1 RADINSKY v. PEOPLE of the judge in the matters under investigation, his prejudice against plaintiff and his appearance as counsel for Swineheart. The grand jury, by its foreman, laid these matters before the district court; and, in response to a citation to show cause why he should not be punished for contempt for his refusal to testify, plaintiff presented, in substance, the same matters. Thereupon Judge Class called in Judge Perry, of the Second judicial district, before whom all further proceedings were had. On January 3, 1919, plaintiff appeared before Judge Perry, who held that he could not refuse to be sworn, and ordered that he go before the grand jury and be sworn and testify; carefully explaining to him, however, that he could properly refuse to answer any questions on the ground that his answers might tend to incriminate him. Plaintiff returned to the grand jury room, was sworn, and was interrogated at length. The testimony he gave was brief and unimportant. Most of the questions he refused to answer. He exonerated the district attorney and all the grand jurors from any interest, bias, or prejudice, or improper motives, but referred to his written statement and repeated his charges against Judge Class. Some of the questions asked related to his expense account. Most of them to other matters. He declined to say whether he knew where precinct 7 in Adams county was; whether he knew anything with reference to the conduct of judges or clerks of elec tion whereby any of them committed any error, or made any mistake. He declined to answer any questions concerning the primary election, and refused to answer any questions concerning his knowledge of any other person who might give the grand jury information on any of these subjects. The reason repeatedly given for such refusal was that it "will hurt the cause I have now before the House of Representatives." Asked if he had any fear of harm coming to himself by reason of any testimony he had been called upon to give before the grand jury, he declined to answer that question. On the same day the contempt matter was again presented before Judge Perry, where plaintiff added to his written objections urged before the grand jury the further objection that, by the court's instructions to that body, he was himself under investigation by it; hence claimed "his constitutional right to refuse to testify." by Judge Perry his reason for refusing to Asked answer, he said his answers might tend to embarrass him in his election contest. I should use one word before the jury there, "If he (Judge Class) is liable to twist it into such shape that it cannot be recognized 'as to the meaning of it." Also, "partly" on the ground that the answers might tend to incriminate him because he (Judge Class) "is 89 liable to incriminate me, twist it out of shape where you cannot recognize it in the proceedings any more," plaintiff claimed exemption from answering There being thus some indication that some of the questions on the ground that his answers thereto might tend to incriminate him, he was given until 10 a. m. January 7th to point out the questions which he objected to answering on that ground. accordingly taken until the last-named date. Recess was this order, but on the reconvening of the Plaintiff made no attempt to comply with court on January 7th his counsel argued at length the objections already made, stating that plaintiff was willing to tell the whole story, "if the conditions arise, that this contest was not pending, and it would in to influence the case, either by the leaknot be in any manner possible to bring it age of some member or by the subpoena of the Legislature compelling the evidence to be produced." Hereupon he was interrupted by plaintiff, who said: ing to answer before any jury which does not "Even while the contest is pending I am willget its instructions from Judge Class." To this his attorney replied: entered of record." overruled these, objections and pronounced At the close of the argument the trial judge judgment. William G. Smith and Philip Hornbein, both of Denver, for plaintiff in error. Roach and Charles E. Friend, both of DenVictor E. Keyes, Atty. Gen., and Charles ver, for the People. above). Three reasons are urged by plaintiff BURKE, J. (after stating the facts as why the judgment in contempt is invalid: given by him before the grand jury might [1] First. Plaintiff contends that evidence prejudice his interests in the election contest. fy in preliminary examinations, or before versary may require him to answer, as up- moment Judge Class became interested as such subjects their future acts were a mere