State v. McGahey
| Decision Date | 07 July 1893 |
| Docket Number | 6731 |
| Citation | 55 N.W. 753,3 N.D. 293 |
| Parties | STATE v. ARTHUR MCGAHEY |
| Court | North Dakota Supreme Court |
Error to District Court, Grand Forks County; Templeton, J.
Arthur McGahey was convicted of shooting at another with intent to kill, and brings error.
Affirmed.
John M Cochrane, for plaintiff in error.
Failure of the court to rule on objections of defendant, when the objections were properly made--was error. Elliott. Ap. Pro § 727; Conning v. Woodin, 8 N.W. 572. The re-examination of complaining witness as to cause of animosity between himself and defendant, was prejudicial error. 1 Thomp. on Trials, § 484; Schaser v State, 36 Wis. 432, 11 Alb. Law Jr. 224. Questions assuming facts not in evidence were improperly allowed. Cornwell v. Cogwin, 17 N.Y.S. 299; Peo. v Cahoon, 50 N.W. 384; State v. Smith, 49 Conn. 376; People v. Mather, 21 Am. Dec. 122. The conversations between complainant and his wife in the absence of defendant were improperly admitted. Barbee v. State, 4 S.W. 584; Taylor v. State, 11 S.W. 462; Maines v. State, 5 S.W. 123; Tyler v. State, 11 Tex.App. 388; Washington v. State, 17 Tex.App. 197; Favors v. State, 20 Tex.App. 155. The court having admitted irrelevant testimony over objection of counsel--should upon striking the same out thereafter have instructed the jury to disregard such testimony even without being specially requested so to do. 2 Thomp. on Trials § 2339; Yeo. v. Peo. 49 Ill. 412; Peo. v. Wheeler, 60 Cal. 589. The swearing of William Brittan for the state--his name not appearing upon the information--was error. Peo. v. Hall, 12 N, W. Rep 665; Peo. v. Moran, 4 Am. Crim. Rep. 470. Defendant's request should have been granted to have Mrs. Hill an eye witness of the shooting, sworn as a witness for the state. Thompson v. State, 17 S.W. 448; Territory v. Hanna, 5 P. 252; Weller v. Peo., 1 Am. Crim. Rep. 283; Maher v. Peo., 10 Mich. 212; Hurd v. Peo., 25 Mich. 405; Peo. v. Gordon, 40 Mich. 716; State v. Magoon, 50 Vt. 338; Thomas v. Peo. 39 Mich. 309; State v. Middleham, 17 N.W. 446; Whart. Cl. Ev. § 448; Chapmans Case, 8 C. & P. 558; Orchards Case, 8 C. & P. 559; Peo. v. Dietz, 49 S.W. 296; Peo. v. Eller, 45 N.W. 1109. And the objection that the witness is not favorable to the prosecution is no excuse for not calling her. Weller v. Peo., 1 Am. Crim. Rep. 283; Hurd v. Peo., 25 Mich. 415; Territory v. Hanna, 5 P. 252. The statement of the prosecuting attorney in answer to defendant's request that Mrs. Hill be called for the state should have been stricken out. Hardtke v. State, 30 N.W. 726; Hall v. Wolf, 16 N.W. 711; Peo. v. Dane, 26 N.W. 781, Cross-examination of Mrs. Hill a witness for defendant as to acts of adultery with defendant on the pretense of impeaching her testimony, but in fact proving another crime against the defendant was highly prejudicial and improper. Hoberg v. State, 3 Minn. 181; State v. McGee, 46 N.W. 764; State v. Starrett, 32 N.W. 387; Peo. v. Thurston, 2 Parker Crim. Rep. 130; State v. Gordon, 3 Iowa 415; State v. Hoyt, 13 Minn. 125. The rule permitting cross-examination of a witness upon irrelevant matters affecting character as going to the creditability of the witness has never been extended to permit the repeated asking of questions upon the same line, all of which questions impute crime. Peo. v. Cahoon, 50 N.W. 384; Sullivan v. Dieter, 49 N.W. 263. When evidence tends to prove two things, one of which it may properly be admitted to prove but not the other, it should go to the jury, with an explanation from the court of its legitimate bearing. Webster v. Enfield, 10 Ill. 298; 2 Thomp. on Trials § 2416; Kelley v. State, 18 Tex.App. 262; Holmes v. State, 20 Tex.App. 509; Alexander v. State, 21 Tex.App. 410; Whart. Cr. Ev. § 46.
Bangs & Fisk, (W. H. Standish, Atty. Gen'l of Counsel) for the defendant in error.
