dissenting.
I do not concur in the conclusion that defendant is entitled to a new trial because he was asked and was required to answer whether he had ever pleaded guilty to the charge of unlawful possession of intoxicating liquor. In the present case he was accused of unlawfully selling intoxicating liquor, a similar offense. The evidence proves his guilt and the jury so found. The conviction is set aside for the reason that he was asked and required to answer whether he had ever pleaded guilty to the charge of unlawful possession of intoxicating liquor. A reason for reversing the conviction is stated in the opinion as follows:
“The sole purpose such question and answer could serve was to weaken the defendant’s credibility as a witness, .and thus minimize the weight of his testimony.”
Defendant frankly answered the question in the affirmative, admitting he had on a former occasion pleaded guilty to the charge of unlawfully selling intoxicating liquor. As I view the question and the answer he was not thus discredited as a witness. The question and answer indicate that defendant did not previously testify falsely to escape conviction and punishment under a similar accusation. If the sole purpose of the question was to weaken his credibility, the former plea of guilty is the basis of a proper inference that he is not a witness who would testify falsely to escape punishment. In my judgment direct evidence of guilt, not the collateral question and answer, influenced the jury. It seems to me it was to prevent a reversal for an error like this that the legislature enacted the statute forbidding the reversal of a conviction for the admission of improper evidence not resulting in a miscarriage of justice. Comp. St. 1922, sec. 10186. The opinion itself contains a ruling that the competent evidence, except for the question criticised, was sufficient to justify a verdict of guilty. The competent evidence and the finding of the jury should control the issue of fact and prevent the technical error from overshadowing the truth.
The legislative enactment that “A witness may be inter*317xogated as to his previous conviction for a felony” created a rule of evidence for the courts. Comp. St. 1922, sec. 8848. This rule does not make the statute forbidding the reversal of a conviction for harmless error inoperative when the statutory question as to a felony is propounded to a witness charged with a misdemeanor. As I view the record the conviction should not be set aside for the reason ¡given.