State v. Merlo

• Decision Date: 18 June 1918
• Citation: 92 Or. 678,173 P. 317
• Parties: STATE v. MERLO.
• Court: Oregon Supreme Court

173 P. 317

92 Or. 678

STATE v. MERLO.

Supreme Court of Oregon

June 18, 1918

Department 2.

Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.

Rosa R Merlo was convicted of manslaughter, and appeals. Affirmed.

The defendant, Rosa R. Merlo, was indicted for the crime of murder in the second degree for the killing of her husband Joseph Merlo. She was tried and convicted of manslaughter and from the judgment of sentence appeals. The testimony of the plaintiff consisted of evidence tending to show the death of the victim, its cause, the nature of the wounds, the range of the bullet and description of the condition of the premises, of the various threats on the part of the defendant to take the life of her husband, statements of the defendant herself in relation to the homicide and in relation to evidence leading up to it and testimony tending to show the quarrelsome inharmonious life that the couple had led for some time prior to the homicide.

S. B Huston, of Portland, and Harry T. Bagley, of Hillsboro (Huston & Huston, of Portland, on the brief), for appellant. E. B. Tongue, Dist. Atty., of Hillsboro, for the State.

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

In the examination of the witnesses for the state it appears some evidence crept into the record tending to show that at times defendant was in the habit of using intoxicating liquor. Louis Merlo, a witness for the state, being interrogated as to quarrels between the decedent and the defendant, was asked through an interpreter and answered as follows:

"Ask him what they quarreled about. A. Every time Rosie drank there was quarrels. Q. Every time Rosie drank there was quarreling? A. Yes, sir."

When Letitia Partippilo, a witness for the state, was testifying and was being cross-examined by the attorney for the defense the following questions were given and the following answers made. Referring to the deceased, the following question was asked:

"Never drank? A. We used to drink at the table a little wine, but he was never drunk here or in the old country. Q. And Rosie was always drunk? A. Yes, sir; especially when she would go to Beaverton or Portland, or to her father's house, she would never come home until half past 1 or 2 o'clock after midnight. Q. And your father never got drunk?"

There was no objection to this testimony, and it is referred to as an introduction or foundation for some of the other evidence in regard to the use of intoxicating liquor by the defendant.

The defense was that the killing was done in self-defense. Upon the trial of the case the state called as a witness one, Luigi Beggi, who testified that he ate his meals with defendant and her husband; that the defendant and the decedent used to quarrel; that he did not know who started the quarrel. The witness was then asked by the district attorney:

"Q. Do I understand you to say that you don't know which one generally started the quarrel and when they quarreled? A. No. Q. You remember of being in the grand jury room don't you? A. Yes, sir. Q. When this case was being investigated, you remember that time? A. Yes, sir. Q. And the grand jury and myself being present, didn't you at that time and place in the first part of November, I think it was, make this statement? A. Yes, sir; I know it. All the time they had troubles, Rosa all the time started, she started first. Sometimes Joe run outside sometimes. She drink too much."

The defendant by her attorney objected as follows:

"I object to that as being apparently and plainly an attempt to impeach their own witness"

--and added:

"He has not testified to anything against the prosecution, and he has simply failed to testify as strongly as was wanted, and I do not think they can impeach their witness that way."

These objections were overruled, and exception allowed, and the examination by the district attorney proceeded:

"Q. Didn't you say at that time and place? A. I think so. Q. You say you said that? A. Yes, sir. Q. Was it true?"

This question was again objected to, but the objection was overruled, and the witness answered:

"I guess so. Q. Was it not true? A. Well, that is true."

It will be seen that the method of examination pursued with the witness served apparently to refresh his memory. No hearsay nor unsworn statements were admitted. Section 861, L. O. L., provides:

"The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in section 864.

The state called the witness, and under this section it was entitled, when the district attorney was surprised by the unexpected and unfavorable testimony, to call the attention of the witness to prior statements which were inconsistent with his present sworn testimony, together with the circumstances of time and place and persons present according to section 864, L. O. L., in order to refresh the recollection of the witness and induce him to correct his testimony or explain the apparent inconsistency, and to ask the witness if he made such previous statements. Whether or not the examination of the witness was strictly within the rule in the cases of Langford v. Jones, 18 Or. 307, 326, 22 P. 1064, State v. Steeves, 29 Or. 85, 104, 43 P. 947, and State v. Yee Gueng, 57 Or. 509, 512, 112 P. 424, there was no attempt to show the bad character of the witness. No unsworn or prior declarations of the witness were admitted. No substantive evidence was received in that manner. These are the shoals to steer clear of in such matters: Wigan v. La Follett, 84 Or. 488, 496, 165 P. 579. None of the fatal results followed. It served as in the nature of a leading question to the witness tending to bring out the truth. State v. Deal, 43 Or. 17, 70 P. 534. There was no reversible error in permitting such examination.

The most serious contention of the defendant is that the state was allowed on rebuttal to offer evidence that the defendant had been guilty of an independent crime. Luigi Beggi was a witness for the state. He was recalled as a witness on rebuttal, and testified through an interpreter, as follows:

"Q. Ask him if he knows anything about the time Rosa got a revolver and was going to kill his uncle."

The defendant objected to this as irrelevant, immaterial, and not in rebuttal of any issue in this case, the objection was overruled, and the exception allowed, and the witness answered:

"Yes, sir. Q. Ask him to tell the jury about that. A. Yes; Davy's brother was cleaning land, and Rosa came up and told him Rosa said if he would not take back the words he said she would shoot him."

There is nothing in this testimony, or in the objection thereto, to attract the attention of the trial court to the fact that it was the intention of the district attorney to elicit evidence pertaining to any other crime than that charged in the indictment, or that the witness referred to any threat made by the defendant except against the decedent. In other words it does not appear that the decedent, Joe Merlo, was not an uncle, or a so-called uncle, of the witness Luigi Beggi. The testimony interpreted from Italian to English is difficult to understand. As near as we can tell from a careful examination of the evidence, the witness Beggi understood that the question objected to referred to Rosa Merlo's uncle, although the gender does not so indicate. It would seem as though the mind of the trial court should have been directed to the objection to the evidence as now made. The objection plainly goes to the introduction of the evidence upon rebuttal. See State v. Goddard, 69 Or. 73, 133 P. 90, 138 P. 243, Ann. Cas. 1916A, 146; Hoag v. Washington-Oregon Corporation, 75 Or. 588, 144 P. 574, 147 P. 760, par. 6; Filkins v. Portland Lumber Co., 71 Or. 249, 142 P. 578, 579; Shandrew v. Chicago, St. P., M. & O. Ry. Co., 142 F. 320, 73 C. C. A. 430. The specific objection to evidence that it was not proper rebuttal waives any other objection, and no other objection should be considered on appeal. Ladd & Bush v. Sears, 9 Or. 244; Hildebrand v. United Artisans, 50 Or. 159, 166, par. 12, 91 P. 542. It would seem unnecessary to observe that before this court can review a ruling of the trial court, such ruling must be made. To...