Hembree v. Commonwealth

• Decision Date: 29 September 1925
• Citation: 210 Ky. 333
• Parties: Hembree v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 333

210 Ky. 333

Hembree v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 29, 1925.

1. Criminal Law — On Appeal from Conviction for Child Desertion, Accused Cannot Complain as to Testimony of Wife Unobjected to and Unexcepted to at Trial. — On appeal from conviction, under Ky. Stats., section 331i-1, for child desertion, although, under Civil Code of Practice, section 606, accused's wife was not competent witness against him, nor was she competent witness at common law, in view of section 333, he cannot complain of her testimony to which no objection or exception was saved.

2. Witnesses — Incompetency of Wife as Witness Waived by Failure to Make Specific Objection. — On trial for child desertion, defendant, who made no objection that wife was incompetent as witness, waived such objection, and it was not saved by objections to reception of particular parts of her testimony.

3. Criminal Law — Permitting Incompetent Witness to Testify Not Ground for Reversal, Where Same Facts Proved by Competent Witnesses. — Objection that court erred in permitting wife to testify against husband accused of child desertion will not work a reversal, where practically same facts were proven without objection and substantially without contradiction by other competent witnesses.

4. Parent and Child — Refusal to Permit One Accused of Child Desertion to Prove How he had Provided for Family Before Separation from Wife, which was Not Involved in Case, Held Not Error. — In prosecution for child desertion, under Ky. Stats., section 331i-1, refusal to permit accused to prove how he had provided for family prior to separation from wife, which was not involved. and about which there was no complaint, was not error, as amounting to refusal to permit him to prove that he did not desert child.

5. Criminal Law — Refusal of Continuance Because of Absence of Witness, Not Included in Motion and Grounds for New Trial, Not Considered on Appeal. — In prosecution for child desertion, under Ky. Stats., section 331i-1, refusal of continuance because of absence of witness, not included in motion and grounds for new trial, cannot be considered on appeal.

6. Criminal Law — Testimony Relating Solely to How Accused Provided for Family Before Alleged Child Desertion Held Not Competent. — In prosecution for child desertion under Ky. Stats., section 331i-1, testimony which it was claimed absent witnesses would have given, which, as shown by accused's affidavit, related solely to how he provided for family before alleged desertion, was incompetent and did not constitute grounds for new trial.

Appeal from Bell Circuit Court.

J.G. ROLLINS for appellant.

FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE CLARKE.

Affirming.

Appellant was convicted of child desertion, as denounced by section 331i-1 of the statutes, and sentenced to one year in the penitentiary.

The first ground urged for reversal is that the court erred in permitting appellant's wife to testify against him. That she was not a competent witness against him in an action of this kind, either at common law or under section 606 of the Code, was expressly decided in the recent case of West v. Commonwealth, 194 Ky. 536, 240 S. W. 52. Defendant, however, did not object to her testifying, although he did object and except to her being permitted to answer a number of questions propounded to her. As to so much of her evidence as was introduced without objection and exception, it is clear appellant may not now complain (section 333 of the Code).

But the Commonwealth also contends that, since she was not a competent witness for any purpose, the defendant, by failing to object to her testifying at all, waived her competency as a witness; that his objection thereafter, to particular questions and answers, questioned only the competency of the evidence, and that as same was relevant, the court did not err in...