State v. Deal

• Decision Date: 03 November 1902
• Citation: 43 Or. 17,70 P. 534
• Parties: STATE v. DEAL. [*]
• Court: Oregon Supreme Court

70 P. 534

43 Or. 17

STATE v. DEAL. ^[*]

Supreme Court of Oregon

November 3, 1902

Appeal from circuit court, Union county; Robert Eakin, Judge.

R.W Deal was convicted of stealing a gelding, and appeals. Affirmed.

Defendant was tried upon an indictment for the crime of larceny of a gelding, and, being convicted, appeals from the judgment ensuing. He interposed two pleas, viz., not guilty, and former conviction for the same offense. The state, in support of the charge, introduced evidence tending to show that in 1901 Charles Rowland was the owner of a certain brown or dark bay gelding, four years old, branded J.D. on the left shoulder, then being at Evans' livery stable; that he owned it since it was a suckling colt; that in September 1901, the defendant drove the animal to and corralled it in the old town of La Grande, in Union county, Or., a few blocks from where Rowland was living, and on the same day sold it to one McDonald. Rowland testified that he never sold or traded the animal to Deal or any one else, and was still the owner thereof. When the state rested, the defendant took the stand in his own behalf, and testified that he saw the horse for the larceny of which he was then being tried in Evans' livery stable on the day previous, and that it was the same horse he turned over to McDonald; that the animal was his property, and that he obtained it from Rowland about the 18th or 20th of March last; that he traded Rowland two horses for four, and this was one of the four; that he found the horse in Campbell's field, and that on the 7th or 8th day of April he had a conversation with Rowland about the horses relating it. This is, in substance, all the defendant testified to in chief. Having been excused, and again called in his own behalf, the prosecution, by leave of the court asked him, in effect, if he did not testify at the trial of the case of State v. Deal, on October 11, 1901, that the horse mentioned in the indictment was one of the J.D. horses,--the one that had a leader cut on the left knee, which was calloused, the same being the horse brought from Pendleton, and one of the horses that he got in the trade with Rowland. The question was objected to as incompetent, irrelevant, not cross-examination, and not proper for impeachment; but, being overruled, he answered that he made no such statement. The examination was, over objections, then continued as follows: "Q. Did you state which one of these horses was mentioned in the indictment in the former trial? A. Yes. Q. Which one of these horses did you testify that you was indicted for in the other trial? A. The one that has the cut knee. Q. And that was the horse that you brought--that you took--to Pendleton, and that Charles Rowland brought back from Pendleton; was the horse described in the indictment in the former trial, is what you understood it? A. The horse with the cut leader is the horse that I understood was in the former case. That is the way I understood it. That was what they called the Masterson horse. Q. Just answer the question yes or no, will you please? A. Yes, that is the horse. That is the horse I understood was in the other trial." In rebuttal, and for the purpose of contradicting Deal, the state was permitted, also over objection, to show by the court reporter that he had testified at the trial of October 11th in substance as indicated by the question first propounded by the state. In this connection it should be further stated that the defendant, in support of his plea of former conviction, introduced in evidence the judgment roll in the case tried October 11th, showing his conviction of the crime of larceny of a gelding, the property of Charles Rowland, and, to show that the animal therein involved was the same as he is here charged with stealing, introduced in evidence a portion of the testimony of Charles Rowland, in substance that he (Rowland) learned that the horse was in Campbell's pasture, and went over to get it; then heard it was in Pendleton; that he could not tell who had it in Campbell's pasture, and could not say exactly how old it was; that he obtained it from Masterson's boy when it was a yearling, and had it about four years; and that he did not get two horses from Masterson. Also a portion of his own, showing that the animal he obtained at Campbell's was the dark bay horse that Rowland had purchased from Masterson, and that was four years old the preceding spring. The state caused to be read other testimony, showing that Rowland stated at the former trial that the Masterson horse, for the larceny of which defendant was then on trial, was branded J.D. on the left shoulder, had one white foot, and a blemish on one knee, caused by a wire cut, and that this was the horse that defendant had in the Campbell pasture in the spring of 1901.

T.H. Crawford, for appellant.

D.R.N. Blackburn, Atty. Gen., and Samuel White, Dist. Atty., for the State.

WOLVERTON, J. (after stating the facts).

The first question presented for our consideration is whether the trial court was in error in permitting the state to cross-examine the defendant, while a witness in his own behalf, touching what he may have testified to in his examination in a case wherein he was tried for larceny of a gelding at the preceding October term of the court, and, if so, whether the error was injurious or harmless in view of the whole record. The form of the question propounded by the prosecution would seem to indicate that it was for the purpose of impeaching the defendant as a witness in his own behalf, and thereby discrediting his testimony. At that stage of the proceeding the defendant had offered no proof in support of his plea of autrefois convict, although the record does show that the state had called several witnesses to prove that the horse Deal was then being tried for stealing was not the one involved in his trial at the preceding October term. So that it was in anticipation of the proof which it was supposed the defendant would make under his plea that the state sought to draw from him what he had testified to at the former trial in the particulars alluded to, and was irregular in any event. If impeachment was intended, the method invoked could only be permitted when it was sought to show that he had at other times made statements inconsistent with his present testimony. Hill's Ann.Laws Or. § 841. He had then testified to nothing with which the statement sought to be shown would in any wise be inconsistent. It related to an entirely different subject from any that he had spoken of while being examined in chief; so that it was not proper matter for his impeachment at that, or, as the record shows at any other, stage in the trial. This is suggestive of a more substantial...