36 Neb. 702 | Neb. | 1893
The plaintiff in error was informed against under section 164 of the Criminal Code, upon the charge that “On
Three errors are assigned which will be noticed in their order.
1. The testimony tends to show that on the 30th day of December, 1890, one Clara Bedford, a girl fourteen years of age, filed a complaint before a justice of the peace of Hall county in which she charged her father, Hezekiah Bedford, with the crime of incest; that an examination was had on the charge and the justice found probable cause
Objected to, as immaterial, calling for a conclusion of the witness, and for the further reason that there is no proper foundation laid. Overruled and exception taken.
Q. Can you remember doing that—yes or no; can you remember?
A. It was later than that.
Q. I want to know if you can remember that occurrence?
A. Yes.
Q. You remember that occurrence?
A. I don’t remember stating it just like that.
Q. You remember coming to my room that morning?
A. Yes, sir.
Q. When was that in relation to the conversation you had with George Bedford at Whitney’s stairs; before or after?
Objected to, as immaterial. Overruled and exceptions taken.
A. Mr. Ryan had notified me that they were attempting to run the girl out of the country, trying to do so, and he wanted me to — if I knew anything about it, found out anything about it at all — to let him know; and I merely mistrusted that evening from my conversation with Mr. Bedford-
Objected to, as immaterial. Overruled and exceptions taken.
A. I went and told Mr. Ryan that I thought-
Objected to, as immaterial.
A. That I thought that they was' going to. I didn’t know for certain, but I thought they were going to. If they hadn’t, I thought they would that day.
Q. Who do you mean by “ they ” ?
A. Mr. Bedford’s folks.
Q. What Bedford’s folks?
A. Well, Mr. George Bedford and family up there, I suppose.
Q. Now, Dan, what county and state did these conversations that you have just related take place in?
A. This county, Grand Island, Hall county, Nebraska.
CROSS-EXAMINATION.
Q. You expected to be a witness in the case of the state of Nebraska against Hezekiah Bedford, didn’t you ?
A. I did.
Q. And have you ever told Mr. Bedford and myself that you didn’t think there was any case there?
A. I might have said so.
Q. You told us that you thought you could bring evidence that would acquit Mr. Hezekiah Bedford, didn’t you?
A. I have said lots of times, and would say it now, that I think there can be evidence fetched to impeach what evidence has been given.
Q. And that you thought-
Court : This part of Mr. Ramsa’s testimony with regard to his going and telling Mr. Ryan, unless there is some further foundation for it than has been given, may be stricken out.
We know of no rule that will permit the admission of evidence plainly incompetent on its face over the objection of the party accused where there is no promise by the party offering it to connect with other evidence so as to render it competent; and after it is before the jury strike it out. The court may be deceived as to the effect of certain evidence offered, or may believe that it is properly admissible, and after it is before the jury see that it is not, and therefore order it stricken out; but a court cannot deliberately permit a large amount of damaging evidence to be
2. A letter from the wife of the plaintiff in error to the wife of Hezekiah Bedford, and also from the daughter to her mother, were offered and introduced in evidence against the objection of the plaintiff in error. These letters were not written to the plaintiff in error, nor in answer to lettei’s sent by him, nor are they in any way connected with this case. Upon what theory they were admitted we are at a loss to know. Letter’s of third persons are receivable in evidence as merely collateral, introductory, or incidental to or in illustration of the testimony which the witness gives. (1 Chitty, Cr. Law, 368, 369; 1 Phillips, Ev. [4th Am. ed.], 170.) .As, where a witness testified that he was induced to institute proceedings by letters of a third party. (Lewis v. Manly, 2 Yeates [Pa.], 200.) But the letters could not be received as evidence of the facts stated in them. (5 Am. Law Reg., 468.) “All acts, declarations, etc., made by third persons are obnoxious to two objections. 1. That they are res inter alios acta, and therefore irrelevant. 2. That they are mere hearsay, the assertions of parties without the sanction of an oath and an opportunity for cross-examination. But entries against interest and in the course of business have always been considered as limitations of the rule excluding the first, and they are admitted not because the acts or admissions of third parties can bind others, but because they are evidence, just as the same party’s oath would be, of the facts therein stated. The peculiar circumstances under which they are made ai’e considered quite as efficient a safeguard against falsehood as an oath, and
3. As there must be a new trial we will not discuss the evidence. It rests largely in inferences. The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.