State v. Deal

• Decision Date: 24 November 1908
• Citation: 52 Or. 568,98 P. 165
• Parties: STATE v. DEAL.
• Court: Oregon Supreme Court

98 P. 165

52 Or. 568

STATE v. DEAL.

Supreme Court of Oregon

November 24, 1908

Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.

R.W Deal was convicted of horse theft, and appeals. Affirmed.

The defendant was tried and convicted of the larceny of a gelding, the property of E.L. Halley. The evidence for the prosecution tended to show: That the horse in question was shipped by defendant, with other animals, from Union county to Portland, in August, 1907, and was kept in Portland for a time, and then driven to Salem, where it was disposed of by defendant as his property; that it, in fact, belonged to Halley, and was lost to him in the summer of 1906 in Union county, at which time it was branded with the figure 6 on the left shoulder, but this brand had been obliterated--by the use of carbolic acid or some other like chemical--at the time the animal was taken to Portland by defendant, and the wound was still fresh; and that defendant told various parties while in Portland, that the mother of the animal was a mare which he had with him at that place. Defendant was a witness in his own behalf, and testified, in substance, that the animal, which he drove from Portland to Salem and there sold was not the property of Halley, but was the progeny of a mare belonging to him, known and referred to as the "diamond dot" mare by the witnesses, on account of the character of the brand, and had been in his possession since it was foaled in the summer of 1904, while the mother was running on the range; that in the spring of 1905 he took the colt and its mother from the range and kept them in certain pastures near La Grande, until he shipped the colt with his other horses to Portland, in August, 1907; that he did not say, as testified to by the witness for the state, that the mare he had in Portland was its mother. On cross-examination he was asked and required to answer, over the objection of his counsel, whether he had ever been convicted of a crime. He was also interrogated at some length concerning certain alleged conversations, between himself and one Charlie Tall about the "diamond dot" mare, and as to whether Tall knew she had a colt while on the range in 1904, for the purpose, as the prosecution claims, of tending to show that he was endeavoring to induce or persuade Tall to give false testimony in support of his theory of the case. Defendant denied the imputed conversation, and Tall was subsequently called by the prosecution and permitted, over defendant's objection, to contradict him. At the close of the testimony the court, upon its own motion, charged the jury "that, independent of the evidence, all the presumptions of law are in favor of innocence, and in this case the defendant is presumed innocent until proven guilty beyond a reasonable doubt." Defendant objected to this instruction, and asked to have it modified by striking out the words "independent of the evidence," and for an instruction "that the presumption of innocence goes with defendant all through the case until the jury has found that he is guilty beyond a reasonable doubt." The court, without ruling specifically upon the matter thus suggested, said to the jury: "Gentlemen of the jury, the court has instructed you, and now instructs you, that in this case the defendant is presumed innocent until he is proven guilty beyond a reasonable doubt."

J.D. Slater, for appellant.

F.S. Ivanhoe, for the State.

BEAN C.J. (after stating the facts as above).

Under sections 852 and 859, B. & C. Comp., it is proper for the purpose of impeachment to show by the examination of a witness that he has been...