113 P. 440 | Or. | 1911
delivered the opinion of the court.
The contention of defendant’s counsel is that a witness cannot be impeached by showing a prior conviction for violating a city ordinance, for the reason that such an offense is neither a felony nor a misdemeanor within the meaning of Section 863, L. O. L., while counsel for the State claim the reverse. The statute referred to provides that a witness may be impeached by the party against whom he is called by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief, but not by evidence of particular wrongful acts, except it may be shown by the examination of the witness, or the record of the judgment that he has been convicted of a crime. Crimes are either felonies or misdemeanors. Section 1370, L. O. L.
In State v. Bacon, 13 Or. 143 (9 Pac. 393: 57 Am. Rep. 8), this court held that it is proper to show by an examination of a witness that he has been convicted of either a felony or misdemeanor, and the record may be introduced to prove such fact. Also, under Section 1534, permitting the accused to be a witness in his own behalf, and Sections 863, 870, a witness may be impeached by showing a prior conviction of crime, and the accused, as a witness in his own behalf, may be impeached in the same manner as any other witness. State v. Deal, 52 Or. 570 (98 Pac. 165.) In the case of Portland v. Erickson, 39 Or. 1 (62 Pac. 753) relied upon by counsel for the State in this cause, it was ruled in effect that a prosecution for violation of a city ordinance was an offense within the inhibition of Section 12, Article I, of the State constitution, which provides that no person shall be put in jeopardy twice for the same offense, but it does not follow
In Arhart v. Stark, 6 Misc. Rep. 579 (27 N. Y. Supp. 301), a civil case, under a statute providing that a prior conviction for a crime or misdemeanor might be proved for the purpose of affecting the weight of a witness’ testimony, the ruling was that admitting the evidence of a judgment of the municipal court of Buffalo, convicting defendant of keeping a house of ill fame in violation of a city ordinance was reversible error. By the terms of the penal code of that state the offense was punishable by criminal procedure. A collation of authorities upon the law relating to the proof of crime for the purpose of affecting the credibility of a witness is found in Koch v. State, 126 Wis. 470, 478 (106 N. W. 531, 534: 3 L. R. A. (N. S.) 1086, 1089), where, after an elaborate discussion, Mr. Justice Kerwin observes:
“We are therefore forced to the conclusion upon principle and authority that the term ‘criminal offense,’ within the meaning of Section 4073, Rev. St. 1898, includes misdemeanors as well as felonies, but that conviction under a municipal ordinance is not a conviction of a criminal offense within the meaning of such statute.”
See, also, Coble v. State, 31 Ohio St. 100; Stoltman v. Lake, 124 Wis. 462 (102 N. W. 920). No offense is a crime which does not violate the law of the land: People v. Manistee Co., 26 Mich. 423; Northville v. Westfall,
The Constitution of Oregon, (Section 23, Article IV, subd. 2), makes provision that in criminal laws there shall be uniformity. Hence it is obvious that the power to pass general criminal laws was not delegated to* the city of Portland by its charter, under authority of which the ordinance referred to was enacted. This renders it unnecessary to consider the language of the charter authorizing the enactment of the ordinance. The ordinance under which the criminal proceedings were brought is unquestionably not a general criminal law of the State, but a local law, and an infringement of its provisions is necessarily punished iri a summary manner. A conviction under a municipal ordinance, therefore, is not a conviction of a crime within the meaning of Section 863, L. O. L., providing the manner of impeaching a witness.
Admitting the evidence of the record of convictions as without doubt prejudicial to the substantial rights of the defendant, it follows that the judgment of the lower court must be reversed, and a new trial granted; and it is so ordered. Reversed.