State v. Piersall

• Decision Date: 21 June 1976
• Parties: STATE of Oregon, Respondent, v. William Owen PIERSALL, Appellant.
• Court: Oregon Court of Appeals

Page 1253

550 P.2d 1253

25 Or.App. 791

STATE of Oregon, Respondent, v. William Owen PIERSALL, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 18, 1976.

Decided June 21, 1976.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jesse R. Himmelsbach, Jr., Dist. Atty., Baker, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

FOLEY, Judge.

Defendant appeals from a jury conviction of perjury, in violation of ORS 162.065, and a three-year sentence imposed thereon. ¹ Defendant's sole contention is that the trial court erred in admitting testimony connecting him with another crime. We affirm.

Defendant was charged with the crime of perjury by testifying falsely before the grand jury that he had no knowledge that his friend, Wesley Weber, had killed a cow with a bow and arrow and by denyin that he had previously made statements to persons implicating Weber in the killing. ² Although defendant categorically denied any personal knowledge of the killing of the cow, evidence was introduced at trial showing that defendant had told several persons that he had been present when Weber killed the cow with a bow and arrow which the defendant and Weber had stolen from a pickup truck. There was also testimony that after defendant's arrest he asked one of these persons not to repeat his prior statements about the killing to anyone because he had been lying at the time. One witness testified that approximately one month after the cow had been killed, defendant and Weber showed him a bow which they said they had taken from a pickup truck. This same witness testified that on two subsequent occasions defendant told him that Weber had killed the cow.

Defendant argues that the testimony connecting him with the theft of bow and arrows from a pickup truck had no probative value to prove that he had lied to the grand jury and that this testimony was so prejudicial as to require a new trial. We disagree.

In State v. Manrique, 75 Or.Adv.Sh. 386, 387--88, 531 P.2d 239 (1975), our Supreme Court said:

'The fundamental rule of evidence is that in order to be admissible evidence must be relevant, i.e., have some probative value to prove some issue in a case, and that all relevant evidence is admissible unless it falls within one of the socalled 'exclusionary' rules of evidence. See Trook v. Sagert, 171 Or. 680, 688, 138 P.2d 900 (1943), and State v. Kristich, 226 Or. 240, 244, 359 P.2d 1106 (1961). It is equally well established that evidence may be rejected, although relevant, if its probative value is outweighed by various other considerations, including the danger of prejudice. McCormick on Evidence 438--39, § 185 (2d ed 1972). See also State v. Zimmerlee, 261 Or. 49, 54, 492 P.2d 795 (1972), and State v. Harrison, 253 Or. 489, 491, 455 P.2d 613 (1969).

'For this reason it is the general rule in criminal cases that the state may not offer evidence that the defendant was guilty of other crimes in addition to the crime for which he is charged. * * *'

In State v. Maple, Or.App. 75 Adv.Sh. 4313, 544 P.2d 183 (1975), Sup.Ct. Review denied (1976), we had occasion to note that State v. Manrique, supra, did not enumerate all exceptions to the general rule against the admissibility of evidence connecting a defendant with another crime. See also State v. Hockings, Or.App., 75 Adv.Sh. 3802, 542 P.2d 133 (1975), Sup.Ct. Review denied (1976). Here, the trial court admitted the testimony relating to the theft of the bow and arrows expressly for the limited purpose of providing evidence that defendant had knowledge of the killing under investigation by the grand jury at the time he testified before it and to show defendant's possible motive for committing perjury. It enabled...