made a criminal offense, and that by reason nullity. If the prejudice of the trial judge and his determination to disregard statutory provisions to the end that he might secure a grand jury which would indict a particular person would not deprive judge or jury of jurisdiction in that investigation, as held in People v. District Court, 29 Colo. 83, 66 Pac. 1068, then the facts in the instant case would not do so; and, if where such charges are made against the trial judge, the right of challenge is not "a proceeding under which the trial judge may be himself put upon trial, or required to pass upon, or consider, the truth or falsity of charges of bias, partiality, or unfairness made against himself," as there held, then a preceeding for contempt for the refusal of a witness to testify before such grand jury is not such. In Rolland v. Commonwealth, 82 Pa. 306, 22 Am. Rep. 758, it was held no ground to quash an indictment for burglary that two of the grand jurors were stockholders in the bank burglarized. If such an interest of grand jurors in the matter under investigation would not nullify the proceedings, the interest of the trial judge herein charged could not have that effect. It has been repeatedly held "that it is no objection to the validity of an indictment that one or more of the grand jurors, who were otherwise qualified, had formed or expressed an opinion of the guilt of the accused." Commonwealth v. Woodward, 157 Mass. 516, 32 N. E. 939, 34 Am. St. Rep. 302; United States v. Belvin (C. C.) 46 Fed. 381. That being true, no such opinion, formed or expressed by the trial judge, could relieve a witness from the obligation to testify before a grand jury. If Judge Class was practicing law contrary to the statute, or if the grand jury might have returned an indictment against plaintiff by reason of the improper influence of the judge who instructed them, prompted by malice or personal interest, those matters cannot be litigated in this action. It is admitted that the grand jury was a lawfully constituted body. It was proceeding with in proper limits and investigating a matter within its jurisdiction. Such investigation could not be defeated or postponed by the injection therein of a question of personal relations between the trial judge and a wit ness. [3] Third. Plaintiff contends that, under the instructions herein before set out, he was himself under investigation by the grand jury, charged with making a false affidavit of election expenses, which, by statute, is thereof he was exempted from examination as a witness as to those matters. United States v. Edgerton (D. C.) 80 Fed. 374; Tuttle v. People, 33 Colo. 243, 79 Pac. 1035, 70 L. R. A. 33, 3 Ann. Cas. 513. The force of this contention cannot be denied, nor the authorities cited in support of it disputed. Its validity, of course, goes only to such questions as concern plaintiff's own conduct. As to those, no court has ever held that the privilege could not be waived by one fully advised of his rights. One entitled to claim exemption from examination on the ground that he is himself under investigation may waive such claim. The mere fact that he was called and sworn as a witness does not alter the situation. After waiver, he stands as if he had been brought before the jury on his own request for that purpose. State v. Trauger (Iowa) 77 N. W. 336; United States v. Kimball (C. C.) 117 Fed. 156. In the instant case plaintiff, from first to last, was acting under advice of counsel, and, moreover, was fully informed by Judge Perry of his rights. He could not, under this rule, claim exemption from testifying on other matters; and, so far as the exemption existed, he waived it: First, by his disobedience of the court's order to designate the objectionable portion of the examin. ation; second, by the statement of his counsel; and, third, by his own specific and voluntary offer in open court to testify fully "before any jury which does not get its instructions from Judge Class." Thus, fully informed of his rights and acting under advice of counsel, he expressly waived his exemption from testifying on the ground that his answers might tend to incriminate him, and on the ground that his own conduct was under investigation, and confined his objection solely on the grounds of the interest of Judge Class in the matter in question and the possible effect of his answers on his election contest. These grounds have already been disposed of. Aside from these contentions of plaintiff, his sweeping refusal to testify on any matter touching the election, however remotely, was a clear contempt, outside any defense which he claims to present. The supersedeas is denied. The briefs and record before us are full and complete. No reason appears for a further hearing, and, under the rules of this court, the judgment is affirmed. GARRIGUES, C. J., and TELLER, J. concur. SULLIVAN V. VALIQUETTE. (No. 9350.) (Supreme Court of Colorado. April 7, 1919.) 