475 P.2d 63 | Or. | 1970
This is an action for assault and battery arising from an altercation in the restaurant of a Portland hotel. Defendant appeals from a judgment for plaintiff in the sum of $4,000 general damages and $5,000 punitive damages.
Defendant’s principal contention on appeal is that the trial court abused its discretion in permitting plaintiff to reopen his case after the defendant and his witnesses had testified, by calling a further witness who defendant claimed to have been in the courtroom and available to plaintiff at the end of his opening case. Defendant charges that plaintiff “purposely withheld this eye witness in order to surprise defense counsel after presentation of the defense and to leave the jury the final impact of having his theory corroborated.”
“It is well established that the reopening of a case at any time for the introduction of additional evidence rests in the sound discretion of the trial court, the exercise of which will not be disturbed unless a manifest abuse has occurred.”
On the other hand, we agree with defendant, as held in Parmentier v. Ransom et al, 179 Or 17, 169 P2d 883 (1946), at p 21, that “to permit a plaintiff, after resting his case, to add to his proof, is a practice not to be encouraged.” In that case, however, this court sustained the trial court in permitting the plaintiff to reopen his case, holding that to do so was not an abuse of discretion under the facts of that case.
It is true that the witness in controversy in this case testified on cross-examination that he had been in the courtroom when plaintiff testified and, apparently, when plaintiff rested his opening ease that morning, although this is not entirely clear. He also testified that he had been instructed by plaintiff’s attorney to be present in court that afternoon so as to hear the testimony of defendant’s witnesses, but that he did not do so, apparently because he was afraid of one of defendant’s witnesses, and that he was later called by plaintiff’s attorney at his home late that afternoon.
Plaintiff’s attorney, however, stated to the court that although he had not subpoenaed this witness, the witness had promised to “be here” that morning; that at the end of plaintiff’s case the witness had “disappeared” and could not be found by him in the courtroom so as to be available to testify at that time.
As for defendant’s further contention that the trial court erred in failing to instruct that the jury might consider the criminal record of that same witness and that the giving of the “statutory” instructions is mandatory, it is sufficient to point out that this is not one of the “statutory” instructions under ORS 17.250 and that, in any event, the giving of such instructions is not mandatory, but is discretionary.
Accordingly, we find that defendant’s assignments of error are without merit.
Affirmed.
Defendant cites Kern v. Pullen, 138 Or 222, 6 P2d 224 (1931), as holding, at p 224, that statutory instructions are mandatory in both civil and criminal cases. That holding was reversed in Fitze v. American-Hawaiian Steamship Co., 167 Or 439, 449, 450, 117 P2d 825 (1941).
Cf. State v. Yates, 239 Or 596, 599, 399 P2d 161 (1965).