State v. Merlo , 92 Or. 678 ( 1919 )

BEAN, J.

In the examination of thq witnesses for the state, it appears some evidence crept into the record tending to show that at times defendant was in the habit of using intoxicating liquor. Louis Merlo, a witness for the state, being interrogated as to Quarrels between the decedent and the defendant, was asked through an interpreter and answered as follows:

“Ask him what they quarreled about?”

Ans. “Every time Bosie drank there was quarrels.”

Ques. “Every time Bosie drank there was quarreling?”

Ans. “Yes, sir.”

"When Letizia Partipillo, a witness for the state, was testifying and was being cross-examined by the attorney for the defense, the following questions were given and the following answers made. Beferring to the deceased, the following question was asked:

“Never drank?”

Ans. “We used to drink at the table a little wine but he was nev,er drunk here or in the old country.”

Ques. “And Bosie was always drunk?”

Ans. “Yes, sir, especially when she would go to Beaverton or Portland, or to her father’s house she would never come home until half-past 1 or 2 o ’clock after midnight.”

Ques. “And your father never got drunk?”

There was no objection to this testimony, and it is referred to as an introduction or foundation for some of the other evidence in regard to the use of intoxicating liquor by the defendant.

The defense was that the killing was> done in self-defense. Upon the trial of the case, the state called as a witness, one Luigi Beggi, who testified that he ate his meals with defendant and her husband; that the defendant and the decedent used to quarrel; that he did not know who started the quarrel. The witness was then asked by the district attorney:

“Q. Do I understand you to say that you don’t know which one generally started the quarrel and when they quarreled?

“A. No.

“Q. You remember of being in the grand jury room, don’t you?

“A. Yes, sir.

“Q. When this case was being investigated, you remember that time?

“A. Yes, sir.

“Q. And the grand jury and myself being present, didn’t you at that time and place in the first part of November, I think it was, make this statement?

“A. Yes, sir, I know it.

“Q. All the time they had troubles, Eosa all the time, started, she started first. Sometimes Joe run outside sometimes. She drink too much.”

The defendant by her attorney objected as follows:

“I object to that as being apparently and' plainly an attempt to impeach their own witness, ’ ’ and added: “He has not testified to anything against the prosecution and he has simply failed to testify as strongly as was wanted and I do not think they can impeach their witness that way.”

These objections were overruled and exception allowed, and the examination by the district attorney proceeded.

“Q. Didn’t you say at that time and place?

“A. I think so.

“Q. You say you said that?

“A. Yes, sir.

“Q. Was it true? (This question was again objected to, but the objection was overruled and the witness answered), ‘I guess so.’ .

“Q. Was it not true?

“A. Well, that is true.”

It will be seen that the method of examination pursued with the witness served apparently to refresh his memory. No hearsay nor unsworn statements were admitted. Section 861, L. O. L., provides:

“The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in Section 864. ’ ’

1. The state called the witness and under this section it was entitled, when the district attorney was surprised by the unexpected and unfavorable testimony, to call the attention of the witness to prior statements which were inconsistent with his present sworn testimony, together with the circumstances of time and place and persons present according to Section 864, L. O. L., in order to refresh the recollection of the witness and induce him to correct his testimony or explain the apparent inconsistency, and to ask the witness if he made such previous statements. Whether or not the examination of the witness was strictly within the rule in the cases of: Langford v. Jones, 18 Or. 307, 326 (22 Pac. 1064); State v. Steeves, 29 Or. 85, 104 (43 Pac. 947); State v. Yee Gueng, 57 Or. 509, 512 (112 Pac. 424); there was no attempt to show the bad character of the witness. No unsworn or prior declarations of the witness were admitted. No substantive evidence was received in that manner. These are the shoals to steer clear of in such matters: Wigan v. La Follett, 84 Or. 488, 496 (165 Pac. 579). None of the fatal results followed. It served as in the nature of a leading question to the witness tending to bring out the truth: State v. Deal, 43 Or. 17 (70 Pac. 534). There was no reversible error in permitting such examination.

2-5. The most serious contention of the defendant is that: The state was allowed on rebuttal, to offer evidence that the defendant had been guilty of an independent crime. Luigi Beggi was a witness for the state. He was recalled as a witness on rebuttal, and testified through an interpreter, as follows:

“Q. Ask him if he knows anything about the time Bosa got a revolver and was going to kill his uncle?”

The defendant objected to this as irrelevant, immaterial, and not in rebuttal of any issue in this case, the objection was overruled and the exception allowed and the witness answered, “Yes, sir.”

“Q. Ask him to tell the jury about that.

“A. Yes, Davy’s brother was cleaning land, and1 Bosa came up and told him, Bosa said if he would not take back the words he said she would shoot him.”

