Hembree v. Commonwealth

*334 Opinion of the Court by Chief Justice Clarke Affirming. Appellant was convicted of child desertion, as denounced by section 3311-1 of the statutes, and sentenced to one year in the penitentiary. The first ground urged for reversal is that the court erred in permitting appellant’s wife to testify against him. That she was not a competent witness against him in an action of this kind, either at common law or under section 606 of the Code, was expressly decided in the recent case of West v. Commonwealth, 194 Ky. 536, 240 S. W. 52. Defendant, however, did not object to her testifying, although he did object and except to her being permitted to answer a number of questions propounded to her. As to so much of her evidence as was introduced without objection and exception, it is clear appellant may not now complain (section 333 of the Code). But the Commonwealth also contends that, since she was not a competent witness for any purpose, the defendant, by failing to object to her testifying at all, waived her competency as a witness; that his objection thereafter, to particular questions and answers, questioned only the competency of the evidence, and that as same was relevant, the court did not err in overruling his objections thereto. In our judgment this contention is sound. The rule is thus stated in 40 Cyc. 2237: “It is incumbent upon the party wishing to exclude a witness to object to his competency, failing in which the witness is properly allowed to testify. Where a witness is incompetent to testify at all, the objection to his competency must be made when he is offered as a witness and before he is sworn, and if not made then is waived, unless the grounds of incompetency become apparent only after the examination of the witness is commenced, in which case an objection must be taken at once, or it will be considered as waived. Where a witness is competent as to some matters and incompetent as to others, the objection may be taken when he offers to testify as to matters concerning which he is incompetent. “The particular ground of objection to the competency of a witness must be pointed out to the court; and an objection to the general competency of a wit *335 ness is insufficient where any testimony of the witnesses admissible. An objection to particular evidence on the ground that it is incompetent does not go to the competency of the witness. ” To the same effect see also 28 R. C. L. 448. The above statement of the rule was. expressly approved in LeMoyne v. Meadors, 156 Ky. 832, 162 S. W. 526, and the complaint therein of the admission of-competent evidence by an incompetent witness was overruled upon the ground that an objection was not raised to the competency of the witness as soon as it became apparent. In Owen v. Commonwealth, 181 Ky. 257, 204 S. W. 162, it was held that the' competency of a witness was a question “for the court upon the voir dire,” while in the more recent case of Hale v. Commonwealth, 196 Ky. 44, 244 S. W. 78, it was held that: “The failure of appellant to object to the witness’s testifying because incompetent for want of mental capacity, was a waiver of objection upon that ground, as a party may waive an objection to the competency of a witness, and this would seem to be a bar to any further complaint. . . . If an objection is made to a witness because not mentally competent to testify, the court must determine the question before the witness is allowed to testify.” While cases can be found from this court wherein a contrary practice was tacitly approved, the above are the only cases we have found in which the question was discussed or decided. As these are in accord, not only with the generally recognized rule on the subject but with reason as well, they must be recognized as authoritative. Then, again, the same facts were proven without objection and practically without contradiction, by other and competent witnesses. It follows that for two reasons the first ground urged for reversal is without merit. The next contention is that the court erred in refusing to permit defendant to prove he did not desert his child. If this had been done, it, of course, would have been- prejudicial error, but such is not the case. The court only refused to permit defendant to prove how he had provided for his family before he and his wife separated, which was not involved and about which there was no complaint. *336 The final complaint that the court erred in refusing a continuance because of absent witnesses cannot be considered because not included in the motion and grounds for a new trial. Moreover, the testimony of these witnesses was incompetent, since, as shown by defendant’s affidavit, it related solely to how he provided for his family before the 'alleged desertion. Finding no error in the record prejudicial to appellant’s substantial rights, the judgment is affirmed.