State v. Martinez

• Decision Date: 23 October 1926
• Citation: 250 P. 239,43 Idaho 180
• Parties: STATE, Respondent, v. G. MARTINEZ, alias MIKE MARTIN, alias MIKE MARTINO, Appellant
• Court: Idaho Supreme Court

250 P. 239

43 Idaho 180

STATE, Respondent, v. G. MARTINEZ, alias MIKE MARTIN, alias MIKE MARTINO, Appellant

Supreme Court of Idaho

October 23, 1926

STATUTES-REPEAL BY IMPLICATION-CRIMINAL LAW-BIGAMY-WITNESSES-EVIDENCE-ADMISSION OF REBUTTAL EVIDENCE-CORRECTION OF SENTENCE.

1. In arriving at legislative intent of act alleged to have impliedly repealed or superseded another, nature of several acts involved with their history as well as objects and purposes sought to be attained are to be considered.

2. C S., sec. 8283, forbidding polygamy, did not repeal Rev Stats., 1887, sec. 6805, defining bigamy, both polygamy and bigamy having been known to the constitution, as shown by art. 1, sec. 4, and art. 6, sec. 3.

3. Repeals by implication are not favored and will not be indulged in, if there is any other reasonable construction.

4. Rev Stats., 1887, sec. 6805, defining bigamy, was not repealed by Rev. Codes 1909, or Comp. Stats. 1919, although not included therein; Rev. Codes 1909, sec. 17, repealing laws not expressly continued, applying only to laws which were provided for.

5. Evidence held sufficient to support verdict for bigamy, under statutory rules in C. S., secs. 4593, 8953, defining necessary proof.

6. Failure to object to introduction of affidavit used as standard of comparison with defendant's signature amounted to practical admission of genuineness or, at least waiver of right to object.

7. In bigamy prosecution, evidence of justice of the peace of another state as to performing marriage ceremony was prima facie showing of justice's authority.

8. In bigamy prosecution, validity of ceremonial marriage will be presumed in absence of evidence that it was not regular, and law of foreign state, not being shown, will be presumed same as law of this state.

9. Instruction, in bigamy prosecution, that defendant must show divorce or annulment of prior marriage, although not limited to marriage alleged, was not misleading, there being no evidence of any other prior marriage.

10. Police record of finger-prints and signature of defendant's alleged first wife, with testimony that she was alive after second marriage, held admissible after identifying signature with that of first marriage certificate.

11. Offer of photograph in evidence, to which objection was overruled, constitutes admission in evidence.

12. In bigamy prosecution, letters said to have been written by alleged first wife were properly admitted on evidence showing person who signed letters also signed first marriage certificate.

13. Evidence, in bigamy prosecution, that alleged first wife went under defendant's name was competent, when considered with other proof of identity.

14. Asking state's witness whether he remembered defendant in bigamy prosecution being under arrest, held not prejudicial error, objection to answer being sustained and other evidence not objected to showing arrest.

15. Admission of immaterial testimony relative to nationality of defendant in bigamy prosecution was not prejudicial, where answer was stricken out and rulings indicated immateriality thereof.

16. Under C. S., sec. 8034, defendant, having offered himself as witness, may be cross-examined as to direct examination or connected facts without violating Const., art. 1, sec. 13, providing no person shall be compelled to be witness against himself, expressed also in C. S., sec. 8623.

17. Where defendant in bigamy prosecution testified he never went by alleged name, questions on cross-examination concerning name defendant went under at time of first and second marriages were proper.

18. Questioning defendant in bigamy prosecution on cross-examination relative to one of alleged marriages, held not reversible error after refusal to answer on ground that it might be self-incriminating.

19. "Rebutting evidence" is that which is given to explain, repel, counteract or disprove facts given in evidence by adverse party.

20. In bigamy prosecution, questions relative to alleged first marriage intended to repel and disprove defendant's testimony were properly admitted in rebuttal.

21. Admission of rebuttal evidence is largely in discretion of trial court.

22. Sentence for bigamy, under Rev. Stats., 1887, sec. 6805, defining polygamy, will be corrected by supreme court on appeal under authority of C. S., sec. 9086.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Charles L. Heitman, Judge.

Defendant appeals from judgment of conviction of bigamy. Modified and affirmed.

Frank Langley, for Appellant.

Polygamy is defined in C. S., sec. 8283. There is no definition of bigamy in the statutes.

It is conceded that in a civil action the law of a sister state will be presumed to be the same as the law in this state, but that rule does not hold in a criminal action, and the law of the state of Washington must be affirmatively proven. (People v. Lambert, 6 Mich. 349, 72 Am. Dec. 49.)

No person can be compelled in a criminal action to be a witness against himself. (C. S., sec. 8623; State v. Gruber, 19 Idaho 692, 115 P. 1.)

