I dissent.
There is no assignment of error such as is required by Rule VIII of the rules of this court. That rule, insofar as material here, provides as follows:
"Appellant's brief shall contain:
* * * * * "2. A statement of the errors upon which he relies for a reversal of the judgment or order of the court below.
"3. A statement and arguments upon the particular questions involved for determination." 100 Utah xlv.
What defendant probably intended as his assignment of errors appears in his brief as follows:
"The appellant contends that the conviction should be nullified and set aside for the following reasons.
"I. That the proceedings from the beginning were irregular and illegal.
"A. The charge of perjury was based on immaterial testimony irregularly received. *Page 400
"B. The testimony on which the charge was based was on incriminating questions and answers of the appellant.
"C. A witness was illegally compelled to testify.
"D. Appellant was entitled to change of judge because of bias and prejudice of the trial judge."
The best that can be said for the above quoted statement is that it presents an outline for a rather generalized argument against the proceedings in the court below. With the possible exception of part D, to which I shall later advert, it does not point out a single ruling or order of the trial court as erroneous. The statement under I is merely a general statement that the record is full of errors, without saying what the errors are. The statement under A is so ambiguous and uncertain as to be practically meaningless. It might be construed as an attack upon the sufficiency of the complaint or information, or upon the sufficiency of the evidence, or upon the rulings of the court in receiving evidence. It certainly fails to indicate, with any degree of certainty, what rulings of the court are contended to be erroneous. The same may be said of the statement set forth under B. The statement under C gives no hint as to what witness was illegally compelled to testify or to what matter he or she was compelled to testify. The best that can be said for these purported assignments of error, is that they invite the court to make a general search of the record, and find error. Under familiar and well established principles, such assignments of error are not sufficient, and should be summarily disposed of. The party seeking to overturn a judgment of the trial court has the burden of showing with particularity that prejudicial error was committed. It is not sufficient to throw out a general invitation to this court to search the record for error.
Even taking the most charitable possible view of these purported assignments of error, and following the argument advanced by defendant in his brief, there is no showing of prejudicial error. Much of defendant's argument is directed to the rulings and actions of the trial court in the contempt *Page 401 proceedings. Although the transcript of the contempt proceedings was admitted in evidence as an exhibit, it is before us merely as evidence of what transpired on that occasion, and it is not before us for any other purpose. No matter what errors may have been committed at that time, they cannot be corrected in this proceeding. If defendant were aggrieved by any order of the trial court at that time, he had his remedy by way of appeal. He cannot, in this proceeding, complain of any errors which may have been committed in the contempt proceeding.
The majority holds that the trial court erred in admitting in evidence the transcript of testimony of the contempt proceedings. Although plaintiff objected to the admission of the transcript in evidence, the objection was not based on his constitutional privilege against self-incrimination. Rather, the objection was to the effect that such evidence was incompetent. It is a principle too well settled to require citation of authority that the court's rulings on objections to the admission of evidence are not available on appeal unless the grounds of objection are stated. And where evidence is objected to on one ground in the trial court, a different ground of objection may not be urged in this court. The trial court must have had an opportunity to pass upon it.
Where counsel fails to state seasonably the reasons for his objection, any error in admitting such evidence will not be available on appeal. So far as the record reveals, the question of constitutional privilege was raised for the first time in this court, and therefore it should not be available to the appellant as grounds for reversal.
Apart from the procedural defects, and the failure of counsel to make a proper record in the court below, there are substantive reasons why the case should not be reversed. The constitutional privilege against self-incrimination is a personal one, which may be waived. As stated in Wigmore:
"The privilege is merely an option of refusal, not a prohibition of inquiry. *Page 402
"1. Witness. Hence it follows that when an ordinarywitness is on the stand, and a criminating fact, relevant to the issue, is desired to be proved through him, the question may be asked and it is for him then to say whether he will exercise the option given him by the law. It cannot be known beforehand whether he will refuse. Besides to prevent the question would be to convert the option into a prohibition.
* * * * * "Accordingly, it is universally conceded that the question may be put to the witness on the stand * * *." 8 Wigmore on Evidence, 3d Ed., Sec. 2268.
The learned author goes on in the same section as follows:
"4. Civil case. For a party defendant in a civil causehaving a criminal fact as its main issue, * * * it would * * * seem that the technical right of the plaintiff, to call the opponent as a witness and question him until it appears that the privilege will be exercised, should be conceded to operate. * * *"
The prevailing opinion apparently holds that it was the duty of the trial judge in the contempt proceedings to advise defendant of his constitutional privilege against self-incrimination.
