CREDIBILITY OF ONE CONVICTED OF A FELONY.

Court of Appeals for Hamilton County.

#### The Cincinnati Traction v. Fred Lied.

Decided, November 19, 1917.

*Charge of Court*— Plaintiff *Shown to Save Been Guilty of a*Felony— *Refusal of Trial Judge to Give a Special Instruction as to his Credibility.*

It is not reversible error for the trial judge in a civil case to decline to give an additional instruction to the jury, defining the relation plaintiff’s conviction of a felony bore to his credibility as a witness, where counsel failed to formulate any specific rule of law in their request that such a charge be given.

The plaintiff below recovered a judgment for damages resulting from injuries while a passenger .alighting from a ear of defendant company. A reversal of that judgment is sought in these error proceedings.

The plaintiff was the only witness who testified .as to just how the accident occurred. No operative of the defendant company was called — the only witness offered by it being a claim agent who was unable to testify in relation to the accident' itself. Numerous witnesses on behalf of plaintiff testified as to his injury and results therefrom, and medical evidence was introduced as to the fact that sarcoma had developed from a bruise, resulting in the necessary amputation of his leg.

The only evidence offered by defendant, other than the testimony of the claim agent, was a certified copy of an indictment of plaintiff for accepting a bribe while a public officer, a certified copy of the verdict finding him guilty, .and a certified copy of the sentence of the court. The court in its general charge used the following language:

“You, the jury, are the sole judges of the facts, of the weight of the evidence and of the credibility of the witnesses. The evidence has to be weighed in the scales of credibility. Yon must *137consider whether the evidence is probable, or improbable whether it is sustained with reason and common sense as applying to the transaction, whether it appears that the testimony-has been given frankly, openly and squarely, or whether it has been given otherwise. You will consider all the things that appeared in this case that ought to be considered in determining the credibility of the; testimony that has been given to you by the various witnesses. You do not have to ■believe what .a witness states just because he may have stated it, but you may disbelieve it altogether if you consider that the witness is unworthy of belief, or you may believe a part and disbelieve other parts; you should consider the interest, the motive, if there is any, which prompts a witness to testify, or you may consider the want of interest, whether or not a witness is disinterested and has no reason under all the circumstances for telling .anything but the truth. The truth is the most sacred thing courts of justice deal with. There is not anything in a court of justice that is more shocking than an untruth. Therefore, gentlemen, while you are sitting in the jury box and acting under the solemn obligation you have undertaken, you have a sacred job to perform, and you know nothing but your conscience and your oath .and your duty as members of this jury.

“You have a right to determine from the appearance of the witness on the stand, his manner of testifying, his apparent candor, his apparent intelligence, his relationship business or otherwise to the party, his interest if any may .appear from the evidence, his temper, feeling or bias, if any, and from all these and all the other circumstances appearing in connection with the evidence produced at the trial, you, the jury, have the right to determine which witness is the more worthy of credit and to give credit accordingly.”

At the close of the general charge, counsel for defendant made this statement to the court:

“I desire to call attention to an omission in the charge, and I request your honor to charge upon the relation of the conviction of the plaintiff of a felony, an infamous crime, as bearing on his credibility as a witness.”

This request w.as refused and counsel for defendant excepted and also took a general exception to the charge.

*138
      *Einlcead & Rogers,*for plaintiff in error.

*Belcher & Connor*and *Simeon M. Johnson,*contra.

Jones, P. J.

Counsel insists that the trial court committed reversible error in refusing to make an additional charge to the jury in response to his request at .the end of the general charge, defining the relation that plaintiff’s conviction of a felony bore to his credibility as a witness; and he relies chiefly upon this so-called error to secure a reversal of the judgment below.

While under the common law one who had been convicted of an infamous crime was not permitted to testify, that harsh rule has been abrogated, and under our code all persons are competent witnesses except those of unsound mind and children of tender years. G. C. 11493.

In criminal cases it is provided, G. C. 13659:

> “No person shall be disqualified as a witness in a criminal prosecution by reason of his interest in the event thereof, as a party or otherwise, or by reason of his conviction of crime. * * * Sfich interest, conviction or relationship may be shown for the purpose of affecting the credibility of such witness. ’ ’ * * *

There is no question, therefore, but that the plaintiff was a competent witness in this case. Defendant furnished to the jury ample proof of his conviction of the crime of bribery, and that being practically all of the testimony offered by defendant, it certainly must have been impressed upon the minds of the jurors as one of the important “circumstances appearing in connection with the evidence produced at the trial,” from which the jury were directed by the court “to determine which witness is the more worthy of credit and to give credit accordingly.”

It might have been proper for the court to instruct the jury that they could take into consideration the fact of his conviction in determining his credibility. *Conkey*v. *Carpenter,*106 Mich., 1. But that was not necessary, and possibly might have been considered improper under the rule laid down in *State*v. *Tuttle,*
      *13967 O. S., 440, in which the fourth clause of the syllabus »is as follows:

> “It is not the province of the court, to classify witnesses, and give to the jury what the experience of the courts may be in respect to such a class, but their credibility should be left to the jury, under all the competent facts and circumstances of the case before it.”

No written charge in this respect was asked by counsel for defendant, as might have been done under clause 5 of Section 11447, G. C., nor was any distinct rule of law suggested or formulated by counsel in his request to the court at the close of the general charge. It was clearly the duty of counsel not only to call the court’s attention to such omission as he claimed but, if he desired to found error upon it, to indicate clearly what he claimed the law to be and what charge he desired the court to give. It does not seem to be essential that this request should be in writing, but there must be some specific rule of law formulated in that request in order to predicate error upon its refusal. *Railway Co.*v. *Ritter,*67 O. S.,*53; Whitaker*v. *Insurance Co.,*77 O. S., 518, 522.

In the opinion of this court it was not prejudicial error in the trial judge to» fail to add anything further to what had been said by him in the general charge on the suggestion made by the counsel for defendant below; and a careful review of the record fails to disclose any error to the prejudice of the plaintiff in error, and the judgment is therefore affirmed.

Gorman, J., and Hamilton, J., coficur.