State v. Lanegan

• Decision Date: 17 October 1951
• Citation: 236 P.2d 438,192 Or. 691
• Parties: STATE v. LANEGAN.
• Court: Oregon Supreme Court

Page 438

236 P.2d 438

192 Or. 691

STATE v. LANEGAN.

Supreme Court of Oregon.

Argued Sept. 19, 1951.

Decided Oct. 17, 1951.

Frank H. Pozzi, of Portland, argued the cause for appellant. With him on the brief was Nels Peterson, of Portland.

James A. Norman, Dist. Atty. for Coos County, Coos Bay, and John Pickett, Deputy Dist. Atty., Coquille, argued the cause and filed a brief for respondent.

Before HAY, Acting C. J., and LUSK, LATOURETTE, WARNER and TOOZE, Justices.

HAY, Justice.

Howard Lanegan appeals from a judgment of conviction of the crime of assault with intent to rob. § 23-427, O.C.L.A.

The evidence on the trial showed that Jack Edward Davis and Patsy Davis, his wife, while asleep in the bedroom of their residence at North Bend, Oregon, were awakened at about 5 a. m. on August 18, 1950, by a man standing beside their bed and shining the light of a flashlight in their faces. The man held the light upon Davis, and from a distance of about 18 inches menaced him with a short barreled, silver plated revolver of .32 caliber, and demanded money of him, saying: 'This is a holdup.' Davis told him that he had no money, and the man said he had better get some. Davis thereupon got out of bed, and, being cautioned by the intruder 'not to try anything,' went into the living room, where he had left his wallet on a writing desk, and demonstrated that the wallet was empty. The would-be robber intimated that, if Davis couldn't get some money, it was too bad, but he would have to shoot him. After some further colloquy, Davis was ordered to go back to bed, which he did. The man said, '* * * I am a Communist and I haven't got any respect for life, and I am sorry but I will have to shoot you.' He pointed the revolver at Davis' head, but did not shoot. He said: 'You people are poor, aren't you? * * * I have money, if you need money.' There was some further conversation, after which, still pointing the revolver at Davis, the man shook hands with both his intended victims, said that he would have to be going, and left, slamming the door behind him. He had been in the home for approximately 25 minutes. He talked with a foreign accent which Mrs. Davis thought was Mexican.

Twelve days afterwards, the defendant was arrested for the crime, and taken to the city jail at North Bend. He was left alone in a lighted room. Later, Mr. Davis walked through the room and identified him to the police as the person who had attempted to rob him.

Chief of Police Kolkhorst of North Bend testified that he was present at the time of the identification of defendant by Mr. Davis. Over objection of defendant that the matter was not within the issues, he said that he had had Davis at his office prior to that time to observe other suspects, and that he did not identify any of them as being the culprit. It is argued that such testimony was irrelevant and incompetent and had no logical relation to the facts in issue. It must be conceded that it was irrelevant and therefore incompetent. Moreover, it was hearsay. State v. Evans, 98 Or. 214, 234, 192 P. 1062, 193 P. 927; People v. Reeves, 360 Ill. 55, 195 N.E. 443, 447; 16 C.J., Criminal Law, § 1239; 22 C.J.S., Criminal Law, § 725.

Kolkhorst also testified that Mrs. Davis identified defendant by his photograph, which was shown to her along with photographs of a number of other persons. Defendant objected to such testimony on the grounds that it was hearsay and not the best evidence. Evidence of extra-judicial identification of a defendant by a person other than the witness who testifies to such identification is hearsay, and the objection to such evidence in this case should have been sustained. State v. Evans, supra; Gilbert v. Commonwealth, 221 Ky 692, 299 S.W. 569; State v. Grasswick, 77 Mont. 326, 250 P. 613, 614; People v. Lukoszus, 242 Ill. 101, 89 N.E. 749, 751; People v. Infantino, 224 App.Div. 193, 230 N.Y.S. 66, 71.

As a general rule, the receipt of incompetent evidence is not prejudicial error where the fact sought to be proved is fully and clearly established by other and competent evidence. 5 C.J.S., Appeal and Error, § 1731a; Pitts v. Crane, 114 Or. 593, 603, 236 P. 475; Murphy v. Deal, 68 Or. 18, 20, 136 P. 658; Meridianal Co. v. Moeck, 121 Or. 133, 140, 253 P. 525. The rule is applicable in criminal as well as civil cases. State v. Folkes, 174 Or. 568, 606, 150 P.2d 17, certiorari denied, 323 U.S. 779, 65 S.Ct. 189, 89 L.Ed. 622. See also State v. Boloff, 138 Or. 568, 594, 4 P.2d 326, 7 P.2d 775, in which this court applied a rule substantially similar. The Davises had an excellent opportunity to become well acquainted with defendant's appearance under circumstances calculated to impress it upon their minds, and upon the trial both positively identified him. Such positive identification, in our opinion, cured the errors complained of respecting Kolkhorst's testimony of the extrajudicial identification of defendant by the Davises.