The questions asked on cross-examination were incompetent, irrelevant and immaterial, and not proper cross-examination, and the objections thereto should have been sustained. (C. S., sec. 8034; State v. Larkins (on rehearing), 5 Idaho 200, 47 P. 945; State v. Gruber, supra; People v. O'Brien, 70 Cal.App. 130, 232 P. 752.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant, for Respondent.

The terms "bigamy" and "polygamy" are used to denote the same offense. (Toncray v. Budge, 14 Idaho 621, 95 P. 26; C. S., c. 303, art. 5, sec. 8283; Clark, Criminal Law, 2d ed., 353; State v. Stewart, 194 Mo. 345, 112 Am. St. 529, 5 Ann. Cas. 963, 92 S.W. 878.)

The testimony of eye-witnesses of a marriage is sufficient proof of the fact of marriage. (Dale v. State, 88 Ga. 552, 15 S.E. 287; State v. Nadal, 69 Iowa 478, 29 N.W. 451; State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742, and note; Commonwealth v. Hayden, 163 Mass. 453, 47 Am. St. 468, 40 N.E. 846, 28 L. R. A. 318; Bird v. Commonwealth, 21 Gratt. (62 Va.) 800; Hearne v. State (Tex. Cr.), 58 S.W. 1009.)

A marriage sufficient in form to be valid under the laws of the state where the offense is prosecuted, though celebrated in another state, will be presumed to be sufficient under the laws of that state, when there is no evidence to the contrary. (Dale v. State, supra; State v. Nadal, supra; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164.)

Where the evidence is conflicting but there is substantial competent evidence to support the verdict and judgment based thereon, the same will not be disturbed on appeal. (State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Shepard, 39 Idaho 666, 229 P. 87; State v. Bouchard, 27 Idaho 500, 149 P. 464.)

Error cannot be predicated upon the refusal of the lower court to give an advisory instruction to acquit. (State v. Mason, 41 Idaho 506, 239 P. 733; State v. Chacon, 36 Idaho 148, 209 P. 889.)

It is not sufficient to show that error was committed but it must be shown that such error was prejudicial to defendant. (C. S., sec. 9191; State v. Dong Sing, 35 Idaho 616, 208 P. 860; State v. Poynter, 34 Idaho 504, 205 P. 561, 208 P. 871.)

Error, if any, in admitting irrelevant or improper testimony is usually harmless when the fact which is intended to be proved thereby is fully shown by other evidence which was introduced without objection. (State v. Breyer, 40 Idaho 324, 232 P. 560; State v. Wilson, 41 Idaho 616, 243 P. 359.)

While proof of a name is not conclusive, it is some evidence of identity. (State v. Smith, 129 Iowa 709, 6 Ann. Cas. 1023, 106 N.W. 187, 4 L. R. A., N. S., 539, and note; People v. Rolfe, 61 Cal. 540.)

The extent to which the cross-examination should be allowed to proceed rests largely in the discretion of the trial court. (State v. Mox Mox, 28 Idaho 176, 152 P. 802; State v. Quirk, 101 Minn. 334, 112 N.W. 409; People v. Wright, 133 A.D. 133, 117 N.Y.S. 441.)

A very wide latitude should be allowed in the cross-examination of a defendant who takes the stand in his own behalf and denies the commission of the offense. (State v. Rodgers, 40 Mont. 248, 106 P. 3; Fissure v. Old Susan Min. Co., 22 Utah 438, 63 P. 587.)

Cross-examination is not confined to a categorical review of the matters stated on direct examination, but may be employed as a means to test the truth of the evidence given on direct examination and extended to matters connected with the matters testified to on direct examination or tending to elucidate or to discredit the testimony given. (State v. Webb, 6 Idaho 428, 55 P. 892; State v. Mitchell, 229 Mo. 683, 183 Am. St. 425, 129 S.W. 917; People v. Gordan, 103 Cal. 568, 37 P. 534; State v. Gallaher, 14 Idaho 656, 94 P. 581.)

A large discretion is reposed in the trial court with respect to the admission of evidence in rebuttal. (State v. Wilson, supra; State v. Mushrow, 32 Idaho 562, 185 P. 1075; State v. Waln, 14 Idaho 1, 80 P. 221.)

TAYLOR, J. Wm. E. Lee, C. J., and Budge and Givens, JJ., concur.

OPINION

TAYLOR, J.

Appellant was convicted upon an information charging the crime of bigamy, alleged to have been committed by marrying one Mary G. Prosper in Coeur d'Alene on October 1, 1923, he having a wife, one Hazel Butler, whom he married in Spokane, Washington, on May 19, 1923, who was living and undivorced at the time of the second marriage. This appeal is from the judgment and an order denying a motion for a new trial.

Appellant's first assignment of error is:

"That the verdict of the jury is contrary to the law in this: That the crime of bigamy is unknown to the law of the State of Idaho, and that, if any...