State v. Deal , 52 Or. 568 ( 1908 )

Opinion by

Mr. Chief Justice Bean.

1. Under Sections 852 and 859, B. & C. Comp., it is proper for the purpose of impeachment to show by the examination of a witness that he has been convicted of a crime, and he is required to answer as to the fact of such conviction. State v. Bacon, 13 Or. 143 (9 Pac. 393: 57 Am. Rep. 8). A defendant in a criminal case may, at his option, testify as a witness.in his own behalf (Section 1400, B. & C. Comp.), and when he does so he may be impeached as any other witness (State v. Abrams, 11 Or. 169: 8 Pac. 327) ; it is not competent to cross-examine him as to other offenses, for the purpose of humiliating him, or raising a presumption, either of law or fact, of his guilt of the charge under consideration (State v. Saunders, 14 Or. 300: 12 Pac. 441) ; but, when he offers himself as a witness in his own behalf, he may, for the purpose of impeachment, be asked if he has been convicted of a crime, and be required to answer (People v. Sears, 119 Cal. 367: 51 Pac. 325), or his conviction may be shown by the record (State v. Reyner, 50 Or. 224: 91 Pac. 301).

2. It is claimed that .the court erred in permitting defendant to be cross-examined as to the conversations between himself and Tall, concerning the “diamond dot” mare, and in admitting the testimony of Tall in reference thereto. The statute provides that a defendant, who voluntarily offers himself as a witness in his own behalf, “shall be deemed to have given to the prosecution a right to cross-examination upon all facts to which he has testified regarding his conviction or acquittal.” Section 1400, B. & C. Comp. For some time after the passage of this law, there was much discussion as to the extent to which the cross-examination of a defendant in criminal actions could be pursued, but it must now be regarded as settled, that it must be confined to matters properly germane to and connected with his testimony in chief. State v. Bartmess, 33 Or. 110 (54 Pac. 167) ; State v. Miller, 43 Or. 325 (74 Pac. 658). In other words, a defendant cannot, under the guise of a cross-examination, be compelled, in violation of Section 11, Article I, of the Constitution of Oregon, to give evidence against himself; but, when he becomes a witness in his own behalf, he waives this constitutional guaranty as to all matters properly connected with his examination in chief, and subjects himself to such a cross-examination thereon as may tend to explain, elucidate, or affect the credibility of his testimony, and such cross-examination may be as vigorous and searching as that of any other witness. This rule was, we think, not violated in the case at bar.

3. Defendant sought to make it appear that he was the owner of the animal, which he was charged with stealing, because it was a colt of the “diamond dot” mare, and the cross-examination was for the purpose of discrediting him on this point, by showing he had endeavored to persuade or induce Tall to say that the facts in relation thereto and within his knowledge were as testified to by defendant.

4. It was also claimed that the court erred in its instruction to the jury as to the presumption of innocence, but there was no substantial error in this respect. If the instruction as first given was technically inaccurate, because of the word's “independent of the evidence,” the error was corrected by the subsequent instruction that the defendant was to be presumed innocent until proved guilty beyond a reasonable doubt, and the jury could not have been misled or misdirected in this phase of the case.

Judgment affirmed. Affirmed.