State v. Byington

• Decision Date: 17 December 1948
• Docket Number: 7176
• Citation: 200 P.2d 723,114 Utah 388
• Court: Utah Supreme Court
• Parties: STATE v. BYINGTON

200 P.2d 723

114 Utah 388

STATE v. BYINGTON

No. 7176

Supreme Court of Utah

December 17, 1948

Appeal from District Court, First District, Cache County Marriner M. Morrison, Judge.

Howard S. Byington was convicted of perjury in the second degree and he appeals.

Conviction set aside with directions to dismiss the prosecution.

W Lee Skanchy, of Logan, for appellant.

L. E. Nelson, Dist. Atty., of Logan, A. John Brennan, of Salt Lake City, and Grover A. Giles, Atty. Gen., for respondent.

Wade, Justice. McDonough, C. J., and Pratt, J., concur. Latimer, Justice. Wolfe, Justice.

OPINION

Wade, Justice.

On January 13, 1948, defendant Howard S. Byington, was convicted of second degree perjury and sentenced to one year imprisonment in the county jail from which judgment and sentence

CONCUR BY: LATIMER

LATIMER, Justice.

I concur in that part of the opinion which holds that Judge Morrison erred in refusing to disqualify himself because of bias and prejudice.

DISSENT BY: WOLFE

WOLFE Justice.

I dissent.

There is no assignment of error such as is required by Rule VIII of the rules of this court. That rule, insofar as material here, provides as follows:

"Appellant's brief shall contain:

* * * * *

"2. A statement of the errors upon which he relies for a reversal of the judgment or order of the court below.

"3. A statement and arguments upon the particular questions involved for determination." 100 Utah xlv.

What defendant probably intended as his assignment of errors appears in his brief as follows:

"The appellant contends that the conviction should be nullified and set aside for the following reasons.

"I. That the proceedings from the beginning were irregular and illegal.

"A. The charge of perjury was based on immaterial testimony irregularly received.

"B. The testimony on which the charge was based was on incriminating questions and answers of the appellant.

"C. A witness was illegally compelled to testify.

"D. Appellant was entitled to change of judge because of bias and prejudice of the trial judge."

The best that can be said for the above quoted statement is that it presents an outline for a rather generalized argument against the proceedings in the court below. With the possible exception of part D, to which I shall later advert, it does not point out a single ruling or order of the trial court as erroneous. The statement under I is merely a general statement that the record is full of errors, without saying what the errors are. The statement under A is so ambiguous and uncertain as to be practically meaningless. It might be construed as an attack upon the sufficiency of the complaint or information, or upon the sufficiency of the evidence, or upon the rulings of the court in receiving evidence. It certainly fails to indicate, with any degree of certainty, what rulings of the court are contended to be erroneous. The same may be said of the statement set forth under B. The statement under C gives no hint as to what witness was illegally compelled to testify or to what matter he or she was compelled to testify. The best that can be said for these purported assignments of error, is that they invite the court to make a general search of the record, and find error. Under familiar and well established principles, such assignments of error are not sufficient, and should be summarily disposed of. The party seeking to overturn a judgment of the trial court has the burden of showing with particularity that prejudicial error was committed. It is not sufficient to throw out a general invitation to this court to search the record for error.

Even taking the most charitable possible view of these purported assignments of error, and following the argument advanced by defendant in his brief, there is no showing of prejudicial error. Much of defendant's argument is directed to the rulings and actions of the trial court in the contempt proceedings. Although the transcript of the contempt proceedings was admitted in evidence as an exhibit, it is before us merely as evidence of what transpired on that occasion, and it is not before us for any other purpose. No matter what errors may have been committed at that time, they cannot be corrected in this proceeding. If defendant were aggrieved by any order of the trial court at that time, he had his remedy by way of appeal. He cannot, in this proceeding, complain of any errors which may have been committed in the contempt proceeding.

