State v. Dunn

• Decision Date: 16 March 1909
• Citation: 53 Or. 304,100 P. 258
• Parties: STATE v. DUNN.
• Court: Oregon Supreme Court

100 P. 258

53 Or. 304

STATE v. DUNN.

Supreme Court of Oregon

March 16, 1909

On rehearing. Denied.

For former opinion, see 99 P. 278.

M.B. Keefer and E.B. Watson, for appellant.

A.M Crawford, Atty. Gen., Geo. J. Cameron, Dist. Atty., and Thad. W. Vreeland, Deputy Atty., for the State.

KING, J. ^[1]

The main contention of counsel for the state in their petition for rehearing is that no error was committed on cross-examination of Mrs. Kruse, a witness for the defendant. But the error for which judgment of the court below was reversed was in permitting, over the defendant's objection, proof of statements purporting to have been previously made by Mrs. Kruse contradictory to the answers elicited on cross-examination, and our reference to the law relating to abortion was merely to show that, whether the statute includes this violation of the moral law in its category of crimes or not, the effect upon the jury, under the variant statements testified to by Mrs. Loomis, would be the same, and could but result in prejudicing defendant's rights, making a reversal necessary. In support of its position the state insists that an unnecessary abortion is not a crime, under section 1748, B. & C. Comp., unless it results in the death of the mother, or of a quick fetus, and authorities are cited in support thereof. Bishop Stat. Crimes (3d Ed.) § 745; Wharton on Homicide (3d Ed.) § 375; Evans v. People, 49 N.Y. 86; State v. Cooper, 22 N.J.Law, 52, 51 Am.Dec. 248; Commonwealth v. Parker, 9 Metc. (Mass.) 263, 43 Am.Dec. 396; Smith v State, 33 Me. 48, 54 Am.Dec. 607; Wells v. New England M.L. Ins. Co., 191 Pa. 207, 43 A. 126, 53 L.R.A 327, 71 Am.St.Rep. 763. But why this position is so earnestly pressed is not clear; for only in the event such acts constitute a crime could it properly be held, if at all, that State v. Bacon, 13 Or. 145, 9 P. 393, 57 Am.Rep. 8 presented as an authority in justification of the inquiry for which the judgment was reversed, is in point. Whether the interpretation invoked by the plaintiff of section 1748 of the statute is correct is not essential to a decision of the point under consideration, nor are we disposed to pass upon a question of such importance until necessary to do so. If the point is urged on the theory that the facts elicited could not have been prejudicial unless sufficient under the statute, to constitute a crime, still the position thus assumed is untenable; for, as formerly explained, the testimony of Mrs. Loomis in reference to the matter was such as would ordinarily lead the jury to believe this section of the statute had been violated, the influence of which, presumably, had the same effect upon the jury as if the charges were in law conceded to be a crime. The defendant was on trial charged with having contributed to the delinquency of Hallie Williams, and not for having committed an abortion upon, or of having improperly treated, Mrs. Kruse. True, the statement of witness that defendant had "treated" her at one time was brought out on her direct examination, but this was a collateral matter, having no bearing on the issues involved. Mrs. Kruse was in no sense a party to the record, and the testimony sought with reference to her clearly comes within the rule that: "Where a witness is examined as to statements that are irrelevant to the issues, the cross-examining party is concluded by his answers, and it is error to permit him to prove such variant statements. *** Nor does the fact that a witness has testified to facts that are collateral or irrelevant to the issues in the case avoid such necessity, nor render it proper to elicit or prove statements of the witness that are relevant to and variant from the facts to which he has so testified, but which are collateral or irrelevant to the issues in the cause; and where such collateral matters are elicited from a witness the parties are concluded by his testimony in respect thereto, and cannot contradict it by proof of variant statements." 7 Enc. Evidence, 81, 82.

We did not hold that an error was committed merely because the state was permitted to go into these matters on cross-examination. The cause was decided on the assumption that the court did not abuse its discretion in permitting this line of inquiry on cross-examination; but as to the right, after the witness had answered the cross-interrogatories, of counsel further to proceed in introducing the testimony, discussed in the opinion which followed, we merely applied the above rule, together with that announced by Mr. Justice Wolverton i...