Upon re-examination of a witness it is proper to ask him questions for the purpose of drawing forth an explanation of a sense and meaning of expressions used by him on cross-examination. 1 Thompson on Trials, § 486; Schaser v. State, 36 Wis. 432; Goodman v. Kennedy, 10 Neb. 270; State v. Hopkins, 50 Vt. 316; People v. Smallman, 55 Cal. 188. A witness may be permitted to to state in his own language what may be necessary by way of introduction to make his narrative intelligible and thus may state what others told him. Shultz v. State, 1 Crim. Law Mag. 140. The extent to which a re-direct examination will be allowed to proceed rests in the discretion of the trial court. Slinkler v. State, 9 Neb. 241; Towers v. Leach, 26 Vt. 270. Where improper testimony has crept in but is promptly ordered stricken out by the court, the defendant cannot predicate error on account of the neglect of the court to specifically charge the jury to disregard such testimony in the absence of a request so to do. Arthur v. Griswold, 55 N.Y. 408; Hopt v. Utah, 120 U.S. 430; Zell v. Comm. 2 Crim. Law Mag. 22, 25. No duty rests upon the state to produce and swear all eye-witnesses to the transaction where the testimony of the witnesses called, is direct and positive and apparently covers the entire transaction. Comm. v. Haskell, 140 Mass. 128; State v. Middleham, 62 Iowa 150, S. C. 14 N.W. 446. Where objectionable remarks of counsel are of a general character and not likely to prejudice the case of the accused in the minds of honest men of fair intelligence the failure of the court to strike out such remarks or caution the jury to disregard them is not an abuse of discretion. See note to 26 N.W. 782; Epps v. State, (Ind.) 1 N.E. 492; State v. McCool, 9 P. 618; Schuler v. State, (Ind.) 2 West. 801. The evidence of uncommunicated threats which were offered to be proven by the defendant was inadmissible as the threats were not made by Hill against the defendant but were made by defendant himself against the witness Hill. State v. Cross, (Iowa) 26 N.W. 64. Witnesses cannot be contradicted upon collateral matters brought out on cross-examination for the purpose of impeachment. Wharton's Cr. Ev. § 484; Stokes v. Peo. 53 N.Y. 175; Kent v. State, (Ohio) 6 Cr. Law Mag. 520 and note. It is well settled that witnesses who are not parties may, for the purpose of impeachment and within the sound discretion of the trial court, be required to testify as to collateral facts which may tend to degrade them. Terr. v. O'Harre, 1 N.D. 30, S. C. 44 N.W. 1007. And this may be done although the facts thus brought out may also reflect upon the character of the defendant and thereby prejudice the accused in the minds of the jury. State v. Bacon, 13 Ore. 143, S. C. 8 Cr. Law Mag. 82. Error cannot be predicated upon the admission of evidence under a general objection, a specific ground of objection be stated. Burke v. Koch, 75 Cal. 356, S. C. 17 P. 228; Chicago E. I. R. v. People, 120 Ill. 667. The refusal of the court to instruct the witness Mrs. Hill as to her privilege cannot be taken advantage of by defendant for the reason that the witness did not claim her privilege, and defendant's counsel could not do so for her. People v. Brown, 72 N.Y. 573. A general objection to evidence is sufficient only where the evidence is inadmissable in its nature. That a question is "irrelevant" and "inadmissable" will not raise the question of its incompetency where it is relevant to a certain point in issue. Fozer v. N. Y. Cent. & H. R. R. Co. 105 N.Y. 659; Burke v. Koch, 75 Cal. 106; 1 Rice on Ev. 920, 921. Where the law of the case is fully stated to the jury by the court error cannot be predicted on the refusal of the court to give a specific instruction. Biefield v. State, 19 N.W. 607.
Arthur McGahey, the plaintiff in error, was convicted in the District Court for the County of Grand Forks of the crime of shooting at one Thomas Hill with intent to kill. It is not possible to read the record in this case without becoming strongly impressed with the belief that McGahey had also been guilty of adulterous intercourse with Hill's wife. It is safe to say that all the evidence tending to establish or indicate such adultery was objected to by the able attorney for the plaintiff in error, and the rulings of the court upon these objections are here for review. The elementary principle which would ordinarily render such evidence inadmissible is too familiar to need mention, and the state, admitting the principle, contends that there has been no violation of it in this case. The shooting affray occurred upon one of the thoroughfares of the City of Grand Forks, in daylight. Hill, with his wife, was in a building used as a skating rink, and of which he was the proprietor. McGahey was on the sidewalk, on the opposite side of the street. It is undisputed that McGahey fired three shots from a revolver at or in the direction of Hill, and that Hill fired one shot from a rifle at MaGahey. Each party claimed that the other shot first, and on that point the case turned. The shooting occurred about 8 o'clock in the evening on May 24th, 1892. Hill as the principal witness for the state testified that he was sitting upon a pile of lumber in the rink, talking with his wife; that the door was open, and McGahey came down the other side of the street, and, seeing witness through the door, drew his revolver, and commenced firing; that he (Hill) ran over to an open window, and returned the fire. On cross-examination it developed that, a few hours before, Hill had gone into a store, and procured a repeating rifle, and caused it to be loaded, and taking it with him, went down into the woods by the brewery, where he had been told he would find his wife and McGahey. He was asked, "How did you come to feel the necessity of having a gun just at this time?" He answered, "I knew if I ran against this man at the place I was going to look for him I might...
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