Mainard v. Reider
| Decision Date | 23 June 1891 |
| Docket Number | 183 |
| Citation | 28 N.E. 196,2 Ind.App. 115 |
| Parties | MAINARD v. REIDER |
| Court | Indiana Appellate Court |
From the Whitley Circuit Court.
Reversed.
T. R Marshall and W. F. McNagney, for appellant.
J. D Wurtsbaugh and A. G. Wood, for appellee.
This was an action by the appellee against the appellant to recover damages for alleged criminal intercourse between the defendant and plaintiff's wife. Trial by jury. Verdict and judgment for the appellee. Motion for a new trial overruled and exception taken.
The first contention made by the appellant is under the fifth and sixth causes for a new trial, wherein it is alleged that the trial court erred in permitting appellee to detail on the witness stand what his wife said about the alleged seduction in the presence of the appellee and the appellant, and in refusing to strike out said testimony.
The trial court did permit the appellee, as a witness in his own behalf, to testify to a conversation that took place between the appellee and appellant, in the presence of the wife of the appellee, relating to the seduction of the wife, in which conversation the appellant made certain statements and admissions which strongly tended to prove the allegations in the complaint. The court also permitted the appellee, in his testimony relating to said conversation, to state what was said by his wife at the time in relation to said charge in the presence of both the appellee and appellant. The appellee did not testify as to communications between himself and wife, but to certain statements made by his wife and addressed to the appellant in said conversation.
It is insisted by counsel for the appellant that as section 501, R. S. 1881, renders the wife incompetent as a witness in an action brought by the husband for her seduction, it was error to permit the husband to detail her statements as a witness, although such statements formed a part of the conversation had in her presence between her husband, the appellee, and the appellant, relating to her seduction by the appellant.
We do not concur in this view, and think the evidence was not incompetent under the section of the statute referred to. Nor do we think the evidence was inadmissible upon the ground that it was a communication between husband and wife. The court did not err in admitting this evidence.
The next alleged error complained of by the appellant is under the tenth cause in the motion for a new trial, and relates to certain objectionable remarks of one of the attorneys for the appellee in his closing argument to the jury. The facts under this cause in the motion for a new trial are detailed by the bill of exceptions. The bill shows that on the trial of the cause, when a person named, who was one of the attorneys for the appellee, was making the closing argument to the jury, he, as a part of his argument, used the following language, in substance: "That such crimes as the defendant freely and brazenly admitted were becoming frequent in the country; that unless the defendant was punished in this case by a verdict that any bad man would consider that he could with impunity seduce any woman whom he could induce to consent to it, and thus break up homes and families; that the prevalence of such crimes are becoming alarmingly frequent in the country; that the jury must protect the wives and daughters of the people of Etna township by punishing the defendant and teaching him by their verdict a good lesson; that it would be to the interest of the defendant and the people of this county to punish him for his acts by their verdict; that a substantial verdict against him would be a warning to other bad men like him, and that it was the duty of the jury to give such warning and inflict such penalty," to all of which language the defendant objected and excepted at the time, for the reason that such statements are outside of the issues in the cause, and harmful and prejudicial to the defendant; that said attorney also said in argument to the jury that the defendant used to live in Kosciusko county; that he knew what his moral character was; that it was in proof that neither he nor his wife had been married before, and that he had three children; "and when I asked the question as to whether his wife was the mother of all of said children, you see how quick they objected and asked the court to instruct the jury that they should disregard such statements." And defendant also asked the court to restrain said attorney from the use of said language, which request, objections and exceptions were all overruled by the court, to all of which rulings the defendant objected and excepted; that, upon objection by defendant to the language last above set out, the court interrupted said attorney, and said to the jury that the statements so last made were improper, and should not be considered by them; that after said instruction by the court said attorney proceeded to say to the jury, as part of his argument, that it was in evidence that neither defendant nor his wife had ever been married before.
This question has been before the Supreme Court on different occasions, and from an examination of the decisions we find the rule of practice laid down in the different cases not in full accord.
It is held in the case of Grubb v. State, 117 Ind. 277, 20 N.E. 257, "Where counsel is guilty of misconduct, and the opposing party, at the time, objects, and the court, upon being asked to do so, neglects or refuses to take action in the matter, or to repair the injury to the satisfaction of the injured party, he can except and bring the question to this court. But in such cases, if the court does all in its power to relieve the party injured from the consequences of such misconduct, there is no action of the court to which an exception can be taken, and consequently nothing to be reviewed in this court. In such cases, if the injured party thinks that the injury is of such a character that it can not be repaired by any action of the court, he should move to set aside the jury, or take such other steps as he may think will secure to him a fair and impartial trial. If he fails to do this, and permits the case to proceed to final determination, he must be deemed to have waived all questions arising out of such misconduct. Coleman v. State, 111 Ind. 563, 13 N.E. 100; Henning v. State, 106 Ind. 386, 6 N.E. 803.
"In this case, as the court did all that could be done, and, indeed, all it was asked by appellant to do, it must be considered by this court that all error on account of the misconduct of counsel for the State has been waived."
In the case of Staser v. Hogan, 120 Ind. 207, 21 N.E. 911, it is said: Grubb v. State, supra; Kern v. Bridwell, 119 Ind. 226, 21 N.E. 664; Coleman v. State, supra; Henning v. State, supra.
The case of Rudolph v. Landwerlen, 92 Ind. 34, was a well-considered case as to the particular question involved in the cause under consideration, for a motion for a new trial in the case at bar. In that case it was evident that the trial court did its full duty, in fact all was done within the power of the court to correct the injury, but the court says:
In the case of School Town, etc., v. Shaw, 100 Ind. 268, which involved a similar question to the one in the case at bar, it is said: ...
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