State v. Deal
41 Or. 437
Or.
1902
Check Treatment
Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

The foregoing statement presents the only alleged errors relied upon for reversal. They involve but a single question, namely, was there a proper foundation laid for the impeachment of the prosecuting witness, Rowland? If there was, as respects either of the witnesses Brewer or Hopper, there was error for which a new trial should be awarded, and of this we will now inquire. Preliminarily, it is insisted that the subject-matter of inquiry is wholly irrelevant and immaterial to any issue in the case, and could not, therefore, form a basis for impeachment.

*4411. It is legally true that, when a matter immaterial and wholly irrelevant to the issue shall have been elicited from a witness, it concludes the party examining him; and he will not thereafter be permitted to impeach him by evidence showing that he has at other times made statements at variance or in disparagement of the testimony then adduced. This, however, does not extend to incompetent testimony merely because it is so, unless it may be said at the same time to be immaterial and. irrelevant: Josephi v. Furnish, 27 Or. 260 (41 Pac. 424). But the testimony elicited from Rowland was not only competent, but perfectly relevant, and altogether material. There was an issue raised as to whether the defendant had not traded for or purchased the animal in question from Rowland, who was the owner at the time of the alleged theft. Rowland’s attention was then called to the matter, and he testified positively that he did not trade either of the J D horses, or the animal in question, to the defendant. Now, it was with relation to this testimony that the attempted impeachment was pursued, and the effort was to show that the witness had at other times made statements inconsistent therewith. The testimony was, therefore, not foreign to any issue in the case, but altogether competent, pertinent, and relevant.

2. It is a statutory rule that a witness may be impeached by evidence that he made at other times statements inconsistent with his present testimony; but, before this can be done, the statements must be related to him, with the circumstances of time, place, and persons present, and he shall be asked whether he has made such statements or not, and, if so, allowed to explain them: Hill’s Ann. Laws, § 841. This is but declaratory of the common-law rule, and the purpose of requiring the observance of the formality prescribed is for the protection of the witness, to give him an opportunity of recalling the facts and correcting the statements when immediately brought to his attention. When, however, the statements are called to his mind, together with such circumstances of time, place, and persons present as to enable him to readily understand the particular statements alluded to by the questioner, and he then *442denies making any, or attempts to qualify them, other persons having knowledge of the fact may be called to contradict him: Sheppard v. Yocum, 10 Or. 402; State v. Welch, 33 Or. 33 (54 Pac. 213); State v. Bartmess, 33 Or. 110 (54 Pac. 167). Now, as it pertains to the statement or admission made to Brewer, Rowland denied it in toto: He recalls, however, that he was with Brewer at the place designated, but is not certain as to the time, thought it was in the fall; and that another person, one Hombeck, was also present. So that he does not agree in his recollection entirely as to the circumstances indicated by the interrogator. But this is because he remembers them differently, or does not care, for some reason, to state them truly. This circumstance does not, in any sense, stand in the way of laying a proper foundation for impeachment, the essential conditions being that the witness’ attention be so definitely attracted, in. the manner designated, to the exact conversation or statement supposed to have been had or made that is in the mind of the questioner, so as to give him an opportunity to affirm or deny, or to explain by relating it as his memory bears him out. We think the foundation Avas well laid, for the impeachment by the testimony of the witness Brewer, whose attention Avas directed to the cirucmstances of time, place, and persons present in like manner as Rowland’s attention was called thereto, and he was asked Avhether or not Rowland had stated to him, in the supposed conversation, that he had traded his tAvo J D horses to defendant, Deal, or Avords to that effect, and he Avas not allowed to ansAver. This was followed by an offer to prove the statement in a little different form, which, if objectionable, was afterAvards cured by an offer to show by the witness that the statement was made to him by Rowland in the identical language employed in the interrogation addressed to the latter.

3. The attempted impeachment by Cleve Hopper has, perhaps, not so good a basis. He Avas asked, touching the supposed conversation, whether Rowland stated that he had traded four horses to Mr. Deal, instead of three. If permitted to answer, however, it would have had some tendency to im*443peach Rowland touching the matter in issue, and should have been allowed to go to the jury. We do not desire to be understood as holding that the matters offered to be proved by witnesses Brewer and Hopper were, in any sense, substantive evidence, admissible for the purpose of showing title in the defendant, but have considered only the question as to whether the proper foundation had been laid for the impeachment of the witness Rowland. It was very important to the defendant that he should have been allowed to discredit the only witness who was in a position to dispute his contention that he had traded for the horse, and was, therefore, the owner at the time of the alleged larcenous taking; and he was entitled to have the testimony go to the jury for their consideration in arriving at a verdict. The judgment must, therefore, be reversed, and remanded for a new trial. Reversed.