State v. Ogden

• Decision Date: 01 July 1901
• Parties: STATE v. OGDEN.
• Court: Oregon Supreme Court

65 P. 449

39 Or. 195

STATE v. OGDEN.

Supreme Court of Oregon

July 1, 1901

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

William Ogden was convicted of rape, and he appeals. Reversed.

F.S. Ivanhoe, for appellant.

Samuel White, Dist. Atty., for the State.

MOORE, J.

The defendant having been convicted of forcibly ravishing the prosecutrix in Union county, Or., July 19, 1899, he appeals from the judgment which followed such conviction.

As a witness in his own behalf, he denied being guilty of any improper conduct towards the prosecutrix, and introduced testimony tending to show that her general reputation for chastity and virtue in the community in which she resided was bad, whereupon the state called in rebuttal one Charles Oleson, who having testified that he was acquainted with her reputation in these respects, and that it was good, as far as he had heard, the following questions were propounded to him on cross-examination: "Did you ever hear of her being discharged from A. Dickson's, the livery man there [at Lagrande], on account of immoral conduct?" "Did you know of her being discharged by J.A. Darrin from the Eagle Restaurant on account of her immoral character?" "Did you ever hear of her being discharged by Mrs Richard Kelly on account of her immoral habits?" Objections having been sustained to these interrogatories and exceptions allowed, the defendant's counsel offered to prove by said witness the facts implied in the questions so objected to, but, the proffer having been rejected, an exception was allowed; and it is insisted that the court erred in these particulars. The rule is well settled that when a defendant in a criminal action calls in his behalf witnesses who testify that he possessed such a general reputation as tends to negative the commission of the crime with which he is charged, these witnesses may be interrogated on cross-examination in respect to their knowledge of his prior commission of specific acts similar in character to that of which he is accused, to rebut the additional presumption of his innocence which is raised by their testimony in chief. Ingram v. State, 67 Ala 67; Thompson v. State, 100 Ala. 70, 14 So. 878; State v. Pain, 48 La.Ann. 311, 19 So. 138; People v. Ah Lee Doon, 97 Cal. 171, 31 P. 933; McDonel v. State, 90 Ind. 320; Basye v. State, 45 Neb. 261, 63 N.W. 811; People v. Pyckett, 99 Mich. 613, 58 N.W. 621; State v. Crow, 107 Mo. 341, 17 S.W. 745; People v. McKane, 143 N.Y. 455, 38 N.E. 950. Thus, in State v. Jerome, 33 Conn. 265, a witness called by defendant, who was on trial for rape, testified that he was of good character, whereupon such witness was compelled on cross-examination to answer a question as to whether a certain lewd woman had not lived for some time in the defendant's family; and it was held that no error was thereby committed. The reason for this rule is that if the party charged with the commission of a crime seeks to supplement the presumption of his innocence, which the policy of our jurisprudence affords, by testimony of general reputation necessarily adverse to the commission of the crime charged, he thereby invites a scrutiny into the issue of fact which he voluntarily precipitates, and subjects the witnesses whom he has called for that purpose to be interrogated on cross-examination in respect to their knowledge of his commission of generic offenses, not as substantive evidence of his perpetration of independent criminal acts, but to test their veracity and the extent of their information upon the subject-matter to which they have testified in chief, for the purpose of controverting the general reputation which they have ascribed to him. While the general reputation of a party accused of the commission of a crime is never assailable except when he invites the attack, the general reputation of a witness for veracity is always the subject of inquiry. McDonald v. Com., 86 Ky. 10, 4 S.W. 687; Evansich v. Railroad Co., 61 Tex. 24. A court should be much more careful of the rights of a party to an action than of the mere privileges of a witness; for he may be deprived of his life, restrained of his liberty, or devested of his property by the judgment therein, while a witness called by either party is not affected by the adjudication. And, as we have seen, a witness called for the defendant in a criminal action to establish his reputation as to any specific trait of character is required to testify on cross-examination in relation to similar specific offenses committed by the accused, a fortiori the witness who is called to testify concerning the general reputation of another witness ought to be required on cross-examination to detail with much greater particularity all the facts and circumstances that may in any manner tend to limit or qualify his opinion, illustrate his motive, or