State v. Greene

• Decision Date: 07 April 1908
• Docket Number: 1893
• Citation: 33 Utah 497,94 P. 987
• Court: Utah Supreme Court
• Parties: STATE v. GREENE

94 P. 987

33 Utah 497

STATE v. GREENE

No. 1893

Supreme Court of Utah

April 7, 1908

APPEAL from District Court, Seventh District; Ferdinand Erickson Judge.

Webster Greene was convicted of adultery, and appeals.

REVERSED, AND NEW TRIAL GRANTED.

J. W Cherry and S. R. Thurman for appellant.

M. A Breeden, Attorney General, for the State.

McCARTY C. J. FRICK, J., concurring. STRAUP, J., concurring with the conclusion.

OPINION

McCARTY, C. J.

The defendant was tried and convicted of the crime of adultery alleged to have been committed with one Madge Morey. The evidence tended to show that defendant had illicit sexual relations with the said Madge Morey at the time and place alleged in the information. Evidence was also introduced tending to show that at the time of the alleged commission of the crime charged the defendant was reputed to be a married man, and was living and cohabiting with one Grace D. Greene as his wife, and that he had, on divers occasions, orally admitted that she was his wife. The state also introduced in evidence a deed of conveyance, which in part recited: "Webster Greene and Grace D. Greene, his wife, grantors, of Mt. Pleasant," etc. This deed was signed by defendant and Grace D. Greene as grantors. The acknowledgment, which was made before a notary public, recited in part: "Personally appeared before me Webster Greene and Grace D. Greene, husband and wife, the signers to the above instrument," etc. The evidence did not show that the deed was signed by the grantors in the presence of each other, nor did it show that defendant was present when the notary took the acknowledgment of Grace D. Greene to the deed. When the deed was offered in evidence, objections were made to its admission on the ground that the recital therein contained, that Grace D. Greene was the wife of defendant, was, so far as it purported to be a declaration of Grace D. Greene to the effect that she and defendant were husband and wife, hearsay, and therefore incompetent. The objections were overruled, and the deed admitted in evidence without any limitations or restrictions respecting the purposes for which it might be considered by the jury. The action of the court in overruling the objections is assigned as error.

While it may be conceded that the deed was inadmissible as the declaration of the woman to the effect that she and defendant were husband and wife, and that the recitals in the acknowledgment to the same effect were also inadmissible, yet the deed was admissible as an admission on the part of the defendant that Grace D. Greene was his wife, which admission the jury might very properly consider in connection with evidence of cohabitation and repute in determining whether or not these parties were ever actually married. The defendant, however, did not ask the court to so limit the deed, but objected to its admission for any purpose on the ground that it was incompetent for certain specific purposes to which the jury might apply it. In other words, the objection interposed by defendant to the reception of the deed as evidence was in effect a general objection.

"It follows that an objection to evidence, where a part is competent and part incompetent, may be overruled without available error, in cases where counsel interposes the objection to all the evidence." (Elliott, App. Pro., 780, and cases cited in note.)

And furthermore, the rule as declared by the great weight of authority seems to be that evidence which is competent for certain purposes, and is incompetent for other purposes, but is admitted generally, it is incumbent upon the party objecting to its reception, if he desires to have the effect of such evidence limited to the specific purpose for which it is admissible, to ask the court to inform the jury by appropriate instructions as to the purpose for which they may consider the evidence, and, if he fails to make the request, he cannot afterwards be heard to complain. (People v. Collins, 48 Cal. 277; Williams v. Hartford Ins. Co., 54 Cal. 442, 35 Am. Rep. 77; People v. Gray, 66 Cal. 271, 5 P. 240; County of San Luis Obispo v. White, 91 Cal. 432, 27 P. 756; Goodman v. Walker, Executrix, etc., 30 Ala. 482, 68 Am. Dec. 134; Scruggs v. Bibb, 33 Ala. 481; Ponder v. Cheeves, 104 Ala. 307, 16 So. 145; Commonwealth v. Wunsch, 129 Mass. 479; Union Sav. Ass'n v. Edwards, 47 Mo. 445; Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 25 N.E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688; Pegg v. Warford, 7 Md. 582; Martin v. Hill, 42 Ala. 275.) Some of the authorities hold that, when evidence is offered which is admissible for a specific purpose only, and the attention of the trial judge is directed to the matter, and he is asked to limit it to the purpose for which it may properly be received and considered by the jury, it is his duty to do so. (1 Spelling New Tr. & App. Pro. 271; Byrne v. Byrne, 113 Cal. 294, 45 P. 536.) This is a wholesome rule, but the case under consideration does not fall within it. When the deed was offered in evidence the defendant did not ask that it be limited to the specific purpose for which it was admissible, but objected to the instrument being admitted at all. If the court had been requested to do so, it no doubt would, in its instructions to the jury, have limited the consideration of the deed to the specific purpose for which it was admissible. In State v. Thompson, 31 Utah 228, 87 P. 709, Mr. Justice Straup, speaking for the court says:

"Where evidence is received in a case which is admissible only for a certain purpose, and is inadmissible for other purposes to which the jury unaided may improperly apply it, it is essential that the court should correctly instruct them as to the purpose for which they may consider the evidence." (Brush Elec. L. & P. Co. v. Wells, 103 Ga. 512, 30 S.E. 533; 2 Thompson on Trials, 2416.)

In this case, however, no such instruction was asked for by defendant.

When the evidence was all in and the state had rested, counsel for defendant asked the court to peremptorily instruct the jury to return a verdict of not guilty. One of the grounds urged in support of the motion was that the evidence failed to show that the defendant was a married man; that is, it failed to show that he had a lawful wife living at the time of the commission of the crime charged in the information. The court, in overruling the motion, and in the presence and hearing of the jury, made use of the following language "Perhaps in passing upon a question such as is before the court now I might be handicapped in the presence of the jury, but I want to say to you, gentlemen, that it is against my ideas of this situation that a man should be permitted to live in a community for years and years and years and hold himself out as a married man and his wife, a woman as his wife, live together, cohabit together, associate together, lead all their neighbors and friends to believe that they were husband and wife, and then simply because the state cannot produce a record of their marriage, or some eyewitness to the ceremony, that for that reason the defendant would have to go scot free." The...