The majority holds that the trial court erred in admitting in evidence the transcript of testimony of the contempt proceedings. Although plaintiff objected to the admission of the transcript in evidence, the objection was not based on his constitutional privilege against self-incrimination. Rather, the objection was to the effect that such evidence was incompetent. It is a principle too well settled to require citation of authority that the court's rulings on objections to the admission of evidence are not available on appeal unless the grounds of objection are stated. And where evidence is objected to on one ground in the trial court, a different ground of objection may not be urged in this court. The trial court must have had an opportunity to pass upon it.

Where counsel fails to state seasonably the reasons for his objection, any error in admitting such evidence will not be available on appeal. So far as the record reveals, the question of constitutional privilege was raised for the first time in this court, and therefore it should not be available to the appellant as grounds for reversal.

Apart from the procedural defects, and the failure of counsel to make a proper record in the court below, there are substantive reasons why the case should not be reversed. The constitutional privilege against self-incrimination is a personal one, which may be waived. As stated in Wigmore:

"The privilege is merely an option of refusal, not a prohibition of inquiry.

"1. Witness. Hence it follows that when an ordinary witness is on the stand, and a criminating fact, relevant to the issue, is desired to be proved through him, the question may be asked and it is for him then to say whether he will exercise the option given him by the law. It cannot be known beforehand whether he will refuse. Besides to prevent the question would be to convert the option into a prohibition.

* * * * *

"Accordingly, it is universally conceded that the question may be put to the witness on the stand * * *." 8 Wigmore on Evidence, 3d Ed., Sec. 2268.

The learned author goes on in the same section as follows:

"4. Civil case. For a party defendant in a civil cause having a criminal fact as its main issue, * * * it would * * * seem that the technical right of the plaintiff, to call the opponent as a witness and question him until it appears that the privilege will be exercised, should be conceded to operate. * * *"

The prevailing opinion apparently holds that it was the duty of the trial judge in the contempt proceedings to advise defendant of his constitutional privilege against self-incrimination.

As to the duty of the trial judge to advise a witness of his privilege against self-incrimination, Wigmore, in Sec. 2269, argues strongly against such a rule, giving several-cogent reasons for his position, and concludes by saying:

"In the United States both the rule and the trial custom vary in the different jurisdictions. No doubt a capable and painstaking judge will give the warning, where need appears; But there is no reason for letting a wholesome custom degenerate into a technical rule." (Italics added.)

See also 6 Jones, Commentaries on Evidence, 2d Ed., 4923-4925, Sec. 2488.

In the case of State v. Caperton, 276 Mo. 314, 207 S.W. 795, and Twiggs v. State, Tex. Cr. R., 75 S.W. 531, cited and relied upon by the majority, the court failed to recognize that the constitutional privilege was not a prohibition against inquiry, but only an option of refusal. In those cases the court adopted the rule, criticized by Wigmore, that there was a duty on the part of the judge to advise the witness of his constitutional privilege.

It is not necessary to express an opinion at this time whether in certain cases there may be an absolute duty on the part of the trial judge to advise a witness of his constitutional privilege. Certainly no such duty should exist where the criminal implications of the question are not apparent to the judge Otherwise in practically every case the trial court would be bound to advise every witness of his constitutional privilege, since almost any question, when superimposed on a certain peculiar factual background, may have criminal implications. The necessary and inevitable result of such a rule would be that many witnesses would wrongfully and without just cause withhold their testimony under pretext of exercising their constitutional privilege.

The prevailing opinion concedes the propriety of the trial court's asking defendant whether he was married. Ordinarily such a question has no criminal implications. However, under the peculiar facts of this case, it did. Whether the trial judge was aware of the criminal implications involved at the time he commenced his interrogation of defendant in the contempt proceedings is not made to appear in the record. And in the absence of such a showing we cannot presume improper or collateral motives on the part of a judicial officer. As stated in the prevailing opinion, it was very proper for the court to ask the defendant whether he was married. When that question was answered affirmatively the perjury was committed. As the interrogation progressed, the criminal implications of the questions should have become apparent to the trial judge, but an advice of constitutional privilege at...