50 Kan. 712 | Kan. | 1893
Opinion by
This was an action brought under the act providing. for the maintenance and support of ille
It is first contended that the district court erred in excluding certain evidence offered by the defendant in the district court. John Heathman was produced as a witness for the defendant, and an effort was made to prove the contents of a letter claimed to have been written by the prosecutrix to Richard Heathman. It is urged that the proper foundation was laid for the introduction of secondary evidence. The prosecutrix stated upon her cross-examination that she had never written a letter to Richard Heathman in her life. Three witnesses, including John and- Richard Heathman, swore that they did not know the handwriting of the prosecutrix, and had never seen her write. This evidence, coupled with the further fact that a letter had passed through the post office at Sigel, directed to Richard Heathman and signed “Sid.,” was all the court had to authorize the admission of secondary evidence. The evidence did not establish the fact that the letter was in the handwriting of the prosecutrix or signed by her. It did not even appear that the evidence was competent or material. We are clearly of the opinion that the court committed no error in excluding secondary evidence as to the contents of this letter.
The second assignment of error is, that the district court erred in refusing to compel the witness Richard Heathman to give evidence as to his having had sexual intercourse with the prosecutrix. The witness declined to answer the question, for the reason that it might render him liable to a criminal prosecution. The record shows the following:
“Q,. State whether you ever had sexual intercourse with Sidney Brewer during the year 1886. A. No, sir.
*716 “Q,. State whether you had sexual intercourse with her during the year 1887. A. I decline to answer that question.
“ Mr. Riggs: I ask upon behalf of the prosecuting witness that the witness be compelled to answer. I am perfectly willing that he should answer—within proper limits, of course.
“The Court: They are entirely willing that you should answer; you are at liberty to do so if you choose; the prosecuting witness is willing that you should answer.
“Q. State whether you had any intercourse with her during 1887. A. I decline to answer.
“ Q. Why do you decline to answer? A. I decline to answer for the reason that it might render me liable to a criminal prosecution.
“Q,. (By the Court): Are you a married man? A. No, sir.
“The Court: It is your privilege to refuse to answer, if you see fit to do so. The woman is willing you should answer, but it is for you' to say whether you will or not; you are not obliged to do so.
“Q,. I will ask you again to state whether you had sexual intercourse with the prosecuting witness during the month of May, 1887. A. I decline to answer.
“Mr. Hutchings: If the court pleases, I insist upon his being required to answer that question.
“The Court: I shall not require him to answer. I think it would be a violation of his constitutional privilege; I think it would be such error as would reverse the case most certainly. I may be wrong, and if I am, I may be set right; but, looking at it as I do now, I will overrule the motion.”
The right of a witness in such a case as this has been stated:
“A witness cannot be compelled to answer any question the answering of which may expose, or tend to expose, him to a criminal charge, or to any kind of punishment. He is exempted by his privilege from answering not only what will criminate him directly, but also what has any tendency to criminate him; and the reason is, because otherwise question might be put after question, and though no single question may be asked which directly criminates, yet enough might be got from him by successive questions whereon to found against him a criminal charge.” (2 Phil. Ev. 930; 1 Greenl. Ev., §451; Whar. Cr. Ev., §463.)
The rule, as we understand it, is to require the witness to
“ Where a witness, called by the defendant in a prosecution for bastardy, declines to answer whether he has had intercourse with the relatrix, on the ground that his .answer would tend to criminate himself, the court cannot compel an answer, nor can the witness be required to answer questions tending to show that the intercourse, if any, was not under such circumstances as would constitute a crime under the statute.”
The court further holds that —
“After the witness claims his privilege, the defendant may show by other witnesses that the circumstances were such that the act of intercourse would not have been criminal, and when it is thus made clear that the right to be silent does not exist, the witness may be compelled to answer.”
There was no showing of the kind in this case, and the trial court must have been of the opinion that the answer might have exposed the witness to a criminal prosecution. The relatrix was under 21 years of age; hence the answer might have had a tendency to establish the fact that the witness had violated ¶2157 of the General Statutes of 1889, providing for the punishment of persons for obtaining illicit connection under promise of marriage, or ¶ 2369 of the same statute, fixing a penalty for open adultery.
We find no error in the record, and therefore recommend an affirmance of the judgment of the district court.
By the Court: It is so ordered.