173 P. 317 | Or. | 1919
Lead Opinion
In the examination of thq witnesses for the state, it appears some evidence crept into the record tending to show that at times defendant was in the habit of using intoxicating liquor. Louis Merlo, a witness for the state, being interrogated as to Quarrels between the decedent and the defendant, was asked through an interpreter and answered as follows:
“Ask him what they quarreled about?”
Ans. “Every time Bosie drank there was quarrels.”
Ques. “Every time Bosie drank there was quarreling?”
Ans. “Yes, sir.”
"When Letizia Partipillo, a witness for the state, was testifying and was being cross-examined by the attorney for the defense, the following questions were given and the following answers made. Beferring to the deceased, the following question was asked:
“Never drank?”
Ans. “We used to drink at the table a little wine but he was nev,er drunk here or in the old country.”
Ques. “And Bosie was always drunk?”
Ans. “Yes, sir, especially when she would go to Beaverton or Portland, or to her father’s house she would never come home until half-past 1 or 2 o ’clock after midnight.”
Ques. “And your father never got drunk?”
There was no objection to this testimony, and it is referred to as an introduction or foundation for some of the other evidence in regard to the use of intoxicating liquor by the defendant.
The defense was that the killing was> done in self-defense. Upon the trial of the case, the state called as a witness, one Luigi Beggi, who testified that he ate his meals with defendant and her husband; that the defendant and the decedent used to quarrel; that he
“Q. Do I understand you to say that you don’t know which one generally started the quarrel and when they quarreled?
“A. No.
“Q. You remember of being in the grand jury room, don’t you?
“A. Yes, sir.
“Q. When this case was being investigated, you remember that time?
“A. Yes, sir.
“Q. And the grand jury and myself being present, didn’t you at that time and place in the first part of November, I think it was, make this statement?
“A. Yes, sir, I know it.
“Q. All the time they had troubles, Eosa all the time, started, she started first. Sometimes Joe run outside sometimes. She drink too much.”
The defendant by her attorney objected as follows:
“I object to that as being apparently and' plainly an attempt to impeach their own witness, ’ ’ and added: “He has not testified to anything against the prosecution and he has simply failed to testify as strongly as was wanted and I do not think they can impeach their witness that way.”
These objections were overruled and exception allowed, and the examination by the district attorney proceeded.
“Q. Didn’t you say at that time and place?
“A. I think so.
“Q. You say you said that?
“A. Yes, sir.
“Q. Was it true? (This question was again objected to, but the objection was overruled and the witness answered), ‘I guess so.’ .
“Q. Was it not true?
“A. Well, that is true.”
“The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in Section 864. ’ ’
“Q. Ask him if he knows anything about the time Bosa got a revolver and was going to kill his uncle?”
The defendant objected to this as irrelevant, immaterial, and not in rebuttal of any issue in this case, the objection was overruled and the exception allowed and the witness answered, “Yes, sir.”
“Q. Ask him to tell the jury about that.
“A. Yes, Davy’s brother was cleaning land, and1 Bosa came up and told him, Bosa said if he would not take back the words he said she would shoot him.”
There is nothing in this testimony or in the objection thereto, to attract the attention of the trial court to the fact that it was the intention of the district attorney to elicit evidence pertaining to any other crime than that charged in the indictment, or that the witness referred to any threat made by the defendant except against the decedent. In other words, it does not appear that the decedent, Joe Merlo, was not an uncle, or a so-called uncle, of the witness, Luigi Beggi. The testimony interpreted from Italian to English is difficult to understand. As near as we can tell from a careful examination of the evidence, the witness Beggi understood that' the question objected to referred to Bosa Merlo’s uncle although the gender does riot so indicate. It would seem as though the mind of the trial court should have been directed to the objection to the evidence as now made. The objection plainly goes to the introduction of the evidence upon rebuttal:
The witness Partipillo testified that upon an occasion at the Good Samaritan Hospital when other people were present he heard Eosa Merlo make certain threats against her husband. These threats had already been testified to by other people who were there at the hospital at the time, on the state’s direct case. Partipillo’s testimony was merely cumulative. He had been subpoenaed and it was his duty to have been in court at a time when his testimony could have been taken while the state was engaged in putting in its case in chief, but he' was not present. He did not arrive in court until the prosecution was engaged in putting in its rebuttal. His testimony was objected to upon the ground that it was not proper rebuttal. When this objection was made the district attorney stated to the' court:
*687 “We intended to pnt this witness on in the direct case hut he didn’t get out on the train and we rested our case without him.”
