Dooley v. Sterling Stores, Inc.

I think the court committed reversible error in admitting testimony concerning an earlier theft by Thomas Dooley. Appellees' counsel tried the case on the theory that such evidence was admissible. Thomas was repeatedly questioned as to prior thefts; he steadfastly denied his guilt. As no prior conviction was shown, it is elementary that the appellees were concluded by his answers. But counsel insisted that he was entitled to prove other offenses, saying: "I am attempting to prove the little boy is lying. I think I can show it by showing that he has been guilty in the past of the same thing this Sterling Stores manager accused him of. . . . It is material as to whether or not he has been accused of shoplifting before." Of course this is a patently erroneous statement of law, and I do not understand that the majority approve it.

Pursuant to this theory counsel asked officer Roberts if he were called to Lowery's store in 1946 about a little colored boy stealing. Appellants' attorney immediately objected, but the court ruled that the question was proper except for its failure to identify Thomas Dooley. Counsel reframed the inquiry and was allowed to develop his proof over appellants' objections. Roberts was permitted to testify that he was called to the store, that the boy had some pecans in his pocket, that he was taken to the police station, that Thomas Dooley's father came down and was told about "this boy taking the pecans," that Dooley said, "I will attend to him when I get him home," and that the police "released" the boy to his father. In view of this testimony the majority's statement that no attempt was made to prove that the pecans were stolen is to me utterly incomprehensible. That was exactly what counsel, in the presence of the jury, stated he had a right to prove. The jury could have drawn no inference except that Thomas had been accused of stealing pecans, with the result that the police were called, and, after taking the boy to the station, released him to his father for punishment.

Two suggestions are made to support the admission of this prejudicial evidence. First it is said that the *Page 902 instructions are not fully abstracted; so we do not know what the court told the jury about Roberts' testimony. This is merely an artificial technicality. We do know that the court overruled repeated objections to this line of questioning and also overruled a motion to strike the testimony. Our Rule 9 requires only that the appellant abstract that part of the record that is necessary to an understanding of the questions presented. When it is shown that the trial court persevered in an erroneous ruling, we may safely assume that he did not change his mind when it came time to instruct the jury. For that matter, the appellees would certainly have called our attention to any instruction which might have cured the error, and they have not done so.

The second reason given for affirmance is that since Dooley's parents had testified that Thomas had never before been to town alone, Roberts' testimony was admissible to contradict these statements. To begin with, we have consistently held that a witness cannot be impeached upon a collateral matter. Whether Thomas had been to town before was wholly immaterial to the cause of action stated in the complaint. But even if this theory were accepted, it would have been enough for Roberts to say that he had seen the boy in town alone at Lowery's store. When we allow his additional testimony I think we approve a subterfuge by which prejudicial and incompetent evidence was permitted to reach the jury.

FRANK G. SMITH, J., concurs in this dissent.