, and testifies in his own behalf, he thereby subjects himself to the same rules, and may be called on to submit to the same tests as to his credibility as may legally be applied to other witnesses.
    2. The plaintiff in error was indicted for murder, and on his trial gave testimony in his own behalf; on cross-examination by the State he was asked, if he had not been once arrested for an assault with intent to kill, to which question he objected, but the court overruled his objection, thereupon without claiming his privilege he answered :
    
      Held, that the limits of such a cross-examination on matters not relevant to the issue for the purpose of judging of his character and credit from his own voluntary admissions, rest in the sound discretion of the court trying the cause, and the judgment will not be reversed unless it appears from the record that such discretion has been abused to the prejudice of the party.
    3. Section 6804 of the Revised Statutes authorizes the prosecution, as well as tho punishment, of aiders and abettors as principal offenders. Hence, one indicted as a principal, may be convicted on proof that he was an aider and abettor.
    Motion for leave to file petition in error to the Court of Common Pleas of Malioning County.
    The plaintiff in error was indicted for murder in tbe first degree, and was convicted and sentenced for murder in tbe second degree. Two points are relied on for reversal.
    1. On tbe trial be testified in bis own bebalf, and on cross-examination by tbe State, tbe following questions were asked, to wbicb be objected, and bis objection being overruled, be answered:
    Q. “ I desire to ask you whether you were not indicted once for an assault with intent to kill, along with others 2”
    A. “Not as I know of. I mind being arrested, but I don’t know tbe charge.”
    Q. “Did you not plead guilty once to an assault and battery in this county 2”
    A. “I mind once of pleading guilty, but I don’t know what charge.”
    Q. “ Haven’t you frequently been arrested in this county on charges of assault and battery 2”
    A. “ I think I have been arrested three times.”
    2. Tbe facts in regard to tbe second point relate to tbe charge, and are stated in tbe opinion.
    
      Anderson & King, for plaintiff in error.
    
      M. W. Johnson, prosecuting attorney, for defendant in error.
   Johnson J.

Did the court below err in overruling the defendant’s objection to the foregoing question put by the State on cross-examination of defendant ? If so, was the error such as requires a reversal of the judgment ?

The defendant, having voluntarily offered himself as a witness in his own behalf, and testified in chief, thereby subjected himself to a legitimate and pertinent cross-examination. While occupying the witness stand he was entitled to the saíne rights and privileges, and was subject to the same rules of evidence as any other witness. Brandon v. People, 42 N. Y. 261. The fact, that he was also a party accused of a crime, clothed •him with no greater rights or privileges as a witness, nor subjected him to any different rule of cross-examination than others. The same latitude and the same limitations apply to his cross-examination, as if he had not been a party. As a party his right to object to incompetent questions, addressed to himself as a witness, are the same as if they were addressed to any other witness. The State cannot by its own witnesses, nor by a cross-examination of defendant’s, give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference of the prisoner’s guilt of the particular crime charged. Coble v. State, 31 Ohio St. 100; Hamilton v. State, 34 Ohio St. 82 ; Commonwealth v. Thrasher, 11 Gray, 450. This limitation on the extent of a cross-examination, applies to the cross-examination of the defendant himself. As a party, he has the right to object, because such evidence is incompetent.

But the defendant, while a party, was also his own witness, subject to cross-examination.

If error would not lie to a like cross-examination of any other witness, as to his previous conduct, for the purpose of affecting his credibility, we see no reason why it should, when ;a party himself is the witness. The object and importance of a cross-examination of a defendant is the same,.and-therefore the rules governing it should be the same. In matters collateral and irrelevant to the particular charge, it is difficult to klefine with precision the limits of such cross-examination when the object is to test the credibility of a witness.

In this court the question may be regarded as settled, that i£ 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 owm voluntary admissions, rest in the sound discretion of the court trying the cause. Such questions may be allowed where there is reason to believe it will tend to the ends of justice; but they ought to be excluded when a disparaging cotuse of examination seems unjust to the witness and uncalled for by the circumstances of the case.” Wroe v. State, 20 Ohio St. 460.

In that case one of the questions asked the witness on cross-examination was: ££ Are you not now under indictment for murder in the second degree in this court ?” The defendant objected, his objection was overruled, and the witness answered that he was, but had pleaded not guilty.