1. ACTION 38(3)—SEPARATE CAUSES of AcTION - CRIMINAL CONVERSATION - ALIENA TION OF AFFECTIONS. - Husband's right to wife's body and his right to her mind unpolluted are two primary rights; interference with either constituting right of action, and interference with both, even though by one act, constituting two causes of action. 2. HUSBAND AND WIFE CONVERSATION-DAMAGES. 349-CRIMINAL In husband's action for criminal conversation, alienation of affections may be pleaded in aggravation of the criminal conversation. 3. HUSBAND AND WIFE 334(1)-ALIENA the plaintiff and to deprive him of the company, society, and assistance of his said wife, while knowing the said Jessie Valiquette to be the wife of the plaintiff, unlawfully, wickedly, and maliciously gained the affections of the said Jessie Valiquette and enticed her to have carnal intercourse with him and sought to persuade her and entice her by offers of money and otherwise to leave the plaintiff. "Third. That thereafter, and at various times between the time aforesaid and the 12th day of November, A. D. 1916, the defendant continued his unlawful and wrongful intercourse with the said Jessie Valiquette, and on or about the 1st day of August, 1916, enticed and unlawfully and maliciously induced the said Jessie Valiquette to desert the plaintiff and refuse to cohabit and live with him as his wife. "Fourth. That by reason of the premises, the from the plaintiff, and her affections and resaid Jessie Valiquette has become estranged tiff has been, and still is, wrongfully deprived gard for plaintiff have been destroyed, and plainby the defendant of the company, society, support, and advice of his said wife, and the hapAFFEC-piness and benefits he otherwise would have received at her hands, and has suffered great Сомdistress of body, mind, and estate, to his damage in the sum of $25,000." TION OF AFFECTIONS-DAMAGES. In husband's action for alienation of wife's affections, criminal conversation may be pleaded in aggravation of the alienation of affections. 4. ACTION 38(4) — ALIENATION OF CRIMINAL CONVERSATION PLAINT FOR SEPARATE CAUSES OF ACTION.. Husband's complaint held to state two caus es of action, for alienation of affections and for criminal conversation. TIONS The defendant answered at great and unnecessary length, denying most of the ma 5. PLEADING 52(2). ALIENATION OF AF- terial facts alleged in the complaint, and FECTIONS-CRIMINAL CONVERSATION. Husband suing for alienation of affections and criminal conversation should plead each cause of action separately. 6. HUSBAND AND WIFE 324-ALIENATION OF AFFECTIONS-CONTRIBUTORY CAUSE. Husband may recover for alienation of affections from one who is either the procuring or a contributory cause of the alienation. 7. HUSBAND AND WIFE 334(3) - ALIENA TION-DAMAGES-EXCESSIVENESS. $3,000 verdict given husband for alienation of wife's affections recovered against neighbor who confessed to adulterous relations with wife held not excessive. Department 2. pleading that his relations with the plaintiff's wife were consented to by the plaintiff. The verdict was for the plaintiff for $3,000. The jury specially found that defendant alienated the wife's affection. 1. During the trial the court determined that the complaint stated two causes of action, one for criminal conversation and one for alienation of affection, and instructed the jury accordingly. This was done against the objections of the defendant and is asOmitting the parts of the signed for error. complaint which we have italicized, it follows closely in words and exactly in substance the common-law form of declaration in action on the case for criminal conversation (2 Chitty, Pl. pp. 642, 643) and is com Error to District Court, City and County mendable for conciseness and clearness. The of Denver; John A. Perry, Judge. Action by Joseph E. Valiquette against Daniel J. Sullivan. Judgment for plaintiff, and defendant brings error. Affirmed. H. W. Spangler, F. T. Johnson, and S. H. Johnson, all of Denver, for plaintiff in error. Mel Emerson Peters, of Wichita Falls, Tex., and Charles Clyde Barker, of Denver, for defendant in error. italicized words are in substance the same as those used in the common-law form for enticing away the servant, apprentice, or wife of the plaintiff (2 Chitty, 642, note d, and 645, note i), and are essential to such action and not to the action for criminal conversation. [1-3] Plaintiff in error cites Pom. Rem. § 455, concerning primary rights and their violation, to show that but one cause of action was stated. His citation leads to the op DENISON, J. The plaintiff (defendant in posite conclusion. See section 456. There error) filed a complaint alleging: First. That he was the husband of one Jessie Valiquette. Second. That about August, 1915, while the plaintiff was living with his wife in Denver, "the defendant wrongfully contriving to injure are two primary rights in the case; one is the right of the plaintiff to the body of his wife, and the other to her mind, unpolluted. 