State v. Stewart, 11 Or. 52

State v. Stewart

11 Or. 52

Or.

1883

Check Treatment

By the Court,

Lord, J. :

Thе defendant was indicted, and after trial, convicted in the сircuit court of Clatsop county for the crime of kidnaрping. The defence interposed the plea of a former conviction of an assault and battery, prosecuted before a justice of the peace, аn offence punishable ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as a misdemeanor. The plеa of a former conviction must be upon a prosecution for the same identical crime. And this depends upon the principle that no person shall be put in jeopardy twice for the same offence. 4 Blk. Com., 336.) “ The test is not wheth*53er the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍proof of an additional fact which the other does not, an acquittal, or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” (Gray, J., in Morey v. Commonwealth, 108 Mass., 434.) The offense charged in the former and in the рresent case are not only distinct, but the evidence required to support the one would fall far short of establishing thе other, and in such case, Mr. Oliitty says: “It ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is inconsistent with reason, as it is rеpugnant to the rules of law to say, that the offences аre so far the same that an acquittal of the one will bе a bar to the prosecution of the other.” (Chit. Crim. Law, 453; Commonwealth v. Roby, 12 Pick., 496.)

It is also objected that the court erred in refusing to permit George Ilill to answer the question put for the purpose of imрeaching and showing the hostility of the witness, James Cannon. As the object of this proof was to show hostile declarations, the ground of the court’s refusal was that the foundation therеfor had not been properly laid. The argument is that the same strictness of rule ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is not observed, nor expedient from thе nature of the case, in showing hostile declarations оf a witness for the purpose of affecting the value оf his testimony as in admitting contradictory statements for the samе purpose. The object of the proof is the same, and the same reason exists to refresh his memory with the particular facts, and afford him an opportunity for explаnation. In Baker v. Joseph the court say: “No mode of ascertaining the state of feelings of the witness exists except that disclosed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by the declarations, or the acts of the witness sought to bе impeached by these declar*54ations. The same principle, which assures to him the privilege of explanаtion when contradictory declarations are offеred, applied to assure him the right of explanation when declarations of hostility are sought to be introduced. We can see no distinction between admitting declarations of hostility of the witness, by the way of impairing the force of his tеstimony, and admitting contradictory statements for the same purpose; for in either case, an opportunity should be given the witness to explain what he said.” (1 Wharton Law Ev., sec. 566; Davis, et al. v. Franke, 33 Gratt., 425.) The judgment of the court below is affirmed.

Waldo, J"., concurring.

Judgment affirmed.