Opinion
Decided May 3, 1927.
The supreme court will not consider grounds of exceptions not specified or called to the court's attention at the trial.
Objections made to interrogations on the ground that they call for matter excluded by the rules of evidence do not raise the question whether such interrogations insinuate prejudicial matter.
TWO ACTIONS ON THE CASE, under the highway statute (Laws 1893, c. 59, s. 1; P. L., c. 89, s. 1), for damages growing out of an accident alleged to have been caused by a dangerous embankment. Trial by jury and verdicts for the defendant.
The plaintiff Roberge was a passenger in an automobile driven by the deceased, Arthur Plante, which was wrecked by going over an embankment on one of the defendant's highways November 13, 1924. As a result of this accident, Plante was killed and Roberge was injured.
During the cross-examination of the plaintiff, Roberge, the following questions were asked about plaintiff's intestate, Plante.
"Q. Do you know that he was arrested for violating the liquor law?
Mr. McLane: I don't see any materiality to this examination.
The Court: I think he may inquire as to Mr. Plante.
Mr. McLane: I don't see the point of inquiring as to what he knew about Mr. Plante.
The Court: I think it is competent.
Mr. McLane: If he is asking for hearsay knowledge, what Mr. Roberge heard about Mr. Plante, I object.
The Court: I take it the question applies to what Mr. Roberge would know himself. If it tends to bring out hearsay, I won't admit it.
A. No, sir.
Mr. McLane: I may have an exception, your Honor?
Q. Do you know if in July, 1924, he was arrested for violating the liquor law?
A. No, sir.
Q. That he was arrested and given a thirty days' sentence?
A. No.
Mr. McLane: I think the way to prove that is by showing the record of the conviction. Of course, it may not do any harm, but I am not anticipating what this witness may answer. I don't know what he may answer. I object to proving it in that way, if Brother Bois is trying to prove it that way. The record is available, if there is a record.
Mr. Bois: I will get the record for you.
The Court: The same ruling applies here as before, that Mr. Roberge must only tell what he himself knows.
Mr. McLane: It doesn't seem to me that if Mr. Roberge had looked over the police records, it would be competent to prove what he found when he looked it over. The way to prove it, if it is material, is to bring the record up. I can't see that it is material under any consideration.
The Court: Of course, he might be convicted in court —
Mr. McLane: I don't think the record of the court is applicable, only as to attack the credibility of a witness. Mr. Plante is dead. I don't see how that is admissible.
The Court: I think I shall admit it.
Mr. McLane: Subject to plaintiff's exception."
Subsequently the clerk of the Manchester police court was produced as a witness and asked the following question: "Have you a record pertaining to Arthur Plante?" Objection having been made by the plaintiff, this question was withdrawn. The court instructed the jury as follows: "You are to decide the case upon the evidence, not by guess or conjecture. You are not to consider statements of counsel or insinuations contained in questions of counsel, as evidence, but are to rely wholly on the testimony of the witnesses and what you saw at the view."
The foregoing exceptions were transferred by Matthews, J.
McLane Davis (Mr. John P. Carleton orally), for the plaintiff.
Thomas J. Bois, for the defendant.
The only grounds of objection suggested by counsel to the questions which were actually put to the witness and answered were (1) that the fact sought to be proved was immaterial and (2) that the answers might involve hearsay. The only formal objection made was based upon the second ground.
After the third question had been answered by the witness, another objection was made, evidently in anticipation of further examination along the same line, that the proper way to prove a conviction was by a court record. This objection was obviously prospective in its purpose and operation as indicated by the statements of counsel, "I am not anticipating what this witness may answer. I don't know what he may answer" -; and by the ruling of the court, — "The same ruling applies here as before, that Mr. Roberge must only tell what he himself knows." No further questions upon the subject were in fact asked of the witness. Finally an objection was made to the introduction of any record of Plante's conviction, upon the ground that it was immaterial and an exception taken to the ruling of the court that it would be admitted, but when the record was finally offered and further objection made, the offer was withdrawn.
It thus appears that counsel, by his exceptions and objections, invoked three rules of evidence, viz: — (1) the rule excluding irrelevant facts, (2) the hearsay rule, (3) the "best evidence" rule. All of the objections were evidently designed to prevent the giving of unfavorable answers by the witness. No objection was made to the form or the content of the questions themselves. On account of the negative nature of the answers and the failure of the defendant to press the subject further, no violations of any of these rules, in fact, took place. The objection now urged against the questions, that they involved a testimonial assertion by counsel of the fact that Plante had a criminal record, was not suggested to the trial court. It is well settled that this court will not consider grounds of exceptions not specified or called to the court's attention at the trial. Monteith v. Company, 82 N.H. 175, 176; State v. Isabelle, 80 N.H. 191, 192; Mason v. Railway, 79 N.H. 300, 305.
The order must, therefore, be
Exceptions overruled.
All concurred.