# State v. Saunders

> Oregon Supreme Court · December 16, 1886 · 14 Or. 300

URL: https://www.frixlaw.com/law-library/cases/6894905

## Case

- **Full name:** STATE v. W. W. SAUNDERS
- **Court:** Oregon Supreme Court
- **Decided:** December 16, 1886
- **Citations:** 14 Or. 300; 12 P. 441; 1886 Ore. LEXIS 103
- **Precedential status:** Published
- **Opinion:** Concurrence by Lord
- **Judges:** Lord, Thayer
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by State v. Marsh, 260 Or. 416 (1971).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6894905

## Opinion text

Lord, C. J.,
concurring.—The question here is, whether our statute fixes a limitation to the cross-examination that does not exist in the case of other witnesses. Quite a number of cases were cited, to the effect that when a defendant in a criminal action offers himself as a witness in his own behalf, he occupies the position of any other witness ; may be cross-examined as to any matter pertinent to the issue : may be contradicted or impeached as any other witness, and may be subject to the same tests. The fact that he is a party makes no difference. It neither increases nor diminishes his rights or privileges as a witness, but subjects him to the same latitude, and same limitations in his cross-examination as are applicable to any other witness. It will be noted, however, that the stat *315 utes under which these decisions have been made have fixed no limitation as to the rights of the party defendant, when he voluntarily places himself upon the witness-stand, although the reasoning of some of them, is broad enough to cover the case in hand under our statute.
Our statute provides that when the party accused offers himself as a witness in his own behalf, he shall be deemed to have given to the prosecution a right to cross-examine him upon all facts to which he has testified tending to his conviction or acquital. Does this allow the accused, when a witness in his own behalf, to be cross-examined on matters not relevant to the issue, for the purpose of affecting his credibility ? As to a witness other than the accused, the practice of asking such questions has been left to the sound discretion of the court trying the case. The reason assigned for such a mode of interrogation is, to aid the jury in judging the character of the witness from his own voluntary admissions. In a note to Rex v. Pither, 12 Eng. C. L. 60, it is said, that “ The law as to what questions may be asked on cross-examination, the answers to which have a direct tendency to degrade the witness, is very obscurely laid down in the books.” It is there said, however, that “ In practice, the asking of questions to degrade the witness is regulated by the discretion of the learned judge, in each particular case.” For this reason an appellate court will not reverse, unless it is manifest from the record that there has been an abuse of discretion, such as allowing the cross-examination to take an unreasonable range in collateral matters not affecting the credibility of the witness.
.From the necessity of the case, it is difficult, perhaps impossible, to lay down any precise or definite rule fixing the limits of such cross-examination. Necessarily, it must be left to the sound discretion of the trial court, subject only to review for its abuse. This, then, being the case, in the absence of any definite rule to guide the trial court, is there not a necessity for the exercise of greater caution in permitting such questions, when the accused is a witness on his own trial, and a liability to prejudice his cause which is not incurred from *316 the disparagement of other witnesses by such voluntary admissions. “He goes,” said Church, C. J., “ upon the stand under a cloud; he stands charged with a criminal offense not only, but is under the strongest possible temptation to give evidence favorable to himself. His evidence, therefore, is looked upon with suspicion and distrust; and if, in addition to this, he may be subjected to a cross-examination upon every incident of his life, and every charge of vice or crime which may be made against him, and which has no bearing upon the charge for which he is being tried, he may be so prejudiced in the minds of the jury as frequently to induce them to convict, upon evidence which would otherwise be deemed insufficient.” It is true, this is only an argument against the abuse of discretion in the trial court, but does it not show the increased danger or liability to prejudice the cause of the defendant, to permit such inquiries in cross-examination to be made of him when a witness on his own behalf ? And is this not the reason why the statute, in effect, says that his cross-examination shall be limited, restricted, or confined to relevant matters only—to facts to which he has testified tending to his conviction or acquittal?
The cases cited from Missouri, Michigan, and California, under a statute of similar import, hold that the defendant’s rights as a party add a limitation that does not exist in the case of another witness. In New York, Massachusetts, Indiana, Ohio, and other states where the statutes have no words of limitation, it is held that the defendant, while occupying the witness stand, was entitled to the same rights and privileges, and was subject to the same rules of evidence, as any other witness. The general rule in respect to any witness on-cross-examination is, that he may be cross-examined-as to any facts and circumstances testified to by him on his direct examination; and, personally, I have been inclined to think that our statute was but a mere reaffirmation of this rule as to the accused, and that when he voluntarily took the witness stand, he subjected himself to the same tests as are applied to any other witness, and in the sound discretion of the trial court *317 may be cross-examined as to collateral facts calculated to test his credibility.
But the question is debatable, and somewhat involved in doubt, and upon which there is some diversity of judicial utterances ; and in such case I feel constrained to resolve my doubts in favorem vitce.
Judge Straban, having been of counsel, did not sit in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6894905. Public record. Not legal advice.