144 P. 167 | Nev. | 1914
By the Court,
This is an action in damage for criminal conversation between appellant and the wife of respondent. Damage was prayed for in the sum of $10,000. The case was tried in the lower court without a jury. Judgment was rendered in favor of plaintiff in the sum of $2,000. From the judgment and from the order denying a new trial the defendant appeals.
The defense interposed by the pleadings denies the alleged wrongful act, and the damage, and by way of affirmative defense appellant alleged that respondent and his wife, prior to the 19th day of June, 1911, conspired to manufacture evidence against the appellant, and conspired to wrongfully accuse appellant of the acts alleged in the complaint for the purpose of extorting money from him.
There are a number of assignments of error asserted by appellant in the case. We will consider only that assignment most seriously urged, and the only one which, in our judgment, demands serious consideration.
The letter of December 10 is, in substance, a request for respondent to return to Reno, and among other things contains these words: "Well, all at once my eyes are open. Now I am ready to talk and if you think of me as you said you did then, and seemed to when you left, I am your friend in every sense of the word as you said you were mine, and want you to come here now and hear what I have to say.”
These letters contained .other statements indicating that the respondent had left the home, and that there was at least a temporary separation.
It is the contention of appellant that these letters, purporting to have been written by the wife of respondent without the knowledge or assent of appellant, are objectionable under the rule excluding hearsay testimony, and also under the rule excluding self-serving declarations. There is nothing in the record, in our judgment, that would relieve these letters of their objectionable features in so far as their contained admission and declarations of acts of adultery are concerned. Each of the letters was subject to exclusion under all the rules invoked if they had been admitted for any other purposes than that expressly stated by the court when admitting them.
The wife of the respondent, the party from whom these letters purported to have emanated, was called as a witness by respondent, and her testimony given at the trial disclosed a chapter of her life which was replete with debauchery in which the appellant, according to her testimony, was the star actor. Her story told upon the stand, both in direct and through the course of the most searching cross-examination, disclosed a series of acts of adultery committed with the appellant, not only in her own home, but in various lodging-houses in the city of Reno prior to the 19th of October. She testified in detail as to the occurrences on the day of the 19th of October, the date on which it is alleged the respondent discovered appellant in a compromising position with her, and in her testimony she admits the act of adultery on that date. Her testimony not only covers the ground covered by the inadmissible portions of the letters, but without referring to the letters goes much further, and much more in detail. In her testimony she corroborates the statement made by respondent as to the acts and utterances of the respective parties, to wit, herself, the appellant, and the respondent in the presence of each other on the 19th day of October.
As we have already stated, it requires no citation of authorities and no critical analysis to further the conclusion that the letters in question were inadmissible to prove adulterous acts. Their incompetency was a matter manifest and apparent on their very face. With reference to the admission of the letters the record discloses the purpose for which they were admitted, and the attitude of the court in admitting them. The court in admitting
It has been held that, even in cases where a trial was conducted before a jury, the admission of incompetent evidence contained in an instrument, part of the contents of which was competent, would not constitute reversible error where the court gave instruction to the jury directing them to disregard the incompetent portion, or where the court specifically instructed the jury as to the purpose for which the instrument or its contents should be considered by them. (Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22; Ball v. Marquis, 122 Iowa, 665, 98 N. W. 496.)
Our reference to this rule applicable to the admission of evidence of this character in the trial of cases before a jury is made without conferring upon it either our approval or disapproval. The established and recognized rules applicable to the admissibility of evidence should, in our judgment, be closely and carefully adhered to, with a view that nothing may inject itself into the record excepting that which is properly admissible under the applicable rules. Strict adherence to these rules forms the surest avenue by which litigation may be speedily determined and by which litigants may be saved interminable annoyance and expense attendant upon reversals by courts of last resorts, and hardshipful retrials.
In a case such as this where the trial is conducted before a court sitting without a jury, it may, in our judgment, be properly presumed, unless the contrary appears, that the court in arriving at its conclusion considered only such evidence as was legally admissible. (Gernert v. Griffin, 28 Okl. 733, 116 Pac. 439; Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110, 63 L. R. A. 271.)
As we have already stated, the incompetent evidence admitted by way of the letters in question was not the only evidence establishing the acts of adultery. Other and competent evidence was before the court by way of
It cannot be assumed that the incompetent evidence, which was inseparable from the competent statements contained in the letters, affected the conclusion reached by the trial judge when his decision in admitting the evidence excluded the incompetent portion from consideration. It must be assumed, in the absence of a showing to the contrary, that the trial judge adhered to his position as stated when he admitted the letters in evidence. The rule that injury will be presumed where error is shown unless the contrary appears affirmatively cannot apply where, in a case like this, the incompetent matter, inseparably attached to competent matter, was expressly referred to as not being admissible, or where the admissibility of the instrument is limited to a specified purpose for which it is competent. If the testimony of the wife of the respondent given before the trial court, with the opportunity afforded the court for careful scrutiny and observation of the witness, carried conviction to the mind of the court as to the truth of her assertions, it was sufficient in itself to support the finding.
The letters were admitted solely for the purpose of contradicting the inference that respondent was cohabiting with his wife subsequent to the date on which knowledge of her adultery was brought home to him. There were certain statements in the letters which might be considered as tending to disprove such inference. They were properly admissible for .this purpose, and under the rule already cited, it must be presumed that the court regarded the letters for no other purpose. (Willis v. Bernerd, 131 Eng. Rep. 439; Ball v. Marquis, 122 Iowa, 665, 98 N. W. 496; Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22.)
"A husband cannot be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can either, during their marriage or afterwards, be, without the consent of the other, examined as to any communication
As we have already stated, the record discloses consent given by the respondent and by his wife, respectively, in open court that the other might testify as a witness about any and all facts and circumstances and mutual confidences which existed between them having a bearing on the case. The error contended for in this respect not being seriously urged by appellant, we deem it sufficient to say that the action of the trial court in permitting the witness Annie Rehling, wife of respondent, to testify was not an error under the statute cited. (Scheffler v. Robinson, 159 Mo. App. 527, 141 S. W. 485; Smith v. Meyers, 52 Neb. 70, 71 N. W. 1006; Wigmore on Evidence, sec. 2241.)
Other minor errors are asserted by appellant, but we deem them unimportant or nonprejudicial.
The judgment and order appealed from are sustained.
It is so ordered.