2 Chitty, Pl. 642, note d. Interference with either constitutes a cause of action; interference with both, even though by one act, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 92 180 PACIFIC REPORTER constitutes two causes of action. It is permissible to allege interference with either as an aggravation of the other; but in the present case the allegation concerning knowledge of the wifehood determines that there are two causes of action stated, because that is no part of the action for criminal conversation. But even if we assume there is but one primary right, there are two violations of it-one the alienation of the wife's affection knowing her to be plaintiff's wife, and the other the violation of her person-either of which alone would constitute a cause of action. [4, 5] The court was not in error in holding that two causes of action had been statThey should have ed in the complaint. been separately stated, but there was no objection on that ground. [6] 2. The defendant requested the court to instruct the jury that, in order to recover for alienation, plaintiff must show that the defendant was the "controlling" cause; but the learned judge who tried the case used the words "either the procuring or a contributory cause" of the alienation. We think the court was right. 13 Ruling C. L. p. 1464; Plourd v. Jarvis, 99 Me. 161, 58 Atl. 774. [7] 3. It is claimed the damages were excessive. Three thousand dollars is a small A confessed adulterer sum for such a case. who has enticed away his neighbor's wife is in no position to say much about excessive damages. 4. Requested instruction No. 12, the refusal of which is complained of, was given, in effect, in instruction No. 2 and elsewhere. The judgment is affirmed. HEXTER v. SHAHAN et al. (No. 9318.) April 7, 1919.) (Supreme Court of Colorado. CESSITY. Where the pledgee of corporate stock delayed for two years to notify the corporation of the pledge, and then did not state the amount for which the stock was pledged, so that the company could not within 60 days make the memorandum on its books, required by Rev. St. 1908, § 870, the pledge is invalid against a pur chaser of the stock at execution sale. Error to District Court, Alamosa County; Action by the Huerfano Trading Company Albert L. Moses, of Alamosa, for plaintiff in error. John T. Adams, of Wichita Falls, Tex., and W. W. Platt, of Alamosa, for defendants in error. The controversy in this case the company. The defendant in error claims It appears that the certificate of stock was bered 1,629. At some time prior to Septemissued to Carpenter March 2, 1911, and number 1, 1911, Carpenter delivered the certififor moneys due. On September 1, 1911, Hills cate duly indorsed to one Hills as security delivered the certificate to the defendant, Hexter, as security for an indebtedness due from Hills to Hexter. On October 27, 1913, more than two years after he had received the certificate as a pledge, Hexter addressed a letter to the irrigation company in which he said: "I am holding certificate No. 1629, one share stock. Irrigation Company Commonwealth Please let me know if the assessment on same remit to you." is paid. If not how much are they and I will Whereupon the irrigation company caused to be made an entry on its assessment ledger, opposite the certificate entry, the words "M. D. Hexter, Colo. Springs." Also on the stock ledger of the company, the words, "10/31/13, No. 1629, held by M. D. Hexter, Colo. Springs, to secure loan." And, further, on the stub of certificate No. 1629, the identical words as above. Such entries so remained at the date of the trial. Hexter had paid all assessments since the date of his letter. The goood faith of neither claimant is disputed, nor is the Hexter to comply with the statute as it reprocedure questioned except as to failure of other cases see same topic and KEY The lates to pledges of stock in such cases. court found that he had not done so, and