inferences which may be deduced from the evidence, it is the opinion of this Court that the verdict of the jury awarding $ 145,000 total damages to the plaintiff is so excessive as to shock the conscience and lead to the conclusion that the jury was influenced by passion or prejudice.
The second ground urged by defendants in their motion for a new trial is that the cross-examination of one of defendants' witnesses by counsel for the plaintiff was prejudicial to defendants. The defendants called to the stand a witness from Yakima, Washington. This witness testified that he had known the plaintiff's reputation in Washington State both before and after the broadcast of January 6, 1956, and that her reputation was unchanged by the broadcast. This witness testified that plaintiff's reputation was good before the broadcast and that it was good after the broadcast. Plaintiff's counsel opened his cross-examination of this witness in the following manner:
'Q. Fred, did you vote for her? A. What?
'Q. Did you vote for her? A. I voted for Mrs. Wanamaker ever since she was in office, as far as I know.
'Q. Now, Fred, I represented you once in a carnal knowledge case, did I not? A. Now, just a minute --
'Mr. Robb: I object to this, Your Honor.
'The Court: Just a moment.
'Witness: I would like to answer that. There is just one thing I would like to say.
'The Court: Do you object?
'Mr. Robb: I think he better answer that now.
'Witness: Was that prior to or after the time that I came to your office and found you slopped over your desk dead drunk and you didn't recognize me?
'The Court: Just a moment. That's enough of this.
'Mr. Tonkoff: That is a falsity.
'Mr. Robb: You asked for it.
'The Court: Wait a minute. All that testimony will be stricken and the jury will pay no attention to it.'
Counsel for plaintiff followed this questioning by asking the witness if he had not been convicted of a felony. The witness denied that he had been convicted of a felony, whereupon plaintiff's counsel asked if it was the witness' testimony that he had not been convicted of a felony and the witness answered 'Never.'
Counsel's tone of voice and manner in putting the questions to this witness were such as to strongly indicate that plaintiff's counsel believed the witness was testifying falsely when he denied that he had been convicted of a felony. The questioning by plaintiff's counsel was calculated to make the jury believe that the witness had been convicted of the crime of carnal knowledge. Had the witness in fact been convicted of such a crime, proof of this fact would have been admissible to attack his credibility.
The D.C.Code, 1951, § 14-305, provides as follows:
'No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him shall not be concluded by his answers as to such matters. In order to prove such conviction of crime it shall not be necessary to produce the whole record of the proceedings containing such conviction, but the certificate, under seal, of the clerk of the court wherein such proceedings were had, stating the fact of the conviction and for what cause, shall be sufficient.'
The Court assumed that when counsel for the plaintiff asked the witness if he had been convicted of a felony, that counsel for plaintiff had available to him evidence, admissible under the statute, which would establish that the witness had been convicted of a felony, to be offered in the event the witness denied it. Counsel for plaintiff had no such evidence, and, after the trial, admitted that the witness had not been convicted of the felony of carnal knowledge, but that it had been counsel's impression at the time of the trial that he had been so convicted.
It has long been established in this jurisdiction that it is improper for impeachment purposes to show accusation, arrest or indictment for a crime against a witness in any case, civil or criminal. Sanford v. United States, 69 App.D.C. 44, 98 F.2d 325; Chebithes v. Price, 59 App.D.C. 212, 37 F.2d 1008; see also cases in other jurisdictions: Walker Grain Co. v. Blair Elevator Co., 5 Cir., 254 F. 422; United States v. Nettl, 3 Cir., 121 F.2d 927; State v. Patton, 102 Mont. 51, 55 P.2d 1290, 104 A.L.R. 76.
If it is improper for impeachment purposes to show accusation, arrest or indictment for a crime against a witness in a civil case, it is manifestly no less improper to ask such a witness if he has been convicted of a felony to wit: carnal knowledge, when, in fact, the witness has not been so convicted.
It is clear then that the questions put to this witness by plaintiff's counsel were highly improper. The Court cannot escape the conclusion that the questioning by plaintiff's counsel of defendants' witness as to whether he had been convicted of a felony, when, in fact, he had not been, was not only improper but was highly prejudicial to the defendants. This conclusion is reenforced by the size of the verdict for damages brought in by the jury. The Court is of the opinion that the interests of justice demand the granting of a new trial in this case.
Defendants' motion for a new trial is granted. Counsel will present an appropriate order.
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