112 P. 424 | Or. | 1910
delivered the opinion of the court.
“Now, was there prior to the day you were arrested a split or division in the district Bo On Tong of which you and Lee Tai Hoy were members?”
This question was objected to as incompetent, irrelevant, and immaterial, and after some discussion and a ruling of the court to the effect that the witness could not be required to incriminate himself, but could otherwise answer, the response was “I don’t know.”
“Q. Was there not shortly before the time you were arrested trouble in the Bo On Tong, causing two factions of the Bo On Tong?
“A. I don’t know. I was at the canneries. I don’t know about that. I am a laborer.
“Q. Is it not a fact that shortly prior to this day when you were arrested there was trouble in the Bo On Tong, causing its division into two factions, and that you belonged to what was known as the old party or the old faction, and Lee Tai Hoy belonged to what was known as the new party or the new faction?
“A. I don’t know anything about it.”
The witness was then asked whether he remembered the circumstances of his testifying in his own behalf “when he was tried in this court last June,” to which he answered in the affirmative. For the purpose of refreshing the witness’ memory, his attention was then directed to his testimony on that occasion, and the ques
“When I was tried last year, I said I belonged to the Portland Bo On Tong, but I don’t know which party Lee Tai Hoy belonged to.”
He was then asked if he did not in the former trial testify as follows:
“Q. Was there any trouble between the different factions of the Bo On Tong just before the 6th of the second month of Kwong Sui — or, was there any trouble in the Bo On Tong before Lee Tai Hoy’s death, between the different factions ? And did you not answer that Lee Tai Hoy and Chong Young kept the Bo On Tong’s money, no account, kept $3,000?
“A. Yes.
“Q. And there were two factions of the Bo On Tong, were there not?
“A. I don’t know.
“Q. What do you mean by saying there was trouble between the factions because Lee Tai Hoy kept some money ?
“A. Lee Sing Shue is the man that takes care of the accounts I suppose.”
Counsel for the State then offered in evidence the testimony taken at the former trial as follows:
“Q. Which faction of the Bo On Tong do you belong to ?
“A. I belong with the old party.
“Q. Which faction did Lee Tai Hoy belong to?
“A. New party.”
The counsel for the defense objected to the introduction in evidence of the record of Lem Woon’s former testimony, as well as to each of the questions above set forth, on the ground that the same was incompetent, irrelevant, and immaterial.
Under Section 850, B. & C. Comp., a party producing a witness may, under some circumstances, introduce evidence contradicting his statements, or show that he has
“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 and 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.”
After citing this case with approval, Mr. Justice Moore, in State v. Steeves, 29 Or. 85, 104 (43 Pac. 947, 952), observes:
“The rule appears to be well settled that a party cannot impeach his own witness by showing he has 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.”
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, implying, not that he had not made the statements attributed to him at his own trial, but that the statements if made were untrue. It was merely “testimony of a weak and unsatisfactory character,” such as adverted to in Langford v. Jones, and suggested in State v. Steeves.
“This is as far as the rule can be legitimately carried, and courts should carefully guard against its abuse by the party producing the witness, for, if the (previous) statements made by him could be admitted in evidence in support of the cause of the party calling him, a witness in league with such pai'ty might make statements out of court, and not under oath, which he knew were false, and, being called as a witness, could truthfully*517 testify concerning the facts in issue and against the party calling him; and, upon his denying that he made the statements attributed to him, or claiming that he failed to remember of having made them, evidence thereof could be introduced, not for the purpose of excusing the mistake made in calling the witness, or to correct the effect of the adverse testimony, but as substantive evidence in support of the cause of the party calling him, thus permitting a party to do by indirection what he could not do directly.”
The testimony complained of was received, not for the purpose of merely contradicting the statements of a witness testifying adversely, for that did not occur, but as direct and substantive evidence of a material fact in the case, which it was expected to be established by the witness himself.
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: Patty v. Salem Flouring Mills Co., 53 Or. 350, 353 (96 Pac. 1106: 98 Pac. 521: 100 Pac. 298).
The admission of this testimony forcibly tended to impress the jury that what was proved in the case in which Lem Woon was convicted of murder in the first degree should apply with equal force against this defendant, the prejudicial effect of which is obvious.
The judgment must therefore be reversed, and a new trial ordered. Reversed.