142 P. 549 | Or. | 1914
delivered the' opinion of the court.
On December 13,1913, the grand jury of Multnomah County returned an indictment against the defendant, charging him with the commission of the crime of polygamy committed as follows:
“The said E. E. 0. Von Klein, alias George B. Lewis, on the 12th day of October, A: D. 1911, in the county of Multnomah and State of Oregon, then and there being, did then and there knowingly and feloniously live and cohabit with a woman, to wit, one Ethel Newcomb, as his wife, he (the said defendant) then and there having a wife then living, to wit, Louise 111-strup Von Klein, contrary to the statute in such cases made and provided and against the peace and dignity of the State of Oregon.”
The defendant was arraigned upon said indictment, and he pleaded not guilty. He was tried and found guilty by a jury on the 23d day of December, 1913. On December 27, 1913, he was sentenced to imprisonment in the penitentiary for the period of from one to four years. The defendant has brought this case here on appeal, and asks for a reversal of the judgment for several alleged errors.
“Is that the same Ethel Newcomb who complained against the defendant, charging him with larceny of some $3,300 worth of diamonds?”
Counsel for the defendant objected to this question, alleging that it was incompetent and irrelevant and tended to prove another crime. The attorney for the state represented to the court that he was asking said question for the purpose of proving the identity of the woman. The court overruled the objection, and the witness answered that it was the same woman. • "We think that said evidence was admissible for the purpose of identification. We do not think that to say a person is the same person that accused another of larceny tends to prove that the person so accused was guilty of larceny, especially when the statement was made for the purpose of identification.
The state contends, and the evidence tends strongly to prove, that the defendant planned to steal Miss Newcomb’s jewelry, and that, to obtain an opportunity to steal said property, he. illegally married her, took her to the Portland Hotel, and lived with her as her husband two or three days, obtained possession of her jewelry on a pretense that he would have it cleaned, and immediately absconded, taking the jewelry with him.
The state contends that the motive for marrying and living with Miss Newcomb was to obtain an opportunity to steal her said property, and the evidence tends to support that contention. The state contends also that the marrying of Miss Newcomb, the living with her at the Portland Hotel, and the stealing of her jewelry were so closely connected as to form one transaction.
“All of the acts of the parties, done in the furtherance of the common design, though separated by time, and not continuous, constitute one entire transaction, and may be shown upon the trial.”
In State v. O’Donnell, 36 Or. 225 (61 Pac. 893), the court says :
“If the facts and circumstances tend to show that the prisoner committed an independent dissimilar crime, to enable him to perpetrate or conceal an offense, such evidence is admissible .against him upon an indictment charging the auxiliary crime, when the intent to perpetrate or conceal such offense furnished the motive for committing the crime for which he is put upon trial. ’ ’
In State v. Start, 65 Or. 185 (132 Pac. 514, 46 L. R. A. (N. S.) 266), the court says:
“Under the third exception, an illustration would be where a burglar stole tools from a foundry with which to break the safe burglarized. Evidence of one crime could in such circumstances be given to support an indictment for the other. On the trial for burglary, the stealing of the tools could be shown as preparation for the crime charged, and, on an indictment for larceny of the tools, the commission of the burglary with them would supply the motive for stealing them.”
In 2 Wharton’s Criminal Ev. (10 ed.), 1667, the author says:
“But the evidence of other crimes is admissible to show motive, and, where relevant for this purpose, the admissibility is not affected by the fact that such evidence may prove other crimes.”
We think that the evidence supports the state’s contention that, when the defendant illegally married Miss Newcomb, he did so for the purpose of obtaining an
When the evidence of Miss Newcomb, given in the larceny case, was offered, counsel for the defendant objected thereto, for the reason that said evidence was “incompetent, irrelevant, and immaterial,’’ etc. These objections were overruled by the court.
The first point urged against the admission of the evidence of these two witnesses is that the state did not show proper diligence to procure the personal attendance of said witnesses at the trial of this case. The evidence shows that the witness Dilley resided in San Francisco, California, and that he was not in this state at the time of the trial. A subpoena issued out of the trial court would have no validity in the state of California. It is not necessary to review the evidence tending to show diligence; but we have examined it and find that a sufficient showing was made to entitle his evidence, given in the larceny case to be read, if it was competent. Miss Newcomb, also, did not reside in the state, and the showing of diligence to procure her personal attendance was sufficient to entitle her evidence in the larceny case to be read in evidence in this case, if it was competent.
