State v. Savage

Walton, J.

The defendant has been tried and convicted of manslaughter, and the case is before the law court on exceptions to the admission of evidence, and to a portion of the judge’s charge to the jury.

The evidence, to the admission of which exception is taken, was a conversation between the prisoner and his wife a few days before her death. The evidence tended to show that the husband was then considerably intoxicated, and that he compelled his wife to go to Augusta with him, at a time when she was sick and unable to go. It is contended that the evidence was inadmissible, because it had no tendency to prove the offense set forth in the indictment, and because it tended to prove a cause of death other than that alleged. We think these objections are not open to the defendant. Objections to evidence should be stated at the time it is offered, and with sufficient definiteness to apprise the court and the opposite party of the precise grounds of the objection; and all objections not thus specifically stated, should be held to be waived. This is a well settled and salutary rule of practice, and should be strictly adhered to. Bonney v. Merrill, 54 Maine, 368. Longfellow v. Longfellow, 54 Maine, 240. White v. Chadbourne, 41 Maine, 149. Holbrook v. Jackson, 1 Cush. 136. The only objection -made to this evidence, at the time it was offered, appears to have been based on the idea that it was too remote in point of time. The stenographer’s note of the objection is as follows : “ Conversation the Friday before is objected to by counsel for respondent.” No other or more specific objection appears to have been made. The objection thus noted was clearly insufficient, and was properly overruled. The objections now relied upon in argument, cannot be sustained, for the reason, if for no other, that they do not appear to have been made at the time the evidence was offered. But we are also of opinion that the objections could not be sustained if they had been seasonably made. The prisoner’s declarations and conduct are clearly admissible upon general principles, and we think that in this instance they had some tendency to prove the assault charged in the indictment. They showed harsh treatment of his wife, and that he was in a frame of mind, and in a condition, likely to result in an assault. This exception must, therefore, be overruled.

The only remaining exception is to a portion of the judge’s charge to the jury. The portion excepted to is in these words:

“If a husband should, by his control, refuse and prevent the proper measures being taken to restore his wife to health, and through such gross carelessness or wickedness on his part, in depriving her of the necessaries of life, death was brought about, he "would be just as guilty as though it was a positive act of violence.”

As an abstract principle of law, this statement of the presiding judge was undoubtedly correct. It is the precise proposition affirmed in State v. Smith, 65 Maine, 257. Where, then, is the error ? It is claimed that it was erroneous in this case because it authorized the jury to find the defendant guilty upon proof of carelessness, when he was charged in the indictment with an assault. We think this proposition cannot be maintained. If we were at liberty to assume that what is quoted from the judge’s charge was said, and that nothing more was said, the argument would have great force. But we are not at liberty to do so. The exceptions do not purport to give the whole of the judge’s charge. They do not purport to give all that was said upon this particular point. For aught that appears, the jury may have been instructed, in so many words, that, while this rule of law, with respect to gross carelessness, was true in the abstract, it would not apply to this particular case, because oí' the averments in the indictment; that, to find the defendant, guilty in this case, an assault must be proved, because it was an assault, and not carelessness, that was charged in the indictment. The single sentence from the judge’s charge, which is incorporated into the exceptions, is in no way inconsistent with such instructions; nor do the exceptions state that such instructions were not given. Nothing appearing to the contrary, it is the duty of the court to presume that all proper and needed instructions were given. Error cannot be presumed. It must be made affirmatively to appear or it will be presumed not to exist. No error, either of omission or commission, is made to appear in the bill of exceptions now before us. Everything therein stated may be true, and yet no such errors have occurred. It is, therefore, our duty to presume that no such errors did in fact occur.

Exceptions overruled.

Appleton, C. J., Barrows, Virgin and Libbey, JJ., concurred.