After a careful review of the authorities, the conclusion stated was reached, and for the reason that the limits of such a cross-examination must in a great measure rest in the sound discretion of the court trying the case. This court therefore refused to reverse the judgment, there appearing no abuse of that discretion. That case is decisive of this, unless it be that defendant’s rights as a party, add a limitation to the cross-examination that does not exist in the case of another witness. In this respect, Brandon v. People, 42 N. Y. 265, is exactly like the case at bar.

The defendant was indicted for larceny, and after evidence was given in support of the charge, she was placed upon the stand in her own behalf, and denied her guilt. On cross-examination she was asked if she had ever been arrested for theft. Her counsel objected, but the question was allowed, and she answered that she had. The court, after laying down the principle that the defendant, as a witness, was subject to the same rules as other witnesses, refused to reverse the conviction, holding that any abuse of this latitude of cross-examination is guarded against in two modes: (1) By the pi-ivilege of the witness to decline to answer any question which may disgrace him or tend to charge him as a criminal; (2) By the power of the court to prohibit an unreasonable or oppressive cross-examination. In the case at bar the witness did not claim this privilege, but answered as shown in the statement of facts.

So in Great Western v. Loomis, 82 N. Y. 127, it was held that the court in which a cause is tried, in the exercise of its discretion, may exclude disparaging questions not relevant to the issue, put on cross-examination for the purpose of impairing his credit, and it may, in its sound discretion, allow, such questions where there is reason to believe they may tend to promote the ends of justice. See also People v. Conners, 50 N. Y. 210.

In People v. Crapo, 76 N. Y. 288, these cases were commented upon and distinguished, but it is a mistake to suppose that it conflicts with them. There the defendant was on trial for la/reeny, and was a witness in his own behalf. On cross-examination he was asked if he had ever been arrested on a charge of l)igamy. The question was allowed, but the judgment that followed was reversed, the court holding that such irrelevant questions must at least be such as clearly go to impeach the general moral character and credibility of the witness. Whether he had been charged with bigamy did not’ tend to impair the credibility of the prisoner as a witness. It was further added, and in this we fully concur: The discretion which courts possess, to permit questions of particular acts to be put to witnesses for the purpose of impairing their credibility, should be exercised with great caution when an accused is a witness on his own trial. He goes upon the stand under a cloud; he stands charged with a criminal offense, not only, but is under the strongest possible temptation to give evidence favorable to himself. His evidence is therefore looked upon with suspicion and distrust, and if, in addition to this, he may be subjected to a cross-examination upon every incident of his life, and every charge of vice or crime which may be made against him, and which has no bearing upon the charge for which he is being tried, he may be so prejudiced in the minds of the jury as frequently to induce them to convict upon evidence which would otherwise be deemed insufficient.” While we fully concur in these remarks, as applicable to the court trying tire .case, it is not claimed they furnish any reason for depriving that court of the exercise of its sound discretion.

Eor an abuse of that discretion, as in the case from 19 N. Y., the appellate court may reverse; but unless it is manifest from the whole record, that such discretion has been abused to the prejudice of the party complaining, error will not lie. Thus in Lee v. State, 21 Ohio St. 151, it was held that: “ Where an accomplice testifies as a witness, a liberal and full cross-examination, for the purpose of testing the truth of his statement,, should be permitted; and it is error to restrict such cross-examination within unreasonable limits.” The same would undoubtedly be true, where the cross-examination was extended, against his objection, to such an unreasonable range, in matters not affecting his credibility, as to prejudice the defendant’s cause.

It is true this court has held in Bank v. Slemmons, 34 Ohio St. 142, that it is no ground for reversal, that the court refused to compel a witness on cross-examination to answer a question as to matters not relevant to the issue, for the purpose of impairing his credibility; but that is not in conflict with the case of Lee v. State, where it appeared upon the record that the question disallowed was pertinent for the purpose of testing the recollection and veracity of the witness.

In the case at bar we are unable to say that there has been such an abuse of that discretion as warrants a reversal. We by no means sanction that latitude of cross-examination sometimes indulged in, for the purpose merely of disgracing a witness, which neither relates to the issue nor seems to test the credibility of the witness. Where such is the object of a cross-examination it is the duty of the court to disallow it, and to confine it to proper limits. For obvious reasons, it is difficult to define these limits in general terms. The extent of such a cross-examination must be left, in a great measure, to the discretion of the trial court, subject only to review where that discretion has been abused.

