State v. Goddard

• Decision Date: 27 January 1914
• Citation: 69 Or. 73,138 P. 243
• Parties: STATE v. GODDARD.
• Court: Oregon Supreme Court

138 P. 243

69 Or. 73

STATE v. GODDARD.

Supreme Court of Oregon

January 27, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; J. U. Campbell, Judge.

John B Goddard was convicted of statutory rape, and sentenced to imprisonment in the penitentiary for a term of from 3 to 20 years, and paroled on the recommendation of the jury, and he appeals. Affirmed.

Will R. King, of Washington, D. C., and Jay Bowerman, of Portland, for appellant. Arthur A. Murphy, Deputy Dist Atty., of Portland (Walter H. Evans, Dist. Atty., of Portland, and A. M. Crawford, Atty. Gen., on the brief), for the State.

RAMSEY, J.

The indictment charges that the defendant committed the crime of rape on the 15th day of May, 1911, by having sexual intercourse with one Nettie Poag, a female child under the age of 16 years.

1. The first point assigned by the appellant for reversal is that the court below erred in admitting in evidence the record of the date of the birth of Nettie Poag, contained in the family Bible of her family. Mrs. Clara E. Poag, her mother testified that Nettie was 16 years old on June 19, 1911, and Nettie also testified that she was 16 years old on that date.

Mrs Clara E. Poag testified that she had a record of the date of the birth of Nettie in their family Bible. She testified that the book, by her produced, was their family Bible, and that it contained a record of the ages of their children. She stated that the said family Bible contained a record of the date of the birth of Nettie and that this entry stated that she was born "June 19, 1895." She testified, also, that the family record in said Bible was written by her husband before they left Condon, but that the entries were not made at the time the children were born, and that said entries were made six years or longer ago. The entries were all made in the Bible at the same time by her husband, and that she saw him write them. The record of the date of the birth of Nettie Poag, as entered in said family Bible, was offered in evidence, and the counsel for the defense objected to its admission for the reason that it "is incompetent, irrelevant, and immaterial." It is a general rule that an objection to evidence on the ground that it is "incompetent, irrelevant, and immaterial" is not sufficiently specific to raise any question for decision. The objector should lay his finger on the particular point intended to be raised, so that the trial court will have notice of the precise point. See on this point Elliott on Ev. § 883; 8 Ency. Pl. & Pr. pp. 218-226; O. R. & N. v. Eastlack, 54 Or. 203, 102 P. 1011, 20 Ann. Cas. 692; Rice v. Waddill, 168 Mo. 99, 67 S.W. 605; Merchants' Sav. Bk. v. Harding, 65 Kan. 655, 70 P. 655.

There are some exceptions to this rule, and we will assume that the objection to the family record contained in the family Bible was sufficiently specific to raise the question of its admissibility. The Bible was sufficiently identified as the family Bible of the parents of Nettie Poag and their children, and it is shown that the entries in it were written by her father in the presence of her mother. It contained a statement of the names of the parents, the date of their marriage, the names of each of their seven children, the dates of their respective births, the fact that two of them were twins, and the name of the little boy that died, and the date of his death. Section 727, L. O. L., provides as follows: "In conformity with the preceding provisions, evidence may be given, on the trial, of the following facts: * * * 4. The declaration or act, verbal or written, of a deceased person in respect to the relationship, birth, marriage, or death of any person related by blood or marriage, to such deceased person; the declaration or act of a deceased person, made or done against his interest in respect to his real property; and also the declaration or act of a dying person, made or done under a sense of impending death, respecting the cause of his death. * * * 13. Monuments and inscriptions in public places as evidence of common reputation, and entries in family Bibles or other family books or charts, engravings on rings, family portraits, and the like as evidence of pedigree." Subsections 4 and 13 provide for different kinds of evidence in relation to family matters. Subsection 4 relates to declarations or acts of persons, whether verbal or written. These declarations may have been made in conversations, in letters or other writings, whether formal or informal, relating to family matters; but these declarations are not admissible as evidence, unless the member of the family making them is deceased. Subsection 13 makes entries in family Bibles or other family books or charts or engravings on rings, family portraits and the like, admissible as evidence of pedigree. Entries in Bibles or books that are not family Bibles or family books are not admissible. Entries in family Bibles or family books are made, by this statute, admissible because they are entries in family Bibles or family books. Their admission is not made conditional on the death of the party who entered them. If the Legislature had intended that their admissibility should be conditional on the decease of the person who made the entries, it would have expressed that condition in the law. Subsection 4 makes the declarations there mentioned admissible only when the person who made them is deceased, but subsection 13 does not provide that entries made in a family Bible shall be admissible only when made by a person subsequently deceased. If the Legislature had intended or desired to make entries in family Bibles or family books admissible as evidence only when the person making the entries was deceased, it would have been an easy matter to have so provided. A court has no right to read into subsection 13 a condition the lawmaking power did not intend should be there. If entries in a family Bible are held to be admissible only when the person who made them is dead, then subsection 13 was entirely useless, as to statements concerning pedigree, because such entries, when the person making them is a relative and deceased, are admissible under subsection 4. If Mrs. and Mr. Poag, instead of entering their family record in their family Bible, had entered it in a Bible or book that did not belong to their family, such entries would not have been admissible under subsection 13, because the book in which the record was entered was not their family Bible or their family book. Such books are treasures of the family, and are accessible to the members thereof, and it is not probable that false entries would be made or retained in such books.

Section 715, L. O. L., is as follows: "In the construction of a statute * * * the office of a judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all."

Section 716, L. O. L., is as follows: "In the construction of a statute the intention of the Legislature * * * is to be pursued, if possible; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it."

Subsection 13 is a particular provision relating to the admission of entries in family Bibles, and is paramount in relation to that matter. It displaces the common-law rule on that subject in so far as it is inconsistent with the common law. So far as we are advised, all of the cases cited by the counsel for the defendant upon this point, excepting the case from California, are from states that have no such statutory provision as subsection 13, supra. The decisions in California are conflicting. Their statute is similar to ours.

In People v. Ratz, 115 Cal. 134, 46 P. 916 (a case like this) the court says: "The mother, when on the witness stand, was shown a book, and testified that it was hers, and that it was her family Bible; that it contained the record of the family. This book contained, among other entries, the name of the child, and the date of her birth. The mother testified that it was correct. Objection was made to the introduction of the record, by the defendant, upon the ground that it appeared that the record was in English; that the mother did not know how to read or write English, and could not tell whether or not the record was correct." Passing on this objection, the court says: " The admissibility of the book did not depend on the proof of of the handwriting or the authorship of the entries. It depended on proof of the fact that it was the family Bible, which evidence was afforded by the testimony of the mother. As is said in Hubbard v. Lees, L. R. 1 Ex. 255: 'To require evidence of the handwriting or authorship of the entries [in a family Bible] is to mistake the distinctive character of the evidence, for it derives its weight, not from the fact that the entries are made by any particular person, but that, being in that place (in the family Bible) they are to be taken as assented to by those in whose custody the book has been."' The court held the entries in the family Bible to be admissible.

In People v. Slater, 119 Cal. 623, 51 P. 958, where both parents of the girl testified as to her age, the court held that the entry in the family Bible as to the date of the girl's birth was properly admitted in evidence, saying: "The family Bible was properly admitted in evidence. The condition of the entry of the girl's birth required explanation, and the entry and the explanation were properly submitted to the jury."

In People v. Mayne, 118 Cal. 516...