69 P. 679 | Or. | 1902
after making the foregoing statement of the facts, delivered the opinion of the court.
.5. One 'Scott Morrill testified that he kept a place of business in Portland in January, 1900, and that on the 23d of the month there was no keno game running; the purpose being to contradict a witness produced by the defendant who gave testimony tending to show that the defendant had been lucky and won $10 or $12 at witness’ place of business on the night of the homicide. On cross-examination it was elicited that the witness had a memorandum in which he kept an account of his winnings from night to night, and that none were shown for the night of the 23d, and, after a critical inquiry touching the memorandum, the defendant moved to strike out his testimony on the ground that he was speaking from the book, and not-from his recollection. But the witness did speak from his recollection, either from being refreshed by an inspection of the book, or independently of it, when he was examined in chief, and the production of the book or memorandum was a matter called for by the defendant himself; and the fact that he spoke on cross-examination as to other matters exclusively from the memorandum constituted no valid reason for taking the evidence introduced by the state from the jury.
There are many assignments of error based upon instructions asked and refused, all of which we have examined with care, both with reference to the argument of counsel and authorities cited; amd suffice it to say they are not attended with sufficient merit to require further discussion. All matters in controversy having been resolved in favor of the state, the judgment will be affirmed. Affirmed.