II. The defendant was indicted as a principal under section 6804 of the Revised Statutes, which provides that:. “ Whoever aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.” Evidence was offered tending to show that the actual killing was done by defendant’s brother, Howard, though defendant was present, aiding and abetting the act.

The court, after instructing the jury as to what constitutes a principal, and what an aider or abettor, to which there is no exception, told the jury that if the two, Howard lianoff and defendant, had formed a joint design to kill deceased, and at the time of the killing they were acting in concert, with the joint intent to kill, and that, while Howard did the manual act of killing, Horner was aiding and abetting the accomplishment of the common design, then he is guilty, and may be convicted as a principal under the indictment.

In this we think there was no error. The statute in direct terms authorizes the prosecution and punishment of any one who is an aider or abettor, as a principal offender. Under the former statute (1 S. & C. 416) the act of aiding and abetting was an independent off&nse punishable the same as the act of the principal offender. It did not declare how he should bc prosecuted. Hence the common law forms of indictment were resorted to, and he was indicted.as an aider and abettor of a principal.

Under the Revised Statutes this practice has been modified, so far as to provide that he may be prosecuted as well as punished, as if he were the principal offender.

Motion overruled.

Okey, J.,

dissenting. It is ordained in the present State constitution, as it was, substantially, in our former constitution, that no person shall “ be compelled, in any criminal case, to be a witness against himself.” The same provision, in the same words, is contained in the constitution of the United States, and, indeed, that is but the assertion of a principle of the common law.

At common law, the defendant in a criminal case is not a competent witness; but in capital cases, and perhaps in some others, he is permitted to make a statement to 'the jury in relation to the matters charged. This statement, however, is not made under oath, nor is any cross-examination with respect to it allowed.

The rule of the common law which prevented the prisoner from testifying on his own trial, was supposed to be oppressive; and, soon after the law excluding parties as witnesses in civil cases was changed, a proposition to extend the new rule to criminal cases was considered, and finally, in 1867, adopted (61 Ohio L. 260). This statute, slightly changed, was carried into the Code of 1869 (66 Ohio L. 308, § 110), and from the latter act into the Revised Statutes. In its present form it is as follows: On the trial of all indictments, complaints and other proceedings, against a person charged with the commission of an offense, the person so charged shall, at his own request, but not otherwise, be a competent witness; but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor comment be made upon, such neglect or refusal.” Rev. Stats. § 7286. Similar statutes exist in a majority of the states.

On the trial of the prisoner, charged with murder in the first degree, he availed himself of that statutory provision. After he testified, he was cross-examined, and then retired from the witness stand. Subsequently he was recalled by the prosecuting attorney, who made inquiry whether ho had not been indicted for an assault with intent to kill; whether he had not pleaded guilty to an assault and battery, and whether he had not been frequently arrested for assault and battery. He objected, personally, to each of these questions, but the court overruled the objections, and he excepted. The answers he gave tended to show the indictment, plea of guilty, and arrests imputed in the questions. The matter thus obtained had no relation to anything to which the prisoner had testified in his previous examination, or which was involved in the trial. He was convicted of murder in the second degree and sentenced to the penitentiary for life.

The evidence was inadmissible for the reason that the things inquired about were matters of record; and, therefore, the objection, though general, should have been sustained. But I do not place this dissent merely or principally upon that ground. In my judgment the constitutional rights of the accused were invaded by this action of the prosecuting attorney and presiding judge. He was “ compelled to be a witness against himself,” even within the letter of the constitutional provision; but whether within the mere letter or not is immaterial, for that which clearly falls within the reason of the prohibition may be regarded as embodied within it.” Walker v. Cincinnati, 21 Ohio St. 53; District Court Case, 34 Ohio St. 440 ; Eichenlaub v. State, 36 Ohio St. 140.

In the opinion of the majority,, it is within the discretion of the court to permit such cross-examination. But that is equivalent to saying that where the judge decides to exercise the power, the decision is final. In theory, a reviewing court will reverse for an abuse of discretion in the court below; in practice, such a thing is almost unknown; and it is agreed, everywhere,- that to justify a court of error in reversing a judgment for such cause, the abuse of power must be flagrant. If the matter is discretionary, it is not probable a case will ever be presented which will justify a court of error in interfering. A cross-examination so manifestly oppressive as to furnish ground of reversal would scarcely aid a prosecution before a-jury. Besides, the judges of this state, who preside at such trials, will not permit such injustice, and it will seldom be found that a prosecuting attorney has been so far misled by his zeal as to attempt such a mode of trial.

