State v. Cates , 97 Mont. 173 ( 1934 )

I concur in the result but not with all that is said in the foregoing opinion.

I think the court erred in overruling defendant's objection to evidence showing that deceased had borrowed money from Winters, and to evidence produced by Winters and Mrs. Read as to the financial condition of the deceased and his inability to pay his debts. In my opinion, this evidence did not rebut or have any tendency to contradict or refute the testimony of defendant that he paid to deceased $50 per month. As well might it be held that in an action for money lent, where defendant claimed that he had made payment, the plaintiff might rebut the charge of payment by showing his (the plaintiff's) impoverished financial condition and his inability to meet his debts.

In Burke v. Kaley, 138 Mass. 464, plaintiff sued defendant for money loaned to defendant's intestate during his last illness. Defendant sought to show the improbability that deceased had borrowed the money by showing that, when the purported loan was made by plaintiff, the deceased had $4,000 in a savings bank, and that during his illness he drew from the bank sufficient money to pay all his expenses. The court held that such evidence was properly excluded, saying: "The facts that the defendant's intestate had money in two savings banks, and that he drew out enough to pay his expenses, do not necessarily tend to prove any of the issues in the case. To admit them might open the door to a wide range of inquiry upon collateral issues."

The fact that deceased owed bills and borrowed money does not tend to refute the claim that defendant paid him $50 per month any more than that evidence of defendant's insolvency would prove that he had not made the payments. The Supreme Court of the United States, in the case of First Nat. Bank v.Stewart, 114 U.S. 224, 5 Sup. Ct. 845, 849, 29 L. Ed. 101, in discussing this question, said: "It further appears by the bill of exceptions that the plaintiff in error offered evidence to prove that for more than a year previous to his death McMillan had been ``hopelessly insolvent,' and had experienced ``great difficulty in procuring means to meet his interest obligations.' The defendants in error objected to this evidence. It was ruled out, and the plaintiff in error now assigns its exclusion as error. The purpose of the evidence was to prove that McMillan had not furnished the money to pay his note for $2,600 held by Hyde. The evidence offered was inadmissible because too remote and conjectural. The law requires an open and visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. (Citing cases.) * * * The evidence offered in the present case was too weak and vague to contribute to an intelligent decision by the jury of the question in issue, namely, whether McMillan had paid his note. It is common for both solvent and insolvent men to pay some of their debts and to leave some unpaid. Proof of the insolvency of a debtor is no more competent to show non-payment than proof of his solvency is competent to show the payment of his debts. These two kinds of proof stand on the same footing. The latter kind has been held to be incompetent. (Hilton v. Scarborough, 5 Gray [Mass.] 422.) The insolvency and pecuniary embarrassment of a person may be shown as evidence that he has not paid all his debts; but they do not tend to show that he has not paid a particular debt. We think the evidence of the insolvency of McMillan was properly excluded."

The cases cited in the majority opinion holding that the financial condition of the defendant is sometimes admissible are not in point here.

I am able to agree with the result reached in the foregoing opinion, because I think the error in admitting the evidence in this case, under the facts here shown, was harmless. The rule is that, "where it is quite clear that irrelevant, immaterial or incompetent evidence has neither misled nor prejudiced the jury, a new trial may be refused." (46 C.J. 113; and see Church v.Zywert, 58 Mont. 102, 190 P. 291.) Under the command of section 12125, Revised Codes 1921, this court on appeal "must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties."

The incompetent evidence, improperly admitted as I believe, related to a collateral matter. Whether defendant did or did not pay deceased $50 per month, as claimed by him, had no bearing upon the question of his guilt or innocence of the crime of murder in the first degree. It is unbelievable that the jurors, having a proper regard for their oath, were at all influenced in arriving at the verdict of guilty of murder in the first degree, by the evidence relating to the financial condition of the deceased.

Rehearing denied June 20, 1934.