State v. Witham

• Decision Date: 22 August 1881
• Citation: 72 Me. 531
• Parties: STATE v. CHARLES H. WITHAM.
• Court: Maine Supreme Court

72 Me. 531

STATE v. CHARLES H. WITHAM.

Supreme Judicial Court of Maine.

August 22, 1881

ON EXCEPTIONS from superior court.

Indictment for adultery with Annie Susan Small, July 18, 1878, at Cape Elizabeth.

The questions presented by the exceptions and the facts material to their consideration are fully stated in the opinion.

T. H Haskell, county attorney, for the State, cited: State v Gilman,51 Me. 206;Com. v. Reynolds,122 Mass 454;Com. v. Nichols,114 Mass. 285;State v. Wentworth,65 Me. 234;Andrews v. Frye,104 Mass. 234;State v. Cleaves,59 Me. 298;2 Greenl. Ev. § 40;Com. v. Cobb,14 Gray 57;Thayer v. Thayer,101 Mass. 111;Com. v. Merriam,14 Pick. 518;Com. v. Tuckerman,10 Gray 200;Com. v. Lahey,14 Gray 91.

The questions asked the respondent's witnesses and excluded, were inadmissible because they were either leading, immaterial or related to the conduct of Miss Small in a collateral matter concerning which she was not interrogated in chief, and which she denied on cross examination and thereby precluded the defendant from contradicting her.State v. Benner,64 Me. 267.

In this case the paternity of the child was not in question, and even in a trial under the bastardy act where that is the issue, proof that the complainant had sexual intercourse with other men at a time other than when the child could have been begotten, for the purpose of contradicting her testimony in chief that she had not had sexual intercourse with other men, is inadmissible.Parker v. Dudley,118 Mass. 602.

Nor can she be discredited as a witness by proof of such facts, or that her character is bad for chastity.Sabines v. Jones,119 Mass. 167;Sidelinger v. Bucklin,64 Me. 371;Eddy v. Gray,4 Allen 435;Com. v. Moore,3 Pick. 194;Paull v. Padelford,16 Gray 263.

Alden J. Blethen and Sewall C. Strout, for the defendant, cited: 1 Greenl. Ev. § § 451, 379, 380;People v. McMahon, 1 Smith, (N. Y.) 384;State v. Gilman,51 Me. 222;Const.U. S. Amendments, Art 5;Const. Maine, Art 1, § 6;Gilham's Case,1 Moo. C. C. 203;RoscoeCrim. Ev. 48, 49;Stat. 1879, c. 92, § 2;State v. Wentworth,65 Me. 239;Bishop Stat. Crimes, § 684;Blackman v. The State,36 Ala. 295;Com. v.Pierce, 11 Gray 448;Com. v. Merriam,14 Pick. 518;14 Gray 91;2 Gray 335;2 Greenl. Ev. § 47;100 Mass. 145.

PETERS J.

Upon an indictment for the murder of an illegitimate infant, the respondent was tried and acquitted.In the present case, he was on trial for adultery alleged to have been committed with the mother of the infant.In the former case, he was a witness in his own behalf, and was cross-examined by the government with a view of eliciting admissions tending to show that the paternity of the child was his.Most of the questions put by the government in the former case he refused to answer, claiming it to be his privilege to avoid interrogation as to his participation in any crime or offence for which he was not then on trial.

Was the cross-examination in that case admissible in this case, subject to respondent's objection?That depends upon whether it is to be regarded as voluntary instead of compulsory testimony, and whether it was lawfully or unlawfully obtained.In our opinion, the entire examination of the respondent in the former trial must, in a judicial sense at least, be considered as voluntary testimony and legally obtained.When the accused volunteers to testify in his own behalf at all, upon the issue whether the alleged crime has been committed or not, he volunteers to testify in full.His oath in such case requires it.If he waives the constitutional privilege at all, he waives it all.He cannot retire under shelter when danger comes.The door opened by him is shut against retreat.The object of all examinations is to elicit the whole truth and not a part of it.Under our rule, the cross-examination of a witness is not confined to the matters inquired of in chief.A party, testifying as his own witness, can be examined just as any other witness could be in any respect material and relevant to the issue.To some extent, more may be elicited from him than from a common witness, because his statements are admissions as well as testimony.Any other construction would render the statute a shield to crime and criminals.State v. Wentworth,65 Me. 234;State v. Ober,52 N.H. 459;Com. v. Nichols,114 Mass. 285;Com. v. Reynolds,122 Mass. 454;Connors v. People,50 N.Y. 240;Stover v. People,56 N.Y. 315;1 Greenl. Ev. § 451, (13th ed.) and cases in note.Whar.Crim. Ev. (8th ed.) § § 470, 669, and notes.