As to the duty of the trial judge to advise a witness of his privilege against self-incrimination, Wigmore, in Sec. 2269, argues strongly against such a rule, giving several-cogent reasons for his position, and concludes by saying:
"In the United States both the rule and the trial custom vary in the different jurisdictions. No doubt a capable and painstaking judge will give the warning, where need appears; But there is no reason for letting a wholesome custom degenerateinto a technical rule." (Italics added.)
See also 6 Jones, Commentaries on Evidence, 2d Ed., 4923-4925, Sec. 2488.
In the case of State v. Caperton, 276 Mo. 314,207 S.W. 795, and Twiggs v. State, Tex.Cr.R., 75 S.W. 531, cited and relied upon by the majority, the court failed to recognize that the constitutional privilege was not a prohibition against inquiry, but only an option of refusal. In those cases *Page 403 the court adopted the rule, criticized by Wigmore, that there was a duty on the part of the judge to advise the witness of his constitutional privilege.
It is not necessary to express an opinion at this time whether in certain cases there may be an absolute duty on the part of the trial judge to advise a witness of his constitutional privilege. Certainly no such duty should exist where the criminal implications of the question are not apparent to the judge Otherwise in practically every case the trial court would be bound to advise every witness of his constitutional privilege, since almost any question, when superimposed on a certain peculiar factual background, may have criminal implications. The necessary and inevitable result of such a rule would be that many witnesses would wrongfully and without just cause withhold their testimony under pretext of exercising their constitutional privilege.
The prevailing opinion concedes the propriety of the trial court's asking defendant whether he was married. Ordinarily such a question has no criminal implications. However, under the peculiar facts of this case, it did. Whether the trial judge was aware of the criminal implications involved at the time he commenced his interrogation of defendant in the contempt proceedings is not made to appear in the record. And in the absence of such a showing we cannot presume improper or collateral motives on the part of a judicial officer. As stated in the prevailing opinion, it was very proper for the court to ask the defendant whether he was married. When that question was answered affirmatively the perjury was committed. As the interrogation progressed, the criminal implications of the questions should have become apparent to the trial judge, but an advice of constitutional privilege at that time would have come too late. The damage was already done.
Defendant, having failed to assert his constitutional privilege, either in the contempt proceedings or in the perjury trial, has waived it and should not, at this late date, be permitted to assert it. *Page 404
For each and all of the above stated reasons, I must dissent from the result reached by the majority. I desire to add, however, that I do not wish to be understood by this opinion as condoning the action of the trial judge in the contempt proceedings. It appears from a reading of a transcript of that proceeding that the trial judge seemingly acted in a manner not called for by the nature of the judicial inquiry to which he should have limited himself. However, the contempt proceedings are not before us for review. That record is before us only as evidence of what transpired at that time, and any errors which may have been committed at that time are beyond the scope of this appeal.
I must also dissent from the view that the trial judge erred in refusing to disqualify himself, although I am sympathetic with much that is said in the prevailing opinion as regards that point. I agree that whatever may have been the defects in the other assignments of error, the issue of whether the trial judge was biased and prejudiced is properly before this court. I further agree that it would have been much better for the trial judge to have disqualified himself in this case. However, I am not prepared to say that, as a matter of law, he committed error in refusing so to do. We cannot presume improper motives on the part of judicial officers. Unless the record reveals quite certainly the bias and prejudice of the trial judge we must sustain his ruling that he was not biased or prejudiced.
The majority has lifted from their context, certain statements and comments of the trial judge at the contempt proceedings, which are relied upon as a sufficient showing of bias and prejudice. While I do not mean to approve of all the comments of the trial judge, and some of them appear to be quite unjudicious, I am of the opinion that they do not establish bias and prejudice as a matter of law when viewed in their context.
At the conclusion of the plaintiff's evidence in the contempt proceeding, the trial judge offered the defendant an *Page 405 opportunity to cross-examine his former wife, which offer was declined. The judge then advised defendant of his right to testify in his own behalf, which right defendant waived. The judge then said,
"Well, come up here. I want to ask you some questions."
The cold record before us does not indicate the tone of voice employed by the judge in making this statement, but there is no reason to believe that it was said in a harsh, hostile, or unfriendly manner. To me it seems a natural and normal way of asking a person in the court room to take the witness stand. While a judge should be tactful and courteous toward persons in his court, he need not necessarily use the most delicate or polished language in communicating with them.
After defendant took the stand at the judge's request, he testified that he had married in Montana about 30 days before. When asked to specify the place in Montana, the witness answered that
"I don't know where it was."
At that point, the court made the statement,
"Well, now, let's just quit fooling around here."