The evidence of these witnesses was given in a case in which the State of Oregon was the plaintiff, and the defendant herein was the” defendant, and in that case the defendant was charged with the crime of larceny of the jewelry of Miss Newcomb that she had at the Portland Hotel during the time that the defendant was cohabiting with her there as his wife, as stated in the indictment. The parties to said larceny case were the same as the parties to this action. The evidence shows that said witnesses were sworn and gave said evidence in the presence of the defendant and his counsel, and that the defendant had an opportunity to cross-examine them, and that he did, by his counsel, cross-examine each of said witnesses in said larceny case. The defendant met said witnesses face to face in the larceny case, and the evidence that , was given by them in the larceny case and was admitted in evidence in this case related to the matters in controversy in this case and was relevant to the issues herein.
In this state the rules of evidence in criminal cases are the same as in civil cases, except as otherwise specially provided in the Criminal Code: Section 1533, L. .0. L.
Section 727, L. 0. L., provides as follows:
“In conformity with the preceding provisions, evidence may be given on the trial, of the following facts: * * (8) The testimony of a witness, deceased or out of the state, or unable to testify, given in a former action,
Construing the foregoing provisions of our statute and of Article I, Section 11, of the' Constitution, this court in State v. Meyers, 59 Or. 541 (117 Pac. 819), says:
“The Constitution of Oregon (Article I, Section 11) provides that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face, and the Constitutions of most of the states, as well as the Constitution of the United States, contain similar provisions. It is held, however, that, where the accused has once enjoyed the right to cross-examine and confront the witnesses at an earlier trial, his constitutional right to meet him face to face is not violated by the admission of the” evidence, “when absent, at a subsequent trial. If the defendant is represented by counsel at a preliminary examination, and has had an opportunity to cross-examine witnesses, he has enjoyed his right to meet his accuser face to face, and no objection exists to receiving the testimony.”
In State v. Walton, 53 Or. 565 (99 Pac. 434), the court says:
“The statute was intended to make a general rule, concerning the taking of depositions, inapplicable to criminal trials; but we cannot think it was designed to abrogate a doctrine so firmly established and generally applied as that of permitting the testimony of a witness, given in the manner required by statute, to be used by either the state or defense on a subsequent trial, when he has since died or is absent from the state.”
In Mattox v. United States, 156 U. S. 241 (39 L. Ed. 409, 15 Sup. Ct. Rep. 339), the court says:
“Upon the other hand, the authority for the admissibility of such testimony, where the defendant was present either at the examination of the deceased # * before a * * magistrate, or upon a former trial of the same case, is overwhelming.'”
The admissibility of the evidence of a deceased witness, or of one who is absent from the state, or unable to testify, given in a former action, suit, or proceeding, between the same parties, and relating to the same matter, is settled in this and other states by an overwhelming preponderance of authority, and this rule applies to criminal as well as civil cases; but in criminal cases the defendant must have been present when the evidence was taken and have had an opportunity to cross-examine the witness who gave it.
The defendant in this case was present in person and by his counsel when the evidence under consideration was taken, and his counsel cross-examined the witnesses ; the parties were the same as in this case; and the evidence so taken related to the matter in controversy in this cause. Said evidence was admissible, and the court did not err in admitting it.
“Then I object to the witness being sworn or testifying in this case, on the ground that she is the wife of defendant.”
This objection was overruled.
Section 1535, L. O. L., as amended in 1913 (Laws of 1913, p. 351), is as follows:
“In all criminal actions, where the husband is th¿ party accused, the wife shall be a competent witness, and, when the wife is the party accused, the husband shall be a competent witness; but neither husband nor wife, in such cases, shall be compelled or allowed to testify in such cases unless by consent of both of them: Provided, that in all cases of personal violence upon either by the other, the injured party, husband or wife, shall be allowed to testify against the other: Provided further, that in all criminal actions for polygamy or adultery, the husband or wife of the accused, shall be a competent witness, and shall be allowed to testify against the other, and without the consent of the other, as to the fact of marriage.”
This statute makes husband and wife competent witnesses for or against each other in criminal cases; but neither husband or wife shall be compelled or allowed to testify in such cases, unless by the consent of both parties, except that, in cases of personal violence upon either,.the injured party may he a witness against the other, and in cases of polygamy or adultery the husband or wife of the accused shall be a competent witness, without the consent of the other, as to the fact of marriage. This statute means that the husband and the wife are competent witnesses for or against each other in criminal cases; but that generally they shall not be either compelled or allowed to testify unless both consent thereto.
In the eighth volume of Ency. PI. & Prac., page 163, the rule as to objections is stated thus:
“The objection must state the grounds thereof and point out specifically the errors complained of, in order that an opportunity may be given to correct them; if not sufficiently specific, it will not afterward avail the party raising it. In examining a question as to whether the rulings of the court below are correct, the appellate court will not consider any other grounds of objection than those urged in the court below. The appellate court is not a forum in which to discuss new points, but merely a court of review, to determine whether the rulings of the court below, as presented, were correct or not.”
“Objections should be made at the first seasonable opportunity offered, and, in strictness, should be made when action is asked of the court or purposed by it.”
