On Petition for Rehearing Filed January 22, 1921.
Birdzell, J.Counsel for respondent has filed a carefully considered petition for rehearing, in which he has collated the cases decided in this jurisdiction bearing upon the scope of the cross-examination of witnesses. These cases are brought to the attention of the court by way of supporting the contention, forcibly advanced, that the liberal rule of cross-examination previously adhered to is departed from in the decision of this case. See Territory v. O’Hare, 1 N. D. 30, 44 N. W. 1003; State v. Kent (State v. Pancoast), 5 N. D. 516, 35 L.R.A. 518, 67 N. W. 1052; State v. Apley, 25 N. D. 298, 48 L.R.A.(N.S.) 269, 141 N. W. 740, and cases therein cited. See also Engstrom v. Nelson, 41 N. D. 530, 171 N. W. 90. This court does not wish to be understood as in any way qualifying the previous holdings referred to. We tbinh it sufficiently appears from the portions of the transcript quoted *630in the original opinion that the trial court at the outset, in the exercise of discretion, ruled in such a way as to exclude evidence having a tendency merely to degrade the defendant and to show him to have been guilty of some petty misdemeanors. This evidence, if admitted, would have had so little bearing upon the witness’s credibility that this court could not say that its exclusion was prejudicial error; but, on the other hand, it would rather appear that the trial court had properly exercised its discretion in thus controlling the cross-examination. Following those first questions, plaintiff’s counsel asked defendant if he had not been arrested on a warrant issued by a justice for an assault upon the person of George Lund. This question was clearly improper for the reasons stated in the previous opinion; namely, that it did not inquire whether or not the defendant had committed the assault or been convicted of it. Then this was followed by the question as to whether or not he had not been found guilty and fined for this same assault. Again the court exercised its discretion as in the first rulings, and sustained the objection to the question. Then respondent’s counsel asked another question of exactly the same character; that is, as to whether or not the defendant had not been arrested upon a warrant issued by Justice Murphy for a breach of the peace. After the objection to this question was sustained counsel suggested the possible admissibility to prove capacity for committing the assault, since the defendant had claimed that he was incapacitated by physical deformity. Then, after the court had intimated that he would admit evidence of other assaults„on the question of physical condition or capacity to use force, and also on the question of oppressiveness, respondent’s counsel framed a question apparently embodying an instance not covered by any of the previous questions, and the court ultimately excluded that, and we think properly so, upon the record made up to that time.
For the reasons stated in the principal opinion and reiterated here, we think the rulings on the cross-examination concerning the other offenses were proper. We do not hold, however, that a witness may not be fully cross-examined as to his prior conviction of crime, or as to his or her prior disreputable conduct generally, such as living in an open state of adultery or being a prostitute, a professional gambler, or engaged in operating a saloon without a license, as has been held in the cases referred to by counsel. The rule in this jurisdiction is the liberal, *631discretionary rule. See cases supra and Wigmore, Ev. §§ 980, et seq.
In this case punitive damages amounting to $2,000 were awarded by the jury, and the case is such that punitive damages may be recovered. This makes it all the more important to exclude from the consideration of the jury matters having a strong tendency to induce a conviction in their mind that the defendant merits punishment on account of his conduct upon other occasions. All evidence that would tend strongly in this direction, and be of only slight value at best as bearing upon credibility, should, therefore, be excluded. We are of the opinion that the record in this case shows that an amount of prejudicial matter, beyond what was necessary to secure a clear ruling by the court, was indirectly presented to the jury, and we think the surest corrective measure is a new trial.
The petition for rehearing is denied.
Christianson, Ch. J., and Bronson and Robinson, JJ., concur.