test his veracity. In People v. Annis, 13 Mich. 511, it was held that when a witness called for the purpose of impeaching another testifies to his bad reputation for truth, and upon cross-examination gives the name of the person he has heard speak against him, the witness may be required to state what was said by such person; the court saying: "The real purpose of this cross-examination is to enable the court and jury to determine whether the impeaching witness in fact knows the general reputation of the other, and, if so, whether he testifies truly in regard to it." In Wachstetter v. State, 99 Ind. 290, 50 Am.Rep. 94, the accused, being on trial for larceny, called one William Lee, who testified in his behalf, whereupon the state introduced testimony tending to impeach Lee by showing that his moral character was bad. The accused then called Stapp and Wilson as witnesses, for the purpose of sustaining his reputation for truth and veracity, who, on their cross-examination, were interrogated as to whether they had ever heard rumors of Lee having been arrested for grand larceny, of his giving an assumed name, and of his having committed certain robberies, to which they gave negative answers; and, the accused having been convicted, his counsel, upon appeal, insisted that the court erred in permitting these interrogatories to be propounded to Stapp and Wilson on their cross-examination, because their testimony in chief related to the inquiry into Lee's reputation for truth and veracity only; but it was held that no error was thereby committed, the court saying: "We are not inclined to adopt this view of the question under consideration. Truth or veracity is a trait of the man of integrity and honesty. It is never a trait of the thief or robber. The reputation for dishonesty or criminal conduct is, we think, utterly inconsistent with a good reputation for truth and veracity. We mean, of course, such dishonesty or criminal conduct as was imputed to Lee in the questions propounded by the state to Stapp and Wilson, and complained of by the appellant. When Stapp and Wilson had testified that the reputation of Lee for truth and veracity was good, it was competent for the state to show upon cross-examination that Lee had been reputedly under arrest or in the station house on a charge of felony. If the witness Stapp had answered the questions propounded to him by saying that he had heard of Lee's arrest for grand larceny, and of his giving the name of William Smith, and of his being in the station house, such evidence would have been as inconsistent and as completely at variance with his evidence in chief as it would have been if he had testified on cross-examination that he had heard that Lee's general reputation for truth and veracity was not good. If Stapp had answered the questions put to him by the state in the affirmative, his testimony would not, of course, have proved that Lee was guilty of the larceny mentioned therein, but such answer would have strongly tended to show that Stapp's evidence in chief was unworthy of belief." In Dekalb Co. v. Smith, 47 Ala. 407, an action having been brought against the county, in pursuance of an act of the legislative assembly, to recover damages resulting from an attack by a mob, Smith gave evidence of an assault and battery committed upon him by unknown and disguised persons, whereupon, the county having assailed his character for truth, he was permitted, on cross-examination of the witness called to impeach him, to prove that, although such witness did not know of any enemies the defendant in error had in the vicinity in which he lived, he was of the opinion, from rumor, that he did have some foes. Oleson having testified that the reputation of the prosecutrix for chastity and virtue was good, "as far as he had heard," the questions propounded to him on cross-examination were calculated to call his attention to the alleged rumors derogatory of her character in these respects, and to test his veracity in attributing to her such general reputation. Our statute provides that the adverse party may cross-examine the witness as to any matter stated in his direct examination or connected therewith. Hill's Ann.Laws Or. § 837. The questions so propounded to him related to and were connected with the matter stated by him in his direct examination, and, the court not having permitted him to answer any of them, such action was not the exercise of judicial discretion as to the extent of his cross-examination, but the denial of an absolute right guarantied to the defendant, which necessitates a reversal of the judgment.

In view of the conclusion reached, it is deemed essential to consider some of the other questions likely to arise again upon a new trial:

It is contended by appellant's counsel that the court erred in permitting the district attorney, over their objection and exception, to propound leading questions to the prosecuting...