State v. Borowczyk , 91 Mont. 1 ( 1931 )

Under the rule found in 16 C.J. 543: "The rules of law determining the admissibility of evidence are substantially the same in civil as in criminal cases. The test of relevancy is the same. But it has been said that the necessity for enforcing the rule that no evidence can be admissible which does not tend to prove or disprove the issue joined is much stronger in criminal than in civil cases. It is elementary that the evidence must be confined to the matters in issue, and that evidence offered of matters which are irrelevant may and should be excluded. On the other hand, any legal evidence which logically tends to prove or to disprove a material fact in issue is relevant and therefore admissible, provided it is not too remote or speculative or otherwise of such slight probative value as to justify the court in excluding it on the ground of immateriality. While evidence which has no tendency to establish the guilt or innocence of the accused, and which, if effective at all, could serve only to excite the minds and inflame the passions of the jury, should not be admitted, facts which are relevant are not to be excluded because they may also have a tendency to prejudice defendant in the minds of the jury, or because they are capable of being distorted to unfair and prejudicial uses, defendant's remedy being to have the jury's attention directed to the legitimate purposes and legal effect of the evidence," we submit that the evidence in question could serve only to excite the minds of the jury and should not have been admitted.

Assuming that the prosecution had a right to show the bad character of the accused, it could only do this in rebuttal after the defendant introduced evidence of his good character. In proving his bad character the evidence must not be with regard to specific acts but must be general, and not too remote. (See 16 C.J. 581; State v. Hanlon, 38 Mont. 557, 100 P. 1035;State v. Popa, 56 Mont. 587, 185 P. 1114; State v.Jones, 48 Mont. 505, 139 P. 441.)

If the defendant had been asked whether or not it was true that he had a venereal disease in 1924, it would clearly have been incompetent. (See State v. Kanakaris, 54 Mont. 180,169 P. 42.) What justification can there be to allow some other witness to give such testimony in an assault case where the assault is alleged to have been committed in 1930? Defendant submits that the evidence above specified was admitted by the court for the only purpose it could have, and that was to prevent the defendant from obtaining a fair and impartial trial. Defendant was convicted of the crime of assault in the first degree. His wife was the victim. The defense was insanity, "caused by reason of a loose course of conduct of the wife and complaining witness and persisted in for a long period of time, which conduct was sufficiently serious so as to cause the defendant to be insane at the time of the assault."

Upon the trial the defendant testified to his marital history[1] and the discord with his wife; her conduct toward and relations with other men extending over a period of many years, and her refusal to cohabit with him. In rebuttal the wife was permitted to testify, over defendant's objection, that several years prior to the assault, but within the time covered by defendant's testimony, defendant had had a venereal disease. She testified: "I did not feel the same towards my husband after that. That just turned me cold against him, and I still feel that way about it. Since that time I have not felt right towards my husband," and thereafter she refused to cohabit with him. Defendant asserts that this testimony was incompetent and highly prejudicial.

Clearly, defendant's testimony was intended to show that the wife's conduct and treatment of him was of such a nature as to unseat his reason, resulting in a "brain storm" or temporary insanity. The testimony in rebuttal controverted the showing made by defendant, and was competent. Defendant testified that his wife had refused to cohabit with him. This was one of the circumstances which led him to believe that she was intimate with other men. It was proper for the state to show the reason she refused to cohabit with defendant was due to his own misconduct, from which, taken in connection with all the other facts and circumstances shown by the record, the jury may well have determined that her alleged misbehavior did not cause his asserted temporary insanity. We can see no reason why we should interfere with its finding.

The judgment and the order denying a new trial are affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, ANGSTMAN and MATTHEWS concur.