State v. Cruse

• Decision Date: 27 June 1962
• Citation: 231 Or. 326,372 P.2d 974
• Parties: STATE of Oregon, Respondent, v. Edward Everett CRUSE, Appellant.
• Court: Oregon Supreme Court

Page 974

372 P.2d 974

231 Or. 326

STATE of Oregon, Respondent, v. Edward Everett CRUSE, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted May 9, 1962.

Decided June 27, 1962.

Richard H. Allen, Salem, argued the cause and filed a brief for appellant.

Gary D. Gortmaker, Deputy Dist. Atty., Salem, argued the cause for respondent. With him on the brief was Hattie Bratzel Kremen, Dist. Atty., Salem.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and GOODWIN, JJ.

McALLISTER, Chief Justice.

This is an appeal by the defendant, Edward Everett Cruse, from his conviction in the circuit court for Marion county of the crime of obtaining money and property by false pretenses in violation of ORS 165.205.

Defendant assigns as error the failure of the trial court to sustain an objection to certain questions about other offenses asked of defendant during his cross-examination by the state.

The defendant, as a witness on his own behalf, admitted that on Saturday, April 22, 1961, he gave the proprietor of a men's clothing store in Salem a worthless check for $40, and received in exchange both merchandise and cash. In effect he admitted all of the elements of the crime with which he was charged except guilty knowledge and criminal intent.

The check was drawn on the North Salem Branch of The United States National Bank in which defendant had opened an account on May 19, 1959. Numerous deposits were made and checks drawn on the account until the end of July, 1959. The last deposit to the account, in the amount of $5, was made on July 30, 1959. On August 15, 1959 the balance in the account was reduced to $5.33, and on February 17, 1960 the balance was reduced to thirty-three cents. The bank closed the account on July 29, 1960, and it was still a closed account when defendant issued the check in question on April 22, 1961.

Defendant testified that he had been increated in the Washington State Reformatory at Monroe, from about March 15, 1960 to April 10, 1961. He admitted that he had not personally deposited any money in his bank account after February, 1960, but testified that in Salem on February 15, 1960 he gave his estranged wife $400 to deposit in his account. He also testified that after his release from the reformatory in April, 1961, while he was in Port Angeles, Washington, he gave his sister-in-law $300 and requested her to deposit the money in his account in Salem. According to the defendant the sister-in-law was moving to California and intended to stop in Salem enroute.

During his direct examination defendant testified that after his release from the reformatory on April 10, 1961 he spent several days in Seattle and Port Angeles, and then returned to Salem to take care of his 'union affairs.' His testimony included the following question and answer:

'Q When you arrived back in Salem on Friday night, April 21st, 1961, did you make any effort to contact the bank concerning your account?

'A The bank was closed when I arrived in Salem. It was around 9 o'clock in the evening.'

Defendant was cross-examined by the state as follows:

'Q It is your testimony today that you thought you had sufficient money in the bank to cover the check you wrote to Mr. Jones?

'A Yes. 'Q Did you write any checks the previous day in Salem?

'A I may have. I don't recall.

'Q You know whether you wrote any checks in Salem the day before this one, do you not?

'A I don't think I was in Salem the day before this.

'Q You are sure you didn't write one to Capital Drug Store for $15.00 on April 21st?

'A I don't recall whether I did or not.

'Q Do you recall whether you wrote one to Quisenberry's Drug store for $10.00?

'MR. GARRETT: I would object. They have nothing to do with this crime. This man should not be required to answer these questions.

'THE COURT: I think it is just to test his recollection. Overrule the objection.

'Q Do you recall whether or not you wrote a check to Quisenberry's for $10.00 on April 21st?

'A I don't recall that it was April 21st. I do remember writing a check at Quisenberry's Pharmacy.

'Q You say you were arrested Sunday. Could it have been Saturday the 22nd you wrote it, before you wrote the check for Mr. Jones?

'Q I'm not sure.

'Q Did you write one to Chapman's Drug Store on April 21st for $10.00?

'A No.

'Q Did you write a check to Adolph's on April 21st, 1961, for $10,00?

'A Where?

'Q Adolph's. A United States National Bank counter check?

'A I don't even know where Adolph's is.

'Q Then you are saying you didn't write the check?

'A I don't recall writing a check there.

'Q Do you recall being at Emery's Food Liner on April 22nd and leaving a package there when you were passing a check and they were calling the bank to check on your identification?

'A I recall being at Emery's Food Liner.

'Q Did you take a package in with you?

'A Yes.

'Q Did you leave it there when you left?

'A I believe so.

'Q Did you attempt to pass a check there?

'A I asked the manager to cash a check.

'Q You left a check there too, didn't you?

'A I believe I did.'

Putting aside the adequacy of the objection in the court below, we are satisfield that there is no merit in the assignment of error. ORS 139.310 authorizes the cross-examination of a defendant in a criminal case who testifies in his own behalf 'upon all facts to which he has testified and which tend to his conviction or acquittal.' It has long been settled that this statute permits cross-examination upon all matters 'properly germane to and connected with' the testimony in chief. State v. McCarroll, 123 Or. 173, 177, 261 P. 411 (1927); State v. Stilwell, 109 Or. 643, 663, 221 P. 174 (1923); State v. Wong Wen Teung, 99 Or. 95, 107, 195 P. 349 (1921); State v. Lem Woon, 57 Or. 482, 490, 107 P. 974, 112 P. 427 (1910), affirmed 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913); State v. Deal, 52 Or. 568, 571, 98 P. 165 (1908).

The earlier cases determining the scope of cross-examination permissible under the statute were reviewed and approved in State v. Lem Woon, supra, 57 Or. at 491, 107 P. at 977, as follows:

'* * * Section 1400, B. & C. Comp. [now ORS 139.310], makes a defendant in a criminal action competent as a witness on his own behalf, and, when offering himself as a witness, he shall be deemed to have given the prosecution a right to cross-examination upon all facts to which he has testified tending to his conviction or acquittal. The scope of such cross-examination is now settled by the case of State v. Bartmess, 33 Or. 110, 124, 54 Pac. 167, 171, where Mr. Justice Moore, speaking for the court, says:

"A fair construction of the statute in question leads us to conclude that defendant in a criminal action, having voluntarily testified in his own behalf, may be cross-examined in relation to all facts and matters germane to the testimony given by him on his examination in chief.'

'And in State v. Miller, 43 Or. 325, 330, 74 Pac. 658, 659, Mr. Justice Wolverton says:

"The statute, however, is not to receive an unduly restricted or narrow construction, and the cross-examination must extend the inquiry to facts and matters manifestly germane and relevant to the facts testified to in chief, tending to their explanation and elucidation, and in this respect may be as searching and broad as the foundation upon which it rests.'

'And in the still more recent case of State v. Deal, 52 Or. 568, 98 Pac. 165, Mr. Chief Justice Bean, speaking of the cross-examination...