#### Ora Ford v. State of Nebraska.

Filed July 7, 1921.

No. 21829.

Criminal Law: Witnesses: Cross-Examination. It is incompetent in a criminal case, for the purpose of affecting the credibility of a witness, to ask him on cross-examination if he is not the defendant in a criminal action and has entered a plea of guilty in that case, as the entry of a plea of guilty without judgment or sentence is not a conviction within the meaning of section 7906, Rev. St. 1913.

*440Error to the district court for Chase county: Charles E. Eldred, Judge.

*Reversed.*

*(J.*TF. *Meeker*and Stewart, *Rerry A*Stewart, for plaintiff; in error.

*Clarence A.*Davis, *Attorney*General, and *Jackson B.*Chase, *contra.*

Heard before Morrissey, C.J., Flansburg and Rose, JJ., Begley and Leslie, District Judges.

Begley, District Judge.

Plaintiff in error was convicted upon an information •charging him and George Ford with having unlawfully and feloniously stolen and carried away a load of wheat consisting of about 29 bushels, of the value of $73, the property of Glenn Maddux and Wilfred Maddux. He was sentenced to the penitentiary under the provisions of the indeterminate sentence law of the state. He prosecuted ■error to this court, and assigns a number .of errors, but only one need be considered.

The real controversy in this case is over the identity of a load of wheat. The evidence of the state shows that Ora Ford, plaintiff in error, and George Ford are the minor sons of Thomas Ford, and aged 18 and 12 years, respectively, and that they resided at the home of their father in Chase county, Nebraska. Glenn Maddux and Wilfred Maddux resided about 10 miles distant and were the owners of a quantity of wheat stored in a bin upon their premises; that on May 26, 1920, they discovered a quantity of wheat missing and further discovered wagon tracks leading from the bin; that they followed these tracks to the home of Thomas Ford, where they found Thomas Ford’s wagon missing, and Wilfred Maddux then proceeded to the village of Madrid, Nebraska, where he found that Ora Ford and George Ford had just marketed a load of wheat consisting of 31 bushels and had received therefor the sum of $73.16. Plaintiff in error, when confronted by Wilfred Maddux, admitted the wheat belonged to Maddux, turned over to him the sum of $65.65, *441and offered to make settlement for the remainder.

The defendants attempted to show that the load of Avheat was the property of Thomas Ford; that it was part of two loads purchased by him for seeding purposes in the year 1919, and that this load represented the remainder left in the bin from said purchase, and that on May 25, 1920, he and certain members of his family loaded this Avheat upon the wagon, and under his direction it was hauled to Madrid on May 26 by his sons, George and Ora Ford. Ora Ford claimed he made confession falsely, under threats of arrest. Evidence Avas offered by membi rs of the Ford family accounting for the whereabouts of the plaintiff in error and his brother George during the evening and night of May 25, 1920, and also by the testimony of one Ernest Knotwell. Knotwell testified that he came to the Ford home about 8 o’clock p. m., May 25, 1920, and remained there until 8 o’clock the following morning; that plaintiff in error and his brother George were there all evening, as Avell as the other members of the ffimily, and that a load of Avheat stood near the granary; that the next morning the plaintiff in error and his brother George started to Madrid Avit-h the same; that he had seen the Avheat in the bin previous to this date. On cross-examination, over the objections of defendant’s counsel, he.Avas asked: “Q. You are the same C. E, KnotAvell that is a defendant in a criminal action here in this court? A. Yes; sir. Q. You entered a plea of guilty in that case, did you not? A. Yes, sir.”

The admission of this eAÚdence Avas error. It does not show conviction of a crime, but merely an arrest and plea of guilty thereto. In *Marion v. State,*16 Neb. 349, it Avas held: “When in a prosecution for murder the defendant on his trial becomes a Avitness in his own behalf, it is incompetent on cross-examination, for the purpose of affecting his credibility as a witness, to ask him if he had not pleaded guilty to a penitentiary offense in another state; the entry of a plea of guilty without judgment or sentence not being a conviction within* the meaning of *442section 338 of the Civil Code of Nebraska.”

Section 7906, Rev. St. 1913, provides: “A witness may be interrogated as to his previous conviction of a felony. But no other proof of such conviction is competent except the record thereof.” It has been frequently held by this court that a witness may not be interrogated as to his previous conviction of a crime below the grade of a felony. *Young Men’s Christian Ass’n of Lincoln v. Rawlings,*60 Neb. 377; *Leo v. State,*63 Neb. 723; *Reed v. State,*66 Neb. 184; *Keating v. State,*67 Neb. 560; *Johns v. State,*88 Neb. 145. The matter is thoroughly discussed and the method of propounding questions 3 elating to a previous conviction set forth in *Leo v. State, supra.*The questions here, as in that case, can hardly be regarded as for any other purpose than to engender in the minds of the jury the belief that the witness was addicted to criminal acts. They are wholly collateral to the matters at issue and a noncompliance with the statutory provisions and prejudicial to.the rights of the defendant. Knotwell was the only witness, aside from the members of the Ford family, who testified as to the whereabouts of the defendants, and as to the fact of the ownership of the wheat, and it cannot be denied that his testimony, if believed, was a powerful factor in their defense.

The case is, therefore, reversed and remanded for further proceedings for error in admission of this evidence.

Reversed.