State v. Fitzgerald

McBRIDE, C. J.

We think the court erred in permitting counsel for the state to bring into court the dummy cow, the presence of which was objected to by defendant’s counsel. The custodian of exhibits G- and H was properly the clerk of the court, and nobody else had any business with them unless designated by the court as their custodian. In the form in which they were produced they constituted, to a certain extent, new testimony. Counsel, in any event would have the right to cross-examine the witness performing the taxidermic operation as to the method in which the pieces of hide were put together to produce the similitude which was brought into court, whether by stretching the hides to make them meet, or by drying them so as to leave a ridiculous hiatus between the neck and the body part of the hide, which might tend to show, on observation, that it was impossible that all of the neck hide was present. It is possible that such an operation, performed in the* presence of the jury, might not have been erroneous, but for unauthorized persons, connected with the 'prosecution either as witnesses or otherwise, to take such a liberty with the exhibits, then to bring them before the jury when counsel for the defendant had had no opportunity to cross-examine, was a dangerous liberty which should not have been exercised, and the effect of it upon the jury might have been sufficient to turn the scale from a verdict of acquittal to a verdict of guilty. One of the constitutional rights of an accused person is to meet his witnesses face to face and be tried upon the evidence as it is produced in court, and not upon evidence after it has been mutilated and manipulated by hostile parties, and when any right of this character is violated to the extent that it was in this case it remains only for this court to reverse the judgment. Under the circumstances detailed here the caution of the court to the jury to disregard the dummy came too late and did not cure the error committed by allowing the close inspection that had been made by the jury, especially after that impression had been “rubbed in” by saying in the presence of the jury, in substance, that in the court’s judgment the exhibition was not improper.

"We also think it was error in not allowing the witness O’Connor to answer the question propounded to him, set out above. Our statute very properly prohibits evidence of ownership of stock in certain cases except by showing properly recorded brands, and even makes it a misdemeanor for a person to use an unauthorized brand; but the question asked of the witness O’Connor was not directed to proving ownership, but to proving a particular fact, namely, that other persons in the vicinity branded upon the right ribs, which would have a tendency to indicate that, even if the brand had been cut out from that location on the alleged MO cow, it might have been the brand of some other party than the Warner Valley Stock Company. Nor would it destroy the efficacy of the evidence that the use of such brand was unauthorized and even in violation of the law, if it was the custom of other people in the vicinity, either authorized or unauthorized, to brand in the location where, apparently, a brand had been cut out. The evidence was relevant and should have been admitted.

There was no error in the court’s admitting evidence of the alteration of the earmark, under the circumstances in this case. There was evidence strongly tending to show that a brand placed upon the cow in question had been freshly cut out, presumably with a criminal design to obliterate, and that it had been cut from that portion of the animal where the MC people were accustomed to brand and had a right to brand. The record evidence also showed the fact that the Warner Valley Stock Company had a right to use the MC brand and to put it upon that part of the animal’s anatomy. The statute (Or. L., § 9168, as amended by Laws 1921, p. 264) provides that evidence of earmarks may be admitted in connection with the brand; that is, evidence of the brand. There was evidence of the brand, and record evidence of it, and some slight evidence tending to show that before its obliteration it might have been upon this cow. The statute is technically satisfied, which is all that was required, because, but for the statute, the evidence would have been clearly admissible, whether there was any brand upon the cow or not, and we are not disposed so to construe the law as to enable a person to exclude testimony by obliterating it when there is a good technical reason for its admission.

Other than the matters heretofore stated, the case was very carefully tried, and we find no other errors in the record. New and difficult questions were before tbe court and tbis will continue to be tbe case until tbe law in regard to marks and brands is revised in accordance with tbe dictates of justice and common sense. So far those framing tbe law bave, apparently in tbe supposed interest of a stock raising community, drawn tbe lines in regard to tbe admission of evidence so strictly as rather to injure than promote tbe protection of livestock; but with that we bave nothing to do, but must enforce tbe law as we find it, and, not infrequently, with reluctance.

For tbe errors herein referred to tbe judgment of tbe lower court will be reversed and tbe cause remanded for a new trial.

Reversed and Remanded.

Btjrnett, Rand and Coshow, JJ., concur.