Johnston v. Allen

• Decision Date: 12 March 1888
• Citation: 5 S.E. 666,100 N.C. 131
• Parties: JOHNSTON v. ALLEN.
• Court: North Carolina Supreme Court

5 S.E. 666

100 N.C. 131

JOHNSTON v. ALLEN.

Supreme Court of North Carolina

March 12, 1888

Appeal from superior court, Orange county; JAMES E. SHEPHERD, Judge.

Action by Albert Johnston against James I. Allen for damages for enticing, harboring, and debauching his wife. Verdict and judgment for plaintiff, and defendant appeals.

It is too late to object to a question after answer given.

A. W Graham, for plaintiff.

W. W Fuller, Graham & Ruffner, for defendant.

MERRIMON J.

The purpose of this action is to recover damages from the defendant for "enticing, harboring, and debauching the plaintiff's wife." On the trial the plaintiff was examined as a witness in his own behalf. He testified as to his relations with his wife, and the interference of the defendant therewith; and further, that his said wife sued him for a divorce "a mensa et thoro," the summons being dated July 10, 1885, and the case came on for trial at March term, 1886, of this court, when the said wife, after testifying in her own behalf, submitted to a nonsuit. Plaintiff's counsel asked him the following question: "On the trial of the action for divorce, brought against you by your wife, tried at March term, 1886, do you know who was present as the friend and adviser of your wife? If yes, who was it?" To this question the defendant objected. Objection overruled. Defendant excepted. The evidence elicited was competent because it tended to show the relations between the wife and the defendant. The question was only slightly leading. It did not strongly suggest the particular answer to be given by the witness, and, in view of the evidence, the discretion exercised by the court in allowing it, and the answer to it, ought not to be reviewed, although, perhaps, it had been better to have required the question to be put in a wholly unobjectionable shape. Much must be left to the just discretion of the presiding judge in the conduct of the trial, including the examination of witnesses. Particularly in a case like this, he observes the course of the examination of the witness, and can better determine when the rule as to leading questions should be relaxed, and to what extent. It is only when the exercise of his discretion in such respect is clearly erroneous and to the prejudice of the party complaining, that it of itself constitutes ground for a new trial. Indeed, it seems that the exercise of the discretion of a judge is not assignable as error. McCurry v. McCurry, 82 N.C. 296; 1 Greenl. Ev. § 435.

A witness for the plaintiff (a merchant) testified that "defendant came to my store, and asked the price of sewing-machines. I told him forty dollars. He then selected one, and asked me to bring one like that he had picked out to that house, (the house on the defendant's land, where the plaintiff's wife was.) He requested me to bring it myself, as the person he intended it for was in a delicate condition, and would rather that I would not send either of the young men. When I got to the house, defendant was in the field near by, and came up and set on the door-step. I carried the machine in, and was explaining it to plaintiff's wife, when defendant asked her: 'Do you think you understand it?"' Defendant objected to all testimony in regard to the sewing-machine, before and after it was given. Objection overruled. Defendant excepted. Obviously this evidence was competent. It tended, in connection with other evidence, to show the defendant's illicit relations with the plaintiff's wife, and that he encouraged her to remain on his land away from her husband. Another witness for the plaintiff testified as follows: "I was a deputy-sheriff and constable, and served a peace warrant on plaintiff, and took him to Rose Jones', on Col. Allen's land, for trial. Defendant was then acting for plaintiff's wife, at whose instance the warrant was issued, and was urging a trial, and objected to the removal of the case. Plaintiff swore that he would not get justice before Sharp, and the case was removed to W. T. Tate, another justice of the peace in same township. Defendant objected to it, but it was never prosecuted further. Plaintiff's wife said she was not in a condition to go to the trial if the case was removed." Defendant objected to the above testimony. Objection overruled. Defendant excepted. Defendant had cross-examined plaintiff at length, and brought out the fact that he had been arrested on a peace warrant at the instance of his wife. The objection to this evidence went upon the ground that the record of the court of the justice of the peace was the only proper evidence as to what was done in respect to the warrant. The minutes of proceedings before justices of the peace are for many purposes treated as quasi records, and they are evidence of what is properly entered upon them. But the purpose of the evidence objected to was not to prove anything on or off the minutes kept by the justice of the peace, but to prove the conduct of the defendant towards the plaintiff's wife in her relations to her husband, and for this purpose it was competent and properly received. It appears that "the plaintiff, in his rebutting testimony, after defendant had closed his testimony, offered in evidence a writ of habeas corpus ad testificandum, issued at last term of this court, directed to plaintiff's wife, commanding her to produce the body of her youngest child to give evidence in behalf of plaintiff. Defendant objected. Objection overruled, his honor allowing it to be used only for the purpose of showing that plaintiff had endeavored to have witness and child present at the trial. Defendant excepted."

What evidence, produced on the trial by the defendant, led to the introduction by the plaintiff of the writ named does not appear. It seems that it was suggested in some connection by the defendant that the plaintiff had not been diligent in bringing the infant referred to before the court for some appropriate or supposed appropriate purpose. The court received the writ in evidence only for the purpose mentioned. For this purpose, it would, so far as we can see, be unobjectionable. In any view of it, it was of slight importance, and its admission in evidence is certainly not ground for a new trial. The burden was on the appellant to show its importance, its incompetency, and that it tended to prejudice him in some material respect. It further appears that at the close of the testimony, before any argument, defendant moved to strike out all the evidence relating to defendant's pecuniary condition. The motion was denied, and defendant excepted. This evidence was not objected to when offered. Upon principle and authority, objections to the admission of evidence on the trial should be made in apt time, that is, when it is offered or received. The refusal of the court to exclude it at a subsequent time cannot be assigned as error, except in cases where the evidence received is made incompetent by some statutory provision. Parties in the conduct of the trial must be circumspect and careful. It is serious. Each step in it is important, and carelessness cannot be indulged. To allow evidence to be brought out at one time on the trial, and excluded at a subsequent one, might work injustice to the party introducing it, and give rise to delay and confusion, and encourage a looseness of practice that would certainly interfere more or less with the orderly and intelligent conduct of trials. If, sometimes, the omission to object at the proper time was occasioned by inadvertence or mistake in some way, the presiding judge might grant a motion to exclude the objectionable evidence, or allow the objection to be entered as of the proper time, but the exercise of his discretion would not be reviewable here. State v. Ballard, 79 N.C. 627; State v. Efler, 85 N.C. 585; State v. Pratt, 88 N.C. 639. Moreover, as we shall presently see, the evidence which the appellant sought to exclude was competent.

The case settled on appeal states that the plaintiff requested the court to instruct the jury: "(1) That if they believe the defendant used his wealth and social position to entice the plaintiff's wife away from him, and to induce her to remain, they may give vindictive damages. This instruction was given. (2) That defendant, not being the parent of plaintiff's wife, had no right to harbor her after being forbidden. This instruction was given with this modification: 'This is true, unless he shows he harbors her simply to protect the wife from the violence of...