
    No. 11,294.
    The State of Louisiana vs. Rick Murphy.
    There are two modes guarding against the abuse oí a witness on cross-examination who testifies in his own behalf as a defendant.
    1. The privilege to decline to answer any question which may tend to charge him as a criminal.
    2. The power of the court to protect the defendant from unreasonable or oppressive cross-examination.
    It is not shown that one or the other was denied.
    Where upon the trial the defendant offers himself as a witness and testifies in his own behalf, under statute of 1886, he thereby becomes subject to the same rules and is called upon to submit to the same tests which are legally applied to other witnesses.
    The question propounded to the defendant on his cross-examination was competent for the purpose of proving that he had been arrested for stealing prior to the date of the theft for which he was on trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.
    
    
      M. J. Cunningham, Attorney General, for the State, Appellee.
    
      J. J. Foley for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was convicted of larceny.

From the verdict and judgment he appeals, and urges as error that the prosecuting officer propounded to him, while he was testifying as a witness in his own behalf, the question:

“ Have you ever been arrested for stealing?”

His grounds of objection were that he was compelled to answer, under the rulings of the trial judge, over his objections; that it tended to degrade his character.

That he had not put his character at issue.

That the records, if any, were the primary evidence of the facts sought to be proven.

In reference to the last objection the trial judge states, as part of the recital in the bill of exceptions taken by the defendant, that the defendant, as a witness, was not denied the privilege of explaining the circumstances of his arrest. Act 29 of 1886.

The defendant, in availing himself of the privilege of testifying in his own behalf, was subject to all the rules that apply to other witnesses. Act 29 of 1886.

The accused was not compelled to testify; the statute declares that the failure to testify shall not create any presumption against a defendant.

Having offered himself as a witness, and having testified, he was called upon to submit to the same tests which are legally applied to other witnesses.

The witness can decline to answer any question which may tend to charge him as criminal.

Moreover, the court has the power to protect him against unreasonable or oppressive cross-examination.

These modes of guarding against the abuse possible under the statute are not in question; it is not suggested that they were disregarded. The question complained of was propounded for the purpose of impairing the credibility of the witness.

The defendant appeared before the court in the dual capacity of an accused and that of a witness.

As an accused his character was not subject to attack unless he opened the question.

As a witness his position was different — his credibility was subject to attack. State of Louisiana vs. Walsh et al., 45 An.; State of Louisiana vs. Lee Taylor et al., 45 An.

The dividing line between the testimony admissible for the purpose of impeaching the credibility of a witness who testifies in his own behalf and that not admissible in his cross-examination, as it may tend to criminate him, is not always apparent.

As a defendant his character could not be impeached, that issue not having been opened by him.

As. a witness it could be impeached, as the character of any witness may be subjected to that test.

In other words he may be unworthy of belief, but this unworthiness is not to be considered in determining whether or not he is guilty.

While the attack upon the character of an accused is for the purpose of establishing that his plea is not supported by his attempt at proving character and that he is guilty.

Much is left to the good judgment and discretion of the trial judge.

His discretion was properly exercised, for the testimony was admitted, on cross-examination, and we understand was afterward referred to as admissible for the purpose only of proving the incredibility of the witness.

Proof of Arrests by Defendant’s Testimony, Admissible.

The question propounded was competent in its character. It was not objectionable as proving a fact by secondary evidence, and the production of a record or warrant could not be required.

The mere arrests were provable by the testimony of the defendant on his cross-examination.

The question was admissible for the purpose, whether or no there was a record. The warrant could issue from a court not of record.

Parol evidence is admissible for the purpose of proving that a particular person has been in prison. Wharton Orim. E., p. 754.

It follows that the testimony of the defendant was admissible to prove that he had been arrested at different times.

The judgment should therefore be affirmed.

Judgment affirmed.

On Application for Rehearing.

Breaux, J.

The accused appealed from the judgment and sentence of the court under a conviction of larceny, and complains of our opinion as erroneous on the sole ground, to-wit:

Having elected to take the witness stand in his own behalf he was compelled, aver his objections, to answer the followingquestion, viz..:

Have you ever been arrested for stealing?” and to which question counsel urged objections.

1. That the accused had not put his character at issue, and the State could not do so.

2. That it tended to degrade his character.

3. That the judicial records, if such there were, constituted the best evidence of the fact sought to be elicited by the question.

The theory of our opinion is, that the accused, under the law, occupied the same plane as other witnesses, and, upon cross-examination, could be submitted to the same tests.

That the question propounded did not tend to incriminate the accused, but to affect his credibility as a witness — he occuping, at the time, the dual position of accused and witness, and the weight and value of his testimony depending upon the credit same was entitled to receive.

The court held that as an accused his character could not be attacked by the prosecution until put at issue as a means of defence; but, as a witness, his situation was altogether different — his credibility being open to attack by any reasonable and proper means or methods.

Proceeding to deal with this question upon the principles laid down, the opinion states that, in such a case, the line of demarcation between the admissibility of testimony for purposes of impeachment of credibility and its inadmissibility as impeaching character is not always apparent, and, therefore, much must be left to the good judgment and discretion of the trial judge, who is better able to decide under the surroundings and circumstances of each particular case.

Counsel’s argument’ is that the objection urged is general, and would be equally applicable to any other witness than the accused— his insistence here being that want of credibility must be proved by general reputation, and not by particular incriminating facts.

That proposition is true when the evidence is offered for the purpose of impeaching the witness’ “ credit for veracity.” Such is the purport of the authorities cited. 1 Gif., See. 461.

But in this ease the trial judge had before him a person accused of and on trial for the commission of a larceny. Accepting the grace of a special statute, entitling him to be heard as a witness in his own favor, the veracity and credibility of the witness, generally, was proper subject-matter for investigation, because of the cloud that surrounded him and necessitated closer scrutiny into his veracity than-that of an ordinary witness.

Being under charge of larceny, what more damaging fact could have been elicited on the trial of such charge than that he had been previously arrested for similar offences.

There is no force in the objection to parol evidence being admitted of the/aoiof the defendant’s previous arrest. The object in view was to show that the one pending before the court was not the first accusation of the kind that had been preferred against him — not to show the truth or falsity of such charge.

Both the points made in the lower court were correctly disposed of.

Rehearing refused.  