8 Ohio C.C. 262 | Oh. Circ. Ct. | 1894
It is claimed by counsel for the plaintiff in 'error that the trial court erred in its rulings as to the admission of the evidence in two particulars, viz: First — In allowing the wife of the defendant, who had been called by him to testify on his behalf, to be cross-examined by the prosecuting attorney as to matters as to which she had not testified on her examination in chief, and on such cross-examination to give evidence which tended to show that the defendant was guilty of the crime with which he was charged; and, second, that the court, over the exception of-defendant’s counsel, allowed several witnesses to testify as to exclamations or statements made by the wife sometime after the homicide, with which defendant was charged, when it was not shown that the husband heard the remark, and, therefore, that- it was but- hearsay, and incompetent on this ground.
The first of these objections involves to some extent the construction to be be given to section 7284, Rev. Stat., which relates to the competency of witnesses in criminal cases. Among other things it is therein provided that- “husband and wife shall be competent witnesses to testify in behalf of each other in all criminal prosecutions. * * * But husband and wife shall not testify concerning any communication made by one to the other, or act done by either in the presence of each other during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness.”
We are of the opinion that when a husband or a wife of a person charged, with and on trial for a crime, is called as a witness by such person to testify on his or her behalf, and is so
The other question raised we esteem to be more serious. The evidence on the part of the state tended strongly to show a willful and unlawful homicide; that of the defendant and his wife tended to show that the former had been drinking, and was quarreling with her in their room that night, to the annoyance of Roller, their landlord, and that finally Roller burst into their room and threatened to and did attempt to throw the defendant from an upstairs window, and that de
It is clear that this statement of the wife after the transaction was not competent as a part of the res gestae. The only possible ground upon which it might have been received (unless as impeaching evidence on a proper foundation having been laid, 'which was not done), was that it was a statement made in the. presence and hearing of the defendant, and which he was called upon to deny or explain, and that he did not do so. At the time those statements or exclamations of the wife were made, and when the objection of defendant’s counsel was interposed, there had been no evidence which clearly showed that the defendant heard the statement or exclamation of the wife, or that it was really addressed to him, though immediately following in the testimony of the witnesses, is what purports to be the statement of the defendant, and which would appear to be an answer to the wife, to the effect, that he was glad that he had killed him, and that he had made a good job of it. When the witnesses testified to the statement or exclamation of the wife, “counsel for the defend? ant objected to this statement as being hearsay, which objection was overruled, and the defendant.excepted.”
The rule of law on the point of implied admissions from silence is stated in Swan’s Treatise, 174, thus: “Admission may be implied from the acquiescence of a party either in what.is
If there had been no evidence submitted which tended to show that this statement or exclamation of the wife had been heard by the husband, it is obvious that the objection of the defendant to the admission thereof should have been sustained — as if, for instance, the defendant had not been in the same room at the time, or where he could have heard the words. But the evidence shows that he was there and within such distance that he might have heard, if possessed of the ordinary sense of hearing and in the exercise of his faculties; and it further seems to show that he did hear and reply to the remark, and the same witness who testified to her exclamation and his reply, on cross-examination, says, “that these remarks passed between him and his wife.” It is true that this had not been shown so clearly when the objection was made, and ruled upon by the court, but it would seem that the objection was urged too soon, for until it appeared, what answer was made by Haberty, or whether he remained silent, it could not be known whether the evidence was competent or of any value. We think the evidence submitted was such as justified the trial judge in allowing it to go to the
Since the argument of this case, the counsel for the state have filed a motion suggesting that the record is incomplete,, in this, that the bill of exceptions as signed and allowed by the court, does not truly set forth all of the evidence actually given on this point, with affidavits to show that such is the cáse, and asking to have the bill of exceptions sent to the trial judge for amendment in this respect.
There is no warrant for such a proceeding. If the transcript of the record filed is not a true copy thereof, the reviewing court may require it to be corrected. But here the bill of exceptions is the one actually signed and allowed by the trial judge. It was taken at a former term of the court, and the-time for signing and allowing of a bill has long since passed. The trial judge has now no right to correct the old bill as desired, or sign a new one: Busby v. Finn, 1 Ohio St. 409. But, on the whole case, we see no error prejudicial to the defendant, which was excepted to, and the judgment will be affirmed.