Cowan v State

Cowan v State
1911 OK CR 83
114 P. 627
5 Okl.Cr. 313
Case Number: No. A-187
Decided: 04/04/1911
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. WITNESSES Impeachment Conviction of Former Offense.

2. WITNESSES Cross-Examination of Accused Reputation for Peace.

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3. APPEAL Record Sufficiency.

Appeal from District Court, Bryan County; D.A. Richardson, Judge.

John R. Cowan was convicted of assault to do bodily harm, and appeals. Affirmed.

McPherren & Abbott and J.Q.A. Harrod, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN, PRESIDING JUDGE. What purports to be the case-made and transcript of the record in this case omits the testimony of the witnesses offered on the trial of this case, and also the instructions of the court to the jury. On page 3 of the case-made we find what purports to be a part of the cross-examination of the defendant. Over the objection of appellant, he was compelled to testify that he had previously been convicted and sentenced to the penitentiary for five years on a charge of swindling. As the defendant had voluntarily taken the witness stand, for the purpose of affecting his credibility as a witness, it was entirely proper for the state to show on cross-examination that he had previously been convicted of a felony or of any offense which indicates moral turpitude. See Slater v. United States, 1. Okla. Cr. 275, 98 P. 110.

The defendant also stated on cross-examination that he had pleaded guilty to fighting three or four times in his life. This evidence was received over the defendant's objection and exception. This might or might not have been error. We are prohibited by statute from reversing a conviction upon any error or exception which did not deprive the defendant of a substantial right. The common-law doctrine of a strict construction of penal laws has no application to the laws of Oklahoma. The doctrine that error presumes injury has no place in our criminal jurisprudence. Under

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statutory provision, and upon the repeated decisions of this court, before a defendant can secure a reversal of a conviction against him he must show that on the trial of the cause he was deprived of some substantial right. In other words, in this court the burden is upon the appellant to show both error and injury. The presumption is that the rulings of the trial court are correct until the contrary appears.

We could not determine the question as to whether or not the trial court erred in forcing the defendant to testify as to the number of times on which he had pleaded guilty to fighting, unless we had all the evidence in the record before us. If, on examination in chief, appellant had placed his reputation for peace in issue, or had stated that this was the first time that he had been charged with an offense of this kind, and that he had never been convicted of fighting or assaulting others, then the ruling of the court in this matter would have been entirely proper. The duty was upon appellant to show that this had not been done before we could determine as to whether the trial court had committed error in this matter. While evidence of this character might be improper under some conditions, yet under other conditions it would be admissible and proper. To hold that the trial court erred in this particular would be to allow appeals on detached and unconnected parts of the testimony or other proceedings in the court below, which on their face might appear to be erroneous, yet, which, in the light of the entire case, would be entirely proper and harmless. We cannot allow this kind of practice to grow up in Oklahoma. An appellant must at least bring up enough of his case to enable us to pass intelligently and safely upon the questions presented for decision.

The indictment and judgment of the court are in all respects regular.

The judgment of the lower court is therefore affirmed.