State v. Pearson

189 N.W. 404, 153 Minn. 32, 1922 Minn. LEXIS 726

• Court: Supreme Court of Minnesota
• Decided: July 21, 1922
• Docket: No. 22,831
• Status: Published

Opinions

Hallam, J.

Defendant was convicted of manslaughter in the second degree and he appealed.

There is evidence as follows: On February 6, 1920, defendant and his wife were living together in a second-story room in a hotel at Crookston. They had been married but two weeks. Late in the night of February 6, plaintiff’s wife there gave birth to a child. The next morning the child was found dead on the roof of a one-story annex accessible from the second-story window of the hotel. There is evidence that the child was born alive. The evidence is circumstantial as to how it came upon the roof. Defendant denied all knowledge of the affair. He denied knowledge of the birth of the child and even of the fact that his wife was pregnant. There is evidence that would justify a finding that the child was placed on the roof from the window of the bath room on the second story of the hotel near defendant’s room, and evidence to sustain a verdict that both defendant and his wife were participants in the crime.

Complaint is now made of the reception of certain evidence. Mr. Montague, the county attorney, took the stand, and, in answer to questions asked by the assistant attorney general, testified to a conversation he had with defendant and that in that conversation he said: “I told him that she [Mrs. Pearson] told me that either at Thanksgiving time or Christmas time, I don’t know which, she had told him that she was in a family way and that he had said that was not going to make any difference, that they would get married and they would keep it from her folks and that they would get rid of the child.” He stated that defendant denied this incident. Had proper objection been taken at the time, this testimony would doubtless have been excluded. Its reception cannot now be objected to. The following facts furnish conclusive reason:

First, no objection was made to it in such a way as to afford the trial court a fair opportunity to rule upon it.

Second, no objection at all was raised to the reception of this testimony when the defendant made his motion for a new trial. Not until the case came to this court was its reception made a real issue.

Third, the sheriff was later called as a witness and testified to a conversation he had with defendant to substantially the same effect and this testimony was received without any objection at all.

The testimony is therefore in the case without objection and the ruling on the county attorney’s testimony, if erroneous, is not ground for a reversal. State v. Crawford, 96 Minn. 95, 104 N. W. 768, 822, 1 L. R. A. (N. S.) 839.

The first proposition is the only one requiring further discussion. The record shows that Mr. Montague was asked to tell of his conversation with defendant. The only objection was “the defendant objects to any conversation * * * which Mr. Montague claims that he had with the wife of this defendant or any conversation which he claims that he was repeating from the wife to this defendant on the ground that it is privileged and as incompetent, irrelevant and immaterial.” The court observed: “What he may have said to this defendant is admissible,” and overruled the objection. Defendant noted an exception. No testimony of consequence was elicited by the question objected to. Other questions which did elicit testimony now objected to were answered without any objection at all. The objection taken on the trial was clearly insufficient to advise the trial court of the ground now urged. The testimony was not privileged. If “incompetent, irrelevant and immaterial,” it was because it was hearsay.

This court has very definitely decided that a party “objecting to the introduction of evidence must state his point so definitely that the court may intelligently rule upon it, and the opposing party may, if the case will admit of it, remove the objection by other evidence,” and that “when an objection is so general as not to indicate the specific grounds upon which it is made, it is unavailing on appeal, unless it be of such a character that it could not have been obviated,” and that the stock objection that testimony is “incompetent, irrelevant and immaterial” is not sufficient to fairly advise the court that the testimony is objected to as hearsay. Graves v. Bonness, 97 Minn. 278, 107 N. W. 163; Larson v. Anderson, 122 Minn. 39, 41, 141 N. W. 847. In Larson v. Anderson, supra, evidence was received of a letter and of a conversation “both self-serving declarations, hearsay and prejudicial,” over objection that the evidence was incompetent, irrelevant and immaterial. This court held that “the objections made saved nothing for review,” that no reason existed why counsel, if they deemed the evidence improper, should not have stated “the specific ground of objection instead of resorting to the elusive, and now well-nigh obsolete, formula, fin-competent, irrelevant and immaterial’ which has been in times past. one of the mainstays of technical error.”

The reasons for these well considered and deliberately adopted rules are not technical but substantial. The purpose is simply to require objection to evidence offered at the trial to be made at the time so clearly that the objection may be obviated or, if not, then the testimony excluded, without the cumbersome necessity of a new trial. If a new trial is now granted because of the reception of this evidence, it will mean that objection to evidence may be made for the first time in this court. The vice of this rule is apparent and far reaching. The adoption of such a rule will mean that an attor» ney for the defendant may sit hack and permit the reception of any evidence offered, assured that, if incompetent evidence gets into the case, the supreme court will set aside any adverse verdict. It will mean that, if a verdict of guilty is to stand, the court and county attorney must try the defendant’s case. Any such rule is wrong in principle. Objections to testimony should be urged, if at all, when the evidence is offered on the trial. Objections which counsel do not see fit to urge should be deemed waived. Defendant’s counsel is there for the purpose of making such objections, and counsel is furnished for him by the state if he has none. Defendant in this case had. as his counsel an able and experienced practitioner. He knew how to try a case and make objections on the trial. His good faith is, of course, not impugned. He made such objections as he thought the interest of his client demanded. Others should not be considered now.

Order affirmed.