APPEAL from the Circuit Court of Kane County; the Hon. JAMES
BOYLE, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The issue presented for review is whether a witness who is not a party to a civil action may be impeached by evidence that he has been convicted of involuntary manslaughter, a non-infamous crime. This appears to be a case of first impression in Illinois.
The issue is raised by the rule laid down in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, adopting Rule 609(a) of the proposed Federal Rules of Evidence. The secondary question presented is, that in the event that said Rule is applicable, did the trial judge in a civil case abuse his discretion in refusing to allow the plaintiff to inquire of a defendant's witness as to his conviction for an offense punishable by imprisonment for more than a year, the offense being either involuntary manslaughter or reckless homicide.
It is to be expressly noted that proposed Rule 609(a) differs from the adopted Rule 609(a). A comparison of the two rules is cited herein:
Impeachment by Evidence of Conviction of Crime (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice." (People v. Montgomery (1971), 47 Ill.2d 510, 516, 268 N.E.2d 695, 698.)
The Rule actually adopted reads as follows:
Rule 609. Impeachment by Evidence of Conviction of Crime (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment." Am.Jur.2d Federal Rules of Evidence § 609, at 64 (1975).
Rule 609(a) of the Federal Rules of Evidence is not limited to criminal proceedings. Some confusion arises by the reading of adopted Rule 609(a) which provides that such evidence is admissible when the "court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant." (Emphasis added.) In the proposed Rule, it will be observed that the "judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice." The latter provision of proposed Rule 609(a) was adopted by the Supreme Court in People v. Montgomery, and we are, therefore, governed by that decision.
An incomplete record has been presented to this court but from the record that we have it would appear the witness in question was involved in a barroom brawl involving a number of people in which Rufus A. Charlton was injured. Under the provisions of the Dram Shop Act Charlton sued the owner of the tavern in question and one Johnny Ellis, the witness in question. Prior to trial Ellis was dismissed as a party defendant. Apparently Ellis had been incarcerated under an unrelated offense of reckless homicide and was returned to the trial court in the instant proceedings under a writ of habeas corpus ad testificandum. A motion in limine was made prior to trial and an order entered restricting the right of the plaintiff to inquire pertaining to his conviction of the other offense. A motion to vacate this order was denied. The jury returned a verdict of not guilty as to the tavern owner and the plaintiff appeals.
At common law all crimes were not deemed infamous and it was the infamy of the crime that rendered the person convicted, incompetent as a witness. Illinois has, by statute (Ill. Rev. Stat. 1973, ch. 38, § 124-1) delineated those crimes which are deemed infamous. In Bartholemew v. People (1882), 104 Ill. 601, the Supreme Court of this State, in construing this statute as it modified the common law, held, in substance, that a defendant taking the stand in his own behalf could be impeached by prior conviction only by the introduction of the proof of an infamous crime. That was the law until the case of People v. Montgomery.
Proposed Rule 609(a), as adopted in Montgomery, removes the infamous crime conviction test and specifically provides that a criminal defendant may be impeached by proof of conviction of an offense carrying with it the punishment of death or imprisonment for more than one year, or proof of conviction of an offense involving dishonesty or false statement. The court in Montgomery held that proposed Rule 609(a) further provided that whether or not the conviction now be introduced to offset the credibility of the witness is within the discretion of the trial judge based upon his determination that the probative value of the evidence of the crime is substantially outweighed by the unfair prejudice to the defendant. The question then arises whether the "Montgomery Rule" should be applied to the testimony of a witness in a civil proceeding who has previously been convicted of a crime carrying with it punishment of over one year other than an infamous crime.
Section 6 of "An Act to revise the law in relation to criminal jurisprudence" (Ill. Rev. Stat. 1973, ch. 38, § 155-1), originally enacted in 1874, removed the disqualifications of witnesses in a ...