Upon the statement of the district attorney, the objection was overruled and the court allowed his testimony to be taken.
Mrs. Martha Hansen, a witness for the state, testified in effect that she had met the defendant getting off the train at the station of Santa Rosa a short time before the murder and that at the time the defendant got off she appeared to be in an intoxicated condition. The objection of the testimony is as follows:
“Object as irrelevant, immaterial and incompetent and not proper rebuttal, and the witness has not shown sufficient qualifications to be able to testify.”
This is practically the same objection as that made when Beggi was recalled. These objections can only be considered on the ground that it is not proper rebuttal. Therefore, all of this testimony introduced upon rebuttal may be considered at the same time. The order of the introduction of the evidence is within the sound discretion of the trial court. Section 1538, L. O. L., provides:
“Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right.”
Under this section a deviation from the mode prescribed by the Code would not be a ground for a reversal unless it appear that the substantial rights of the defendant have been prejudiced: State v. Remington, 50 Or. 99, 102 (91 Pac. 473); State v. Walton, 50 Or.
‘‘That a witness false in one part of his testimony is to be distrusted in' others.”
It is not necessary that the court should add the word “willfully” to the language of the statute. The word “falsely” as used in the statute, providing that if a witness is found to have sworn falsely in any material part of his testimony he is to be distrusted in others, is not of the same import as mistakenly, and the phrase as used in the statute is of the same meaning as though the word “willfully” were used: State v. Meyers, 59 Or. 537, 545 (117 Pac. 818); State v. Goff, 71 Or. 352, 364 (142 Pac. 564); People v. Righetti, 66 Cal. 184 (4 Pac. 1063, 1185). There was no error in giving this charge in the language ,of the Code.
Finding no reversible error in the record, the judgment of the lower court is affirmed. Affirmed.
Rehearing
Beversed and remanded on rehearing July 1, 1910.
On Rehearing.
(182 Pac. 153.)
On petition for rehearing.
In Banc.
Rosa Reghitto Merlo shot and killed her husband Joseph Merlo on October 4, 1915. She was convicted of manslaughter upon an indictment charging her with murder in the second degree, and she appealed from the judgment pronounced by the court.
Joseph Merlo came from Italy to this country in March, 1907, and on June 29th following, he and the defendant, Rosa Reghitto, who is also an Italian, were married. At the time of the marriage she was about
The defendant and her husband were truck farmers, and they lived upon a tract of several acres of land which was owned by the defendant and is located near a railway station called Santa Rosa. David Reghitto lived near Beaverton, a town about two and a half or three miles distant from Santa Rosa.
Joseph Merlo took a wagonload of Vegetables to Portland and disposed of them during the morning of October 4,1915. The defendant went to Portland that morning on the train and arrived there “a little after 9.” She says that soon after her arrival she met her husband and that, upon noticing that she looked pale and sick, “he suggested that they go to Garbarino’s and take something and you will feel better”; and that they did go to Garbarino’s, where she took some Fer-net bitters. David Reghitto also went to Portland on the train on the morning of October 4th and arrived
Joseph Merlo reached home about 1 p. m. Three hunters came to the Merlo place early that morning and they were eating their lunch when Merlo arrived home with his wagon. Each of these hunters testified that Merlo was intoxicated when he returned home. The defendant says that when she came from the depot Louisa said that she thought that her father “has got some drink” and that “when he came home from Portland he was quarreling mad.” However, Louisa denies making this statement and asserts that her father was not under the influence of liquor. Pete likewise says that the decedent was sober when he came home.