We are told, moreover, that the answers were voluntary, and that the prisoner did not claim his privilege. But I deny that the answers were voluntary. The questions were asked by the law officer of the court. The defendant objected to them. The court overruled the objections. This amounted to a command to answer, and manifestly the prisoner so understood it. He first excepted, and then answered, and in this way made all the claim of privilege he was required to make. People v. Crapo, 76 N. Y. 288.

I know it is said that by going upon the stand as a witness, the prisoner waived his constitutional right. But is that true ? Doubtless a prisoner may waive some provisions inserted in the constitution for his benefit. Others he cannot waive. Thus, under our statutes, he may waive a jury, and submit to a trial by the judge, in misdemeanors (Dillingham v. State, 5 Ohio St. 280), but not in felonies. Williams v. State, 12 Ohio St. 622. "Waiver of such right by act of the party is not to be assumed, unless such act clearly and necessarily involves such waiver; and where the act is consistent with a limited or qualified waiver, such waiver should not be held as unlimited or unqualified. The same principle applies in the construction of a statute under which it is claimed such waiver arises. •

It will be seen that the statute above set forth, was enacted for the benefit and protection of persons accused of crime. Such person cannot be called as a witness against his will. Nothing is to be presumed against him by reason of his neglect to testify, and no reference to such neglect can be made by court or counsel. There is no provision that the accused, by taking the stand, shall waive any thing. The implication, as I read the section, is the other way. What is there, in the fact that he has taken the witness stand, which requires-, us to say that he has waived any constitutional right ? Of course, for the purpose of explaining and qualifying his testimony in chief, a fair cross-examination concerning it should be allowed. Indeed, this is essential to the ascertainment of truth, and is a matter of right in the state, and not of discretion in the court. Martin v. Elden, 32 Ohio St. 282. But this is not true as to collateral matters. The extent to which a witness may be cross-examined as to extraneous facts is, I admit, discretionary with the court; but this only relates to matters which may be lawfully elicited by such cross-examination. If evidence of a fact is prohibited by the constitution, a statute, or the common law, the court has no power to admit it either in chief or on cross-examination.

"Where there is cross-examination as to collateral matters,—■ esjDecially where the witness is recalled for such purpose,—he becomes, virtually, as to the extraneous facts, the witness of the p rrty examining, who will be bound by his answers. Coble v. State, 31 Ohio St. 100; Wharton’s Cr. Ev. § 179. Such cross-examination is resorted to, in a case like this, either to show that the prisoner is unworthy of belief, or that he is a person who would probably commit murder. But it is admitted in the opinion of brother Johnson, that for the latter purpose such cross-examination cannot be permitted; and to me it seems equally clear that it cannot be permitted for the first purpose. Perhaps the first question and answer are the most clearly objectionable. An indicted person is presumed to be innocent, and yet it is sought to make the mere fact that a witness has been indicted, an impeachment of his character. The objection, however, is alike fatal as to each of the questions and answers. This clearly appears in People v. Crapo, supra, which is utterly inconsistent with Brandon v. People, 42 N. Y. 265, and overrules it in this respect, as a careful examination of the cases will show. And see People v. Brown, 72 N. Y. 571; Byan v. People, 79 N. Y. 593; Gifford v. People, 87 Ill. 210; Hayward v. People, 96 Ill. 492 ; People v. McGungill, 41 Cal. 429; Fletcher v. State, 49 Ind. 124; State v. Farley, 57 Ind. 331; State v. Beal, 68 Ind. 345; State v. Ryan, 6 Mo. App. 592.

But if it be admitted that, on the authority of Wroe v. State, 20 Ohio St. 460, the cross-examination in this case would have been competent as applied to any other witness, still, in my judgment, it was incompetent as applied to the prisoner. The accused in testifying was in a dual capacity—he was the prisoner on trial and a witness; but by becoming a witness he did not cease to be the defendant, nor was he thereby deprived, by waiver or otherwise, of any constitutional right compatible with such position as a witness. He was entitled to the protection secured to1 him in each relation as far as it could reasonably be afforded to him. As already stated, constitutional provisions ordained for his benefit and protection must be respected as far as possible, in view of the fact that he has become a witness. "What difficulty is there in affording him full protection in a case like this? I submit there is none. It can be done by confining the state to a fair cross-examination with respect to the matters concerning which he testified in chief; and when we consider the nature of the evidence, the defendant’s right to have the cross-examination thus confined seems to be clear.

