Powers v. State
| Decision Date | 06 December 1905 |
| Docket Number | 14,182 |
| Citation | 106 N.W. 332,75 Neb. 226 |
| Parties | SAMUEL N. POWERS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hamilton county: BENJAMIN F. GOOD JUDGE. Reversed.
REVERSED.
Stark & Grosvenor, for plaintiff in error.
Norris Brown, Attorney General, William T. Thompson and M. F Stanley, contra.
DUFFIE C. ALBERT and JACKSON, CC. concur.
An information was filed against the plaintiff in error charging him with adultery with one Maud Cattron, the wife of William Cattron, who was the complaining witness in this case. On the trial Maud Cattron was called as a witness by the state. Being examined by the county attorney, she stated that she was the wife of William Cattron, the complaining witness, and had been acquainted with the defendant for about seven years. She further testified that she had seen the defendant on the 18th of May, 1904, both at her own house and at her husband's livery barn. She was then asked to state to the jury what took place between Mr. Powers and herself on or about the 18th of May, 1904, and replied that she did not care to answer, and claimed her privilege not to testify. Her claim of privilege was sustained by the court, and she was dismissed from the stand. In his argument to the jury the county attorney called attention to the refusal of Mrs. Cattron to testify, in the following language: Exceptions were immediately taken to this line of argument by the attorneys for defendant, but the presiding judge being absent in his private room preparing his instructions to the jury, no immediate ruling of the court could be had until the reporter informed the judge that objection was being taken to the line of argument pursued by the county attorney, whereupon he immediately returned to the bench, when that part of the argument objected to was stated in his presence by counsel for the defendant, and the court thereupon stated to the county attorney that he should desist from pursuing that line of argument, and he orally charged the jury that they should pay no attention to the fact that the witness, Maud Cattron, had claimed her constitutional and statutory right to refuse to testify, or the reference to such fact made by the county attorney, and that such failure on her part to testify should not be taken against the defendant.
The facts above stated are shown by an affidavit filed by the defendant in support of his motion for a new trial, as well also as a record entry made and certified by the trial judge and attached to the bill of exceptions. The defendant's affidavit is not included in the bill of exceptions, and it is objected that this court cannot consider it, or the facts therein recited, for that reason. This is undoubtedly the general rule, but the record in this case contains the certificate of the trial judge referring to and identifying the defendant's affidavit, and clearly, as we think makes it as much a part of the record in the case as his own statement. In his certificate the trial judge does not recite the facts stated in the affidavit, but refers this court to the affidavit itself for the facts set forth, and we think it would be a grave injustice to the defendant to ignore, upon technical grounds, an affidavit called to our attention by the trial judge. What inference, if any, might the jury draw from the refusal of Mrs. Cattron to testify relating to her relations with the defendant? If the jury were warranted in drawing the inference that she was guilty of adultery with the defendant, that, of course, would go to establish his guilt, and counsel for the state might properly refer in argument to any circumstances surrounding the case from which the jury might infer the guilt of the party on trial. This is one view of the case. Another, and we think a better, view is that the refusal of a witness to testify, because such testimony might be used in a criminal prosecution against him or because it would subject him to humiliation and disgrace, is not a fact or circumstance which may be considered as tending to prove the guilt of the defendant on trial. The law is plain that a witness need not give testimony which would tend in any degree to prove him guilty of a criminal offense or which would subject him to humiliation and disgrace. The exercise of this privilege on his part cannot, we think, in any legitimate degree be considered as tending to prove the guilt of the party on trial. Let us see what the result of any other rule would be? Two parties, man and wife, seek to establish the charge of adultery with the wife against another. The wife is put upon the stand to prove the charge. She is told of the privilege which the law extends to her of refusing to testify. She claims that privilege, knowing well that she could not truthfully testify to the guilt of the defendant. Can it be said that the law would sanction in this way the conviction of a man, not upon statements of fact testified to by a witness, but upon the refusal of the witness to state any facts? The law will not be so unjust as to impute guilt to one upon trial because a witness called by the state refuses to give...
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