State v. Savage

• Decision Date: 13 August 1900
• Citation: 61 P. 1128,36 Or. 191
• Parties: STATE v. SAVAGE.
• Court: Oregon Supreme Court

61 P. 1128

36 Or. 191

STATE v. SAVAGE.

Supreme Court of Oregon

August 13, 1900

Petition for rehearing. Denied.

For former opinion, see 60 P. 610.

MOORE, J.

In reviewing the decision in this cause upon defendant's petition for rehearing, we find that in referring to the testimony of Samuel Simmons the opinion improperly states that: "This witness, on his direct examination for the state, made no statement tending to show by whose authority he went to the premises of Samuel Klein to search for the money;" the bill of exceptions showing that "Pending the examination of witnesses in said case, one Samuel Simmons was called on behalf of the state, and testified, among other things, in his direct examination that he found $4,800 of the money alleged to have been stolen in the yard of Mr. Samuel Klein, father of the defendant Frank Klein. [ This defendant, Frank Klein, claimed to have turned state's evidence, and was a witness against the defendant Otis Savage on this trial.] That he searched for and found the money in pursuance of directions and information given him by said Frank Klein." This statement was inadvertently overlooked when the opinion was written; the writer being misled by what purported to be a copy of the witness' testimony, given on his direct examination, in which he made no statement whatever tending to show by whose direction he went to the premises of Samuel Klein to search for the money. The court having refused to permit Simmons to answer the questions propounded to him on his cross-examination, defendant's counsel called him as their witness, and on his direct examination secured the information which they sought; and this presents the question whether, if it be assumed that an error was committed in the first instance, it was not cured in the manner indicated. Judge Thompson, in his work on Trials (section 707), in commenting upon this subject, says. "An error of the court in excluding the evidence of a witness does not injure a party, if the witness is afterwards permitted to testify fully in respect of the matter excluded." In State v. Biggerstaff, 17 Mont. 510, 43 P. 709, it was held that where a witness, when called by the state gives evidence which was excluded when called by the defense there is no error of which the defendant can complain. In State v. Coates (Wash.) 61 P. 726, it was held that where a defendant in a prosecution for burglary was erroneously denied the...