45 Wash. 645 | Wash. | 1907
Appellant was tried and convicted upon a charge of obtaining money under false pretenses. The state
It is respondent’s contention that appellant, at the time of objecting to the witness giving evidence, should have offered proof to establish the marriage relation. The state further maintains that even if her testimony that she was married to the defendant were competent to establish that fact, the neglect of the defendant to have the evidence of the witness theretofore given stricken, prevents them from now taking the advantage of its incompetency. At 19 Am. & Eng. Ency. Law (2d ed.), 1198, we find the following: “At common law the married parties were not competent to prove their marriage, but their incapacity has been removed to some extent by various statutes.” No such statute is called to our attention here. Wharton, Criminal Evidence (9th ed.), p. 322, says: “Where the relation of husband and wife under
“A general objection on the introduction of a husband as a witness in behalf of his wife to his incompetency as such, which is overruled, does not reach an error in permitting him to answer a question as to matters in which he did not act as her agent, to which question no specific objection was made. The objectionj however, must be taken as soon as the competency of the witness is discovered, by motion to strike out or otherwise. If this is not done, the objection is waived.”
We think the contention of the respondent must be upheld. When it was suggested that the witness was the wife of the defendant it would have been proper for the court to have immediately directed the parties to produce evidence as to the matter; but there is no statute or rule of law requiring the court so to do, and it was not incumbent upon the state to offer proof upon that question as long as the defendant offered none to substantiate its objection. The objection having been made when there was nothing in the record to show that the witness was the wife of the defendant, and no evidence being offered to prove that defendant and witness were husband and wife, there was no error on the part of the court in overruling appellant’s objection to the witness testifying. When upon cross-examination the witness stated that she was married to
It is also urged by appellant that portions of the record ■in another case, wherein the appellant was tried for crime, were improperly introduced in this case, and that this had a tendency to prejudice the jury against him. There is a serious question as to whether this evidence was admissible; hut, if error, it was not prejudicial. There had already been evidence, given without challenge or objection, to the effect that the witness Street had pawned her diamonds to raise money to bail defendant when he was incarcerated upon another criminal charge. The jury having learned these facts from the evidence already before them, we cannot say that the introduction of the records gave them such information to defendant’s prejudice.
The judgment of the trial court is affirmed.
Hadley, C. J., Mount, Dunbar, and Crow, JJ., concur.