So far as the respondent refused to answer proper and competent questions, the refusal was evidence from which the jury could draw unfavorable inferences against him.Andrews v. Frye,104 Mass. 234;Whar. Ev. § § 533, 546, 1266.

It is no objection that, in attempting to prove one offence by the respondent's answers, another offence is proved or confessed by him, if the connection is such that the proof is relevant to the issue.That is unavoidable.If a person accused of crime takes the benefit of his own swearing, he takes its risks.It was relevant to the issue in the trial for the homicide to show the respondent to be the father of the illegitimate child, as indicating motive for the commission of the crime charged against him.Com. v. Call,21 Pick. 515;Whar. Crim. Ev.(8th ed.) § 29, et seq. and numerous cases cited in notes.

The statute of 1879, relied on by respondent, does not change the case.It is in these words: " The defendant in a criminal prosecution who testifies in his own behalf, shall not be compelled to testify on cross-examination to facts that would convict, or furnish evidence to convict, him of any other crime than that for which he is on trial."This does not alter the law as it stood in this State before the enactment.It does not provide that evidence legally obtained at one trial may not be used in another trial.It merely declares the rule already adopted in this State, in the case of State v. Carson,66 Me. 116, where it was held that a prisoner, who testifies in his own behalf, should not be compelled upon cross-examination to disclose his guilt in any other crime or offence, the evidence of which was not necessarily involved in the proof of the offence for which he was on trial; that a defendant in a criminal prosecution could not be compelled, while a witness, to confess independent and extraneous offences, merely to affect character or credibility.The statute is in accord with the decision.Neither excludes evidence which charges or confesses extraneous criminalities, the evidence of which from circumstances becomes relevant and material to the main question in issue.

The respondent stood indicted for a single act of adultery; while his paramour was allowed to testify to several acts as having taken place at several times and under different circumstances.Complaint is made that the prosecution was not required to specify some particular act as the offence to be proved under the indictment.It was not a legal error to omit to do so, so long as no specification was by any party asked for.

It is objected that this mode of trial involved the admission of evidence of acts of adultery happening both before and after the principal act complained of.Formerly, the criticism might have been regarded favorably in many courts.Latterly, however, courts and text-writers are rapidly falling in with the view, that acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, are admissible in evidence as showing the relation and mutual disposition of the parties; the reception of such evidence to be largely controlled by the judge who tries the cause, and the evidence to be submitted to the jury with proper explanation of its purpose and effect.We think this doctrine is most in accordance with the logic of the law and with the authorities.The same rule applies where intent, or system, or scienter, may be involved, as illustrated in successive cheats or forgeries, or passing counterfeit money to different persons, and the like; the doctrine concerning which classes of crime may be found elaborately illustrated and supported in the text, and cases cited, in Whar.Crim. Ev. (8th ed.) in section thirty-one, and sections following, and in 1 Greenl. Ev. (13th ed.) § § 53, 451, 454, and notes thereto.State v. Bridgman,49 Vt. 202;Thayer v. Thayer,101 Mass. 111;Com. v. Nichols,114 Mass. 285;Whar. Crim. Law, 8th ed. § 1733;Bishop Stat. Crimes, § 682;2 Bishop Mar. &Div. 6th ed. § 625, and cases in note.

Annie Small, the female implicated, testified to sexual intercourse with the respondent in July, 1878, and to the birth of a child by her nine months afterwards.The latter fact was inadmissible.Com. v. Foster,107 Mass. 221.But it was not objected to.To rebut an unfavorable inference from this evidence, the respondent offered testimony tending to show that some one other than himself was the father.This was excluded.The introduction of immaterial testimony to meet immaterial testimony on the other side, is generally within the discretion of the presiding judge.But if one side introduces evidence irrelevant to the issue, which is prejudicial and harmful to the other party, then, although it come in without objection, the other party is entitled to introduce evidence which will directly and strictly contradict it.Thus, in this casethe respondent would have been authorized to prove, if he could, that a child was not born at all, or was not born at the time testified to by the paramour.The government waives the strict rule of law to this extent, by its misstep of introducing illegal evidence, and the respondent is entitled to...