In its case in chief, the state called Letizia Partipillo, Mary Guiso, Louisa and Louie, the four children of the decedent, Pete and three other witnesses who testified about frequent quarrels between the defendant and her husband and that the quarrels were always brought on by the defendant. When asked what they quarreled about, Louie Merlo stated: “Every time Rosie drank there was quarrels.” A number of witnesses swore that on various occasions they heard the defendant threaten to kill the decedent; some of these threats mentioned by the witnesses were made in the presence of the decedent while others were not made in his presence.
Louisa Merlo testified that when her father came into the house, after returning from Portland on October 4th, she prepared a meal for him, and that after eating “he went upstairs to bed.” According to the testimony of the defendant, when 'she reached the house she met and talked with Louisa and then went upstairs and changed her clothes. Her husband was lying on the bed asleep but awakened while she was
For appellant there was a brief over the names of' Messrs. Huston S'Huston, .and Mr. Harry T. Bagley, with oral arguments by Mr. Samuel B. Huston and Mr. Bagley.
For the State there was a brief and an oral argument by Mr. Edmund B. Tongue, District Attorney.
When presenting its. case in chief the state called Luigi Beggi as one of its witnesses. After having explained that he had been acquainted with and had worked for Rosa arid Joseph Merlo and that “they used to quarrel” he was asked: “Do you know what they quarreled about?” and his answer was “No.” The witness was next asked: “Who seemed to start
“Q. Do I understand you to say that you don’t know which one generally started the quarrel when they quarreled?.
“A. No.
“Q. You remember of being in the grand jury room, don’t you?
“A. Yes, sir.
“Q. When this case was being investigated? You remember that time?
“A. Yes, sir.
“Q. And the grand jury and myself being_present, didn’t you at that time and place, in the first part of November, I think it was, make this statement—
o “A. Yes; I know it— °
o ° “Q. ‘All the time they had trouble, Rosie all the time start it, she start it first sometimes Joe run away outside sometimes, she drink too much.’
' “Q. Didn’t you say at that time .and place—
“A. I think so.
“Q. You think you said that?
“A. Yes, sir.
“Q. Was it true?
“A. I guess so—
“Q. Was it or not true?
“A. Well, that is true.”
Professor Wigmore says that the “conception, that a party calling a witness must not even discredit him, was not enforced as a rule of law until a comparatively late period.” (2 Wigmore on Evidence, § 896.) This author gives an interesting account of the origin and growth of the rule and says that the enforcement of
’ Judicial decisions dealing with prior self-contradictions may be divided into three general classes: (1), Those which prohibit the use of prior self-contradictions for any purpose; (2) those which permit a party to direct the attention of his own witness to a prior self-contradiction, but at the same time refuse to permit proof of such prior inconsistent statement even though the witness denies having made the statement; and (3) those which permit a party to direct the attention" of his own witness to a prior inconsistent state
“The party producing a witness is not allowed to impeach his credit by. evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in Section 864.”
“After hearing the appeal the court must give judgment, without regard to the decision of questions which were in the discretion of the court helow, or to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”
Our Code expressly provides that “under special circumstances, making it appear that the interests of justice require it” the court may in the exercise of a sound discretion-permit leading questions to be asked on direct examination: Section 858, L. O. L.; State v. Ogden, 39 Or. 195, 202 (65 Pac. 449).
If it be assumed that Luigi Beggi was an unwilling witness and if the questions were asked for the purpose of refreshing the recollection of this unwilling witness, then the ruling of the trial court finds support in our own precedents as well as in parallel cases reported in other jurisdictions: Langford v. Jones, 18 Or. 307, 326 (22 Pac. 1064); State v. Bartmess, 33 Or. 110 (54 Pac. 167); State v. McDaniel, 39 Or. 161, 181 (65 Pac. 520); People v. Sherman, 133 N. Y. 349, 356 (31 N. E. 107); Arnold v. State, 5 Wyo. 439, 447 (40 Pac. 967); Territory v. Livingston, 13 N. M. 318 (84 Pac. 1021); People v. Kelly, 113 N. Y. 647, 651 (21 N. E. 122); Cady Lumber Co. v. Wilson Steam Boiler Co., 80 Neb. 607, 610 (114 N. W. 774); Smith v. State, 46 Tex. Cr. Rep. 267 (81 S. W. 936, 108 Am. St. Rep. 991, 1001). See, also, Sturgis v. State, 2 Okl. Cr. App. 362 (102 Pac. 57, 71); Stanley v. Stanley, 112
“Didn’t the whole row start over the fact he told Eosie before he was married that he had a lot of money?” “Didn’t he tell Eosie before he was married that he had a lot of money?” “And when Eosie found out that he didn’t have any money after they were married they had trouble from that time on didn’t they?”
