State v. Day

29 P. 352, 22 Or. 160, 1892 Ore. LEXIS 38

• Court: Oregon Supreme Court
• Decided: March 22, 1892
• Status: Published

Opinion

Strahan, C. J.

Several points in the evidence are sec -out in the statement, which indicate pretty clearly the course pursued by the prosecution throughout the trial, but the only contention made by the appellant on the appeal is error by the court in permitting the deputy district attorney to answer the question propounded to him on his cross-examination by the state. By that question the witness was required to state whether or not Sue Bing appealed to him for protection. The witness said in answer: “Yes, sir; he made certain statements to me; he laid the facts before me, and then said he was afraid to testify.” It will be observed that by the question the witness is not required to state when or on what occasion, or under what circumstances this application for protection was made, nor against whom he was to be protected. The record does not disclose any threats or hostile movements on the part of the defendant, or any attempt to injure Sue Bing, and yet the case evidently went to the jury on the assumption that the defendant was in some way responsible for Bing’s fears, when there is not a particle of evidence in the record tending to prove such fact or to justify such an inference. If the district attorney could have proven that the defendant attempted to bribe or to intimidate or to tamper with Sue Bing in any way so as to prevent him from testifying fully and freely upon the trial, such evidence would have been proper. It would have been competent, because from it the jury might have presumed that the evidence, if truly and freely given, would have been adverse to the party attempting to suppress it; but the simple fact that some one made the attempt without in any manner connecting the prisoner with such unlawful interference, is not enough. If the prisoner did not do it or authorize it, he is not responsible, and could not be prejudiced by such unlawful act. But in addition to this, no reason is perceived why the answer of the witness Hume is not within the rule of hearsay evidence referred to in State v. Ah Lee, 18 Or. 540. We fail to see on what rule of evidence the prisoner is to be affected or prejudiced by the solitary fact that the prosecuting witness told the deputy district attorney that he was afraid to testify. Why afraid? Not from any act or word of the defendant so far as the record discloses, and the record contains all the evidence given upon the trial.

For the reason indicated, the judgment must be reversed and a new trial awarded.