There is nothing in this testimony or in the objection thereto, to attract the attention of the trial court to the fact that it was the intention of the district attorney to elicit evidence pertaining to any other crime than that charged in the indictment, or that the witness referred to any threat made by the defendant except against the decedent. In other words, it does not appear that the decedent, Joe Merlo, was not an uncle, or a so-called uncle, of the witness, Luigi Beggi. The testimony interpreted from Italian to English is difficult to understand. As near as we can tell from a careful examination of the evidence, the witness Beggi understood that' the question objected to referred to Bosa Merlo’s uncle although the gender does riot so indicate. It would seem as though the mind of the trial court should have been directed to the objection to the evidence as now made. The objection plainly goes to the introduction of the evidence upon rebuttal: See State v. Goddard, 69 Or. 73 (133 Pac. 90, 138 Pac. 243, Ann. Cas. 1916A, 146); Hoag v. Washington-Oregon Corp., 75 Or. 588 (144 Pac. 574, 147 Pac. 756, 760, par. 6); Filkins v. Portland Lumber Co., 71 Or. 249 (142 Pac. 578, 579); Shandrew v. Chicago, St. P. M. & O. R. Co., 142 Fed. 320 (73 C. C. A. 430). The specific objection to evidence that it was not proper rebuttal waives any other objection and no other objection should be considered on appeal: Ladd & Bush v. Sears, 9 Or. 244; Hildebrand v. United Artisans, 50 Or. 159, 166 (91 Pac. 542). It would seem unnecessary to observe that before this court can review a ruling of the trial court, such ruling must be made. To suggest the application of'the principle is sufficient. It is also complained by defendant that the state was allowed to introduce evidence of other threats by the defendant on rebuttal. The state called in rebuttal one Mike Partipillo, who testified as to threats made by defendant to kill the decedent.

The witness Partipillo testified that upon an occasion at the Good Samaritan Hospital when other people were present he heard Eosa Merlo make certain threats against her husband. These threats had already been testified to by other people who were there at the hospital at the time, on the state’s direct case. Partipillo’s testimony was merely cumulative. He had been subpoenaed and it was his duty to have been in court at a time when his testimony could have been taken while the state was engaged in putting in its case in chief, but he' was not present. He did not arrive in court until the prosecution was engaged in putting in its rebuttal. His testimony was objected to upon the ground that it was not proper rebuttal. When this objection was made the district attorney stated to the' court:

“We intended to pnt this witness on in the direct case hut he didn’t get out on the train and we rested our case without him.”

Upon the statement of the district attorney, the objection was overruled and the court allowed his testimony to be taken.

Mrs. Martha Hansen, a witness for the state, testified in effect that she had met the defendant getting off the train at the station of Santa Rosa a short time before the murder and that at the time the defendant got off she appeared to be in an intoxicated condition. The objection of the testimony is as follows:

“Object as irrelevant, immaterial and incompetent and not proper rebuttal, and the witness has not shown sufficient qualifications to be able to testify.”

This is practically the same objection as that made when Beggi was recalled. These objections can only be considered on the ground that it is not proper rebuttal. Therefore, all of this testimony introduced upon rebuttal may be considered at the same time. The order of the introduction of the evidence is within the sound discretion of the trial court. Section 1538, L. O. L., provides:

“Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right.”

Under this section a deviation from the mode prescribed by the Code would not be a ground for a reversal unless it appear that the substantial rights of the defendant have been prejudiced: State v. Remington, 50 Or. 99, 102 (91 Pac. 473); State v. Walton, 50 Or. 142, 152 (91 Pac. 490, 13 L. R. A. (N. S.) 811); State v. Gulliford, 76 Or. 231 (148 Pac. 876); Article VII, Section 3, of the Constitution.

6. The permission for recalling the witness Beggi to the stand and receiving the testimony of the witnesses Partipillo and Hansen were matters within the sound discretion of the trial court. And in the absence of an abuse of such discretion, we do not feel authorized to disturb the ruling: Section 862, L. O. L.; State v. Robinson, 32 Or. 43, 51 (48 Pac. 357); State v. Isenhart, 32 Or. 170, 173 (52 Pac. 569); State v. Goff, 71 Or. 352 (142 Pac. 564).

7. Error is predicated upon the instruction of the court to the jury that, “a witness shown to be false in one part of his testimony is to be distrusted in others.” Section 868, L. O. L., subdivision 3, requires the court to instruct the jury on all proper occasions:

‘‘That a witness false in one part of his testimony is to be distrusted in' others.”

It is not necessary that the court should add the word “willfully” to the language of the statute. The word “falsely” as used in the statute, providing that if a witness is found to have sworn falsely in any material part of his testimony he is to be distrusted in others, is not of the same import as mistakenly, and the phrase as used in the statute is of the same meaning as though the word “willfully” were used: State v. Meyers, 59 Or. 537, 545 (117 Pac. 818); State v. Goff, 71 Or. 352, 364 (142 Pac. 564); People v. Righetti, 66 Cal. 184 (4 Pac. 1063, 1185). There was no error in giving this charge in the language ,of the Code.

8. An extended examination of the testimony is necessary in order to determine whether or not the exceptions taken upon the trial of the cause and now assigned as errors, constitute sufficient ground for a reversal of the case. After such an examination, and waiving the form and substance of the objection as to evidence of an independent crime, we are of the opinion that the judgment of the lower court should be affirmed; that a remand of the case and a retrial thereof, upon substantially the same testimony would produce the same result. There can be no question but that the amendment of Article VII of the Constitution in 1910 changed, or at least accentuated the law as it stood before in regard to prejudicial errors, in favor of an affirmance of a judgment, unless actual prejudicial error appears.

Finding no reversible error in the record, the judgment of the lower court is affirmed. Affirmed.

McBride, C. J., and Moore and Harris, JJ., concur.