| Or. | Feb 11, 1890
The main question sought to be litigated, by the appellant on this appeal is that the trial court permitted the district attorney to propound to him the foregoing questions on his cross-examination, and that they related to matters not testified to .by him in chief. I am inclined to think that these questions do not fall within the objections successfully urged in State v. Lurch, 12 Or. 102, and State v. Saunders, 14 Or. 302. The defendant had testified that he wagered $100 at the game. Whether he did so was a question for the jury, and if by his cross-examination the State could make it appear that what he did in fact wager was of no value it would tend to contradict him, and I think would be legitimate cross-examination. But however this may be, the state of this record renders the consideration of that question immaterial in this case. The record is silent as to what answers, if any, the defendant made to those questions. In such case I do not think we can infer that he answered the questions, or that he was prejudiced by his answers. We have held several times, where the trial court refused to allow á witness to answer, and the record failed to disclose what answers the witness was expected to give, that no question was presented for review in this court. Kelly v. Highfield, 16 Or. 277; Tucker v. Constable, 16 Or. 409. And for the like reason I think where it is claimed that the court improperly required a witness to answer a question, before we could be called on to review that ruling the substance of the answer ought to appear in the record, so that we might be able to determine whether the appellant was prejudiced by the evidence or not. We cannot presume error. It must affirmatively appear. (2) What Barry testified to was properly in rebuttal of the defendant’s evidence in chief. It was a circumstance somewhat remote, it is true, but its tendency was to connect the defendant with the Confederate currency and the Brazilian note at the very time he was claiming to have wagered $100 with the prosecuting witness.. And his concealment of this money was a fact which the jury might properly consider in cónnec
There being no error, we cannot do otherwise than affirm the judgment.