State v. Lee

79 P. 577 | Or. | 1905

Mr. Justice Bean

delivered the opinion of the court.

The defendant was tried and convicted of the larceny of a calf, the property of one Dennis. From the judgment sentencing him to the penitentiary he appeals.

1. Dennis was a witness for the State, and gave material testimony tending to support the theory of the prosecution. On cross-examination he was asked, “Your feelings have not been good.toward him (the defendant) ?” and replied, “No.” He was' then asked, “You and Mr. Boyd are known to be the enemies of Mr. Lee?” and answered, “I don’t know how it is known. Q. What is the fact about it ? A. I don’t bear him any ill will, only it is the general supposition up there”— Here objection was made to the witness further answering the question, but it was'overruled, and he continued: “That Mr. Lee has been getting away with cattle. There has been a good many cattle missing up there for years, and for that reason I have no particular friendship for him, or any one else that is in that kind of business.” A motion was made to strike out all the testimony of the Witness after the words “ill will,” but it was overruled, the court saying, “I think he has a right to explain why.” These rulings were erroneous, because the evidence objected to tended to show the commission by the defendant of crimes other than the one charged against him, or to prove his general bad character. Proof of the commission of a crime unconnected with that alleged in the indictment or information cannot be given against a defendant: State v. Baker, 23 Or. 441 (32 Pac. 161); State v. O'Donnell, 36 Or. 222 (61 Pac. 892); State v. McDaniel, 39 Or. 161, 173 (65 Pac. 520).

2. Nor is evidence of defendant’s general reputation or bad character admissible until he has himself put his character in issue: Wharton, Crim'. Ev. § 64.

3. It is argued by the State that the testimony objected to was the legitimate result of the cross-examination, and merely tended to explain the grounds of the feelings or bias of the witness toward the defendant. The hostility of a witness to the party against whom he is testifying affects his credibility, and the extent thereof is a proper subject of cross-examination. When such examination discloses that the witness is biased or hostile to the party against whom he is testifying, he has a right to state, without entering into particulars, the grounds of such bias or ill will: State v. Warren, 41 Or. 349 (69 Pac. 679); Ellsworth v. Potter, 41 Vt. 687; Fincher v. State, 58 Ala. 215. But here the witness denied that he had any ill will or bias toward the defendant, except such as might arise from the general supposition that he had been committing other crimes. The evidence did not go to .an explanation of the personal feelings of the witness. Its manifest tendency was to show the general reputation of the defendant, and not to explain the ill will or bias of the witness.

Judgment reversed, and new trial ordered. Reversed.