Rhodes v. Harwood , 273 Or. 903 ( 1975 )

BRYSON, J.,

concurring.

I concur with the majority opinion because I feel that the facts in State v. Derryberry, 270 Or 482, 528 P2d 1034 (1974), are distinguishable from those in the case at bar. As pointed out in the majority opinion,

a# * # even jf Lorren Harwood had attempted to testify that his mother had gotten crazy and took a shot at somebody and that they had probably gotten rid of the gun through Mickey,’ that testimony would have been inadmissible either as hearsay or for lack of firsthand knowledge — at least insofar as it related to the shooting incident —because Lorren Harwood was not present at that incident and could only have been told about it by some other unknown person.”

In Derryberry the witness, Joel Clark, whose testimony the state, wished to impeach, was, present in the defendant’s trailer home. He personally knew of the furniture in defendant’s trailer home, which furniture the state claimed was stolen by defendant. He testified as to, what the defendant had told him: that “defendant had told him he had obtained the goods by purchase or trade.” Also, the impeaching testimony from the officers that “he told them that defendant had told him on January 26 that he had ‘ripped off’ the furniture the previous day” is an admission of the defendant and speaks to personal knowledge.

Therefore, in Derryberry Clark’s testimony would have been admissible if made while testifying as a witness pursuant to Buie 63(1) of the Proposed Uniform Buies of Evidence. In the case at bar, as stated by the majority, Lorren Harwood’s testimony would not be admissible as he had no firsthand knowledge of the shooting incident and he did not testify that- his mother, the defendant, had told him of the incident or of giving the gun to his brother, Mickey.

Buie 63(1) of the Proposed Uniform Buies of Evidence states:

“Hearsay Evidence Excluded — Exceptions. Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:

“(1) Previous Statements of Persons Present and Subject to Cross Examination. A statement previously made by a person who is present at the hearing and available for cross examination with respect to the statement and its subject matter, provided the statement would be admissible if ■made by declarant while testifying as a witness; * * (Emphasis supplied.)

Lorren Harwood’s statement, as testified to by witness Zoller, would not be admissible if he were so testifying because he had no knowledge of the incident and his mother, the defendant, had not made a statement to him.

Therefore, the testimony was erroneously received in the case at bar as it does not qualify under Uniform Buies of Evidence, Buie 63(1). For this reason I would reverse and remand.