It is understandable that the court should have become provoked with the answer of the witness. Certainly it is highly improbable, and contrary to general human experience, that a man should not be able to remember for a month's time, the place where he married. The judge may have been well justified in speaking sharply to a witness who quite apparently was not testifying frankly. Certainly trial judges have some leeway in handling witnesses. A stinging remark may be proper or even necessary in rare cases to secure the proper cooperation of the witness. Courts in the conduct of a judicial inquiry may and should insist that witnesses coming before them testify frankly. *Page 406
After defendant testified that his wife could tell the courtt where they were married, the court said:
"Then I'm going to give you just about five minutes to get down there, Mr. Byington, and bring her back here. We'll take a recess for about ten minutes so far as this case in [sic] concerned, and you may go with the Sheriff and bring her back."
The effect of this statement must depend to a large extent upon the tone of voice in which it was uttered. While the statement in cold print might be read in such a way as to make it indicate definite hostility on the part of the trial judge toward defendant, it may as well be read to indicate nothing more than assiduousness on the part of the trial judge to determine the true facts. And where two inferences are possible, one pointing to improper or unjudicial conduct, and the other consistent with proper judicial motives, I think the doubt must be resolved in favor of the judge. Moreover, even if it did reveal hostility, rarely is irritation or annoyance of this sort of sufficient moment to become deep seated. It is soon forgotten.
After the trial judge had examined defendant's purported wife as to certain details of their assumed marriage, and she had also testified that she couldn't tell where the marriage had taken place, he asked her whether she had a marriage license and where it was, to which she answered,
"It's either in my personal belongings at my mother's home or somewhere between Buel, Idaho and Blackfoot and here."
The judge then commented,
"I think somebody's being taken for a ride."
It is not difficult to understand why the trial judge was irked, after having received a series of evasive answers, and having heard a story which was, at best, highly improbable. And while the comment was not in the best of judicial taste, I am not prepared to say that it showed bias or prejudice. At most, it would indicate a temporary irritation of the judge caused by the nature of the testimony. *Page 407
At the conclusion of the contempt proceeding the judge submitted the case to the county and district attorneys
"for an investigation with respect to the violation of any of the criminal laws of the State of Utah."
I am of the opinion that it is an unwholesome precedent to hold that a district judge who merely refers a matter which may have occurred in his court room to a prosecuting attorney for investigation has thereby demonstrated himself to be biased and prejudiced and therefore disqualified to try any criminal prosecution which may ensue.
It appears to me that the trial judge acted in an arbitrary and summary manner in the contempt proceedings; that he was not as patient nor as tactful as he might have been in the handling of witnesses; that he failed to impose upon himself a judicial restraint in the face of provocative conduct on the part of witnesses; and that he resorted to extra-judicial methods to procure evidence and determine the facts. And while none of this is to be condoned, and while it might have been reversible error had there been an appeal from the contempt proceedings, none of these factors taken alone, nor all of them taken together, establish bias and prejudice as a matter of law, although certainly the judge might wisely, under such circumstances have referred the matter to another judge.
While it may be true, as observed in the prevailing opinion, that the defendant in this case would feel that he was not accorded a trial by a fair and impartial judge, that fact is no indication of bias and prejudice on the part of the judge. It is undoubtedly true that in many cases where the judge is free of any taint of bias and prejudice, that an unsuccessful litigant feels that he has not been accorded a fair trial. Questions of this sort must be determined upon legal principles, and not upon the feelings of the litigants.
In the recent case of Haslam v. Morrison, 113 Utah 14,190 P.2d 520, 523, quoted in the prevailing opinion, we *Page 408 discussed at some length the question of disqualification of a judge for bias and prejudice. While, as pointed out by Mr. Justice Wade, the factual background of that case was in many respects substantially different from that in the case at bar, the same fundamental questions were involved, and the principles there laid down should control here. We there held
"that actual bias and prejudice on the part of the trial judge for or against any litigant will disqualify him, but the existence of bias and prejudice is a question addressed to the sound discretion of the judge against whom the affidavit is filed."
We further held that the
"mere filing of an affidavit of bias and prejudice does not ipso facto disqualify a judge,"
and further that the
"fact that a judge may have an opinion as to the merits of thecause or that he has strong feelings about the type of litigation involved, does not make him biased or prejudiced." (Italics added.)
Under the rules laid down by us in the Haslam case, I am of the opinion that we cannot say, as a matter of law, that the trial judge was biased and prejudiced.
For the reasons above stated, I am of the opinion that the judgment of the trial court should be affirmed. *Page 409