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was uninfluential. It is held in one of our cases that "illegal proof of what need not be proved at all will not vitiate a verdict." But this doctrine requires some little qualification, for it is very clear that serious harm may be done by permitting a party to give incompetent evidence, although he may not be under any obligation to give any evidence upon the point. Elliott's Appellate Procedure, § 641, citing Citizens State Bank v. Adams, 91 Ind. 280; Holliday v. Thomas, 90 Ind. 398; Cooper v. Blood, 2 Wis. 62; State v. Avery, 17 Wis. 673; Heath v. Keyes, 35 Wis. 668; Axtel v. Chase, 83 Ind. 546; Davis v. Liberty & C. Gravel Road Co. 84 Ind. 36; McKesson v. Sherman, 51 Wis. 303; Davis v. Fulton, 32 Wis. 657; West Coast Lumber Co. v. Newkirk, 80 Cal. 275; Dickinson v. Coulter, 45 Ind. 445; Indianapolis, P. & C. R. Co. v. Anthony, 43 Ind. 183; Persons v. McKibben, 5 Ind. 261, 61 Am. Dec. 85; Re Crawford, 113 N. Y. 560; Kinsley v. Morse, 40 Kan. 577; Oshkosh Gaslight Co. v. Germania F. Ins. Co. 71 Wis. 454, 5 Am. St. Rep. 233; Latterett v. Cook, 1 Iowa, 1, 63 Am. Dec. 428; Barton v. Kane, 17 Wis. 38; Winkley v. Foye, 33 N. H. 171; Edgerly v. Emerson, 23 N. H. 555; Shepherd v. Lanfear, 5 La. 336: Brooks v. Dutcher, 22 Neb. 644; Hanson v. Elton, 38 Minn. 493; Robinson v. Shanks, 118 Ind. 125; Klein v. Hoffheimer, 132 U. S. 367, 33 L. ed. 373; McDer mitt v. Hubanks, 25 Ind. 232; Wayne County Turnp. Co. v. Berry, 5 Ind. 286; Naugle v. State, 101 Ind. 284; Gebhart v. Burkett, 57 Ind. 378; Lovinger v. Madison First Nat. Bank, 81 Ind. 354; Deig v. Morehead, 110 Ind. 451; Graves v. Campbell, 74 Tex. 576; Taylor v. Baltimore & O. R. Co. 33 W. Va. 39; Bartlett v. Beardmore, 74 Wis. 485; Fordyce v. McCants, 55 Ark. 509; Baker v. Dessauer, 49 Ind. 28; Findley v. State, 5 Blackf. 576; Beagles v. Sefton, 7 Ind. 496; Linard v. Crossland, 10 Tex. 462; Donley v. Camp, 22 Ala. 659; Sims v. Boynton, 32 Ala. 353, 70 Am. Dec. 540.

An exception to the overruling of an objection to evidence, where the objection was made after the evidence has been received, is not available. Pontius v. People, 82 N. Y. 339.

b. Consideration of the Exceptions.-Exceptions in criminal causes occupy the same position that they do in civil actions, and where the record fails to furnish evidence of the nature and scope of the exceptions taken, it is too late to raise such exception in the appellate court on a motion for a new trial. So, objection to

the sufficiency of an indictment cannot be taken by objecting ore tenus to the introduction of evidence. State v. Meyers, 99 Mo. 107.

Other decisions in this court abundantly sustain this position. Rev. Stat. 1879, § 1921; State v. Marshall, 36 Mo. 400; State v. Ray, 53 Mo. 345; State v. Williams, 77 Mo. 310; State v. Bur nett, 81 Mo. 119; State v. McDonald, 85 Mo. 539; State v. Pints, 64 Mo. 317.

Even in cases where the record discloses indisputable evidence of error on the part of the trial court a reversal of the judgment will not necessarily follow, as it is well settled, that a court is not required to reverse, even in a capital case for every error committed on the trial, even where such error is made the subject of an exception. Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; People v. Bransby, 32 N. Y. 525; People v. Gonzales, 35 N. Y. 59; Fralich v. People, 65 Barb. 48.