In Mechanics’ Sav. Bank v. Harding, 65 Kan. 659 (70 Pac. 656), the court says:
“At the trial the plaintiff offered in evidence what purported to be a transcript of the judgment obtained against the bank of Le Roy. The defendant objected to its introduction on the ground that it was ‘incompetent, irrelevant, and immaterial.’ This objection was overruled, and we think properly so. It is argued that the transcript was not properly authenticated. If that objection had been made, it should have been sustained. Objections to testimony should be sufficiently specific to direct the attention of the trial court to the exact question contended for. This is due the court as well as the opposite party. It was said in Howard v. Howard, 52 Kan. 477 (34 Pac. 1117): ‘Objections to testimony should be sufficiently pointed out, in order that the court may rule intelligently upon them, and, unless this is done, they are not entitled to consideration here.’ In Johnston v. Clements, 25 Kan. 376, where the objection was based ‘on all the grounds ever known or heard of,’ it was said: ‘The court should not have entertained these objections. Objections made in that form are unfair, both to the court and to the adverse party.’ In Kansas P. Ry. Co. v. Cutter, 19 Kan. 83, a transcript of the record of the proceedings of a probate court of Colorado was admitted in evidence over the objection that it was ‘incompetent.’ It was held by this court that such objection would not raise the question of the insufficient authentication of the record. * * If it is admissible for any purpose, or under any circumstances, it is the duty of the party objecting distinctly to call the attention of the court to such defect. A neglect to do so will deprive such party of having the question reviewed in this court.”
“There was no error in overruling the objection to the letters of Columbus T. Eice, as it assigned no ground other than they were ‘ incompetent, immaterial, and irrelevant,’ which we have often held amounts to no more than ‘I object.’ ”
Under the statute of 1913, supra, the wife is a competent witness against the husband generally, if he consents thereto, and the defendant in this case, having objected to the questions asked his wife, on the ground that they were “incompetent, irrelevant, and immaterial,” and having failed to object to her competency as a witness, for the reason that she was his wife and not permitted to testify against him, without his consent, thereby waived all objections to his wife’s competency to testify against him generally, and he cannot be heard to raise that question in this court. His objections were to the competency of the evidence and not to the competency of the witness.
In 12 Ency. of Ev., page 1046, the rule is stated thus:
“Inasmuch as it is the witness, and not this evidence, which is incompetent, .the objection must be directed at the former and not the latter. An objection to testimony raises no question as to the witness ’ competency. * * ”
The tenth volume of the same work, at page 329, says:
“Persons objecting to questions as calling for privileged communication must specify that ground in his objection, and indicate the portion objected to. It is not sufficient to state that the question is objected to as ‘ incompetent. ’ ”
In McDonald v. Young, 109 Iowa, 705 (81 N. W. 156), the court says:
In Burdick v. Raymond, 107 Iowa, 228 (77 N. W. 833), the syllabus is as follows:
“An objection that testimony is incompetent, irrelevant, and immaterial, hearsay, and not the best evidence, is insufficient to raise the objection that the witness is disqualified by Code, Section 4604, prohibiting certain persons from testifying to personal transactions with decedents.”
In Levering v. Langley, 8 Minn. 111 (Gil. 82), the court says:
“The defendant Langley was called, and under an objection from the plaintiff’s counsel that the testimony was incompetent, irrelevant, and immaterial, which was overruled, testified substantially to such an agreement between the parties at the time of the execution of the assignment of the lease. After this evidence had been thus elicited, the counsel for the plaintiff interposed the further objection to the evidence of this agreement that Randall was now dead. The referee overruled the objection as having-been made too late. In this decision we think he was clearly right. The plaintiff’s counsel could waive his right to object to the evidence of his adversary on the ground of the decease of the plaintiff’s assignor, and we think he did so by delaying to assert it until after the witness had been allowed to testify, and more particularly so as he
The objection made to the evidence given by the defendant’s wife was that it was “incompetent, irrelevant, and. immaterial, and that no foundation had been laid.” This objection was to the evidence given by the witness, and not to the competency of the witness to testify against the defendant. The evidence that she gave was competent, relevant, and material,. and there was no necessity for laying any “foundation” for its introduction.
After the defendant’s wife had given her evidence concerning her marriage to the defendant, the defendant should have objected to her giving any further evidence in the case, for the reason that she was his wife, and had no right to testify to any fact except as to her marriage, without his consent.
Had a specific objection of that character been made at the proper time, any evidence by her except as to the marriage would have been inadmissible.. But the objections interposed were directed to the evidence and not to her right to give additional evidence against him, and by making said objections and omitting to object to her right to testify to any fact, except the marriage, for the reason that she was his wife, the defendant waived his right to object to her general evidence.
The judgment of the court below is affirmed.
Affirmed.