State v. Rhys

• Citation: 105 P. 494,40 Mont. 131
• Parties: STATE v. RHYS.
• Decision Date: 08 December 1909
• Court: United States State Supreme Court of Montana

105 P. 494

40 Mont. 131

STATE v. RHYS.

Supreme Court of Montana

December 8, 1909

Appeal from District Court, Silver Bow County; Michael Donlan Judge.

J. H Rhys was convicted of forgery, and he appeals. Affirmed.

Mackel & Meyer and John F. Davies, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

HOLLOWAY J.

The defendant was convicted of forgery, and appeals from the judgment and from an order denying him a new trial. The specifications of error relate to the rulings of the trial court in admitting evidence, and to the alleged misconduct of the county attorney.

1. Upon cross-examination of the defendant while a witness in his own behalf, he was asked by the county attorney: "Were you not in trouble of a similar character in May or June, having cashed a check taken from a letter sent from the Miner building to the United States post office at Butte, Mont mailed in June, 1908?" Conceding that the evidence was incompetent for the purpose offered, and that the ruling of the trial court was erroneous, it is manifest that defendant was not prejudiced thereby. He answered: "No; I am absolutely certain of it." Sections 9415 and 9548, Rev. Codes, dealing with proceedings in this court on appeals in criminal cases, provide:

"Sec. 9415. After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties."

"Sec. 9548. Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor any error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right."

This court will not reverse a judgment for error in the trial proceedings, unless it has prejudiced, or tended to prejudice, the defendant in respect to a substantial right. State v. Gordon, 35 Mont. 458, 90 P. 173; State v. De Lea, 36 Mont. 531, 93 P. 814.

2. In rebuttal the county attorney called the defendant and asked him this question: "Was it not your duty, also, after the checks had been written by you and signed by Mr. Devine, general manager of the company, and countersigned by J. K. Heslet, its secretary, to deliver these checks to the persons in whose favor they had been drawn?" to which the witness replied, "Yes." After the answer was made, counsel for appellant interposed an objection, which was overruled, and properly so. Counsel cannot sit by until a question has been answered, and then, if he deems the answer inimical to his client's interest, object to it. Of course, if it appeared that the answer had been made before counsel had an opportunity to object, he could not be held to have waived his right to object. But there is not any showing made here that such was the case, and under the rule this objection came too late. Poindexter & Orr L. S. Co. v. Oregon Short Line R. Co., 33 Mont. 338, 83 P. 886; Martin v. Corscadden, 34 Mont. 308, 86 P. 33.

3. Upon his direct examination the defendant testified that he had been employed by the Butte Miner. On cross-examination he was asked by the county attorney: "What was the reason you quit?" This was objected to, and the objection overruled, but, without waiting for an answer, the county attorney immediately asked another question: "What was the cause of your discharge from the Miner?" The question was objected to, the objection overruled, but again there was not any answer to the question asked, but the witness proceeded to testify about other matters. The witness was also asked: "Among your duties there [in the Miner office] was it not your duty to write out the body of the checks for the people employed there?" An objection to this question was overruled, and apparently without waiting for an answer, the county attorney asked the question considered in paragraph 2 above. The wife of the defendant was asked by the county attorney the following questions "I would like to ask you at this time, what, if anything, you know of a transaction had between your husband and C. C. Curtis and C. T. Douglas, doing business in the name of Curtis & Douglas, and your father during the month of May, 1908?" And again: "At this time I will ask you if you know about his signing his time that month?" The objection to each of these questions was sustained. The defendant was asked by the...