In this Court the defendant contends he was fatally prejudiced because this evidence remained in the case without supporting expert testimony as to the fact of pregnancy. Defendant's standing to argue this issue is compromised by the object to the record, because, by failing to object to the testimony, the defendant waived his right, if any, to have this evidence stricken.
His argument here is addressed to a claimed failure to make this evidence competent by the introduction of further supporting evidence. As was pointed out Towle v. St. Albans Publishing Co., the right to have evidence stricken for failure to produce supporting evidence is premised on a timely objection having been originally interposed. The motion to strike was correctly denied.
The motion for a mistrial was addressed to the court's discretion and the denial of the motion will be held erroneous only if prejudice is affirmatively made to appear.
As we have seen, the evidence now claimed to be prejudicial and a proper basis for a mistrial, came in without challenge from the defendant. He must, therefore, assume the responsibility for whatever prejudice to his case derived from this evidence. He made it available for the consideration of the jury. He cannot, therefore, be heard to say that it was error for the court to refuse to base a mistrial ruling on this evidence.
These are not mere technical rulings. Sound policy considerations underlie them. If questions as to the prejudicial effect of unchallenged testimony need not be raised until the close of evidence, litigation could be rendered uncertain, inconclusive and punitively protracted. A party who allowed inadmissible evidence to come in without objection could gain an unconscionable advantage. He would, in effect, have a built-in 'veto' over the litigation if it took a course unfavorable to him, for he could then bring forth his unmentioned assignments of error and require a retrial.
This would be a flagrantly unjust situation, since it would derive from his own failure to forthrightly point out error prejudicial to him at a time when prevention or correction of its adverse effect was still possible. For this reason, even though other bases for supporting the rulings of the trial court in connection with this evidence may exist, we confirm its denial of the motion to strike and the motion for a mistrial on this ground.
The complaint in this case is in two counts, one alleging alienation by enticement and the other alleging criminal conversation. The defendant insists that the verdict and judgment cannot stand because there is no evidence to establish that the defendant caused the alienation under count one, or to prove criminal conversation under count two.
The weight of the evidence is not for this Court. The question must be treated as a review of the lower court's denial of defendant's motion to set aside the verdict. This motion was grounded on two contentions: that the verdict was unsupported by the evidence, and that it was against the evidence. The first contention raises an issue of law; the second is reviewed as a discretionary ruling of the trial court.