The general exception to evidence that it is incompetent, irrelevant and immaterial, even when incorporated in the record is not sufficient to present a question for the appellate court. This rule obtains in civil causes, and the same as in civil actions. Stringer v. Frost, 2 L. R. A. 614, 116 Ind. 477; Bundy v. Cunningham, 107 Ind. 360; Clark Civil Twp. v. Brookshire, 114 Ind. 437; Chicago & E. I. R. Co. v. Holland, 122 Ill. 461; Metzger v. Franklin Bank, 119 Ind. 359; Vickery v. McCormack, 117 Ind. 594; Byard v. Harkrider, 108 Ind. 376; McCullough v. Davis, 108 Ind. 292; Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 409.

"A prisoner on trial under our laws has no right to stand by and suffer irregular proceedings to take place, and then ask to have the proceedings reversed on error on account of such irregularities. The law, by furnishing him with counsel to defend him, has placed him on the same platform with all other defendants; and if he neglects in proper time to insist on his rights, he waives them." McKinney v. People, 17 Ill. 556.

To the same effect are Bulliner v. People, 95 Ill. 394; Perteet v. People, 70 Ill. 171; Graham v. People, 115 Ill. 566.

The general rule, which requires a party objecting to evidence to specify the ground of the objection, is to prevent surprise and enable the court and the other party, in dealing with the objec

tion, to act understandingly. There are often technical objections to questions, which, upon being suggested, will at once be acquiesced in or induce a change in the form of the question or mode of proof by which the objection is obviated. In such cases common fairness and the due administration of justice requires that the party should, by specifying the ground of the objection bring the attention of the court directly to the point, and if he omits to do so he is justly deprived of the benefit of his objection. People v. Beach, 87 N. Y. 508.

Exceptions to the admission or exclusion of evidence in order to be available in the appellate court, must be specific; and should be framed in such a way as to call the attention of the presiding judge to the exact ground upon which the objection is based. Fuller v. Smith, 74 Ga. 835; Smythe v. Scott, 106 Ind. 245; Burnswick v. Moore, and Hall v. Huff, 74 Ga. 409; Dozier v. Jerman, 30 Mo. 216; Letton v. Graves,26 Mo. 250; Camden v. Doremus, 44 U. S. 3 How. 515, 11 L. ed. 705; Weston & P. R. Co. v. Cox,32 Mo. 456; Peck v. Chouteau, 91 Mo. 138; Shelton v. Durham, 76 Mo. 434; Watson v. McLaren, 19 Wend. 557; Baier v. Berberich, 85 Mo. 30; Martin v. Travers, 12 Cal. 243; Baker v. Joseph, 16 Cal. 173; Mabbett v. White, 12 N. Y. 442; Kansas Pac. R. Co. v. Pointer, 9 Kan. 620; Jackson v. Cadwell, 1 Cow. 622; Michel v. Ware, 3 Neb. 229; Johnson v. Adleman, 35 Ill. 265; Carroll v. Benicia, 40 Cal. 390; Stone v. Great Western Oil Co. 41 Ill. 85; Moser v. Kreigh, 49 Ill. 84; Hanford v. Obrecht, 49 Ill. 146; Weide v. Davidson, 15 Minn. 330; Gilbert v. Thompson, 14 Minn. 544; Bickham v. Smith, 62 Pa. 45; Batdorff v. Farmers Nat. Bank, 61 Pa. 179; Moore v. Bank of the Metropolis, 38 U. S. 13 Pet. 302, 10 L. ed. 172; Elliott v. Peirsol, 26 U. S. 1 Pet. 328, 7 L. ed. 164; Hinde v. Longworth, 24 U. S. 11 Wheat. 199, 6 L. ed. 454; Delphi v. Lowery, 74 Ind. 520; Forbing v. Weber, 99 Ind. 588; Carter v. Bennett, 4 Fla. 284; Elwood v. Deifendorf, 5 Barb. 398; Irvinson v. Van Riper, 34 Ind. 148; Feriter v. State, 33 Ind. 283; Sutherland v. Venard, 32 Ind. 483; Watts v. Green, 30 Ind. 98; Gibson v. Green, 22 Ind. 422; Evey v. Smith, 18 Ind. 461; Boggs v. State, 8 Ind. 463; Prather v. Rambo, 1 Blackf. 189; Priddy v. Dodd, 4 Ind. 84; Wolcott v. Yeager, 11 Ind. 84; Louisville, N. A. & C. R. Co. v. Grantham, 104 Ind. 353; Fuller v. Smith, 74 Ga. 835; Smythe v. Scott, 106 Ind. 245; Brunswick v. Moore and Hall v. Huff, 74 Ga. 409;

