158 P. 701 | Utah | 1916
Lead Opinion
“Q. You said you gave birth to a child. I will ask you if this is your child? A.. Yes, sir. Q. The one you refer to in your testimony ? A. Yes, sir.”
‘ ‘ Counsel for Defendant: Now, if the court please, the defendant, at this time, desires to take an exception to the conduct of counsel in presenting the baby in court.”
Complaint now is made of this. But neither any objection nor ruling was made. Counsel merely “excepted to the conduct” of the district attorney. It is not made to appear that the child was exhibited or referred to to show a resemblance between it and the defendant, but merely to corroborate the testimony of the witness that she gave birth to a child. The testimony was at least competent for that.
“Q. You are a brother-in-law of the defendant? A. Yes, sir. Q. Can you tell this jury when his first child was bom?
On objections being made to this as not cross-examination and as incompetent and irrelevant, the district attorney stated:
“He knows all about this man. Why didn’t you bring that out in direct anyway?
‘ ‘ The Court: I think he may answer..
“The Witness: Why I don’t know that I can, the date.
“District Attorney: Q. Can you approximate the date? A. I don’t know that I could state a certain month. I didn’t keep track of any particular dates or anything. Q. Can you tell how long he was married when his first child was born?’’
Here the objections were renewed and overruled. The witness answered:
“Why, I don’t know as I could to the certain month; I think it was along about 7 months.
“District Attorney: That is all.”
“After hearing an appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties. ’ ’
Under it, and in harmony with the rule elsewhere, judgments in this jurisdiction have not been reversed for mere error, but only for prejudicial error, error which did ‘ ‘ affect the substantial rights of the parties.” Here, as elsewhere, an erroneous ruling made against a litigant, which was calculated, or tended, to do harm and to affect a substantial right was presumed to have done so until on the record it was demonstrated that no such harm was or could have been done. This statute, by Laws of 1915, c. 113, was amended to read thus:
“After hearing an appeal the court must give judgment without regard to errors or defects which have not resulted in a miscarriage of justice. If error has been committed it shall not be presumed to have resulted in a miscarriage of justice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment.”
The phrase in the old statute, which did not affect a substantial right, has a well-defined meaning well understood alike by bench and bar. The substitution in place of it, “which has not resulted in a miscarriage of justice,” tends but to-create an uncertainty where theretofore none existed. The term, “miscarriage,” has, in law, a well-defined meaning as-used in statutes synonymously with abortion and as used in the statute of frauds associated with “debt or default” of another. In philology it also has the further meaning of failure of purpose or result. But the phrase, “miscarriage of justice,” has no defined meaning in law. It has a somewhat flexible meaning in ordinary speech, yet even there more in a colloquial sense and somewhat akin to a simile that something was done or omitted which “untimely ripped” justice “from
We thus come to the further provision:
9 “If error has been committed it shall not be presumed to have resulted in a miserriage of justice. The court must be satisfied that it has that effect before it is war•ranted in reversing the judgment.”
We think this but an admonition that all errors, or defects, shall not be presumed prejudicial, to have affected a substan-' tial right, to have resulted in a miscarriage of justice and thus that harmful results are not to be presumed from, nor reversals granted for, mere error. In the language of the statute, the court, before it is warranted in reversing a judgment, “must be satisfied” that the committed error resulted in prejudice of some substantial right. But how satisfied? Not by a presumption from mere error, but by something showing such prejudicial effect. How may that be shown ? Some committed errors, prima facie, are not calculated to do harm. Hence no presumption of harmful effect is to be indulged. Nevertheless, the party against whom such errors are made may, by the record, demonstrate, if he can, that the rulings did result to his prejudice of some substantial right. On the other hand, error may be committed which, prima facie, is calculated to do harm and to affect substantial rights. From such error prejudice and harmful effect of such rights will be presumed until, by the record, it is demonstrated that the error did not have, or could not have had, such prejudicial or harmful effect; and, if not so demonstrated, then ought the court to be satisfied that prejudice resulted. That is but drawing a just conclusion from a natural and unrebutted or undisputed inference. The Legislature did not'say, nor use language to imply, that from no error, however strongly calculated to do harm, no harmful effect of any substantial right should be presumed or inferred. Surely the Legislature did not intend
Concurrence Opinion
I concur. Undoubtedly the court erred in its ruling as pointed out by the Chief Justice. But to reverse the judgment for that reason alone would, in my judgment, merely result in reversing a judgment for an error which in no way affected a substantial right of the defendant.