(dissenting). This case is reversed on the sole ground that the court erred in admitting Exhibit F, set out in the. opinion. The exhibit relates to a transaction between the complaining witness and one Goggin concerning payment for certain “bead chains” left by Goggin with the defendant, and afterwards lost. In his examination in chief the,'witness'was . not interrogated about the *432transaction, but on his cross-examination counsel questioned him relative to it. No reference, however, was made-to the exhibit. On his redirect the government had him identify the exhibit, and then offered it in evidence. I assume this was done upon the theory that, the defendant having.shown a part of the transaction, the government was entitled to the whole transaction. In this I think the government was right, and the court committed no error in admitting the exhibit. It has been held that, where a witness testifies to part of a transaction connected with the issuing of an attachment, he may be asked as to an act subsequent to the attachment, but forming a part of the same transaction. Eames v. Kaiser, 142 U. S. 488, 12 Sup. Ct. 302, 35 L. Ed. 1091. See, also, Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. 33, 29 L. Ed. 373, Home Benefit Association v. Sargent, 142 U. S. 691, 12 Sup. Ct. 332, 35 L. Ed. 1160, Fitzpatrick v. State, 37 Tex. Cr. R. 20, 30, 38 S. W. 806, and Lange v. Klatt, 135 Mich. 262, 97 N. W. 708.
But even if this were not so no error was- committed, since no objection was made to the reception of the exhibit in evidence. When the witness was asked to identify it, the defendant objected, as set forth in the opinion. The objection was properly overruled, because the government clearly had the right to have the exhibit identified. It is true that the defendant also objected on the ground that the exhibit was irrelevant and immaterial; but this objection was manifestly inapplicable to the pending question, namely, whether or not the witness could identify the exhibit. This view is strengthened by the fact that the witness did not identify Goggin’s signature until after the ruling on the objection. The record is inartificially prepared, for it fails to show that the exhibit was offered in evidence, but says that it was admitted in evidence before the witness had proved Goggin’s signature to it. However this may be, since the burden was on the appellant to show affirmatively that the court erred in admitting it, his failure to establish that he objected to its admission compels the conclusion that no error was committed. Defendant does not argue in his brief that the exhibit was incompetent because hearsay. His only complaint with respect to it is bottomed upon the assumption that it was not properly» identified, and so little importance does he attach to this that he devotes to it only 3% lines of his 11-page brief. \
If it be assumed that objection was made to the admission of the exhibit, it was insufficient. The exhibit may have been incompetent, because hearsay, but it was not immaterial or irrelevant. Evidence is said to be material and relevant which goes to the substantial matters in dispute and has a legitimate influence or bearing on the decision of the case.. The exhibit responds to these tests. On the other hand, incompetent evidence may be logically relevant and material, and yet inadmissible, because not competent; that is, because not the character of proof which the law permits in the particular case. Hearsay testimony falls within this category. Sometimes objection on the ground of incompetency is held to comprehend irrelevancy and immateriality, but the reverse is never true. 22 C. J. 65. There was, then, in effect no dbjection on the ground that the exhibit was hearsay, and hence there was no error in receiving it.
*433It is a great mistake to assume that the rule in civil cases, which requires the objector to specifically point out the feature objected to, does not apply in criminal cases. The Supreme Court of the United States, which is our guide, has frequently held that it does apply. It was applied in Queenan v. Oklahoma, 190 U. S. 548, 551, 23 Sup. Ct. 762, 47 L. Ed. 1175, where the defendant was convicted of murder and sentenced to be hanged, and in Allis v. United States, 155 U. S. 117, 122, 15 Sup. Ct. 36, 39 L. Ed. 91, where the defendant was sentenced to five years in the penitentiary. In a few cases the court noticed the vice disclosed by the record, where it affected a matter “absolutely vital to the defendant,” though the attention of the lower court was not properly directed to it, as where the evidence of guilt was utterly lacking, but only in such cases. The case before us does not belong in that class. Whether or not the exhibit was injurious or heneficial to the defendant is an open question. Apart from the phrase, “who secured them through false pretenses by representing himself to be the rightful and lawful owner of the establishment known as 'The Trench,'” it is favorable to him. It tends to show that the complaining witness was responsible for only one-half of the value of the bead chains lost. The defendant testified that he was liable for the other half, and paid it. Hence the exhibit was in line with his defense that he was a partner of the complaining witness. Surely this exhibit cannot be properly spoken of as bearing upon a matter “absolutely vital” to the defendant.
As I read Sparf v. United States, 156 U. S. 51, 15. Sup. Ct. 273, 39 L. Ed. 343, Skuy v. United States (C. C. A.) 261 Fed. 316, and 26 R. C. L. § 57, p. 1051, they do not support the conclusion of the majority. In the first case, the offer was objected to as immaterial, irrelevant, and incompetent, but it was insisted that this was not sufficiently specific — that counsel should have pointed out wherein lay the defect objected to. The court said that the infirmity of the testimony appeared upon the very face of. the question itself, and therefore that the objection was sufficient. But it was careful to emphasize the point “that an objection should be so framed as to indicate the precise point upon which the court is asked to rule.” 156 U. S. 57, 15 Sup. Ct. 275, 39 L. Ed. 343. Judge Sanborn, in the Skuy Case, said that the thing complained of was “so radical” that a court of justice could not disregard it, and a glance at the opinion will show that he was right. The quotation from 26 R. C. L. § 57, p. 1051, is in harmony with my position, as the opening sentence shows.
It is a wise practice which requires a party to direct the mind of the trial court to the specific thing objected to as a condition precedent to his right to assign error in this court. Its observance would render unnecessary many appeals, and would thus contribute.to the speedy and effective administration of the criminal law. The practice approved in this case is loose and unskillful, and should not be encouraged.
For that reason I dissent.