Northwestern Mut. L. Ins. Co. v. Hazelett, 105 Ind. 212; Landwerlen v. Wheeler, 106 Ind. 523.

A particular objection is necessary to raise the question of the admissibility of evidence as part of the res gesta. Hughes v. State, 27 Tex. App. 127.

The Illinois practice is in perfect harmony with the rules above stated, and it is well settled in that jurisdiction that all motions and decisions made before or rendered by the trial court, must be incorporated in the record through the medium of a bill of exceptions. Holmes v. People, 10 Ill. 478; Earll v. People, 73 Ill. 329; McClurkin v. Ewing, 42 Ill. 283; Hay v. Hayes, 56 Ill. 342; Graham v. People, 115 Ill. 566; Snell v. Clinton M. E. Church Trustees, 58 Ill. 292; Tarble v. People, 111 Ill. 120; Gaddy v. McCleave, 59 Ill. 183; Boyle v. Levings, 28 Ill. 314; Thompson v. White, 64 Ill. 314.

In order to entitle a party to a review of the action of the trial court, it is necessary that exceptions be taken at the time of the adverse ruling. This rule applies as well to criminal, as to civil State v. Elvins, 101 Mo. 246; State v. Brannum, 95 Mo. 22; State v. McDonald, 85 Mo. 542.

cases.

See generally on this topic, 2 Rice, Civil Ev. chap. 34. c. When Exceptions are Deemed Waived.—An exception may also be waived by the party taking it; he is not bound to stand by the exception. It may be waived expressly or by inference, and the implication of such waiver is unavoidable when he offers again proof of a fact excluded by a former ruling; for by his renewed application he elects to submit to the decision of the court. If that is in his favor, the former exception falls. He cannot retain the exception and so allege error in law, after getting such evidence as he offers, and try before the jury its effect upon the question of fact. He must be deemed to have made the new offer under circumstances satisfactory to himself, and is thus brought directly within the rule that exclusion of evidence at any stage of the trial is no ground of exception if it is subsequently admitted. Park Bank v. Tilton, 15 Abb. Pr. 384; Morgan v. Reid, 7 Abb. Pr. 215; Jackson v. Parkhurst, 4 Wend. 369; Hay v. Douglas, 8 Abb. Pr. N. S. 220; Forrest v. Forrest, 6 Duer, 102.

Under the provision of the New York Code of Criminal Procedure ( 528, as amended by chap. 493, Laws of 1887), vesting in

the court of appeals jurisdiction to examine the record on appeal in a criminal action "where the judgment is of death," and to determine upon the whole case whether "the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below," the defendant is not given and may not claim, as matter of right in this court, the benefit of errors occurring on the trial; the failure to make proper objections and take exceptions deprives them of that right; the court is simply vested with a power in its discretion to disregard the neglect and without regard to exceptions to review the case upon the merits. People v. Driscoll, 107 N. Y. 414.

The supreme court of Michigan say, in Wellar v. People, 30 Mich. 20, that "there is no rule recognized as authority which allows a conviction of murder where a fatal result was not intended, unless the injury intended was one of a very serious character, which might naturally and commonly involve loss of life or grievous mistake." The court further say that any doctrine which would hold every assailant as a murderer, where death follows his act, would be barbarous and unreasonable. Mr. Wharton in his work upon Criminal Evidence (§ 738), says the doctrine that malice and intent are presumptions of law, to be presumed from the mere act of the killing, belongs, even if correct, to purely speculative jurisprudence, and cannot be applied to any case that can possibly arise before the courts; that in no case can the prosecution limit its proof to the mere act of killing. Kent v. People, 8 Colo. 563.

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