State v. O'Donnell

149 P. 536 | Or. | 1915

Mr. Justice Eakin

delivered tbe opinion of the court.

1. Tbe first assignment of error is based upon tbe claim that tbe district attorney during tbe examination of witnesses attempted, by insinuation, to convey to the jury the impression that the defendant was a hardened criminal and a dissolute person, and an aggregate of 29 questions scattered through the' transcript have been collected and printed in the brief to illustrate the contention of defendant. Twenty of the 29 questions complained of were asked and answered without any objection at all, and it is proper to add that practically all of these 20 questions were competent, and that some of them were made competent by questions asked by counsel for defendant. The remaining 9 questions were objected to, and the objections sustained by the court.

2. The second assignment of error relates to the overruling of an objection of the defendant to evidence tending to show that the sale was within the corporate limits of the City of Empire, the objection being grounded upon the home rule amendment of Section 2 of Article XI of the Constitution as giving to the city exclusive control of all violations of the liquor law. That clause in said amendment has been construed and applied in many cases. It provides within itself that the city shall have exclusive control of the sale of liquors within its corporate limits, subject to the Constitution and criminal laws of the State of Oregon. That clause in the amendment of the Constitution has been frequently held to limit the power of the city to license and regulate the sale of liquor to cases which are not violative of the state Constitution or criminal laws of the state. Section 2129, supra, has been a criminal law of the state ever since this commonwealth was admitted to statehood, and the city has no power to ignore it. The legal question involved in this assignment of error is settled and decided in State v. Boysen, 76 Or. 48 (147 Pac. 927).

3. The defendant insists that the words “nor shall such person sell” have reference only to a person who keeps a house or room in which intoxicating liquor is kept for sale. It is plain, however, that “nor shall such person” relates and refers to “no person,” the first two words of the statute.

4. Defendant excepted to the ruling of the court excluding evidence on her behalf going to the question of who was conducting the house or place wherein it was claimed the sale of liquor took place. The statute makes any one liable to the penalties therein imposed who sells or gives away such liquors, and it was not important to know who was running the house except as a scheme to invQlve others who were violating the law.

5. The defendant excepted to the ruling of the court permitting the introduction of testimony in respect to defendant’s moral character. This is one of the statutory methods of impeachment of a witness, and we find no ruling thereon that violated her rights in regard thereto: See Leverich v. Frank, 6 Or. 212, 213.

6. Error is assigned upon the ruling of the court allowing the district attorney to testify concerning statements made by the defendant in the grand jury room, but we find that the district attorney violated no rule of secrecy in such matters. Sections 1427, 1431, L. O. L., are the only limitations or injunctions as to secrecy in such matters. Section 1427 relates to the protection of grand jnrors, that they cannot he questioned in regard to what took place there or the part they had in it, and Section 1431 prohibits the disclosure of any fact concerning an indictment while it is not subject to public inspection: State v. Boysen, 76 Or. 48 (147 Pac. 927). We discover no violation of either of these statutes by the district attorney.

7. Exception is taken to the ruling of the court refusing to strike out an answer of said district attorney to the question of defendant’s attorney as follows:

“You claimed, did you not, that some witness — some dissolute witness you had before the grand jury — • represented to you and to the grand jury that Mrs. O’Donnell has said yon were the father of her little girl, didn’t you?”

There seems to have been an effort during the trial of this case to cast insinuations upon the district attorney in order to prejudice the jury against him. Such attempt had no relation to any matter at issue, and was only intended to work upon the feelings of the district attorney or the trial jury. The answer may not have been a direct one to the question asked, but it certainly was pertinent to the subject suggested by the question, and was no more prejudicial to the defendant than the question itself and is not ground for reversal.

8. Error is assigned in the ruling of the court in denying the request for an. instructed verdict. Every question involved in that motion is disposed of on this appeal, nor do we find that the court erred in denying defendant’s motion for a new trial. This is based principally upon the irregularity of the proceedings of the district attorney, which are not in the record and were not subjects of special exception or objection. It is an effort to retry certain questions upon evidence particularly applicable thereto, but it is not newly discovered evidence, nor is it the result of surprise. It is an attempt to impeach witnesses on particular facts testified to, and is not ground for a new trial.

The judgment is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.