People v. Livingston

California Court of Appeal Jan 30, 1928 No. Docket No. 1579.Published

Before: Wood

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Holding. The court held that while the trial court erred in admitting the testimony of the defendant's wife because the judgment annulling their marriage was not final, the error did not result in a miscarriage of justice given the overwhelming evidence of guilt.

Issues

Whether a judgment of annulment that is not yet final is admissible to qualify a spouse to testify against the defendant.
Whether the erroneous admission of a spouse's testimony constitutes a miscarriage of justice requiring reversal under the state constitution.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The judgment setting aside the marriage not being final, it should not have been admitted in evidence.”

“It follows that Jessie Peters should not have been allowed to testify.”

“We are satisfied that the error of has not resulted in any miscarriage of justice.”

WOOD (W. J.), J., pro tem.

Appellant was accused by an indictment filed by the grand jury of the crime of rape committed upon Jessie Peters, a girl of the age of twelve years. The trial jury returned a verdict of guilty with the recommendation that the accused be punished by imprisonment in the state prison. Appellant made a motion for a

[714]

new trial which was denied. The date of the offense as charged in the indictment was on or about August 27, 1926. The indictment was returned on October 13,1927, and the trial conducted on October 31, 1927. Appellant and Jessie Peters were married at Goldfield, Nevada, on February 27, 1927, her father and mother being witnesses to the ceremony and her father giving his consent to the marriage. The district attorney offered in evidence a judgment of the superior court of Kern County in an action entitled “Elva Peters

William Livingston and Jessie Livingston, formerly Jessie Peters,” dated October 3, 1927, and entered October 5, 1927, in which it was adjudged that the said marriage “be set aside and annulled.” To the offer of this evidence defendant objected on the ground that the judgment was void because Jessie Peters, a necessary party and a minor, was not served with process or represented by counsel or a guardian therein and because the judgment was not final, the time for appeal not having elapsed. The objection was overruled and the judgment admitted in evidence. Thereupon Jessie Peters was permitted, over objection, to testify concerning her relations with appellant.

Appellant now seeks a reversal of the judgment on the ground that Jessie Peters was his wife and, therefore, could not testify against him without his consent, citing section 1322 of the Penal Code, and

People

Curiale,

137 Cal. 534 [59 L. R. A. 588, 70 Pac. 468]. The attorney-general does not answer this contention of appellant or seek in any way to justify the ruling of the court in permitting Jessie Peters to testify. The judgment setting aside the marriage not being final, it should not have been admitted in evidence.

(Harris

People v. Livingston

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