for such reason rendered judgment in favor of the defendant in error. The section of the statute relating to the registry of transfers and pledges of shares of capital stock of Colorado corporations is 870, Rev. Stat. 1908, in which it is provided, among other things, as, follows: "No transfer of stock shall be valid for any purpose whatever except to render the person to whom it shall be transferred, liable for the debts of the company according to the provisions of this act, unless it shall have been entered therein, as required by this section, within sixty days from the date of such transfer, by an entry showing to and from whom transferred; or, in case of the pledge of any such stock, a memorandum be made upon the books of said company, showing to whom and for what amount the stock has been pledged." The objections to the validity of the pledge in this case are: (a) Failure to cause a notation to be made within 60 days from the time Hexter received the stock as a pledge; and (b) failure to cause the amount of the loan to be stated in the notation made. This provision of the statute has been held to apply to all corporations, except railroad and telegraph companies. First Natl. Bank v. Hastings, 7 Colo. App. 129, 42 Pac. 691. In this case the fault in both respects was clearly with Hexter. He did not advise the corporation as to the pledge until more than two years had elapsed and he did not advise it of the amount of the loan at all. This statute has been several times construed by this court, and the principle to be applied seems to be well settled. It was said in Conway v. John, 14 Colo. 30, 23 Pac. 170, speaking through Mr. Justice Hayt: "Here we have a clear provision of statute taking from the owner of stock the right to transfer it in accordance with the known rules of the common law, and substituting therefor another and different mode. This change was doubtless made for the purpose of furnishing record evidence of the title, and, in view of the plain and explicit language employed, the statute cannot be disregarded. Under its provisions, we are clearly of the opinion that, notwithstanding the attempted transfer from Ireland to appellant, the stock remained subject to attachment at the suit of the former's credi tors." That the statute to the same extent applies to pledges of stock as well as to an assignment thereof is settled in this jurisdiction. It was said in Pawnee Canal Co. v. Henderson, 46 Colo. 37, 102 Pac. 1063: "This statute has been held to apply to a pledgee, as well as purchaser, of stock, who has not had the transfer made on the books of the company, as against the rights of a creditor of the assignor which accrued after the assignment was made, but before its transfer is so noted. Conway v. John, 14 Colo. 30 [23 Pac. 170]; Weber v. Bullock, 19 Colo. 214 [35 Pac. 183]; Pueblo Savings Bank v. Richardson, 39 Colo. 319 [89 Pac. 799]; Isbell v. Graybill, 19 Colo. App. 508 [76 Pac. 550]." Such requirements of the statute however, are held not to prevent the vesting of title as between the transferors and transferees, nor pledgors and pledgees (Shires v. Allen, Adm'r, 47 Colo. 440, 107 Pac. 1072), nor where the failure to comply with the statute lies in the fault of the corporation issuing the stock and the transferee has done all that he reasonably can to cause the required entries to be made on the books of the company (Weber v. Bullock, 19 Colo. 214, 35 Pac. 183). The judgment is affirmed. Error to District Court, Weld County; Robert G. Strong, Judge. Suit for specific performance by Mary Steinmark against Ralph C. Heagy and Linn G. Kragh. Judgment for plaintiff, and deAffirmed. fendants bring error. And in First Nat. Bank v. Hastings, supra: "There is not much room for construction of October 9, 1917, Ralph C. Heagy, one of this language. The assignment of stock certifi- the plaintiffs in error, entered into a written cates vests in the assignee an inchoate title, contract with Mary Steinmark, defendant in which for 60 days has the effect of a complete error, selling to her the west one-half of the title; but, unless within that time it is perfected by the entry of the transfer upon the northwest one-quarter of section 1, township books of the company, it expires, and the trans- 10 north, range 60 west of the sixth P. M., fer becomes invalid; the title of the assignor in Weld county, Colo., for the consideration has not been divested, and the stock is subject of $1,000. One dollar was paid in cash, to attachment at the suit of his creditors." $499 was to be paid on or before November For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |