Lohart v. Buchanan

50 Mo. 201 | Mo. | 1872

Wagner, Judge,

delivered the opinion of the court.

This case was argued elaborately by counsel in reference to the action of the court in its rulings upon the admissibility of evidence, and also in regard to the giving and refusing of instructions. But upon examining the record we find that there are but two or three questions preserved for review here. The court gave instructions at the request of the plaintiff and defendant, and .refused other instructions asked by both; but neither party made any exceptions whatever, and the appellant presents himself here in no situation to complain. So, in nearly every instance where an objection was taken to testimony, the counsel contented himself with simply making an objection, without giving any reasons why the testimony, ivas inadmissible or incompetent, of showing on what ground the objection Avas predicated. This practice has always been condemned, and a pointed, specific objection cannot be assigned here for the first time, when there has been nothing but a general one in the court below. There are but feAV points where exceptions are sufficiently saved to be noticed. The first is Avhere the question Avas put to the Avitness, as to whether he had any conversation Avith Hanrahan about the difficulty on the day Avhen Lohart was stabbed, and what Hanrahan said about seeing the knife in' the hands of the defendant. This question was objected to ’on the part of the plaintiff, on the ground that it was intended to impeach the testimony of Hanrahan ; and before that could be done it Avas necessary that his attention, Avhen he was giving in his evidence, should have been called to the time, place and circumstances under Avhich the alleged statement Avas made, Avhich was not done, and therefore no foundation Avas laid for the reception of the evidence. The court sustained the objection. We think it decided correctly. When Hanrahan Avas examined, defendant’s counsel asked him a general question only, and the rule is Avell settled that Avhen it is proposed to contradict a witness by proof of different statements made by him, his attention must be called to the time, place and person involved in the supposed contradiction. (The State v. Starr, 38 Mo. 278; Spaunhorst v. Link, 46 Mo. 197.)

Another point is made upon the exclusion of a question put to the same witness, wherein it is claimed the court erred in ruling out an alleged conversation between the witness Hanrahan and the defendant, at an election precinct on a certain occasion, after the quarrel between Hanrahan and the defendant, and before the killing of Lohart. The question excluded was this: “Lid you hear any words between the defendant and Hanrahan, at the store of Margog, at the time of the election of Judge Brannan for judge of the County Court ?” This was objected to, and defendant’s counsel then stated the object of the question to be, first, to impeach Hanrahan ; and, second, to show bad feeling on the part of Hanrahan to defendant. In my opinion it Ayas rightly excluded. It was not competent for either purpose for which it Ayas offered. Hanrahan’s attention on the witness stand had not been sufficiently called to the alleged conversation. His only testimony in regard to a conversation at an election was merely incidental, and the place was laid differently from that put ip the question. Moreover, the conversation related to an immaterial fact, and a witness cannot be impeached by contradicting him in such a matter. Whatever Hanrahan’s bad feelings. tOwards the defendant were, was not material and could not affect the plaintiff’s right to recover.

When the question was asked, the defendant, while he was being examined as a witness, whether he had not been indicted before for other offenses, the record simply states that the question was objected to. This is not such an objection as we will review. There is nothing in the point raised concerning the testimony of the clerk of the Criminal Court. For the purpose of shotving that there had been other indictments the clerk brought in the book's, and stated that the records of the indictments had been lost, and that there was an index showing that there was a person of the defendant’s name indicted. No effort was made to show that the defendant was the person referred to, and the index was ruled out by the court as inadmissible. The evidence was not given at all, and it is not like a case wkere illegal evidence is admitted by the court, and then the jury are told to disregard it.

We have novy examined every question saved in the record, and have been unable to find any error justifying interference with the judgment.

Affirmed.

The other judges concur.