Dedric v. Hopson

Beck, J.

1. The defendant was a witness in his own behalf. Upon his cross-examination certain questions were . ReíSoí wit-6' ness‘ ashed him touching his religious belief, intended to sh°w he did not believe in a future conscious state of existence, to which objections were made, but were overruled by the court, and the witness was required to answer the questions. The grounds of the objections to the questions, as shown by the bill of exceptions, are, that they were “incompetent under the law, and immaterial.” The objections should have been sustained, upon the ground that a witness cannot be required to testify to his want of belief in any religious tenet, nor to divulge his opinions upon matters of religious faith. The precise point has heretofore been ruled by this court. Searcy v. Miller, 57 Iowa, 613 .

*564 II. Counsel for plaintiff insist that tbe objections to the evidence as shown by Ihe bill of exceptions were not made 2. PBACTIOE in supremo correction of error in. when the testimony was given, and present a certiffcate ot the circuit ludge m an amended ab-stracf;, showing that the objections were upon the ground of immateriality of the testimony sought to be elicited, and that, under the constitution of the state, the religious belief of the wfitness could not be called in question. The proceedings at the trial, as certified in a bill of exceptions, cannot be contradicted by such a certificate. There must be stabili ty and consistency in the records of the proceedings of a court. When a bill of exceptions is signed and filed, it becomes a part of the record. It is not competent for the judge to change or modify it by a contradictory written statement or certificate filed with the papers of the case. If the bill of exceptions is inaccurate, or fails to state the facts through.mistake or any other cause, the law provides a way to make the proper correction. Rut it cannot be done by permitting the bill of exceptions to stand, and adding to the record contradictions thereof. We cannot consider the certificate of the judge refered to, or give it any force whatever.

III. The defendant filed a motion to set aside the verdict and for a new trial, and subsequently “a petition for a new trial,” 3. practice: tions-£ wiiatPit may include, both of which were denied. These facts are shown ^y an amended abstract filed by plaintiff. After the rulings upon the applications to set aside the verdict and for a new trial, the defendant presented his bill of exceptions, which was allowed and signed by the judge. It complains of and embodies- objections to the ruling of the court in requiring defendant upon cross-examination to disclose his religious belief. No other objection is made therein. It was settled and signed by the judge within the time prescribed by the agreement of the parties. Counsel for plaintiff now insist that it was not competent for defendant to object to the rulings upon the evidence in his bill of exceptions, *565 and that tlie objections therein should have been limited to 'the rulings upon the application for a new trial and to set aside the verdict. This position is not correct. Defendant had excepted to the rulings upon the evidence when they were made, and had in no manner waived objection thereto. Ilis bill of exceptions was filed within the time agreed upon. It was competent for him to embody in it all grounds of objection upon which he desired a review of the case, and to waive others upon which he desired no review. This he did in the bill of exceptions. He waived the objections based upon the denial of the motions for a new trial, and he preserved his objections based upon the rulings upon objections to the cross-examination of defendant as to his religious belief.

IV. Counsel for plaintiff insist that the objection of defendant, made upon his cross-examination, stated in the first i. evidence •. oompetont1"" use of. ° point of this opinion, were directed to the com-potency of the evidence, and were rightly' overruled, on the ground that evidence of u witness’ religious belief is competent when given in the testimony of other witnesses. It is insisted that the objection of defendant was upon the ground of the incompetency of the evidence, not upon the ground that defendant himself as a witness was required to give such evidence. This position lacks the support of facts disclosed by the record. Upon the questions being asked defendant touching his religious belief, they were objected to, in the language of the record, “as incompetent under the law.” This clearly means that the questions or examination was objected to on the ground that it was not authorized by the law. It is not to be understood that the evidence under the rules of the law is inadmissible, but that the examination of the witness in the manner proposed was not authorized by law. The word “incompetency” is familiarly used to indicate the want of lawful authority or power, and that proceedings to which it is' applied are contrary to law. It is used to express the thought that certain evidence can *566 not be lawfully received, or that a witness cannot lawfully testify. It would be quite properly used to express the idea that a witness could not be required to testify to certain facts. In this case it is proper to say that it was incompetent to require defendant to testify to his religious belief. This very thought was expressed by the objection to his examination. A question was asked him requiring an answer disclosing his religious belief. This was objected to as “incompetent under the law.” The thought expressed by the language is that defendant coaid not be lawfully required to answer a question intended to-disclose his religious belief.

Y. Counsel for plaintiff insist that, if the ruling permit-ing the cross-examination of defendant objected to was „ fteí?)£°wR-e" munitynotm" waived. erroneous, it was without prejudice, for the reasons that defendant answered other questions without objection, giving therein substantially the game testimony as he gave in his answers to the questions complained of now, and that his answers were not responsive to the questions. The position is not sustained by the record. The defendant answered questions, without objection, tending to show his belief in the existence of God. The questions objected to sought to elicit his disbelief in a future state of existence. The testimony in the two instances is different. While his answers to the questions objected to are evasive, yet they were doubtless understood by the jury to express disbelief in a future existence. They are capable of no other meaning.

YI. Certain motions made by plaintiff were submitted to us with the case. In the first, the plaintiff asks the court to c. bile of ex-time cJuiiing. within the strike from the record the bill of exceptions, on the ground that it was not settled and filed time prescribed by law. But it shows upon its face that it was signed and filed within the time agreed upon by the parties. This is sufficient. Harrison v. Charlton, 42 Iowa, 573 . The motion is overruled.

YII. Plaintiff also moves in this court to strike the tran *567 script, on the ground that it is not a complete transcript of 7. PRACTICE in supreme court: trail-teSaíwSeu" p?ete?ot: c°m all the records in the case, and was, when completed, delivered to the attorney of defendant, and this court in the was not sent by the clerk to manner prescribed by Code, section 3179.

In the first place, the transcript, as shown by the abstract filed by defendant and the amended abstract filed by plaintiff, contains all that is required to present the questions raised in the case. Nothing more is necessary. Code, § 3179.

In the second place, while the certificate of the clerk of the circuit court shows that the transcript was delivered to the 8. APPEAL to supreme court: practice : transmission, oí transcript: regularity presumed. attorneys of the parties, i t does not show that it was not sent by him, in the manner directed, to the clerk of this court. TIis statement of the delivery of the transcript to defendant’s attorneys does not necessarily imply that he did not after-wards forward it in the manner directed by the statute to the clerk of this court. We will therefore presume that it came here in the regular way.

The foregoing discussion covers all questions in the case presented for our consideration. The judgment of the circuit court, for the error committed in the cross-examination of defendant, is

Reversed.