In substance, “No” was the answer to each of the quoted questions. Continuing with the cross-examination the district attorney afterwards asked the following questions and the witness gave the following answers:
“Q. Didn’t you at that time tell Mr. Holsheimer that you had never seen Eosie and Joe quarrel?
“A. No; I didn’t speak to him; I just go around quick to find Eosie.
*706 “Q. And at that time and place didn’t you say to Mr. Holsheimer that Joe had come from the old country and he boasted of being a rich man?
“A. No.
“Q. And he didn’t have anything and that was the cause of most of the troubles or quarrels?
“Q. Did yon tell Mr. Holsheimer that or words to that effect?
“A. I never told Mr. Holsheimer.
“Q. Didn’t you tell Holsheimer that at that time?
“A. No, sir. Yon know yourself that — ”
Subsequently, George H. Holsheimer was called as a witness for the state in rebuttal, and he stated that at the time and place mentioned in the questions submitted to David Reghitto the latter stated to the witness “that Joe and Rosie could not get along, but they quarreled all the time, but that he never saw them quarrel”; and “that Joe came from the old country and boasted of being a rich man, but he didn’t have anything and that was the cause of most of the quarrels.”
The defendant contends that she made no attempt to show, by the witness David Reghitto, the cause of the quarrels, and that therefore it was not proper cross-examination for the state to inquire into the cause of the quarrels. The defendant admitted that she killed her husband; and hence as stated by the defendant in her printed brief:
“The great issue in the case of course, is as to whether or not the killing of the deceased by the defendant was justifiable.”
No person now living besides the defendant herself was present at the shooting. No person except Louisa and possibly Louie saw Rosa or Joe, prior to the shooting, at any time after the defendant arrived at the
Among the witnesses called by the state after thfe defendant had completed her case in chief was Mike Partipillo, a son-in-law of the decedent, who testified about going to the Good Samaritan Hospital in May, 1915, to visit Annunziatta Merlo, a sister of the defendant, and there, in the presence of Letizia Partipillo and Annunziatta Merlo, hearing the defendant say: “Some day I am going to blow Joe’s brains out.” Letizia Partipillo, a daughter of the decedent, was a
“The court has the right, rebuttal or no rebuttal, in the interest of justice, to allow the introduction of testimony that might throw any light on the case. We intended to put this witness on in the direct case but he didn’t get out on the train and we rested our case without him”;
—and, in the light of that statement, the court ruled that the witness could testify. Strictly speaking, the testimony was not proper rebuttal but was a part of the state’s case in chief. It is not claimed that Mike Partipillo had not been subpoenaed. His evidence was cumulative only. The defendant could not have been surprised at the testimony given by Mike Partipillo because both Letizia Partipillo and Annunziatta Merlo had previously testified that he was at the hospital when the alleged threat was made. It is apparent that the plaintiff did not offer the evidence as rebuttal, but upon the contrary, recognizing that it was not proper rebuttal, the district attorney in effect requested the court to reopen the case so that this evidence could be introduced as a part of the state’s case in chief. We think that we may fairly assume that the court treated the explanation of the district attorney as a request to reopen the ease. Viewing the ruling of the court as a permission to reopen the state’s case
“Q. Ask bim if his uncle — ask him if Davie is his uncle?
“A. No.
“Q. Ask him if he knows anything about the time Rosie got a revolver and was going to kill his uncle?
“A. Yes, sir.
“Q. Ask him to tell the jury about that?
“A. Yes; Davie’s brother was cleaning land and Rosie came up and told him — Rosie said if he should not take back the words he said she would shoot him.
