State v. McCann

• Decision Date: 20 April 1903
• Citation: 72 P. 137,43 Or. 155
• Parties: STATE v. McCANN.
• Court: Oregon Supreme Court

72 P. 137

43 Or. 155

STATE v. McCANN.

Supreme Court of Oregon

April 20, 1903

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Frank McCann was convicted of felonious assault, and appeals. Affirmed.

Robert G. Smith and H.D. Norton, for appellant.

A.M Crawford, Atty. Gen., and A.E. Reames, Dist. Atty., for the State.

MOORE C.J.

The defendant, Frank McCann, having been convicted of the crime of assault with a deadly weapon, alleged to have been committed in Josephine county September 20, 1901, upon one David Halliday, was sentenced to imprisonment in the penitentiary, from which judgment he appeals.

It is contended by his counsel that the court erred in refusing to permit the prosecuting witness to answer certain questions propounded to him. It appears that McCann and Halliday had been mutually interested in some mining claims, and the latter, appearing as a witness for the state, was asked on cross-examination: "There was some little difficulty which arose between you and McCann over those claims wasn't there?" to which he replied, "No, sir there wasn't. Q. Did you make some relocations there--you and others--and leave McCann out?" An objection to this question having been sustained, an exception was allowed. If Halliday relocated mining claims in which he and McCann were interested, and thereby deprived the latter of all right thereto, he could, by applying to the courts, have secured redress for the wrong sustained, and had no right to resort to the use of force as a means to adjust his supposed grievance. The question concerning the relocation of the mining claims was immaterial, and as it might have misled the jury into seeking for an excuse to justify the assault, if permitted to be answered, no error was committed as alleged.

The prosecuting witness having been recalled by the state, the following questions were propounded to him on cross-examination, to wit: "Mr. Halliday, I desire to ask you if after you were taken to your room from the office of the hotel, on the evening of September 20th, if you said to George Hartman, who assisted you up there, in his presence and in the presence of those who were in the room, who are unknown to me, that you wished that you had a gun, instead of a knife, or words to that effect?" "Q. Did you say this--if you had a gun, instead of a knife, you would have done business with him--or words to that effect?" Objections to these questions were interposed on the ground that they were irrelevant and immaterial, and not cross-examination, but no ruling appears to have been made thereon by the court. "Q. I will ask you, as a matter of fact, when you followed McCann, you did not have a knife in your hand? A. No, sir." "Q. I will ask you if you did not say to George Hartman, after you were taken to the room, if you had a gun, instead of a knife, you would have done business, or words to that effect?" An objection to this question on the ground that it was irrelevant and immaterial having been sustained, an exception was allowed. The defendant's counsel state in their brief that Halliday, on his direct examination, testified that at the time he was assaulted he was not armed with a knife, and maintain that the questions asked him were designed to test his credibility, to show his purpose and prejudice, and to lay a foundation for his impeachment, and hence the court erred in refusing to permit him to answer. How soon after the assault Halliday was taken to the room is not disclosed, but, as the language sought to be imputed to him was not uttered during the altercation with the defendant, what the witness might have thereafter said was no part of the res gestae, and therefore not admissible on that ground. State v. Glass, 5 Or. 73; State v. Garrand, 5 Or. 216; State v. Ching Ling, 16 Or. 419, 18 P. 844; State v. Sargent, 32 Or. 110, 49 P. 889; State v. Smith (Or.) 71 P. 973. To enable the court and jury to determine the weight and value that should be given to the testimony of a witness, he may be asked on cross-examination such questions as tend to show his relation to the parties, his interest in the subject-matter of the litigation, and the motives, inclination, and prejudices that may have colored or distorted his testimony in chief. 1 Greenl.Ev. § 446; Johnson v. Commonwealth (Pa.) 9 Atl. 78; People v. Furtado, 57 Cal. 345. In Watson v. Twombly, 60 N.H. 491, Mr. Justice Clark, illustrating this mode of seeking to attain the truth, says: "Evidence irrelevant to the issue may be material, as affecting the credibility of the witness, when it tends to show interest, prejudice, bias, or the relationship and feelings of the witness toward the party. It is the right of a party to show the state of feeling of an opposing witness, and this may be done by cross-examination or by independent testimony. For this purpose it is competent to inquire of the witness concerning acts, declarations, and circumstances showing the existence of hostile feelings or prejudice, and the latitude of cross-examination is not restricted by the fact that the witness is a party testifying in his own behalf." The question propounded to Halliday did not relate to any bias or prejudice that he may have entertained toward the defendant at the time he appeared as a witness for the state, but it referred to an alleged expression of what he would have done to him at the time he was assaulted if he had been armed with a gun. It is usually man's disposition to forgive an injury, and though he may, in...