State v. Patrick

• Decision Date: 26 November 1929
• Citation: 282 P. 233,131 Or. 209
• Parties: STATE v. PATRICK ET AL.
• Court: Oregon Supreme Court

282 P. 233

131 Or. 209

STATE v. PATRICK ET AL.

Supreme Court of Oregon

November 26, 1929

In Bank.

Appeal from Circuit Court, Wasco County; Fred W. Wilson, Judge.

Ernest Patrick, jointly indicted with another, was convicted for possessing a still and still worm without registering it, and he appeals. Affirmed.

Frank G. Dick, of The Dalles, for appellant.

Francis V. Galloway, Dist. Atty., of The Dalles (Edwin D. Hicks Deputy Atty. Gen., and I. H. Van Winkle, Atty. Gen., on the brief), for the State.

BEAN, J.

The circumstances necessary to notice are about as follows: The sheriff of Wasco county, Or., raided a moonshine still about 2 1/2 miles from The Dalles-California highway, at what is known as the head of Cow Canyon. The still outfit was located on land belonging to the Rooper Live Stock Company. The still was approximately 1 1/2 miles from the cabin of one N.D Caven. Caven owned a small farm ten or twelve miles west of Shaniko near the junction of The Dalles-California and Sherman highways, a portion of which was rented to defendant Patrick in November or December, 1927, for one year. Patrick farmed the same while Caven worked for a neighboring farmer. Patrick occupied the Caven buildings, to which Caven returned in 1928, a short time before the lease expired. Patrick, his wife, and Caven were all living together on the Caven farm when George B. Skinner arrived and stayed at the same place. Shortly thereafter defendant Patrick and his family moved to Maupin, but returned to the Caven farm several times, as he claimed, to get portions of his personal effects, live stock etc.

The state claimed that these trips were partly for the purpose of furthering his moonshine operations. At the time of the seizure, the sheriff also searched the cabin of Caven and several bottles, jugs, etc., and a small quantity of liquor consisting of the dregs or leavings in some bottles were found.

George B. Skinner, a boy 20 years of age, was at the Caven cabin, and subsequently became a codefendant with Patrick. Skinner pleaded guilty under the indictment, and was the principal witness for the state upon the trial of Patrick. At the time of the seizure, the sheriff arrested N.D. Caven. Defendant Patrick was apprehended at the town of Maupin, some 28 miles away. Soon after Skinner was arrested, he told all of his relations with defendant Patrick in the operation of the still in question. Caven pleaded guilty to the charge of the possession of liquor that was found at his cabin.

The testimony tended to show that about Thanksgiving time in 1928 defendant Patrick employed Skinner to operate this still and agreed to pay him wages of $50 per month. Thereafter Patrick furnished supplies of corn and sugar for the mash and gasoline for the fuel, and Skinner set and ran off a batch of moonshine prior to the seizure on January 16, 1929. Skinner stayed at the Caven cabin most of the time while the still was actually in operation, spending only 10 or 12 days over at the still. Patrick spent little time at the still. The evidence indicated that Patrick originally purchased the gasoline stove, a part of the moonshine outfit, and procured some parts for this stove, that he paid for some gasoline which Skinner had previously obtained for these operations and paid for the corn and sugar for this last batch of moonshine, when it was delivered at the Caven ranch.

Upon cross-examination of N.D. Caven, a witness for the state, counsel for defendant propounded to the witness the following question: "Mr. Caven, I will ask you if you did not on the evening of the 23rd of December, 1928, at Maupin, while in Mr. Fraley's pool hall and restaurant, and in the presence of H. M. Green, Patrick, Shorty Miller, Con Buckley and Mr. Henenegen, Tom Henenegen, at a time when you were passing a bottle of liquor around to some of the boys to take, for them to take a drink, saying to one of them who then had the bottle, and I don't know who it was at that time who made a remark to you that there was not much in the bottle, and didn't you say in response to that answer, or to that statement, 'go ahead and drink it up, I have got plenty out there,' right in the presence of Tom Henenegen, didn't you make those statements?"

Upon objection of the state, the testimony was excluded. This ruling is assigned as the first error. The question is in the form of one for the foundation of an impeachment. N.D. Caven was not upon trial for this offense and the acts referred to were, we think, too remote to have any bearing upon the case. Caven's possession of a bottle of liquor at Maupin, 28 miles away from the still, would not tend to connect him with the operation or possession of the still about a month later. The objection to the question was properly sustained, and the answer tendered properly excluded. We arrive at this conclusion without much consideration of the right of Caven to be immune as a witness from incriminating himself.

Evidence tending to show that another party might have committed the crime would be admissible, but there should be proof of facts or circumstances clearly pointing out that some one beside the defendant was the guilty party, without the defendant participating therein. Remote acts disconnected with the crime itself cannot be separately proved for such a purpose. State v. Fletcher, 24 Or. 295, 33 P. 575; State v. Lockwood, 126 Or. 118, 127, 268 P. 1016. A witness cannot be impeached upon an immaterial matter. This is too well settled as the law to require citation of authorities.

The second assignment of error is the overruling of the objections of defendant Patrick to the following impeaching questions: "Now, then, I will ask you if in that conversation she said to you--there was a dialogue between you and her in which these words were used, or words substantially like these: Did she ask, what is going on here? To which you replied, the joint is raided; and she asked then, did they get the outfit, and you answered, yes?"

The objection that a proper foundation, as to persons present, had not been laid for impeachment, being overruled, the witness answered in the affirmative.

The following question was also propounded to the witness Skinner: "Did Mrs. Patrick at that time, in the presence of the De Janviers, in substance warn you to get out of the country, and say these words, or words like these: Pat sent word to tell you to get the Hell out of the country, get clear out and stay out, as they are...