“Q. Ask him if she got a gun after him?
“A. I didn’t see it. But he told me that she had it.
“Q. Did he see it?
“A. No, sir. My father was there.
“Q. Did Rosie tell you that?
“A. No, sir.”
There is but little evidence in the record referring to the relationship of Luigi Beggi, but we do read in the transcript, however, that Rosa Merlo in her testimony refers to “Louie Beggi” as “my cousin”; and hence if “Louie Beggi” is the same person as “Luigi Beggi” there is affirmative testimony that Joseph Merlo was not an uncle of Luigi Beggi. At any rate there is not one word of evidence to indicate that Joseph Merlo was an uncle of the witness; nor is it
The judgment is reversed and the cause is remanded for a new trial.
Concurrence Opinion
Concurring in Part. — I concur in the result announced in the opinion of Mr. Justice Harris. I also concur with his opinion as to the grounds upon which that result was reached, and agree a;s to what is said in regard to the impeachment of the witness,
As I understand it, the rule is well settled in this state and generally, that a party calling a witness, who simply says, in relation to a given matter, that “I don’t know” or that “I don’t remember” cannot impeach his own witness by showing that he has made statements at other times, that he did know, and has related facts favorable to the cause of the party calling him.
In Langford v. Jones, 18 Or. 307, 326 (22 Pac. 1064), Chief Justice Thayeb, delivering the opinion of the court, said:
“Section 838, Civil Code, permits the party introducing a witness to contradict him by other evidence, and to show that he has made at other times statements inconsistent with his present testimony; but that section does not allow the party to inquire about matters regarding which the witness has not given any testimony, or testimony of a weak a/nd unsatisfactory character, and then prove his statements made at another time in reference to such matters. The intent of the provision was to allow a party producing a witness who testifies adversely to him regarding some matter which directly affects the merits of the case, to impeach such testimony in the manner there pointed out. The object of the section was to prevent the party from being prejudiced by the evidence of his own witness. He may, of course, call his attention to any statements he may have made at other times, for the purpose of refreshing his memory, but he has no right to ask him about his having made some statement at another time, favorable to the party’s side of*714 the case, which the witness has given no testimony in regard to; nor, a fortiori, to prove what that statement was. The Code certainly did not intend to permit a party to get in testimony as a makeweight, in support of his cause of action or defense, by such a course; and that evidently is the character of the said statement. To allow a party, after calling him as a witness and failing to elicit from him any advantageous testimony, to prove that the witness at some other time and place had made statements favorable to the claim of the party, is a strange mode of securing proof. It would be a kind of evidence which I could not distinguish from hearsay. Counsel for appellant cited a number of authorities to show that such a course was not permissible; but I think that the bare statement of the proposition is a sufficient refutation of its correctness. If it were proper, a case could be made out many times by proof of what third persons had said; it would only be necessary to call the persons as witnesses and attempt to show by them the substance of the matter embraced in the statements, and having failed in that, then to prove what such persons had said at another time and place, when they were not under oath, and obtain the benefit of that as direct evidence of the fact. Such a construction would enable parties to employ as a sword what was intended as a shield. Instead of availing themselves of the benefits of the statutory rule in order to avoid the effect of damaging testimony given against them by a witness called to prove a fact in their favor, they could make use of it for the direct purpose of establishing the fact. It is enough to say that the legislature never intended by said provision of the Code to adopt any such absurdity.”
This opinion was quoted with approval by Mr. Justice Moore in State v. Steeves, 29 Or. 85 (43 Tac. 947), in a very carefully prepared opinion, in which that learned and careful Jurist adds:
*715 “The rule appears to be well settled that a party cannot impeach his own witness by showing he had made statements inconsistent with the testimony given at the trial, unless the testimony so given be material .and prejudicial to the interests of the party calling him.”
