State v. Rader

• Court: Oregon Supreme Court
• Writing for the Court: McBRIDE, J.
• Citation: State v. Rader, 62 Or. 37, 124 P. 195 (Or. 1912)
• Decision Date: 28 May 1912
• Parties: STATE v. RADER.

124 P. 195

62 Or. 37

STATE v. RADER.

Supreme Court of Oregon

May 28, 1912

Appeal from Circuit Court, Grant County; Dalton Biggs, Judge.

Frederick Rader, indicted as Fritz Rader, was convicted of arson, and he appeals. Reversed and remanded for new trial.

Stephen A. Lowell, of Pendleton (Lowell & Winter, of Pendleton, V.G Cozad and Leedy & Patterson, all of Canyon City, on the brief), for appellant.

A.M Crawford, Atty. Gen. (J.W. McCulloch, of Vale, and Hicks &amp Marks, of Canyon City, on the brief), for the State.

McBRIDE J.

Defendant was tried for the crime of arson committed by burning two stacks of hay, the property of Emmett Barr. Defendant and his father were voluntary witnesses before the grand jury, and their names were indorsed on the indictment along with the other witnesses, and the refusal of the court to quash the indictment for this reason is one of the alleged errors assigned on this appeal.

Section 1429, L. O.L., provides that "the names of all witnesses examined before the grand jury must be inserted at the foot of the indictment or indorsed thereon," and the indorsement of the name of the defendant, while perhaps unnecessary, was within the terms of the statute, and in no event could such indorsement work any substantial injury.

Upon the trial, Emmett Barr, the prosecuting witness, was asked the following question, "What occurred at your place about July, 1908," and was permitted to answer over objection: "Young Rader [meaning defendant and young Plant] passed by where I was at work in my field. They came through my place and went down by the house and cut one of my milk cow's tails off." It further appeared in the testimony that defendant was arrested and bound over for this alleged offense, and that the grand jury returned "not a true bill." The state, for the purpose of showing motive, had a right to show that Barr had charged defendant with the crime of mutilating stock and had had him arrested. State v. Finch, 54 Or. 482, 103 P. 505. But it could not go beyond this and give evidence tending to show that another substantive crime had been committed. State v O'Donnell, 36 Or. 222, 61 P. 892.

The defendant, who was indicted for burning a hay stack on the 29th day of October, could not be expetced to come prepared to refute a charge that he mutilated a cow on the 12th day of July previous. We think that the admission of this evidence constitutes reversible error. Had the state confined its testimony to the fact that a charge of that character had been made by the prosecuting witness, and that charge followed by an arrest, it would have been within the rule laid down by the authorities.

It is contended that the court by its instruction withdrew this testimony from the jury, and therefore cured the error. While in some cases an express instruction to the...