| Or. | Jul 15, 1879
By the Court,
This is an appeal from a judgment in a criminal case. The appellants were jointly indicted for the crime of larceny for stealing five hundred dollars from S. B. Wallace by means of a fraudulent trick or device called the Kentucky Lottery. They were jointly tried, convicted, and sentenced to the penitentiary for the term of ten years.
The appellants sought to impeach the witness Wallace by showing that he had made at another time statements inconsistent with his testimony on the trial, and to lay the foundation for this, asked him the following question: “Between the time you lost your money and the time you went out to Forest Grove, were you not on the streets of the city of Portland, with L. Besser, Chief of Police, looking for the men that got your money, and did you not see McDonald, one of the defendants, on the street, and did not L. Besser point McDonald out to you and ask you if he was the man that got your money, and did you not then and there say to L. Besser, ‘ No, he is not the man—he don’t look like the man—the man that got my money was of a sandy complexion ? ’ or words to that effect ? ” And the said Wallace then and there answered said cross-question and said, “No, I never told Besser so, I did not tell Besser that McDonald was not .the man that got my money.”
This ruling of the court is assigned as error.
The code provides that “ a witness may be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statement must be related to him, with the circumstances of times, places, and persons present; and he shall be asked whether he has made such statements, and if so, allowed to explain them.” (Code, 274, sec. 831.) This was the common law rule as laid down in Greenleaf and other works on evidence. (1 Greenl. on Ev. 462, note 1.) The question propounded to the witness was indefinite as to the circumstances of time, place, and persons present, and was properly overruled by the court. (16 Cal. 177.)
After conviction, the appellants, by their counsel, filed a motion for a new trial, on the ground that W. L. Higgins, one of the jurors who tried the case, was not a citizen of the United States, and therefore not a competent juror. This motion was based upon the affidavit of McDonald, one of the appellants, to the effect that he had been informed that said Higgins was an alien and had never been naturalized; that said information came to him after the case had been submitted to the jury. The motion was resisted on the affidavit of said Higgins, which is to the effect that he
The motion for a new trial was overruled, to which ruling of the court the appellants excepted and assign here as error.
This motion, being based upon matters dehors the record, was addressed to the sound discretion of the court below and can not be assigned and reviewed on appeal. The code provides that “ after hearing the appeal the court must give judgment without regard to the decision of questions which were in the discretion of the court below.” (Crim. Code, p. 371, secs. 245-6.) This court has heretofore ruled to this effect in several cases. (State v. Fitzhugh, 2 Or. 228; State v. Wilson, 6 Or. 428" court="Or." date_filed="1877-12-15" href="https://app.midpage.ai/document/state-v-wilson-6893792?utm_source=webapp" opinion_id="6893792">6 Or. 428.)
This is sufficient to dispose of this appeal on this point, but we will further say that, whether Higgins was a competent juror or not, it was too late to make that objection after the trial. It was waived by failing to challenge at the proper time. It was claimed in the argument that this being a criminal case the accused should waive nothing. Upon this proposition they cited Geyhowski v. The People, 1 Scam. 476. That case was afterwards overruled and held by the same court not to be good law in the case of Chase v. The People, 40 Ill. 354.
Finding no substantial error in the record, the judgment is affirmed.