Mrs. Davis testified that she had identified defendant by picking out his photograph from among a number exhibited to her by the district attorney and the Chief of Police. This was objected to upon the ground that the photographs so shown to the witness were themselves the best evidence.

Defendant, in this connection, relies upon State v. Houghton, 43 Or. 125, 131, 71 P. 982, 984, which, however, does not appear to touch the point. In that case, the testimony to which objection was made was that of a detective officer, to the effect that the prosecuting witness (not the officer himself) had identified defendant by a 'rogues' gallery' picture. Such testimony was of course hearsay and improper, and we so held. We held further that the error was not cured by the testimony of the prosecuting witness, which 'did not go into details,' and 'could perhaps be regarded only as a circumstance attending the search for the guilty parties.'

In the case at bar, the testimony of Mrs. Davis was properly received. 2 Wigmore, Evidence, 3rd Ed., § 660. In a somewhat analogous situation, we held in State v. Wong Wen Teung, 99 Or. 95, 102, 195 P. 349, that it was competent for a witness to testify that she had been able, upon observing a group of persons which included the defendant and a number of others of the same race as he and of about his size and build, to identify the defendant as the person whom she had seen committing the criminal act for which he was being tried. In that case, moreover, we distinguished such a situation from that in State v. Houghton, supra, 43 Or. 125, 71 P. 982.

Defendant argues that, in any event, the photograph identified by Mrs. Davis should have been introduced in evidence. He cites no authority for this, but, even if we assume for the sake of argument that the point is well taken, the error, if any, was cured by an instruction which the court gave to the jury, to the effect that the testimony of the Chief of Police that Mrs. Davis had identified defendant through the use of photographs, as well as the testimony of Mrs. Davis that she had identified defendant by his photograph, was hearsay and incompetent, and that it was the jurors' duty to disregard such testimony, as it had been stricken from the record and was withdrawn from their consideration. This, in our opinion, was a sufficiently emphatic instruction to disregard the testimony as to leave no doubt in the jurors' minds that the evidence was out of the case and was not to be considered by them for any purpose. State v. Goff, 71 Or. 352, 359, 142 P. 564; State v. McDaniel, 39 Or. 161, 183, 65 P. 520; State v. Pointer, 106 Or. 589, 601, 213 P. 621; 53 Am.Jur., Trial, § 671. Moreover, if counsel for defendant had considered the instruction insufficiently responsive to his objections, he should have taken exception thereto or requested that a more definite or positive direction be given. As he did not do so, we must assume that he was satisfied with the instruction. State v. Pointer, supra, 106 Or. at page 602, 213 P. 621. A question is raised respecting the propriety of the procedure which was used by the Chief of Police in exhibiting suspects to the witness Davis for identification. It seems that Davis was brought to the police station to observe certain suspects in a group, and afterwards to observe defendant alone. It is urged that evidence of such procedure had a tendency to indicate to the jury that Davis had identified defendant in what amounted to a police line-up, which was not so, as, in a police line-up, several persons are exhibited to the observer in a group, whereby identification of one or more of the group has the appearance of being unaided by suggestion. The method employed in the present case is subject to criticism, but it does not appear to have been condemned by the authorities as prejudicial.

'In identifying persons or material objects, it is of course more effective if the thing to be identified is so placed with others that the witness' selection appears to be unaided. This is particularly important in the identification of an accused, where the witness is shown a photograph beforehand. Nevertheless, no general rule has required this,--partly because of its frequent impracticability, partly because the lack of such a precaution plainly enough detracts from the value of the testimony, and partly because the witness has usually had so many prior opportunities of private verification that such a public test would often give a false appearance of spontaneous and unaided selection.' 3 Wigmore on Evidence, 3rd Ed., § 786, subd. (4).

See also People v. Barad, 362 Ill. 584, 200 N.E. 858, 860; People v. Vaughn, 390 Ill. 360, 61 N.E.2d 546, 548.

A witness who was acquainted with the accused, and who had seen him at about 2 o'clock in the morning of the day of the attempted robbery, testified that he was at that time wearing a cap. The witness asserted that a certain cap, which the state had had marked for identification, was about the type of cap that def...