And in State v. Yee Gueng, 57 Or. 509 (112 Pac. 424), Mr. Justice King, delivering the opinion of the court, quotes both of the preceding cases with entire approval, and says:
‘“Applying the rule thus announced to the case in hand, it will be observed that the witness gave no testimony directly adverse, or prejudicial to the state. He was asked whether certain conditions existed, and the tenor of his responses was to the effect that he did not know, or could not furnish the desired information, * * it was merely testimony of a ‘weak and uncertain character’ such as adverted to in Langford v. Jones, and suggested in State v. Steeves * * Nor can the fact that the former statements were made under oath change the rule, for the accused in this case, although jointly indicted with Lem Woon, was not on his trial at that time, was not present when the statements were made, and had he been present would have had no opportunity to cross-examine the witness or to dispute his assertions.”
This is also the rule, as I read the reports, laid down generally, and almost universally, in the decisions of the courts of other states
In Commonwealth v. Welsh, 70 Mass. (4 Gray) 535, it appears from the statement of the case, that—
“The witness• testified with a great deal of reluctance, and showed a strong disposition to conceal the' facts which he knew, and evaded the questions put to him by the District Attorney.”
He was asked the following question:
*716 “Q. Did you not swear before tbe grand jury that you did know the defendant’s business, and that you did know where the defendant’s shop was situated * * ?
“The district attorney assigned no reason for putting the question, and the court gave no reason for allowing it, nor was their any explanation made by court or counsel.”
The court, by Shaw, Chief Justice, says:
“The evidence'of what the witness testified before the grand jury ought not to have been received. It bore upon no question pertinent to the issue. It was not to neutralize the effect of evidence given by the ■witness against the party calling him; for the witness had given none. It could only be to disparage the witness, and show him unworthy of credit with the jury, which was inadmissible.”
The Supreme Court of Kentucky in Saylor v. Commonwealth (Ky.), (33 S. W. 185, 186), says:
“Nor can a witness who fails to testify to substantive facts be ashed if he has not made statements to others out of court, that such facts exist, for the purpose of proving that he had made such statements, as that would transform declarations made out of court, and not under the sanction of an oath, into substantive testimony.
In Rickerson v. State, 106 Ga. 391, 392 (33 S. E. 639), the prosecution was for seduction. The defendant called a witness who, upon his examination, testified that he had never had intercourse with the female in question. Counsel for the accused then offered to impeach his statement, and the court said:
“While under our statute.' (Civil Code, 5290) a party may impeach a witness voluntarily called by him, where he can show to the court that he has been entrapped by the witness by a previous contradictory statement, yet this rule is not applicable where the tes*717 •timony of the witness is not prejudicial to such party. In such case the credibility of the witness is immaterial, as he has done no damage. The mere failure of a witness to testify to facts supposed to be beneficial to the party introducing him and which were expected to be proved by him does not come within the reason or policy of the rule.”
In Nathan v. State, 131 Ga. 48 (61 S. E. 994), the court approved the Rickerson. case and followed the same.
To the same effect is State v. Reed, 60 Me. 550; People v. Creeks, 141 Cal. 529 (75 Pac. 101); In re Dolbeer’s Estate, 153 Cal. 652 (96 Pac. 266, 15 Ann. Cas. 207); Commonwealth v. Bavarian Bluing Co., 26 Ky. Law Rep. 121 (80 S. W. 772).
In 40 Cyc. 2696, the rule is stated thus:
“The mere fact that a witness has failed to testify as expected does not warrant impeaching him by proof of prior statements in conformity to what he was expected to testify; but proof of prior contradictory statements of a party’s own witness is admissible only where the witness has given affirmative testimony hostile or prejudicial to the party by whom he was called; and in such case the proof must be confined to contradictions of the testimony of the witness which is injurious to the party seeking to impeach him.”
Indeed, the only exceptions to the universality of this rule seem to be a few cases where the court has failed to distinguish between the materiality of the testimony actually given by the witness in the same trial in which he is sought to be impeached, and the materiality of the proposed statements made by the witness, out of court, or in some other proceedings, where the adverse party had no opportunity to cross-examine.
It is well settled in this state that the party calling a witness vouches for his truthfulness and credibility: Chance v. Graham, 76 Or. 199 (148 Pac. 63); Sabin v. Kyniston, 81 Or. 358 (159 Pac. 69).