Ordinarily, when objection is made to testimony, it is sufficient to show that it might be proper for the consideration of the jury for any purpose. But that is not always so, nor is it true in this case. The effect of the facts so elicited on cross-examination was, not merely to discredit the prisoner as a witness, but to show that his character as a peaceable man was bad, and hence that he was a man who would probably commit murder; and yet he had offered no evidence with respect to his character. Good character is certainly no excuse for crime; but it is a circumstance bearing indirectly on the question of the guilt of the accused, which the jury are to consider in ascertaining the truth of the charge.” Harrington v. State, 19 Ohio St. 264, 269. “ And the character he is entitled to prove must be such as would make it unlikely that he would be guilty of the particular crime with which he is charged. . . Thus, to murder, as we have seen, a character for peacefulness may be proved.” Wharton’s Cr. Ev. § 60, note. But “ upon the trial of a criminal cause, the prosecution cannot offer evidence to impeach the general character of the defendant, till he has put it in issue by calling witnesses to prove his general good character.” Griffin v. State, 14 Ohio St. 55, 63. And the evidence which the state may offer in opposition to such proof must be confined to general character. Ib.; Hamilton v State, 34 Ohio St. 82, 86.

Erom these considerations it may be fairly said, I think, that the prisoner was compelled “ to be a witness against himself.” That was the effect of the evidence. And it is no answer to say that for one purpose, that is, to discredit him as a witness, it was competent; for, aside from the fact that it could have no such effect in law or fact, it is the duty of the court to preserve to the prisoner the constitutional inhibition as far as possible; and this, as already stated, may be fairly done by allowing a full cross-examination as to matters detailed in chief, but denying it as to such extraneous matters as were proved in this case. That a fair construction of the constitutional provision requires this course to be pursued, T am fully persuaded.

When we come to consider the position which a defendant on trial for crime really occupies, the reasons already stated for holding the extraneous facts incompetent will be much strengthened. Church, C. J., in People v. Crapo, supra, made some sensible observations in this respect, an extract from which is set forth in the opinion of brother Johnson. Indeed, to every person conversant with the trial of criminal cases, it is quite apparent, that while the presumption of law is that the prisoner is innocent, until he is proved to be guilty, the presumption in point of fact is the other way, and in some cases a prisoner tried on indictment is half convicted before the witnesses are sworn. The principal reason is that experience has shown, everywhere, that the great body of persons indicted by a grand jury, and placed on trial, are guilty. But many so tried are innocent, and hence the wisdom and humanity of the legal presumption, to which the court uniformly directs the attention of the jury. True, the spirit of the statute is, that if the prisoner fail to testify, no presumption shall be made against him on that ground by court or jury; but everybody knows the provision is of very imperfect obligation. In truth, the prisoner in nearly all cases is virtually compelled to take the witness stand, where a refusal to answer is almost equivalent to a confession of guilt; and if, in addition to this severe ordeal, he must testify as to the misfortunes, follies and errors of a life time, perhaps forgotten or foigiven by the public, the statute enacted for his benefit and protection becomes our most oppressive enactment, and we adopt a mode of trial only known in countries where the common law has never prevailed. If in some respects the laws of those countries are superior to our own, it is not in the administration of the penal laws. And there can be no excuse for such course of trial upon the ground that the prosecution has been taken by surprise by the appearance of an unexpected witness. If the accused testifies, of course he may be impeached, like any other witness, with respect to his truth and veracity, and the prosecuting attorney knows that he will probably testify, and hence, oi’dinarily, has opportunity to prepare for his impeachment, if his character for truth is bad.

I am aware that in several states where similar statutes exist, it is assumed that cross-examinations of the character of that disclosed in this case violate no constitutional right of the accused. Cases to that effect are collected in 1 Bishop’s Cr. Pro. (3 ed.) § 1183; Wharton’s Cr. Ev. §§ 432 (n. 4), 435 a; and see State v. Red, 53 Iowa, 69. On the other hand, cases all ready referred to, that is, from the reports in Indiana, Illinois, California, Missouri, and the later cases in New York, support to some extent the views which, after careful examination of the subject, are here stated. In my opinion the motion should be granted.  