253 P. 371 | Or. | 1927
Taking up the first assignment, we are clearly of the opinion that the evidence of the witnesses in regard to defendant's apparent state of intoxication is admissible: Underhill on Evidence (1 ed.), p. 168; 16 C.J. 759. In AmericanBauxite Co. v. Dunn,
"Whether a person is drunk or sober, or to what extent he is affected by intoxication is frequently determined by the direct answers of those who have seen and know the person than by their description of his conduct. Whether a person is drunk is a question which a person, not an expert is competent to answer as this is something which may fairly be considered as a matter of common knowledge. It is generally held that a person may state whether a certain person is intoxicated or had that appearance at a given time. The witness, in effect describes the facts, *656 when he gives his opinion as to the intoxication of a person whom he knows and has observed at a particular time. A witness may not be able to detail everything he has observed about a man which caused him to believe him to be drunk and yet may characterize the acts of a person whom he knows and observes such as to lead him to the opinion that he was or was not drunk at a particular time."
In the latter case, the annotations cite a multitude of decisions amply supporting the conclusion arrived at in the opinion, and we are of the opinion that the objection to this testimony was not well taken.
It is objected that the court erred in admitting in evidence the testimony of Mr. and Mrs. Kegel, taken in shorthand, at the preliminary hearing, the principal ground of objection being, it was not sufficiently shown that they were absent from the state at the time of the trial in the Circuit Court. The quantum of evidence necessary to show such absence is largely within the discretion of the court and its ruling should not be disturbed except for an abuse of such discretion: State v. Edmunson,
Prior, however, to the introduction of this testimony, the sheriff of Lane County testified that these absent witnesses were tourists; that they were reluctant to remain in Lane County so as to be present as witnesses at the trial in the Justice's Court the day following the arrest; that they were served with subpoenas to insure their appearance; that immediately after the trial in the Justice's Court he had a conversation with them in which they advised him that they were on their way to Pennsylvania; that from Eugene they were going to meet a friend in Portland, then *657 proceed to Philadelphia, Pennsylvania, and did not then intend to return to Oregon.
The whole testimony shows that these parties were merely tourists passing, for a temporary purpose, through the state to their home in Philadelphia, and without any intention of prolonging their stay or returning. This information was gained from their own declarations, which, under the circumstances, rise from the condition of mere hearsay to the dignity of verbal acts and was admissible.
In the annotations to the case of Smith v. State,
We think the court was fully justified in the case at bar in assuming that the witnesses were beyond the jurisdiction of the court, and in allowing their testimony to be related by the stenographer who took it down. An objection was made to the stenographer reading the testimony from her shorthand notes, whereupon she was permitted to use these notes to refresh her memory, and in this way the testimony was practically reproduced. While we think the court's ruling went to the very verge in favor of the defendant, we are sure that there was no error to his prejudice and that the defendant had a fair trial. The judgment is therefore affirmed.
AFFIRMED. *658