In this case the facts sought to be proved by the state from the lips of Beggi were that, in the quarrel between the defendant and the deceased, part of which he had witnessed, the defendant had “started the quarrel.” As to this the witness, who was called by the state, testified that “He did not know” as to that. He then testified as follows:
“Q. Do I understand you to say that you do not know who started the quarrel when they started to quarrel?
“A. No. * *
“Q. You remember being in the grand jury room, don’t you?
*719 “A. Yes, sir.
“Q. When this case was being investigated, you remember that time?
“A. Yes, sir.
“Q. And the grand jury and myself being present, didn’t yon, at that time and place in the first part of November, I think it was, make the following statement: ‘All the time they had trouble, yes, sir; I know it, all the time they had trouble, Eosa all the time started it, she started it first, some time Joe run away outside, some time she drink too much.’ ”
To this there was an objection that it was an attempt to impeach the state’s own witness, which objection was overruled by the court and the district attorney was permitted to proceed as follows:
“Q. Didn’t you say that at that time and place!
“A. I think so.
“Q. You think you said that?,
“A. Yes, sir.
“Q. Was it true
“A. I guess so.
“Q. Was it or not true?
“A. Well, that is true.”
I cannot agree that the effect of this testimony was not to impeach the witness, simply because other witnesses were not called for that purpose. Anything which tends to discredit a witness, either on account of his bias, inaccurate memory or untruthfulness, tends to impeach his testimony to that extent. It impeached Beggi, it seems to me, just as fully, to show by his own evidence, that he had made previous inconsistent statements, as it would to have called other witnesses to show the same contradictory statements. It would be the fact that he had made these contradictory statements, and not the manner of proving them, which would impeach the credibility of his testimony.
But here there were no safeguards, and from the record I do not think the contradictory statements were offered or received “to refresh the memory.” There was no statement of any such special or preliminary purpose, either by the district attorney or the court. The form of the question was suggestive of impeachment and was the form usually employed for laying the foundation for impeachment by other witnesses.. There was absolutely no foundation for refreshing the memory of the witness. No suggestion that the witness had forgotten, and no attempt to show that his memory of the transaction was fresh at the time of his testimony before the grand jury, which must have been over a month, and probably many months — possibly even years — after these quarrels he had been testifying about. He said he had worked for the Merlos several years — “a few days each year”— and it was during these years that these quarrels occurred.
The only express provision in our statutes for refreshing the memory of a witness at all is in the case of written memoranda, and in such case it is carefully provided that it must be made, “at the time when the fact occurred or immediately thereafter, or at any other time, lohen the fact was fresh in his memory Section 859, L. O. L. •
This question was squarely before the Supreme Court of the United States in Putnam v. United States, 162 U. S. 687 (40 L. Ed. 1118, 16 Sup. Ct. Rep. 923), which was a case on all-fours with this ease. There, a witness called by the government, had been asked:
‘ ‘ Q. Did he ever, at any time, tell you what he had done with these bonds?
“A. Not that I now recollect.”
Thereupon the attorney for the government stated:
“I propose to ask this witness a leading question, because I am taken by surprise at his answer after his testimony before the grand jury, and I wish to ask him if he did not testify to certain things before the grand jury.”
“Q. # * Do you not recollect that you testified before' the grand jury that when you discovered those bonds were gone, you went to Boston and learned that Mr. Putnam had them, and that he acknowledged to you that he had those bonds on the 3d of August? Did you not so testify before the grand jury?
“A. If it is a matter of record I suppose it is so. * *
“Q. I am asking if you did not so testify before the grand jury?
“A. If it is a matter of record, I do not dispute the record. # #
“Q. Let me refresh your recollection a little further. Did you testify before the grand jury that you said to him something about the bond, and he said, ‘Mr. Dorr, I will state to you, I am not going away?’
“A. Yes, sir, I did. * *
“ Q. And did he not say, ‘ I will get the bonds for you as soon as I can’?
“A. Yes, I can assent to that.”
The court held this was error, treating the evidence as covered by exactly the same rule, as if it had been a written memorandum, the court in an opinion by Mr. Justice White, now Chief Justice, saying:
“The very essence, however, of the right to thus refresh the memory of the witness, is that the matter used for that purpose be contemporaneous with the occurrences as to which the witness is called upon to testify. Indeed, the rule which allows a witness to refresh his memory by writings or memoranda, is founded solely on the reason that the law presupposes that the matters used for the purpose were reduced to writing so shortly after the occurrence, when the facts were fresh in the mind of the witness that he can, with safety, be allowed to recur to them in order to remove any weakening of the memory. * * It is well settled that memorandum are inadmissible to refresh the*723 memory of a witness unless reduced to writing at or shortly after the. time of the transaction and while it must have been fresh in his memory.”
See, also, Commonwealth v. Bavarian Bluing Co., 26 Ky. Law Rep. 121 (80 S. W. 772); Commonwealth v. Welsh, 70 Mass. (4 Gray) 535; Commonwealth v. Blood, 77 Mass. (11 Gray) 74.
It seems to me that this is the true rule, and is in entire harmony with the rule established by our statute, and by the common law, where the attempted refreshment of memory is by a writing.
Here, as we have seen, there was no such foundation — no suggestion of a purpose to refresh the memory. The form of the question was suggestive of impeachment. I cannot resist the conclusion, that the evidence was offered and received, as substantive evidence, for the purpose of impeaching the witness, and incidentally getting before the jury in the trial court the evidence given by the witness, before the grand jury, when the defendant was not present. This conclusion seems to me to be further strengthened by the manner in which the district attorney used the evidence after he had compelled the witness to admit that he had made the statements. He did not follow it up by asking, “What do you say now?” or “What is your memory now, after being refreshed, as to who did start the quarrel?” On the contrary, his form of questions was still directed toward impeachment.
“Q. Didn’t you say [that] at that time and place?
“A. I think so.
“Q. Was it true?
“A. I guess so.
“Q. Was it or not true?'
“A. Well, that is true.”
The rules of evidence are for the elucidation of truth, but they are also framed to protect the parties and to prevent the poisoning of the mind of the jury by hearsay testimony and declarations out of court. An honest witness (and the district attorney in this case vouched for the honesty of this witness) who is trying to tell the exact truth, may, when confronted with some hasty or inaccurate statement he has previously made, find himself very much embarrassed; and if he is threatened with the disgrace of impeachment, and happens to be ignorant or timid, and unable to explain himself, may, if he is cornered close 'enough by repeated questions, be willing, in sheer desperation, to answer “yes” to any question, if he thinks that answer will relieve him from the distressing situation.
In State v. Steeves, 29 Or. 85 (43 Pac. 947), it is said, by Mr. Justice Moore, in relation to the introduction of such evidence, that:
“Courts should carefully guard against its abuse, by the party producing the witness.”
I think, where a party desires to ask his own witness about contradictory statements, for the purpose of refreshing his memory, he should lay the proper
I also think, where the evidence is offered for such purpose, that the examination should stop, as to such statements, when the attention of the witness has been called thereto; and that the party calling him should not be allowed to make such hearsay statements substantive, by attempting to prove that they were true. Having refreshed the memory of the witness, he should then revert back to the original examination, and ask the witness to state the facts as he now remembers them.
In Trammell v. McDade, 29 Tex. 361, the court says:
“It is difficult to conceive of a more objectionable form of putting a question to a witness, than is present in this case. His previous deposition is set out, * * and the substance of the last interrogatory is to know if the first answers were true according to the recollection of the witness, at the time of giving the first answers, and the witness answers that the answers first given were true, according to his recollection at that time. The deposition was properly excluded. The witness does not'propose to give his recollection at the time of testifying, except by reference to the first deposition, and his belief that his first answers were true when made.”
In short, it seems clear to me that the contradictory statements in this case were offered, received and considered by the jury, for the purpose of impeachment and as substantive evidence, which was improper and prejudicial; and that the claim now, that they were
In such a case the language of Judge Thayer in the Langford case is particularly applicable:
“The Code certainly did not intend.to permit a party to get in testimony, as a make weight in support of his cause' of action or defense, by such a course.”
